Fontenot v. Hunter
| Decision Date | 28 March 2019 |
| Docket Number | Case No. CIV-16-1339-G |
| Citation | 378 F.Supp.3d 1075 |
| Parties | Peggy FONTENOT, Plaintiff, v. Mike HUNTER, in his official capacity as Attorney General of Oklahoma, Defendant. |
| Court | U.S. District Court — Western District of Oklahoma |
Amber M. Godfrey, Godfrey Law & Associates PLLC, Oklahoma City, OK, Anastasia P. Boden, Caleb R. Trotter, Meriem L. Hubbard, Pacific Legal Foundation, Sacremento, CA, for Plaintiff.
Dixie L. Coffey, Mithun S. Mansinghani, Randall J. Yates, Attorney General's Ofc., Oklahoma City, OK, for Defendant.
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 () (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.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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 (); 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Parties may establish the existence or nonexistence of a material disputed fact by:
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, 106 S.Ct. 2505.
The Tenth Circuit has explained that " " 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
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).
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
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...
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