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A Patawomeck artist is challenging a Missouri law that excludes her work from the definition of an “Authentic American Indian art.”

Peggy Fontenot is an award-winning photographer, and a member of the Powhatan Patawomeck Tribe of Virginia, a state-recognized tribe that was once part of the Powhatan Confederacy. She’s based in California but sells her work around the country. Under the Missouri law, Fontenot could face fines or imprisonment for labeling her work as Native-made. The law requires enrollment in a federally recognized tribe to qualify for the label. But Fontenot and her lawyers say it’s unconstitutional.

States taking federal law into their own hands

At face value, the law is meant to protect Indigenous artists from fraudsters like the five people indicted in 2017 for selling hundreds of thousands of dollars of fake Native jewelry. They manufactured their goods overseas, labeled them as Native American, and retailed them in stores like Old Town Albequerque’s Gallery 8 and Gallery Azul, in violation of federal law.

These indictments resulted from the cooperation of federal departments like the U.S. Fish and Wildlife Service, the Department of Homeland Security, and the FBI, who collaborated on warrants across five states for the biggest investigation ever into Native art fraud.

Because there’s already a federal law protecting Native artists against fraudsters. It’s the Indian Arts and Crafts Act (IACA), originally installed in 1935 and most recently updated in 1990. So why is Missouri trying to replicate this law at a local level, with a narrower definition of who is Native?

Missouri legislator dismisses state-recognized tribes

Powhatan in a longhouse at Werowocomoco (detail of John Smith map, 1612)

Powhatan in a longhouse at Werowocomoco (detail of John Smith map, 1612) - The Powhatan Patawomeck are part of the Powhatan Confederacy, yet they are still only state-recognized in Virginia.

“As with many federal laws, States adopt similar laws so that they can be enforced on a local level rather than trying to get the Feds to enforce,” says Rep. Rocky Miller, the Missouri legislator who sponsored the bill.

“Missouri has no state-recognized tribes, nor does it have a method to recognize them, so it does not make sense to add any to our law. The federal recognition is well documented,” he says, “and states recognition process is all over the map and in some cases, suspect. I see no problem with requiring federal recognition in our state.”

Rep. Miller is a member of the Cherokee Nation, one of the largest federally recognized tribes by citizenship. He also ran for tribal council in 2017 and is a board member of the Missouri chapter of the Trail of Tears Association.

Fontenot does not agree with the rationale behind Miller’s law. “The IACA allows state-recognized, certified and First Nation individuals to legally market and sell their art as ‘Indian’ made,” she countered. Fontenot says Virginia’s criteria for tribal recognition is “stringent,” adding that “state recognition is a requirement for seeking federal recognition.”

Challenging the law as a violation of free speech

Fontenot’s legal team argues that disallowing Indian Arts and Crafts Act-qualifying artists from labeling their work as Native-made is a violation of first amendment rights.

“This is a first amendment case because Missouri has banned Peggy from speaking truthfully about herself and her art. Even though she is an award-winning and well-known Native artist, she cannot describe her art as American Indian-made in Missouri,” says Caleb R. Trotter, one of Fontenot’s attorneys. “Missouri cannot meet its burden to justify prohibiting Peggy from engaging in truthful speech.”

“When the government bans speech, it has the burden of showing it has no less restrictive alternatives available to it to further a substantial interest,” adds Fontenot. “In this case, Missouri has multiple alternatives available to prevent fraud without banning me from speaking truthfully, such as enforcing existing truth-in-advertising laws and the federal IACA.” She adds that “requiring disclosures about an artist’s tribe” would be a constitutional and commonplace alternative.

Fontenot and her attorneys overturned a similar law in Oklahoma earlier this year

An Oklahoma law nearly identical to the Missouri one was struck down in March for going against the Indian Arts and Crafts Act after Fontenot and her legal team sued.

"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," ruled U.S. District Judge Charles B. Goodwin. "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."

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Trotter says the court’s decision was based on “the legislative history that showed Congress deliberately was more inclusive. As a result,” he adds, “the Constitution’s Supremacy Clause prohibits states from undermining that deliberate Congressional choice.” If Congress says a Native artist qualifies, state legislators can’t exclude them.

The authors of these bills were all Cherokee

Oklahoma’s overturned bill was written by Rep. Chuck Hoskin, Sr. from Oklahoma’s 6th district, and Oklahoma state Sen. John Sparks from the sixteenth district. They, like Rep. Miller in Missouri, are members of the Cherokee Nation. Rep. Hoskin, A former tribal council member, was serving as Chief of Staff to Principal Chief Bill John Baker at the time, and is the father of newly-elected Principal Chief Chuck Hoskin, Jr.

Is it a coincidence that these almost identical laws in two different states were written by Cherokee citizens serving as state legislators? Did the Cherokee Nation coordinate these laws?

“I truly don't know,” says Rep. Miller. But the Cherokee Nation says Miller reached out to them for help.

“I wouldn’t say it was coordinated,” says Chief Hoskin. But Cherokee tribal government did have a hand in initiating the Oklahoma bill, and he acknowledges that there was communication between the Cherokee Nation and Rep. Miller as Miller, inspired by the Oklahoma law, drafted the Missouri one. “We were there really to support,” says Hoskin.

He says Kimberley Teehee visited Miller’s office in Missouri to exchange ideas and represent the Cherokee Nation’s perspective. Teehee currently serves as Vice President of Government Relations for Cherokee Nation Businesses, and Chief Hoskin recently appointed her to be the first Cherokee delegate to Congress in Washington, D.C.

Pictured: Cherokee National Principal Chief Chuck Hoskin Jr. delivered his first State of the Nation Address during the 67th Cherokee National Holiday, proposing the largest investment in language programs in the tribe’s history and detailing even more historic initiatives.

Principal Chief Chuck Hoskin, Jr.

Cherokee Nation drawing boundaries around tribal identity

“You could survey the country and see a large number of organizations posing as Cherokee tribes,” says Chief Hoskin. He said he recalls visiting the Oklahoma legislature’s gift shop and seeing art labeled as Native American, crafted by members of the New Echota Cherokee Tribe.

“That’s not a tribe,” says Hoskin. “It’s simply an organization.” But a consumer, he says, wouldn’t know the difference. “So this is about protecting consumers, from our vantage point, as much as it is protecting artists.”

Instead of tackling the Indian Arts and Crafts Act nationwide, the Cherokee Nation sought to amend it at a state level. “We really were just focused on Oklahoma because it has the largest impact on our artists and the artists of the tribes who helped us.” The bill was supported by the Inter-Tribal Council of the Five Civilized Tribes, which includes the Chiefs of the Choctaw, Chickasaw, Seminole, Muscogee (Creek) and Cherokee Nations, all based in Oklahoma.

Hoskin says state-recognized tribes don’t have the same relationships with the U.S. government that federally recognized tribes do. “The status of an Indian tribe matters under the law,” he says. “It matters for the assertion of treaty rights… It matters in terms of our ability to exercise the rights of sovereignty and self-government, and other rights that people have lost land and treasure and life for over the centuries. We do not appreciate what we consider to be organizations posing as tribes being used as a mantle for an artist to market their art in the same way that members of federally recognized tribes market their art. We think it’s not right from a consumer’s standpoint, and certainly not right from an artist’s standpoint.”

Chief Hoskin calls Congress’s inclusive definition ‘wrong’ and ‘too broad’

Regarding Congress’s definition of ‘Indian art’ in the Indian Arts and Crafts Act: ”I think it’s wrong,” says Chief Hoskin. “I think it’s at odds with the constitutional role that Congress plays in Indian affairs… Congress’s definition is broad, and it’s too broad in my view. But it’s also not consistent across the federal government in terms of how they deal on a government-to-government basis with Indian nations. That is, I think, crystal clear.”

He says the Cherokee Nation might pursue the matter further in the future. “It’s something we’re still interested in.” Although he was involved as Secretary of State in getting the law passed, Hoskin was campaigning for Chief when the law was overturned and says he hasn’t been focused on it while in office. “We may return our attention to it to see if there's a way a modified version could be crafted to protect what I think is a very important interest, which is the place of members of federally recognized tribes in the marketplace.”

Meanwhile, the U.S. District Court’s decision in favor of Congress, the Indian Arts and Crafts Act, and Fontenot suggests that Missouri’s law might be overturned as well. Emboldened by their victory in Oklahoma, Fontenot and her legal team hope to soon have the Missouri law thrown out.

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Brian Oaster is a Choctaw writer and seventh-generation survivor of the Trail of Tears living in the Pacific Northwest. Follow him on Twitter: @brianoaster.