Native American Artist Could Be Fined For Selling Authentic Art, Because Government


There’s a peculiar tendency among politicians to restrict the peaceful trades of others unless those others are conforming to the rules the politicians prescribe -- and as time goes on in the U.S., the problem seems to be getting worse. Take, for example, the case of Peggy Fontenot, a Native American jewelry artist and photographer who is also a member of the Patawomeck tribe in Oklahoma. As Paul Detrick reports for Reason, Ms. Fontenot’s long and successful career in those fields may now be at risk due to an overbearing 2016 state law.

According to the law, artists can claim that their work is “Indian” or “Native American” only if they belong to federally recognized Indian tribes. If you’re not recognized as “authentic” by the feds, Oklahoma will not allow you to release your artwork under those titles.

But this is a problem for Ms. Fontenot, for, although she is of Native American heritage, her tribe isn’t on the “nice” list composed by the federal Santa.

If she expresses her opinion that her artwork, including traditional Indian beading, is traditional American Indian art, she runs afoul of the Oklahoma law, and she can be shut down.

As Detrick observes for Reason:

Anastasia Boden of the non-profit Pacific Legal Foundation, which is representing Fontenot, says the law is intended to restrict competition. She notes that State Rep. Chuck Hoskin (D), who sponsored the bill, has also served as the chief of staff for the federally-recongized Cherokee Nation. The group "certainly would have an interest in putting a law on the books that says that only federally recognized tribes can call themselves Native American."

Hold on. Is it possible that the law in Oklahoma was written in order to favor a special interest and block competition in the market? Is it is possible that politicians are interested in preempting consumers from making their own decisions about what they buy?

Seems like that’s a strong possibility.

But this… this is just so shocking! Who in the world would have expected such a thing? Isn’t government there to protect people from other people? How is it that the oersweeping power to legislate became useful to legislate in favor of some and at the expense of others? It’s almost as if this is endemic to the idea of government itself, as if its very existence actually pits people against each other and leads to favoritism and the law being used to harm some in order to help others at their expense.

The Oklahoma “authorities” are not enforcing the law at the moment, which allows artists such as Ms. Fontenot to continue her work, but that doesn’t mean politicians are happy about the law going unenforced.

Some supporters of the law claim that it is necessary to stop fraudulent claims by artists that their work is “authentic” Native American art.

But why do people need restrictive statutes to “protect them” from this? If folks on the market are interested in getting authentic anything, they can check for themselves. In fact, if there really is a market for authentication of art, then that creates opportunities for entrepreneurs to work in the authentication field. To pass laws forbidding people from making claims before they even make them is a huge transgression of the right to free speech.

In fact, Ms. Fontenot is suing on precisely those grounds, and the case will likely see a resolution at the end of the year, but the principle remains and is worth remembering.

Regardless of the byzantine and arbitrary rules regarding what is or is not an “authentic” Indian tribe – the rules that are the specific heart of this problem of government exclusion via statute – the idea that agents of the state, rather than individuals in the market, should be deciding what is or is not “authentic” anything is very dangerous and contrary to individualist ethics.

Free people can decide what is or is not acceptable to them. But in the government world, what the agents of the state tell us is all we get. In the market, we have choices, and we can see how the choices of others worked or did not work, and adjust our behavior accordingly.

Why put any of this in the hands of the state? After all, as it has with pretty much everything, especially its treatment of American Indians, it has an abysmal track record for unethical and anti-competitive actions.

Perhaps there should be more emphasis on market choices, and fewer choices decided by politicians?

Just a thought.

(Cover Photo: Daderot)

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