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Native American artist challenges Oklahoma’s right to say who is an Indian

By   /   December 2, 2016  /   News  /   No Comments

The Smithsonian National Museum in Washington, D.C., and Sports Illustrated model Kathy Ireland have something in common. Both have displayed the award-winning American Indian artwork of Peggy Fontenot, one of the 1,500 members of the Patawomeck Tribe of Virginia.

“It’s history is with Pocahontas, John Smith and Jamestown,” Fontenot, who now lives in California, tells Watchdog.org.

In her more than three decades as an artist, Fontenot’s photography and jewelry have been shown, sold, worn and won awards all over the country. But under a new law in Oklahoma — a state that is home to some of America’s richest Indian history and culture — Fontenot is prohibited from calling herself or her work “Native American.”

Photo: Pacific Legal Foundation

WHO’S AN  INDIAN: Artist Peggy Fontenot says her Native American heritage should not be denied by the state of Oklahoma.

That, according to a federal civil rights lawsuit filed Nov. 22 by the Pacific Legal Foundation against the Oklahoma attorney general, violates Fontenot’s free-speech rights under the U.S. Constitution.

“Peggy is a member of a state-recognized tribe, the Patawomeck in Virginia,” explains PLF lead counsel Caleb Trotter. “She is objectively and factually an American Indian and she should be able to call herself that whenever she’s in Oklahoma or Rhode Island or Virginia or wherever.” (See related PLF video here.)

The Oklahoma law took effect in August. It amended the 1974 American Indian Arts and Crafts Sales Act to restrict the definition of “Native American” and Native American-made products to members of federally recognized tribes.

Since many tribes, such as the Patawomeck are recognized only by certain states, Fontenot and those like her can sell their wares in Oklahoma, but they cannot market them as Native American made, nor can they discuss their heritage while selling.

The law drew strong support from the powerful and politically connected Cherokee Nation and four other prominent Oklahoma tribes — the Chickasaw, Choctaw, Muscogee (Creek) and Seminole. Cherokee Principal Chief Bill John Baker wrote in April that “the issue is important for us because it ensures people who falsely claim tribal citizenship will not be able to market themselves and their crafts as native.”

Cherokee Nation Chief of Staff Chuck Hoskin echoed Baker’s concern in a statement emailed to Watchdog.

“We must be vigilant against impostors and fraudulent marketing. Unsuspecting consumers have purchased fraudulent Indian art in the past here in Oklahoma,” Hoskin wrote.”People who falsely claim to be Native or say they are citizens of tribes not recognized in Oklahoma or by the federal government hurt the Indian Art industry.”

Trotter questions this premise, as the state already has a general ‘truth in advertising’ law to address such fraud.

“I’m sure it happens — but to address this problem [Oklahoma lawmakers] have just gone way overboard and had the effect of carving out the Oklahoma market solely for their members and citizens to the exclusion of everybody else,” he said. “Whether intentional or not, it has had a protectionist effect and gone way beyond the bounds of what a constitutional way of doing this would.”

In addition to serving as an elected member of the Cherokee Nation Tribal Council, Hoskin is also an elected member of the Oklahoma House of Representatives, and primary sponsor of the Indian art law. In March, his son, Chuck Hoskin Jr., was unanimously reconfirmed to a second term as Cherokee Nation Secretary of State. The law’s sponsor in the senate, Sen. John Sparks, is also an enrolled member of the Cherokee Nation. Followthemoney.org shows Sparks has received $26,500 in campaign donations from the Cherokee and Chickasaw Nations, while Rep. Hoskin has collected more than $47,000 in tribal campaign contributions.

The right kind of tribe

For all the debate about who is a real Indian or a real Oklahoman, none of the tribes supporting the law are native to Oklahoma. All were driven there under duress in the 19th century by a federal government that now has laws in place to protect members of both federally and state-recognized tribes.

“This issue is who is a real Indian and who is not a real Indian,” she said. “I can call myself ‘Indian’ all day long and I can identify as an Indian, but when I qualify myself as an Indian artist, I am protected under the federal law, just not the law in Oklahoma.”

The 1990 Indian Arts and Crafts Act protects the rights of American Indian artists no matter what the recognizing entity is, or if they’re certified as an artisan by an Indian tribe.

“All Peggy wants to do is truthfully market and describe her art as American Indian made,” Trotter said. “Just because she’s not a member of the ‘right’ kind of tribe in Oklahoma, she’s precluded from telling people who she is in the context of selling or describing her art.”

In addition to the First Amendment challenge, Fontenot raises four other constitutional claims — the Supremacy, Commerce, Equal Protection and Due Process clauses.

“This state law limits Peggy’s right to earn a living,” Trotter said. “The federal law specifically sets up three separate categories of people who qualify to market and label their art American Indian made. But Oklahoma has decided that, ‘No no. We’re going to cut out two-thirds of those groups that federal law permits and create just in Oklahoma, this one little market.’”

In a resolution adopted this fall, the National Congress of American Indians condemned the law, citing the civil rights violations alleged in Fontenot’s lawsuit. The NCAI also warned that if the law is not challenged in Oklahoma, “other states may consider similarly oppressive legislation.”

Fontenot says regardless of any good intentions on the part of Oklahoma, the law is little more than identity theft.

“I live my life as a Native American,” she says. “I identify with that side of my heritage. I’ve raised my daughter as a Native American. I’m a Native American artist and I’ve been selling my work as Native American for 33 years.”

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