Indian artist sues to identify herself as … Indian

By Bob Unruh


A well-known Indian artist is suing the state of Oklahoma to be allowed to identify herself as an Indian.

In a case brought in U.S. District Court for the Western District of Oklahoma by the Pacific Legal Foundation, photographer and artist Peggy Fontenot is challenging a state law she contends “violates her constitutional rights to free speech and to earn a living by prohibition her from truthfully describing her work as ‘American Indian-made.'”

Fontenot is targeting the state’s American Indian Arts and Crafts Sales Act, which, the legal team explained, “prohibits American Indian artists from labeling their work as ‘American Indian’ unless they are members of specified tribes that enjoy the state’s favor.”

Fontenot is officially a member of the Patawomeck tribe in Virginia, which is recognized by the state. But it is not recognized by the federal government or the state of Oklahoma.

“In essence, Oklahoma is picking and choosing which artists’ rights to respect depending on their tribal membership,” the legal team argued.

See a video about the issue:

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“Peggy Fontenot has been denied basic freedoms, including the freedom to speak the truth,” said PLF attorney Caleb Trotter. “In order to protect members of politically connected tribes from competition, Oklahoma officials are forbidding Ms. Fontenot from describing and marketing her art as what it is – American Indian art created by an American Indian.

Judge Andrew P. Napolitano’s “The Freedom Answer Book” provides a clear vision of what your rights are and how you can protect them. Get your copy of this helpful guide to the Constitution today!

“This is an affront to her identity. But even more fundamentally, it is an assault on her constitutional rights. The First Amendment protects her freedom to speak truthfully about herself, her heritage, and the art that she creates. Free speech rights are fundamental for all Americans, and they don’t stop at the Oklahoma state line.”

Ironically, while Fontenat is a member of a tribe, WND has reported 7-year-old Lexi Page has been taken from foster parents seeking to adopt her because she is 1/64th Indian. The girl has never has been a member of a tribe and never has lived on tribal lands.

Oklahoma’s law, adopted earlier this year, states that to market works as “American Indian-made,” the artist must be a member of a tribe recognized by the U.S. Bureau of Indian Affairs.

“Notably, by denying free-speech rights to artists from state-recognized tribes, Oklahoma’s exclusionary policy contrasts dramatically with the federal Indian Arts and Crafts Act,” her legal team charges. “That federal law defines ‘Indian’ artists to include artisans certified by tribes, and members of state- and federally- recognized tribes, and allows artists within all these categories to market their works as ‘American Indian-made.'”

Fontenot, who lives in Santa Monica, California, shows and sells her work throughout the U.S. and until now has attended festivals in Oklahoma. She also has sold her work at the Smithsonian’s National Museum of the American Indian and provided jewelry worn by Kathy Ireland in her Sports Illustrated photo shoots.

“I was born an American Indian,” she said in a statement released by her lawyers. “I’ve always been an American Indian. And I’ve always identified as such. Under the Oklahoma law, I’m being prohibited from doing that. That’s unconstitutional. It’s my right to identify with who I am.”

She continued: “Under the Oklahoma law, two-thirds of those who identify as Indian artists under the provisions of federal law are excluded. So not just my rights are being limited. This lawsuit is about defending the rights of many other artists as well. It’s a bad law, an unconstitutional law, and I’m grateful that Pacific Legal Foundation is helping me challenge it.”

The civil rights lawsuit itself explains the constitutional issues involved.

“The right to truthfully describe and market one’s art is protected by the First and Fourteenth Amendments to the United States Constitution, and the right to participate in the interstate market for American Indian art and crafts is protected by the Commerce Clause of the U.S. Constitution. Further, the Supremacy Clause forbids state laws that override the objectives of an explicit federal law

“Finally, the right to pursue a trade without being subjected to irrational, arbitrary, and discriminatory laws is guaranteed by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.”

The civil rights case seeks an order striking the law.

Judge Andrew P. Napolitano’s “The Freedom Answer Book” provides a clear vision of what your rights are and how you can protect them. Get your copy of this helpful guide to the Constitution today!


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