For years, artist Peggy Fontenot exhibited her black-and-white portraits of Native people and beaded jewelry, handmade with traditional Native American stitches.
Until 2016, she also sold her work to Oklahomans and Missourians through fairs, galleries and stores. But that stopped once both states passed laws that said only artists from federally-recognized tribes can market their creations as “Indian-made.”
Though based in California, Fontenot is a member of the Patawomeck, a tribe recognized by the Commonwealth of Virginia but not yet by the federal government.
She has sued the state of Missouri, calling the law it passed last year unconstitutional and a violation of her First Amendment right to free speech.
“(The law)’s not allowing me to identify as who I am or allowing me to identify my work as what it is,” Fontenot said. “To me, that’s violating my free speech.”
The lawsuit was filed in the U.S. District Court for the Western District of Missouri, five months after Fontenot’s victory in federal court in Oklahoma earlier this year.
The legal showdown is another example of the competing interests of free speech and consumer protection in Missouri.
The state is defending a truth-in-advertising law, passed by the General Assembly last year, that prohibits marketing food as “meat” if it doesn’t come from a two- or four-legged animal. The American Civil Liberties Union, the company that makes Tofurky, a plant-based meat substitute, along with other interested parties, have sued.
A federal judge chose not to block the law while it is being litigated, a decision the plaintiffs appealed to the Eighth Circuit Court of Appeals.
The law to label Native American art was passed by the Missouri General Assembly with hopes of cracking down on fraudulent artists who are “wannabe” Indians, according to the bill’s sponsor, state Rep. Rocky Miller. The Lake Ozark Republican is a citizen of the Cherokee Nation of Oklahoma, a federally recognized tribe.
“It is a true theft of my heritage and the other true Native Americans’ heritage when you do something like that,” Miller said. “And it’s criminal if you profit off of it.”
States first passed laws limiting who can market their goods as American Indian-made in the ‘70s, after art in native styles experienced an uptick in popularity and counterfeit goods flooded the market. In 1990, Congress passed the Indian Arts and Crafts Act.
Few cases are tried by federal prosecutors, however, Miller said, and a companion law will allow county prosecutors to go after scam artists in circuit court.
Miller said he left out state-recognized tribes because states don’t have a uniform method of vetting tribes.
Missouri doesn’t have any state-recognized tribes, according to the attorney general’s office. The Northern Cherokee Nation claims to be state-recognized on the basis of a resolution from a Missouri governor decades ago.
“From what I have heard, some states are suspect in who they let—they basically don’t care to do the work that the federal government does,” Miller said.
Fontenot was in elementary school when she was first told that she was Native American by her grandparents ,who lived on the Fort Yuma Quechan Reservation near Yuma, Ariz. She has marketed her art as “Native-made” since 1982.
Prior to the 1990 federal legislation, she undertook the arduous process of tracing her genealogy back to the 1500s. She noted that when she exhibits her work at shows, she must show proof of identity.
“It’s disconcerting that when I accomplished what they asked me to accomplish, laws like the Oklahoma law and the Missouri law are attempting to do away with that,” Fontenot said.
Earlier this year, a federal judge took issue with Oklahoma’s law, specifically because the Indian Arts and Crafts Act of 1990 defines Native Americans as those who belong to state-recognized tribes, as well as federal ones.
The judge invalidated Oklahoma’s law in March, and both sides have withdrawn appeals from the Tenth Circuit Court of Appeals.
“They did not have to pass a law that basically restricts two-thirds of individuals who are allowed to sell their work legally under the federal law,” Fontenot said. “They are eliminating those people from selling to the consumer in Missouri.”
Caleb Trotter, an attorney with the Pacific Legal Foundation which is backing Fontenot, said his client chose to sue Missouri as well, not only to invalidate the law, but to strengthen the argument against it. Taking the “big picture view” allows for “two strong legal theories showing these laws are unconstitutional,” according to Trotter.
“If the federal law were ever amended down the line, a First Amendment victory would be a better defense,” Trotter said.
The law has yet to be enforced and a public record request didn’t yield any consumer complaints submitted to the attorney general’s office, according to Trotter.
Fontenot’s tribe has been recognized by Virginia since 2010, through a process set by its legislature. Virginia has 11 state-recognized tribes, six of which are recognized federally after President Donald Trump signed legislation last year.
Fontenot said the Patawomeck tribe is in the midst of the multi-year process of the seeking federal recognition.