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Fontenot v. Hunter

United States District Court, W.D. Oklahoma

March 28, 2019

MIKE HUNTER, in his official capacity as Attorney General of Oklahoma, Defendant.


          CHARLES B. GOODWIN, United States District Judge.

         Now 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 Act”).[1]

         The 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.[2] 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.

         Standard of Review

         Summary 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.

         A party 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.

         The 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 marks omitted).

         The Challenged State Law

         A. Oklahoma's American Indian Arts and Crafts Sales Act of 1974

         “The 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.[3] 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. § 73(1) (1974).

         B. The 2016 Amendments

         On June 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 tribe.

         The 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).[4] 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) (2016).[5]

         The 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).[6]

         Undisputed Facts[7]

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.”).[8] 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.” Id.

         Prior 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.

         In 2006, Plaintiff became a tribal member of the Patawomeck Indian Tribe of Virginia (“Patawomeck Tribe”).[9] 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.

         As of 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.


         A. Standing

         The 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.[10] 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).

         “The 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 Cir. 2008).

         “Injury 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)).

         “To 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 enforcement.”).

         The 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 law.

         B. Due Process

         Plaintiff has sought relief under the Due Process Clause of the Fourteenth Amendment to the Constitution. See U.S. Const. amend. XIV, § 1.[11] 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.

         The 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.” Id.

         Consumer 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).

         “‘[T]he 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 ...

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