Who Is an Indian Artist?
The Pacific Legal Foundation has filed a lawsuit to challenge an Oklahoma law, the American Indian Arts and Crafts Sales Act, part of a long term legal strategy to level all legal advantages indigenous descendants have over settler descendants in the name of “equality.”
One claim is that the artist PLF represents, Peggy Fontenot, is denied her right to free speech under the First Amendment if Oklahoma says she cannot call her art “Indian.” This is not persuasive because it begs the question whether she is in fact an Indian artist. The First Amendment does not protect falsehoods in commercial speech.
Fontenot claims she is Patawomeck, one of 11 tribes that are state-recognized in Virginia and have been fighting for federal recognition for many years. Virginia Indians were legislated out of existence by the Racial Integrity Act of 1924. They have been trying to come back from this genocide by law ever since.
What happened to the Virginia tribes—and that it was grossly unfair—is not subject to serious dispute, nor is the fact that Virginia law purposely wiped out the public identity of persons who were Indian by race. After the law had its way, the problem for the Indians became to keep their identity as Indians by tribal affiliation, and some tribes did better at that task than others.
Fontenot’s Patawomeck tribe is one that dropped out of historical sight not in 1924 but in 1666, at which time they were at war with the English colonists. They are next heard from in the 1990s in the person of Robert “Two Eagles” Green, who undertook reorganization. The problem for federal recognition would be proving that the Patawomecks maintained tribal relations during that hiatus and it proved a problem for state recognition as well, when the Virginia Council on Indians disapproved their application for state recognition for lack of proof of “continuous existence as an Indian community.”
Two Eagles executed an end run around the Virginia Council on Indians by going directly to the legislature, where his star witness was Wayne Newton, who testified that his father was half Patawomeck and his mother was half Cherokee.
“Two Eagles” headed the Indian tribe he created or led out of the wilderness—depending on your point of view—until 2013, when he became chief emeritus.
As a matter of fact, the Patawomecks may exist or not.
As a matter of federal law, they do not exist.
As a matter of Virginia law, they do.
As a matter of Oklahoma law, they do not.
The federal law on sale of Indian art, The Indian Arts and Crafts Act of 1990, allows citizens of federally recognized tribes and members of state recognized tribes to call their products Indian, so Fontenot, if she appears on the Patawomeck rolls, is not violating federal law.
A neutral observer—say, a space alien—would find Fontenot’s status to be both absurd and an artifact of “race,” a classification of humans that has lost scientific legitimacy but retains legal legitimacy. It’s this intersection of race and law that contains the key to destroying American Indian tribal sovereignty.
The NAACP followed a litigation strategy over generations to destroy Plessy v. Ferguson, the case that said blacks could be excluded from white facilities as long as the black facilities were “equal.” The PLF is one of a number of organizations following a similar incremental strategy to destroy Morton v. Mancari, a 1974 case upholding the Indian hiring preference in the Bureau of Indian Affairs on the ground that “Indian” is not a racial classification but rather a political one.
The PLF is, for example, involved in Fisher v. University of Texas, a so-called “reverse discrimination” case on behalf of a white woman who claims to have been denied admission to the University of Texas because of affirmative action. Reverse discrimination cases have pretty well wiped out affirmative action in employment and made serious inroads on college admissions. Morton v. Mancari is all that shields programs that benefit Indians from reverse discrimination claims.
PLF is supporting a reverse discrimination offensive against Native Hawaiians with the goal that everyone born in Hawaii becomes legally a “Native Hawaiian” without regard to any connection to the indigenous people of Hawaii.
The Hawaii Homes Commission Act provides for tax-exempt homestead leases for Native Hawaiians. In Corboy v. Louie, the PLF is litigating the position that the tax exemption for Native Hawaiians is unlawful race discrimination against non-Hawaiians—principally the descendants of white settlers.
In State of Hawaii v. Office of Hawaiian Affairs, the PLF is attacking dedication of state land to benefit Native Hawaiians, pointing out that 77 percent of residents of Hawaii claim no Native Hawaiian blood.
In the PLF press release announcing the attempt to overturn the Oklahoma law, Fontenot is quoted as saying she has always identified herself as American Indian. She seems to have not gotten the memo that it’s not about what you claim; it’s about who claims you.
PLF attorney Caleb Trotter says the purpose of the law is “to protect members of politically connected tribes from competition.” That’s exactly correct if by “politically connected” you mean having a government-to-government relationship with the U.S.
The one legal point that could allow Fontenot to prevail without advancing PLF’s grand strategy is if the court were to find that Congress, in the Indian Arts and Crafts Act, preempted state laws. Oddly enough, the PLF press release cites the Supremacy Clause as imposing federal preemption rather than the Indian Commerce Clause.
Given the way Virginia treated its Indians, what is just and fair in this case is not cut and dried. Fontenot is only a pawn in a much larger game.
What her case can contribute to the overall legal offensive is the principle that race trumps political affiliation. Once it becomes a question of race, the Fourteenth Amendment equal protection clause—“reverse discrimination”—can do its work like it is doing in Hawaii. Then she will be able to claim her work is Indian. So will everyone else.
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