Judge rules Oklahoma Native American art law too restrictive

04/03/2019 09:00 AM
Main Cherokee Phoenix
U.S. District Judge Charles Goodwin
Main Cherokee Phoenix
Chuck Hoskin
OKLAHOMA CITY (AP) – A federal judge has struck down an Oklahoma law that requires an artist to be a citizen of a federally recognized tribe in order to have their artwork labeled as Native American.

U.S. District Judge Charles Goodwin ruled March 28 that the Oklahoma Indian Arts and Crafts Sales Act violates the U.S. Constitution because it gives a more narrow definition of Native American than federal law, The Oklahoman reported.

“In doing so, the State Act diminishes ‘the market for the products of Indian art and craftsmanship,’” Goodwin said.

The Indian Arts and Crafts Act of 1990 allows art to be marketed as Native American even if the tribe is only recognized at the state level, Goodwin said. Oklahoma’s law violates the constitutional provision that gives federal law precedence over state law, even though both seek to protect and promote Native American artists, he said.

The Oklahoma Attorney General’s Office had defended the state law. A spokesman said the office is reviewing the decision.

The Oklahoma law originally passed in 1974. It was amended in 2016 with the narrower requirement that an artist belong to a federally recognized tribe. In 2016, the Oklahoma House of Representatives unanimously passed a bill authored by then-Rep. Chuck Hoskin, D-Vinita, that changed the definition of who can sell “Indian art” under the 1974 act. The bill defined “American Indian tribe” as any Indian tribe federally recognized by the Bureau of Indian Affairs and “American Indian” as a citizen or enrolled citizen of an American Indian tribe. Also, the bill listed performing arts and literature as authentic arts and crafts.

Hoskin, a Cherokee Nation citizen and Principal Chief Bill John Baker’s chief of staff, said the bill ensured Native culture is better protected.

“We have seen people time and time again falsely claim heritage in order to market themselves as a Native artist,” he said in 2016. “This closes a loophole in the federal act here in Oklahoma, protecting Oklahoma Indian artists.”

Hoskin added that the bill protected artists and consumers. He said it protected the interest of Native artists who wanted to represent their cultures, histories and worldviews from those who would exploit it for public interest or profit. Hoskin also said it protected consumers who sought legitimate Native art but oftentimes bought arts produced by fraudulent Indian artists.

Peggy Fontenot challenged the law amendment in 2017. Fontenot is a member of the Patawomeck Indian Tribe of Virginia, which is recognized by the Commonwealth of Virginia but not by the federal government. She said the state law violated her constitutional right to equal protection and freedom of speech.

Goodwin rejected the argument and also found that the state law doesn’t violate interstate commerce protections because it only restricts the marketing, and not the sale, of art.


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