Business and Industry

Should the Government Get to Define 'Native-American' Art? One Woman's Free Speech Fight.

Is the state violating Peggy Fontenot's First-Amendment rights?

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Peggy Fontenot has had a successful career as a Native American artist working in beading, silver jewelry and black-and-white photography. She's won numerous awards at art shows and has shown her work at top-tier museums.

Today her career is in jeopardy because of a 2016 state law that says only members of federally-recognized tribes can market their work as "Native American" or "Indian made." Fontenot is a part of the Patawomeck tribe, which is recognized only in the state of Virginia.

Now she's suing the state on the grounds that the law violates her First Amendment rights. "To call every state-recognized tribe fake and illegitimate is just broad sweeping and wrong," Fontenot told Reason.

Anastasia Boden of the non-profit Pacific Legal Foundation, which is representing Fontenot, says the law is intended to restrict competition. She notes that State Rep. Chuck Hoskin (D), who sponsored the bill, has also served as the chief of staff for the federally-recongized Cherokee Nation. The group "certainly would have an interest in putting a law on the books that says that only federally recognized tribes can call themselves Native American," Boden says. (Rep. Hoskin declined our interview request.)

Rebecca Tushnet, a Harvard law professor, says the Oklahoma law may have been poorly crafted, but was well-intentioned. She says fraud in the Native American art market is big problem.

Oklahoma isn't enforcing the law as the case is being deliberated, allowing Fontenot to continue marketing her work as she always has. A decision is expected by the end of the year.

Produced by Paul Detrick. Shot by Detrick, Alex Manning, Mark McDaniel and Meredith Bragg.

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