A federal judge struck down a state law that attempted to narrow the definition of "American Indian tribe" beyond what Congress intended when it passed the Indian Arts and Crafts Act of 1990.
Congress passed the law "to protect Indian artists from unfair competition from counterfeits." Oklahoma lawmakers in 2016 amended a state law that provided similar protections but narrowed the definition of an "American Indian," in part, as a consumer protection measure to protect against "deception and fraud."
An "American Indian tribe" as defined by the state's American Indian Arts and Crafts Sales Act of 1974 includes any “tribe, organized band or pueblo ... domiciled in the United States.” The 2016 amendment narrowed the definition to only those tribes "federally recognized" by the U.S. Bureau of Indian Affairs.
Peggy Fontenot, an award-winning photographer and artist and member of the Patawomeck Indian Tribe of Virginia, contended the 2016 amendment violated several provisions of the U.S. Constitution and sought a permanent injunction. Her lawyers argued the state law infringed upon her First Amendment speech rights and her "right to participate in the interstate market for American Indian art" pursuant to interstate commerce protections.
Fontenot also alleged the law infringed upon her due process and equal protection rights, both of which are guaranteed by the 14th Amendment of the U.S. Constitution. The artist failed to win the judge's support for her first four legal theories, but found favor for an argument based upon the Supremacy Clause of the U.S. Constitution, which "forbids state laws that override the objectives of an explicit federal law."
U.S. District Judge Charles B. Goodwin, after opining for 26 pages and ruling in favor of the state, ultimately found the state's amended definition "stands as an obstacle" to the congressional purpose and objectives of the federal act. He cited the congressional record, which shows prolonged and labored consideration about how to identify an enrolled member or citizen of an "American Indian" tribe when trying to protect Native arts, those who create them, and those who buy them.
"The State Act, by interjecting a narrower definition for 'American Indian' than is set forth in the IACA, prohibits in Oklahoma certain conduct — specifically the marketing and sale of works by some artists — that otherwise is protected," Goodwin wrote in the 36-page opinion. "In doing so, 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."
Jeanne Rorex Bridges, a Native artist near Oktaha whose work has won numerous awards and critical acclaim, worked tirelessly in 2016 in an attempt to prevent passage of the amended state law. As a member of the a member of the Echota Cherokee Tribe of Alabama, which lacks federal recognition, Rorex Bridges said she takes attempts to restrict her livelihood "very seriously.”
"I am happy about it," Rorex Bridges said Monday after learning about the federal judge's ruling in Fontenot's lawsuit. "I still disagree with the commerce clause part of it, but it does get them off of my back."
Rorex Bridges previously described the state law a “power grab” promoted “by tribal members and employees who happen to be state representatives and senators.”