Answer: when federal bureaucratic rules interact unhappily with state-level bureaucratic rules. Eric Boehm explains why an artist is not legally allowed to market her beadwork as “American Indian-made”:
Peggy Fontenot is an American Indian artist, of that there can be no doubt.
She’s a member of the Patawomeck tribe. She’s taught traditional American Indian beading classes in Native American schools and cultural centers in several states. Her work has been featured in the Smithsonian’s National Museum of the Native American.
In Oklahoma, though, she’s forbidden from calling her art what it plainly is: American Indian-made.
A state law, passed earlier this year, forbids artists from marketing their products in Oklahoma as being “American Indian-made” unless the artist is a member of a tribe recognized by the U.S. Bureau of Indian Affairs.
The Patawomeck tribe is recognized by the state of Virginia, but not by the federal government. Fontenot says she can trace her Native American heritage back to the 16th Century, when the tribe was one of the first to welcome settlers from Europe who landed on the east coast of Virginia. She’s been working as an artist since 1983, doing photography, beading, and making jewelry.
[…]
According to PLF [Pacific Legal Foundation], Oklahoma’s law could affect as many as two-thirds of all artists who are defined American Indians under federal law. The state law also violates the U.S. Constitution’s Commerce Clause by restricting the interstate American Indian art market, the lawsuit contends.
