Oklahoma's Indian arts & crafts consumer protection law preempted by federal law

Fontenot v. Hunter, No. CIV-16-1339-G  (W.D. Okla. Mar. 28, 2019) Oklahoma’s American Indian Arts and Crafts Sales Act of 1974 was amended in 2016 to exclude from its definition of “American Indian” all persons but citizens or enrolled members of a federally recognized tribe.  Fontenot, a member of the Patawomeck Indian Tribe of Virginia, a tribe recognized by the State of Virginia but not by the United States, sued under a variety of theories including a general right to engage in her trade; she lost on all of them except the Supremacy Clause/federal preemption argument based on the Indian Arts & Crafts Act. Oklahoma’s law is a specific false advertising statute whose purpose “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.”  The law makes it “unlawful to distribute, trade, sell or offer for sale or trade…

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