A federal judge in Oklahoma City has struck down a state law that prohibits art from being labeled Native American if the artist is not a member of a federally recognized tribe.
US District Judge Charles B. Goodwin ruled that an amendment to the Oklahoma Indian Arts and Crafts Sales Act violates the US Constitution because it is more restrictive than a federal law with the same purpose of protecting Native artists from fraud.
In 1990, Congress passed the Indian Arts and Crafts Act (IACA) “to protect Indian artists from unfair competition from counterfeits.” The law allows artists to market their works as American Indian if are members of a tribe recognized by a state or if they are certified by Indian tribes.
In 2016, Oklahoman lawmakers amended the state’s 1974 Indian Arts and Crafts Sales Act to narrow the definition of an “American Indian” to an artist belonging to a federally recognized tribe. The amendment was introduced as a measure “to prevent deception and fraud.”
By interjecting a narrower definition for “American Indian” than is set forth in the IACA, Goodwin writes, the State Act “diminishes the market for the products of Indian art and craftsmanship […] that the IACA states it was designed to promote and develop.”
“Defining who should and should not be recognized as a member of a tribe is a difficult matter even for tribal governments,” the judge adds. The definitions used by the State Act are not unreasonable or unconstitutional in and of themselves, he clarifies, but they conflict with Congress’s intentional purpose “to give protection to, and promote a market for the works of, a broader range of tribal artists.”
The issue came to light after Native photographer Peggy Fontenot challenged the amendment in Oklahoma’s Western District Court. Fontenot is a member of the Patawomeck Indian Tribe of Virginia, which is recognized by the Commonwealth of Virginia but not by the federal government. Goodwin rejected Fontenot’s charge that the law violated her constitutional rights to equal protection and freedom of speech.
The judge also ruled that the state law also did not violate the constitutional protections of interstate commerce since it only limits the marketing, not the sale, of artworks. However, the judge agreed that the amendment violates the constitutional provisions set in the Indian Arts and Crafts Act.
In an interview to the Muskogee Phoenix newspaper, Oklahoma artist Jeanne Rorex Bridges described the state law a “power grab” promoted “by tribal members and employees who happen to be state representatives and senators.” Rorex Bridges is a member of the Echota Cherokee Tribe of Alabama, which lacks federal recognition. The amendment, she said, was an attempt to restrict the livelihood of members of tribes that are yet to be federally recognized.