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I can't advertise my work as Native American art, which it is.
This law is anti-competitive and the purpose of it and the effect of it
is to discriminate against Native American art from other states.
It flips on it's head the whole concept of truth in advertising.
Peggy Fontenot began her Native art career decades ago
working in beading, silver jewelry and photography.
When I started photographing, I thought that people ruined my photographs
and then I realized that the people were the stories and that they made the photograph.
She's a part of the Patawomeck tribe
and has built a career that has taken her everywhere.
I travel all over the country selling my work.
I show at different museum shows.
For 4 years I did the jewelry for the Kathy Ireland Sports Illustrated swimsuit calendars.
I felt it was a real honor to be included.
Everything was going great with her career,
that was until 2016 when a new law passed in Oklahoma and changed her entire world.
Members this is House bill 2261,
it provides safeguards for Native American artists
and for the collectors of Native Indian art.
That's state representative Chuck Hoskin, the writer of the bill.
The new law made it so only people from federally recognized tribes
can call themselves Native artists.
Peggy belongs to a state recognized tribe
and so, thanks to this new Oklahoma law,
she can no longer market her art as Native American in Oklahoma.
That's Fontenot's attorney Anastasia Boden with the Pacific Legal Foundation.
She's representing Fontenot in a lawsuit against the state
saying the new law violates Fontenot's free speech rights.
To call every state recognized tribe fake and illegitimate
is just broad sweeping and wrong.
She could also face fines or imprisonment if she describes her work as she always has.
I can still sell my work in Oklahoma
but I can't advertise it as Native American made, which it is.
That's actually the whole point of the law
is to narrow the universe of people
who can describe particular art as American Indian art.
Clark Neily is the vice president of the Libertarian think tank the Cato Institute,
and spent 17 years as an attorney at the public interest law firm The Institute for Justice.
Very clearly some group of people want to prevent other people from using that terminology
presumably because it has some value in the marketplace.
Oklahoma is central to Native American artists.
They put on some of the biggest Native American art shows in the country.
Each year Peggy goes to the Red Earth Festival,
where thousands of people come to either show their art or to see Native American art.
Peggy will miss out on earning a living in Oklahoma,
she makes her money by going to these art shows.
She's really upset because she thinks that this is free speech
and she's not able to truthfully call herself what she is.
It completely undercuts and flips on it's head the whole concept of truth in advertising.
My bead work and my work isn't going to have the same importance
if it's not being marketed as what it is, which is Native American.
Hoskin declined our interview request but he said in a statement:
'we have seen people time and time again falsely claim heritage
in order to market themselves as Native artists.'
and 'this closes a loophole in the federal act here in Oklahoma
protecting Oklahoma Indian artists.'
Rebecca Tushnet is a Harvard Law professor who studies truth in advertising law.
She says it may have been poorly crafted, but the Oklahoma law was well intentioned.
I think they were interested in the same basic question as the Federal Government was
which is 'how can people sell this stuff and how can they be truthful about what it is?'
Tushnet says that sellers misrepresenting their products
is a significant problem in the Native art world
and that a federal law that defines a Native artist more broadly has done some good.
The reason, at least the federal law was enacted was a fair amount of fraud in the market
which was doing harm to legitimate artisans.
For example, five people were indicted in July 2017
after being accused of importing and selling fake Native American jewelry from the Philippines.
The five suspects are accused of violating the Indian Arts and Crafts Act.
But Boden says the purpose of the Oklahoma law is to restrict competition.
This law is anti competitive and the purpose of it and the effect of it
is to discriminate against Native American art from other states.
They want to sell their art
and if they can limit the number of people who can compete with them in that space
then presumably you limit competition you expect prices to go up, it's simple economics.
Federally recognized tribes are a big constituency in Oklahoma.
And Hoskin isn't just the author of the bill,
he's also served as the chief of staff for the Cherokee Nation.
And of course the Cherokees are a federally recognized tribe
and certainly would have an interest in putting a law on the books
that says that only federally recognized tribes can call themselves Native American.
The five big federally recognized tribes
did officially come out in support of the state against Fontenot.
For me to come out by myself and challenge these tribes,
I definitely feel that I'm up against the world if you will.
Businesses or even individuals who are facing competition
have essentially two ways to come out ahead.
One is to up their own game,
or you can go to the government and try to sandbag your competitors.
I've seen this kind of thing over and over and over again.
Whether it's organic food or interior designers or catfish.
It is now the case that of the 2500 different species of catfish in the world
you can only sell in America one particular fish as catfish
and that's the North American Channel Catfish.
Why? because that's the kind that we raise here in America
and the people who raise that fish went and got a law passed
that says that's the only kind you can call a catfish.
Fontenot's lawyers were able to stop the enforcement of the law temporarily
so that she and artists like her can continue to show their art in the state.
HB 2261 is still on the books though so it isn't a permanent solution yet.
If we're not successful and this law stands and it goes to other states
at the end of the day, I'm sill Indian.