United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, United States District Judge.
before the Court is Plaintiff Peggy Fontenot's Motion for
Summary Judgment (Doc. No. 32) and Defendant Mike
Hunter's Motion for Summary Judgment (Doc. No. 35), filed
in his official capacity as Attorney General of Oklahoma
(referred to herein as “the State”). The parties
have responded and replied, each seeking relief in his or her
favor under Federal Rule of Civil Procedure 56 on the
constitutionality of Oklahoma's American Indian Arts and
Crafts Sales Act of 1974 (codified as amended at Okla. Stat.
tit. 78, §§ 71-75) (the “State
State Act regulates a maker's or merchant's marketing
of arts and crafts as “American Indian” in origin
and prohibits the sale of improperly designated works. In
2016, the State Act was amended to exclude from its
definition of “American Indian” all persons but
citizens or enrolled members of a federally recognized tribe.
Plaintiff-who is a member of the Patawomeck Indian Tribe of
Virginia, a tribe recognized by the State of Virginia but not
by the United States-brings this action “to vindicate .
. . [her] constitutional rights to truthfully market her art
in Oklahoma, participate in the interstate market for
American Indian art and crafts, and enjoy her right to earn a
living in a lawful occupation of her choice.” Compl.
(Doc. No. 1) ¶ 1. She has described those constitutional
rights to include “[t]he right to truthfully describe
and market one's art . . . protected by the First and
Fourteenth Amendments, ” “the right to
participate in the interstate market for American Indian art
and crafts . . . protected by the Commerce Clause, ”
and “the right to pursue a trade without being
subjected to irrational, arbitrary, and discriminatory laws .
. . guaranteed by the Due Process and Equal Protection
Clauses of the Fourteenth Amendment.” Id.
¶ 5. Plaintiff further contends that the State
Act “unconstitutionally frustrates the purpose of the
[federal Indian Arts and Crafts Act of 1990, 25 U.S.C.
§§ 305-305f (“IACA”)] in violation of
the Supremacy Clause.” Id. ¶ 74.
Plaintiff seeks a declaration that the State Act “is
invalid, unenforceable, and void, ” as well as a
permanent injunction against further enforcement of that Act.
See id. ¶ 7.
judgment is a means of testing in advance of trial whether
the available evidence would permit a reasonable jury to find
in favor of the party asserting a claim. The Court must grant
summary judgment when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a). “An
issue is ‘genuine' if there is sufficient evidence
on each side so that a rational trier of fact could resolve
the issue either way.” Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An
issue of fact is ‘material' if under the
substantive law it is essential to the proper disposition of
the claim.” Id.
that moves for summary judgment has the burden of showing
that the undisputed material facts require judgment as a
matter of law in its favor. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). If the movant carries
this initial burden, the nonmovant must then “go beyond
the pleadings and ‘set forth specific facts' that
would be admissible in evidence in the event of trial from
which a rational trier of fact could find for the
nonmovant.” Adler, 144 F.3d at 671 (quoting
prior version of Fed.R.Civ.P. 56(e)); see also LCvR
56.1(c). The Court must then determine “whether the
evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
Parties may establish the existence or nonexistence of a
material disputed fact by:
• citing to “depositions, documents,
electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials” in the record; or
• demonstrating “that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.”
Fed. R. Civ. P. 56(c)(1)(A)-(B). While the Court views the
evidence and the inferences drawn from the record in the
light most favorable to the nonmoving party, see
Pepsi-Cola Bottling Co. of Pittsburg, Inc. v.
PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005),
“[t]he mere existence of a scintilla of evidence in
support of the [nonmovant's] position will be
insufficient; there must be evidence on which the [trier of
fact] could reasonably find for the [nonmovant].”
Liberty Lobby, 477 U.S. at 252.
Tenth Circuit has explained that “‘[t]he filing
of cross-motions for summary judgment does not necessarily
concede the absence of a material issue of fact. This must be
so because by the filing of a motion a party concedes that no
issue of fact exists under the theory he is advancing, but he
does not thereby so concede that no issues remain in the
event his adversary's theory is adopted.'”
Brown v. Perez, 835 F.3d 1223, 1230 n.3 (10th Cir.
2016) (quoting Nafco Oil & Gas, Inc. v.
Appleman, 380 F.2d 323, 324-25 (10th Cir. 1967)).
“Accordingly, ‘[c]ross motions for summary
judgment are to be treated separately; the denial of one does
not require the grant of another.'” Id.
(alteration in original) (quoting Christian Heritage
Acad. v. Okla. Secondary Sch. Activities Ass'n, 483
F.3d 1025, 1030 (10th Cir. 2007)). Thus, “‘[e]ven
where the parties file cross motions pursuant to Rule 56,
summary judgment is inappropriate if disputes remain as to
material facts.'” Id. (internal quotation
Challenged State Law
Oklahoma's American Indian Arts and Crafts Sales Act of
purpose of the American Indian Arts and Crafts Sales Act of
1974 is to protect the public, under the police powers of the
state, from false representation in the sale of authentic and
imitation American Indian arts and crafts.” Okla. Stat.
tit. 78, § 72. Prior to June 2016, the State Act defined
the term “Indian” as
a person who is enrolled or who is a lineal descendant of one
enrolled upon an enrollment listing of the Bureau of Indian
Affairs or upon the enrollment listing of a recognized Indian
tribe, band or pueblo[.]
Id. § 73(2) (1974). The State Act further
defined the phrase “Indian tribe” to “mean[
] any Indian tribe, organized band or pueblo, which is
domiciled in the United States.” Id. §
The 2016 Amendments
8, 2016, the State Act was duly amended. See H.B.
2261, 55th Leg., 2d Reg. Sess. (2016). The amendments, among
other things, narrowed the definition of “Indian”
to “American Indian” and to “mean[ ] a
person who is a citizen or is an enrolled member of an
American Indian tribe.” Okla. Stat. tit. 78, §
73(2) (2016). The phrase “Indian tribe” was
further limited to “American Indian Tribe” and to
“mean[ ] any Indian tribe federally recognized by the
Bureau of Indian Affairs of the United States Department of
the Interior.” Id. § 73(1) (2016). By
this amendment, Oklahoma's statutory definition of
“American Indian” excluded those persons who are
not citizens or enrolled members of a federally recognized
State Act, as amended, provides that
“‘[a]uthentic American Indian arts and
crafts' means any article of American Indian style, make,
origin or design which is made wholly or in part by American
Indian labor and workmanship.” Id. §
73(4) (2016). The State Act further prescribes that
“basic article[s] purporting to be of American Indian
style, make, origin or design which [are] not made by
American Indian labor and workmanship” are deemed
“‘[i]mitation American Indian arts and
crafts.'” Id. § 73(3)
State Act makes it “unlawful to distribute, trade, sell
or offer for sale or trade within th[e] [S]tate [of Oklahoma]
any article represented as being made by American Indians
unless the article actually is made or assembled by American
Indian labor or workmanship.” Id. § 74
(2016). “‘Merchant[s], '” who
“engage[ ] in the sale to the public of imitation
American Indian arts and crafts, ” id. §
73(5) (2016), and
who knowingly and willfully tag[ ] or label[ ] any article as
being an American Indian art or craft when it does not meet
the specifications of the . . . Act . . . shall be guilty of
violating the . . . Act and shall be punished by a fine of
not less than Twenty-five Dollars ($25.00) nor more than Two
Hundred Dollars ($200.00), or by imprisonment for not less
than thirty (30) days nor more than ninety (90) days, or by
both such fine and imprisonment.
Id. § 75 (2016).
is a United States citizen and a resident of the State of
California. She has been an artist and photographer for over
30 years and travels throughout the United States, including
the last 10 to 13 years to Oklahoma, to show and sell her art
in American Indian art shows, festivals, and galleries.
Plaintiff's specialties are handmade beaded jewelry,
silver jewelry, and black and white photography.
has shown and sold her art in museums and galleries
throughout the United States, including the Smithsonian
National Museum of the American Indian
(“Smithsonian”) in Washington, D.C., and the
Autry Museum of the American West in Los Angeles, California.
Plaintiff has taught American Indian beadwork classes,
including classes at the Smithsonian and the Southwest Museum
in Los Angeles.
has won numerous awards. She placed first in Photography and
Beadwork in 2015, 2016, and 2017 at the Eiteljorg Museum
Indian Market Place in Indianapolis, Indiana, first in
Photography in 2015 and third in Beadwork in 2016 at the Red
Earth Pow Wow in Oklahoma City, Oklahoma, and second in
Photography in 2016 at the Autry Museum of the American
Indian Market Place in Los Angeles.
first identified herself as an American Indian, with respect
to her work, in the 1980s. See Def.'s Mot. Ex. 4
(Dep. of Peggy Fontenot) (June 17, 2017) (Doc. No. 35-4) at
p. 22, l. 7 (hereinafter, “Pl.'s
Dep.”). She first marketed her work in Oklahoma as
“American Indian-made” in 2004. See id.
at p. 22, ll. 16-18. Her business cards note her tribal
affiliation, see Pl.'s Index of Evid. Ex. 5
(Doc. No. 34-5), and she displays a sign at art shows and
festivals noting her affiliation. At these events, Plaintiff
is sometimes asked about her tribal affiliations, and she
describes her art in conjunction with her “American
Indian identity.” See Pl.'s Index of Evid.
Ex. 1 (Decl. of Peggy Fontenot) (Oct. 11, 2017) (Doc. No.
34-1) ¶ 5. She considers her “American Indian
identity” to be “central to [her] art.”
to 2000, Plaintiff marketed herself “as a Cherokee
artist” even though she is not a member of the Cherokee
Nation and the Cherokee Nation had not certified her as a
tribal artisan. Def.'s Mot. Ex. 4 (Pl.'s Dep.) (Doc.
No. 35-4) at p. 7, l. 5; id. at p. 7, l. 16. After
2000, Plaintiff changed statements on her event signs and
business cards from “Cherokee artist” to
“Cherokee descent, ” since she is “not
certified by that tribe, and Cherokee artist implied that
[she] was.” Id. at p. 7, ll. 16-17, 23 to p.
8, l. 1; Pl.'s Summ. J. Resp. (Doc. No. 39) at 8.
2006, Plaintiff became a tribal member of the Patawomeck
Indian Tribe of Virginia (“Patawomeck
Tribe”). Def.'s Mot. Ex. 7 (Doc. No. 35-7) at
1-3. This tribe is recognized by the Commonwealth of Virginia
but not by the United States. See Pl.'s Index of
Evid. Ex. 14 (H.R.J. Res. 150, 2010 Sess. (Va. 2010)) (Doc.
No. 34-14). The Patawomeck Tribe is a “Descendancy
Based Tribe”: “to qualify for Full Tribal
Membership . . . [an] [a]pplicant must show his or her
descendancy from an existing Tribal member or provide . . . a
detailed genealogy, along with documentation showing descent
from a Patawomeck Indian.” Def.'s Mot. Ex. 7 (Doc.
No. 35-7) at 4.
2017, Plaintiff's advertising describes her artwork as
“Native American.” Her event signs and business
cards contain contact information as well as a list that
reads, in order, “Patawomeck, ”
“Potawatomi, ” and “Cherokee
Descent.” See Pl.'s Index of Evid. Ex. 5
(Doc. No. 34-5) at 1-2.
State has first argued that Plaintiff lacks standing to
pursue this matter because Plaintiff cannot demonstrate the
essential requirements of Article III standing. As the
Supreme Court has recognized, “[s]tanding to sue is a
doctrine rooted in the traditional understanding of a case or
controversy. The doctrine . . . ensure[s] that
federal courts do not exceed their authority as it has been
traditionally understood” by “limit[ing] the
category of litigants empowered to maintain a lawsuit in
federal court to seek redress for a legal wrong.”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547 (2016)
(citation omitted). Only those litigants that have
established that they “have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision, ” have standing to sue.
Id. (citations omitted).
plaintiff, as the party invoking federal jurisdiction, bears
the burden of establishing these elements.”
Id. (citation omitted). Because standing is
“an indispensable part of the plaintiff's case,
” “each element must be supported in the same way
as any other matter on which the plaintiff bears the burden
of proof, i.e., with the manner and degree of
evidence required at the successive stages of the
litigation.” Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992) (citations omitted). Thus, to defeat
the State's motion for summary judgment, Plaintiff must
show with Rule 56(c) evidentiary material that each of the
standing elements is, at minimum, the subject of a genuine
dispute of material fact- “mere allegations of injury,
causation, and redressability are insufficient.”
Essence, Inc. v. City of Fed. Heights, 285 F.3d
1272, 1280 (10th Cir. 2002) (internal quotation marks
omitted). To establish her standing as a matter of law,
Plaintiff must show with Rule 56 evidentiary material that
the undisputed material facts establish each standing
element. See Pelt v. Utah, 539 F.3d 1271, 1280 (10th
in fact, ” which is the subject of the State's
challenge, is “the ‘first and foremost' of
standing's three elements.” Spokeo, 136
S.Ct. at 1547 (alteration and internal quotation marks
omitted). “[T]he injury-in-fact requirement . . . helps
to ensure that the plaintiff has a ‘personal stake in
the outcome of the controversy.'” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)
(quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
establish injury in fact, a plaintiff must show that he or
she suffered ‘an invasion of a legally protected
interest' that is ‘concrete and particularized'
and ‘actual or imminent, not conjectural or
hypothetical.'” Id. at 1548 (quoting
Lujan, 504 U.S. at 560). “[T]o be
‘particularized, '” an injury
“‘must affect the plaintiff in a personal and
individual way.'” Id. (quoting
Lujan, 504 U.S. at 560 n.1). To be “concrete,
” an injury must “actually exist.”
Id.; see id. at 1549 (“Article III
standing requires a concrete injury even in the context of a
statutory violation.”). To be “actual or
imminent, ” the alleged “injury . . . must be
more than a possibility.” Essence, Inc., 285
F.3d at 1282. “Allegations of possible future injury do
not satisfy the [‘actual or imminent'] requirement[
] of Art. III.” Whitmore v. Arkansas, 495 U.S.
149, 158 (1990). Rather, a plaintiff must establish that
“[t]he ‘threat of injury [is] both real and
immediate.'” Essence, Inc., 285 F.3d at
1282 (internal quotation marks omitted); see also Babbitt
v. United Farm Workers Nat'l Union, 442 U.S. 289,
298 (1979) (“A plaintiff who challenges a statute must
demonstrate a realistic danger of sustaining a direct injury
as a result of the statute's operation or
material facts relevant to this analysis are undisputed.
Plaintiff has asserted, and the State has admitted, that
notwithstanding Plaintiff's status as a member of a state
recognized tribe the State Act “prohibits Plaintiff
from marketing for sale her art as American Indian-made
because she is not a member of a federally recognized
tribe.” Pl.'s Index of Evid. Ex. 16 (Def.'s
Suppl. Resp. to Pl.'s Req. Admis. No. 4) (Doc. No. 34-16)
at 3. The State Act, as amended, therefore precludes
Plaintiff's participation in the Oklahoma market for
American Indian art and disadvantages her in the national
market for American Indian art. Accordingly, Plaintiff has
shown that this legislation places her in immediate danger of
suffering a direct injury, thereby “affect[ing]”
her “in a personal and individual way.”
Spokeo, 136 S.Ct. at 1548 (internal quotation marks
omitted); Lujan, 504 U.S. at 561-62 (noting that
when a plaintiff is “challenging the legality of
government action” that regulates her directly,
“there is ordinarily little question that the action .
. . has caused h[er] injury, and that a judgment preventing .
. . the action will redress it”). Plaintiff's
standing to assert her claims is established as a matter of
has sought relief under the Due Process Clause of the
Fourteenth Amendment to the Constitution. See U.S.
Const. amend. XIV, § 1. Plaintiff has contended
that-by “[r]eserving to members of federally recognized
tribes the right to market and describe their art as American
Indian-made, ” Compl. ¶ 76-the State Act
“irrationally burden[s] . . . [her] right to earn a
living, ” Pl.'s Mem. (Doc. No. 33) at 12, and
“protect[s] artists who are members of federally
recognized tribes from economic competition, ” Compl.
¶ 78. Plaintiff has alleged that “no legitimate
governmental interest [is] advanced by prohibiting artists
who are members of state-recognized tribes, or who are lineal
descendants of American Indians, from describing and
marketing their art as American Indian-made.”
Id. ¶ 79.
State Act is an economic regulation that impacts
Plaintiff's ability “to pursue her chosen
occupation as an American Indian artist.” Id.
¶ 76. As such, it “does not affect a fundamental
right and categorizes people on the basis of a non-suspect
classification.” Powers v. Harris, 379 F.3d
1208, 1215 (10th Cir. 2004). The Court must therefore
determine whether the State Act “passes constitutional
muster . . . by applying rational-basis review.”
protection law is a field traditionally regulated by states.
See Watters v. Wachovia Bank, 550 U.S. 1, 35-36
(2007) (Stevens, J., dissenting). “The power of the
state to provide for the general welfare of its people
authorizes it to prescribe all such regulations as in its
judgment will secure or tend to secure them against the
consequences of . . . deception and fraud.”
Dent, 129 U.S. at 122. Thus, a state has
“‘wide latitude in enacting . . . economic
legislation.'” Allright Colo., Inc. v. City
& Cty. of Denver, 937 F.2d 1502, 1512 (10th Cir.
1991) (internal quotation marks omitted).
federal courts do not sit as arbiters of the wisdom or
utility of these laws.'” Id. (internal
quotation marks omitted). Accordingly, the Court's review
of the State Act is limited to whether the State Act is
“rationally related to a legitimate government
purpose.” Powers, 379 F.3d at 1215 (internal
quotation marks omitted). The Court “need not satisfy
[itself] that the challenged [statute] will in fact further
[the State's] articulated purpose.” Allright
Colo., Inc., 937 F.2d at 1512. “[I]t is ...