American Indians

When Art Made by an American Indian Doesn't Count as Being 'American Indian-Made'

A lawsuit challenges Oklahoma's new law prohibiting some American Indian artists from calling their artwork what it is.


Image courtesy Pacific Legal Foundation

Peggy Fontenot is an American Indian artist, of that there can be no doubt.

She's a member of the Patawomeck tribe. She's taught traditional American Indian beading classes in Native American schools and cultural centers in several states. Her work has been featured in the Smithsonian's National Museum of the Native American.

In Oklahoma, though, she's forbidden from calling her art what it plainly is: American Indian-made.

A state law, passed earlier this year, forbids artists from marketing their products in Oklahoma as being "American Indian-made" unless the artist is a member of a tribe recognized by the U.S. Bureau of Indian Affairs.

The Patawomeck tribe is recognized by the state of Virginia, but not by the federal government. Fontenot says she can trace her Native American heritage back to the 16th Century, when the tribe was one of the first to welcome settlers from Europe who landed on the east coast of Virginia. She's been working as an artist since 1983, doing photography, beading, and making jewelry.

"I was born an American Indian. I've always been an American Indian," says Fontenot.

A lawsuit filed Tuesday in U.S. District Court in Oklahoma City argues that Oklahoma's law violates the First Amendment by restricting the speech of artists like Fontenot.

"In order to protect members of politically connected tribes from competition, Oklahoma officials are forbidding Fontenot from describing and marketing her art as what it is—American Indian art created by a Native American," says Caleb Trotter, an attorney with the Pacific Legal Foundation, which is representing Fontenot in the case.

Here's where things get even more strange. The state law in Oklahoma excludes tribes not recognized by the federal government's Bureau of Indian Affairs, but the federal Indian Arts and Crafts Act says an Indian artist is any artist with membership in a tribe recognized by federal or state authorities.

So, Fontenot is an American Indian artist under federal law, but she can't call herself that under Oklahoma state law because of a list maintained by a federal bureaucracy.

Oklahoma's American Indian Arts and Crafts Sales Act was signed by Gov. Mary Fallin in June after sailing through the state legislature with limited opposition. State Rep. Chuck Hoskin (D-Vinita), who serves as chief of staff for the Cherokee Nation, sponsored the bill. He told The Miami News-Record that the bill was meant to protect Oklahoma-based American Indian artists from people who "falsely claim heritage in order to market themselves as a Native artist."

Bill John Baker, chief of Cherokee Nation, said the law was "critical for us as Indian people to ensure Indian art is truly created by enrolled citizens of federally recognized tribes." The bill does not prohibit anyone from selling their art in Oklahoma, but prohibits the marketing of the art as "Indian-made," he wrote in April as the bill was being considered by the state legislature.

According to PLF, Oklahoma's law could affect as many as two-thirds of all artists who are defined American Indians under federal law. The state law also violates the U.S. Constitution's Commerce Clause by restricting the interstate American Indian art market, the lawsuit contends.

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  1. Where does Lizzy Warren stand on this?

    1. [narrows the fuck out of gaze]

      1. Tonio, you just KNEW that one was coming…

        *joins narrowed gaze*

        1. *joins the narrow gaze, as an Honorary Indian*

          1. Gaze? My people call it Corn.


    Is this an MSM site?

      1. Trump is a RINO. The warring factions on the Right got their shit together and reconciled their differences.

        I suspect abortion is out. Not stand in the way of cannabis reform. IMO anyway.

        We could be witnessing the LIBERTARIAN MOMENT. But more navel gazing here.


        1. Fuck off, Tulpa.

        2. It’s not navel gazing at all. It’s a discussion about the reach of leviathan, in this case, into something which clearly does not need to be under government control.

          On a Libertarian website. The theme and content fit perfectly.

    1. Pretty much, yeah.

  3. Bill John Baker, chief of Cherokee Nation, said the law was “critical for us as Indian people to ensure Indian art is truly created by enrolled citizens of federally recognized tribes.”

    So you’re only an Indian if the government says you’re an Indian? That makes a ton of sense and certainly reflects the reality that the Federal government has always been an honest and reliable friend of the American Indian.

    Let’s bear in mind that under these rules art made by Elizabeth Warren could be counted as authentically Indian made because she claims to be Cherokee.

    1. Enrolled. Means that A: the government has to recognize the tribal athorities, and B: those tribal authorities get to say if you are or are not one of them.

    2. “So you’re only an Indian if the government says you’re an Indian?”

      I know, crazy isn’t yet. Yet, having lived on western reservations while working for the IHS I can tell you the attitude is real, and deeply ingrained. For many people enrollment is the sine qua non of being an Indian. But don’t confuse the issues.

      The Feds determine who is a recognized Tribe, the Tribe determines who qualifies for enrollment.

    3. “So you’re only an Indian if the government says you’re an Indian? “


    4. Does she have her official Citizenship Blanket? No? Then she’s not injun!

  4. That’s Not OK.

    1. *Applause!*

  5. This is just the sort of nativist protectionism that Trumplings demand.

    1. What if I am merely a CIS-white-male-geezer, but past-lives-regression hypnosis therapy has PROVEN (beyond a New-Age doubt, even) that I am a reinicarnastied Native American? Can I then sell my American-Indian-styled art as “Reincarnastied Native American Art”, or maybe “Native American Wannabe Art”? If it is honestly labeled as what it is? Under religious freedom maybe even as a member of the “Church of What’s Happenin’ Now”? (I know that my Church of Scienfoology has fallen on hard times, but maybe we can reboot this thing). How many lawyers do I have to pay, how much, to get this all cleared up?

      1. +1 Shirley MacLaine

      2. The 1990 Indian Arts and Craft Act, a US federal law, prevents aritsts who are not enrolled members of federally recognized or state recognized tribes from claiming to “American Indian” or “Native American,” precisely because of the phenomenon you just described. It’s been the law for 26 years.

        1. What I’m saying is that (if this law does indeed prohibit me from telling the truth, that my art is “Native American Wannabe-made”), and selling it as such, then free speech and free commerce is dead or dying in the USA; we have become “politically-correct fascist” in more ways than I can count! There’s no “crying fire in a crowded theater” exemption involved here at all!

    2. Indeed, this sort of stuff is rampant throughout Europe.

      1. An excellent tool.

    3. Personally, I can’t wait for Reason to run the “Which nation are self-driving cars native to?” article.


    5. *studio audience applause*

  6. Fuck the whole lot of them, and no, I don’t want to trade anything for the beads

  7. Peggy Fontenot

    There’s your problem, ma’am. Change your name to Strings-With-Beads.

    1. “Ancient traditional native american anal beads, carved from mesquite and strung together with hemp”.

    2. Wait. Hold on. What’s this mean for Mazola? [“You call it corn; we call it maize.”]

      1. Think Mazola should be fine, unless Mazda file suit.

        1. Are they run by American Indians? And do they make canola oil? Because even you don’t want to know what that’s made of.


        2. Zoroastrians, known for litigiousness.

          1. Beat me to it.

          2. Lt. Ahura Mazda, reporting for duty.

            Hmmm. They did this in a Q episode, sort of, but instead of the ship encountering a god, why not have one as a regular cast member?

      A Native American brave was curious as to how he had received his name. So he went to speak to his father, the chieftain of the tribe.

      “Father,” he asked, “how is it that I acquired my name.

      The noble chieftain began a long narrative for his youngest son.

      “Well, my son, I named you and both of your brothers for an event which occurred on the day each of you were born. For example, the day your eldest brother was born, I saw a deer running swiftly through the forest, so I named him Deer Running Swiftly.

      “Likewise, when your middle brother was born, the rain was pouring hard outside of the wigwam, so I named him Rain Pouring Hard.

      “Why do you ask, Two Dogs Fucking?”

  8. Throw more government at the problem.

  9. Okay, so self-declaring sex/gender/race has meaning, but doing the same with native status does not.

    1. Just wait until she tries to use a Whites Only bathroom.

      1. Honestly, I don’t know how these SJWs keep up.

        1. Indeed. For instance, Bengali immigrant in Oklahoma, during slow part of shift at the local 7-11, makes beads or some other hipster shit and slaps ‘American Indian-made’ sticker on it. Prison, yes?

    2. Genetic heritage is a social construct! Keep up!

    3. Being Native American in the United States is not just an ethnic or cultural designation; it’s a political designation. American Indians and Alaska Natives have a unique relationship with the US federal government due to treaty rights. Ever since there was something to be gained by claiming to be Native (land in the 19th century, rations, settlement checks, etc.), non-Native people have tried to claim to be Native; hence, the scrutiny and requirement of proof to back these claims.

      1. So now we need racial-purity police to keep the bennies aligned? Native Americans need to be tracked for genetic purity of their ancestry, aligned to the RIGHT tribes? Kinda like American Kennel Club dogs need to be tracked for alignment to the claimed breed? Why aren’t more Native Americans offended by this; can they not see past the “bennies”?

  10. Part of the reason there are so few federally recognized Indian tribes in Virginia is because of progressives, specifically Walter Ashby Plecker.

    With the help of John Powell and Earnest Sevier Cox, Plecker drafted and the state legislature passed the “Racial Integrity Act of 1924”. It recognized only two races, “white” and “colored” (black). It essentially incorporated the one-drop rule, classifying as “colored” any individual with any African ancestry. This went beyond existing law, which had classified persons as white who had one-sixteenth (equivalent to one great-great-grandparent) or less black ancestry. In 1967, the United States Supreme Court invalidated the law in Loving v. Virginia.

    Plecker’s work was admired by both Hitler and Sanger.

    1. Plecker refused to recognize that many mixed-race Virginia Indians had maintained their culture and identity as Indians over the centuries despite economic assimilation. Plecker ordered state agencies to reclassify most citizens who claimed American Indian identity as “colored,” although many Virginia Indians had continued in their tribal practices and communities. Church records, for instance, continued to identify them as Indians. Specifically, Plecker ordered state agencies to reclassify certain families whom he identified by surname, as he had decided they were trying to pass and evade segregation. This remained legal in the South until federal legislation in the 1960s.

    2. In the not too distant past, someone in Florida saying that their family tree included Indians was often polite code for black people.

      1. Henry Lewis Gates Jr. is inclined to agree with you. In the South, beginning in the 1850s, white families with some black blood would often claim “Cherokee,” and, conversely, black families with white blood would also often claim Native ancestry.

    3. We all are colored under the one drop rule.

    1. Damn straight.

    2. Farkin squirrels man.

      To repeat – why do we care? Aren’t we Federalists? Why should the fact that another state (or even the Federal Government) does or does not recognize her tribe as a tribe make any difference here? When you allow ’50 laboratories of democracy’ you’re going to occassionally get stupid results back. That’s not a reason to go crying to the Federal government to step in as the ‘official’ source of fact.

      Its, IMO, not a commerce clause issue – to frame it as such implies that there is an *objective* list of NA tribes and the Federal government has it (they don’t) – its a freedom of speech issue.

      ‘Native American Artists’ means no more and no less than ‘Organic Produce’ or ‘GMO free’. Once you understand that you see that this is not some group of people fighting for freedom, this is a group of people fighting to get covered under a *special protection* from competition given to a favored group.

      Nobody ever fights to have regulation removed – they only fight to have those protections extended to themselves.

      1. Aren’t we Federalists?

        Only as a practical matter. And I like the 14th amendment.

        Isn’t the suit on first amendment grounds? Maybe I skimmed over some part, but it doesn’t sound like she is demanding that her tribe be federally recognized, but is challenging the law on free speech grounds.

        1. They’re challenging the law on *commerce clause* grounds – because other states recognize her tribe therefore reciprocity demands that OK also do.

          1. A lawsuit filed Tuesday in U.S. District Court in Oklahoma City argues that Oklahoma’s law violates the First Amendment by restricting the speech of artists like Fontenot.

            What am I missing?

  11. This law is quite a good example of government absurdity. The issue of being from an unrecognized tribe is just the tip of the iceberg. To be considered a member of any tribe, you have to be on the official tribal rolls. When they made the rolls back in the early 20th Century, a couple of things happened. First, a lot of Indians understandably didn’t trust the federal government and when the government wanted to put their names on a big list, said “no thanks” and refused to register. Second, there was a lot of fraud and corruption in the process and lots of non Indians managed to get themselves on the rolls and obtain the benefits available to Indians. So, today, you have decedents of white people who had no business being on the rolls selling their “Native American Art” and no shit full blooded Indians whose ancestors refused to trust the white man and let them put their names on the roles, who cannot.

    1. Don’t we have the ability to, I dunno, test the person in question’s DNA?

      1. How will we know which ones are the “standard” and how much can you deviate by?

        1. Why, arbitrarily, of course.

          1. Otherwise, there would be little money in arbitration by lawyers.

      2. Yeah, but that won’t tell you what tribe you are in. It will just say if you have any Indian in you at all. So, I don’t think that would help.

        1. I was thinking in lieu of this bizarre standard.

        2. It will just say if you have any Indian in you at all.

          Why, do you want one?

      3. It’s possible to have no DNA from ancestors that aren’t that far back if you don’t have a direct male or female line back to your Indian ancestor.

        Here’s a crazy idea. Maybe we are all just people and it doesn’t fucking matter who our ancestors were or what race we are.

        I say give the tribes the option of being truly independent and sovereign nations, or giving up their special arrangement with the federal government, distributing reservation land to members and giving up any official special status.

      4. DNA tests cannot determine a specific tribe, just general ethnic markers. All federally recognized tribes require genealogy?birth and death certificates of your direct parents, grandparents, etc. John is incorrect that rolls were all taken in the early 20th century?the determining rolls for membership are different for the 567 recognized tribes in the United States.

    2. So, today, you have decedents of white people who had no business being on the rolls

      Or owning and running the most profitable Indian casino in the Northeast – Foxwoods.

      How do the Pequots in Connecticut eat potatoes? They ‘mash-and-tuck-it’ *hand motion of shoving something up your arse*

  12. Ok let me get this straight, The entire Country of India and any one descended from said county can longer say they do Indian art work in OK ?.

  13. Meanwhile, the Federal government created an entire ethnicity out of whole cloth in 1970.

    1. The Boston Celtics?

      1. Of course. Don’t tell me you thought Larry Bird was actually white.

    2. You try telling upper class, light-skinned, Spanish-first-language speakers that they aren’t white. I’ve seen what happens.

      1. One of my Spanish cousins lives in San Francisco and has encountered great surprise at the fact that she is white and a native Spanish speaker.

  14. My name is Rent Seeker. I am Cherokee.

  15. How can a governor sign the “arts and crafts bill” and not question the value of their role in the universe?

    1. There is no law preventing anyone from being an artist or exhibiting her/his art. Fontenot could show in Oklahoma art shows; she just can’t claim to be “American Indian” if she cannot prove that she is. There are fair more mainstream art shows, galleries, and museums than there their are Native American art shows, galleries, and museums.

  16. Native Americans are not Indians. Asian Indian artists should be allowed to sell their art as “Indian made”, and American artists of Asian Indian descent should be allowed to sell their art as “Indian American made”. But aren’t they also the real American Indians?

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