Oklahoma can’t cancel the First Amendment.
Articles,  Blog

Oklahoma can’t cancel the First Amendment.


Peggy Fontenot: I was born an American-Indian. I’ve always been an American-Indian, and I’ve
always identified as such. Under the Oklahoma law, I’m being prohibited
from doing that, and it’s unconstitutional. It’s my right to identify with who I am. I’m a member of the Patawomeck, which is a
state-recognized tribe in Virginia, and my documentation goes back to the 1600s. Caleb Trotter: Peggy Fontenot is an award-winning photographer and American-Indian artist who specializes in bead jewelry. Oklahoma’s new law has restricted the ability
of artists like Peggy, who are members of state-recognized tribes, to be able to truthfully
explain and describe and market their art as American-Indian made. This law poses several legal problems. The most severe of which is that it’s a violation
of the First Amendment. Peggy Fontenot: I’ve been showing my art for about 33 years. Some of the highlights of selling my work
is showing my work at the Smithsonian. And for about four years I did the Kathy Ireland
Sports Illustrated swimsuit calendars. I did all her jewelry. My work is carried throughout the United States
and internationally. Under the 1990 Indian Arts and Crafts Act
there’s three different definitions of who an Indian artist is. Under the Oklahoma law, two-thirds of those
identifying as Indian artists are being affected by this. So it’s not just about me. Caleb Trotter: What this law does is it regulates and restricts Peggy Fontenot’s speech based on the content of her speech and based her identity. What it does with content is it specifically
says ‘only if you are a member of a federally-recognized tribe, may you describe and market your art
as American-Indian made.’ And where it restricts based on identity is
it focuses in on only members of federally recognized tribes as opposed to members of
state-recognized tribes or certified Indian artisans. It cannot stand under the Constitution. Peggy Fontenot: I want to see the law stricken. It limits my speech. It limits other artists and their speech. I just think it’s a bad law.

6 Comments

  • Brad Beauprey

    So Peggy can or can't say Native American made instead of American Indian made or both? I just don't get it. We all have fought and voted and still are suppressed by the government of this great nation and stipulations by state level laws…smh. I am a proud member of the Menominee Tribe of Wisconsin and hope she gets the recognition she deserves. Now with the land disputes and rights that is a whole other story. We need to come together as a nation, tribes, people, considering our new president elect and all the states laws with native American tribes.

  • Steve White

    I am an Artist and Advocate for Artistic Freedom. I've fought and WON two Federal Court rulings dealing with the rights of original Artists to sell their Artistic Self-Expression on traditional public forums without a license from government. It might help you to read Steven C. White vs City of Sparks, NV. 9th Cir. Ct. (2007). This was a landmark decision that was appealed by the City of Sparks all the way to the Supreme Court and I won every step of the way.

    What this ruling does is for the first time define the rights of a First Amendment protected Artists and more important..WHO IS a First Amendment protected Artist.

    It all comes down to two points of law. First; the work of art must be Self-Expression, being offered for sale by the Artist that created the work of Art. Second; to pass for "ART" that is protected speech it must have no intended purpose than to be "Art for Art's sake", having no functional or useful or purpose beyond being expressive.

    If the "ART" meets those two simple tests it will be protected speech and the right of the Artist to sell it is also protected and NOT subject to governmental licenses, permits or fees! Quote; "We hold that an Artist's sale of his original artwork constitutes speech protected by the First Amendment." (9th Cir. Ct.) This 9th Circuit ruling was reviewed by 24 Federal Judges and all agreed. It's as close as we have ever gotten to being written in stone and all the other Federal Appeal Courts will follow it.

    BUT WAIT..that's not all folks! The City of Sparks fought me all the way to the Supreme Court arguing that the standards put forth in another ruling by the 9th Circuit should apply to me selling my oil paintings. It is important for everyone to understand that ruling…especially the Native American People.

    You see back in 1991 a couple of non-profit groups wanted to sell merchandise that was useful, such as hats, t-shirts, cups, stuffed toy whales, etc. The City and County of San Francisco told them they had to have a business license and tax license to sell such merchandise. The Non-profit groups, St. Gaudiya Vaishnava Society and the Green Peace Org., claimed that the sale of their merchandise was protected by the First Amendment.

    Here was the kicker that through the ruling to the side of the Non-profits!
    Government Attorneys argued that the merchandise that was being sold was "commercial" because it's intended purpose was to be useful and functional. Not expressive!
    Even though all of their merchandise was obviously useful and functional it also had messages that were permanently attached to the merchandise that conveyed particular political, ideological, religious and philosophical views.

    The 9th Circuit Court, in St. Gaudiya vs San Francisco, (1991), came down with what is often referred to as the "particularized message standard". They held that in the circumstance where a person or group is selling merchandise that has messages affixed to and inseparable from the conveyance of a "particular, political, religious. philosophical, or ideological message it gains the full protection by the First Amendment and the right to sell it is also protected. Ever since this ruling Non-Profits have been exempted from licensing when welling there merchandise.

    NOTE; This protection under the "particularized message standard" is not limited to non-profit groups….it applies to anyone and everyone.

    SO WAIT! Why is this St. Guadiya ruling important to Native American People?
    Because Native American People can claim protection under both standards!!! White and St. Gaudiya!
    As a Fine Artist, a Native American can claim full protection under the First Amendment when selling merchandise that they have personally created having no purpose than to be expressive….such as a paintings and dream catchers meant to simply hang on the wall as "art for art's sake" See White vs Sparks, 9th Cir. Ct. (2007)

    OR

    However, Native People often also incorporate symbols, depictions, and artistry that are permanently affixed into their functional and useful merchandise that does in fact convey their particular ideological, political, religious and philosophical views. As long as the works have that symbolism and or artistry permanently affixed to the item and it is being offered for sale by the Native American creator of the item…it gains the full protection by the First Amendment when sold for profit. See St. Gaudiya vs City and County of San Francisco, 9th Cir. Ct. (1991)

    The White vs Sparks ruling freed Artists from the "particularized message standards" being applied to selling their purely expressive Artistic Self-Expression. The Supreme Court long ago held that "a work of art is specifically created by an artist to convey some message and will therefore always be protected by the First Amendment."

    Two entirely separate rulings by the 9th Circuit Court defining First Amendment protection for sale of merchandise on traditional public forums. I working with the Mayor and previous City Attorneys of the City of Reno I pointed out that our Native American People, living in the area, have a right to sell merchandise without a license so long as it met the standards put forth by the 9th Circuit Court. They agreed that Native People had the protected right to sell under both standards.

    I am not an attorney nor do I offer any legal advice. I do recommend you google and read both of the rulings by the 9th Circuit i have cited in this comment/dissertation and come to your own conclusions.

    Hope it helps my Native American brothers and sisters in the Arts.
    Goodness be with You

Leave a Reply

Your email address will not be published. Required fields are marked *