Originally published at: http://boingboing.net/2016/11/22/american-indian-artist-forbidd.html
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First Amendment probably isn’t going to get her much here. All product labeling laws would be out the window and invalid if that were the case.
The problem is that dumb state law, which was as usual written and passed by people with little knowledge of what they were legislating and they need to get it changed. I see that it had support from many of the tribes who do benefit from this because they’re on the list, and they might have known this would happen - but knocking out your competition is what most product legislation is for.
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This is the sort of thing that happens when governments start legislating official “ethnicities” onto people.
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Well - this is a pickle.
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Do other tribes recognize the Patawomeck tribe?
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Why does the Federal government not recognize the Patawomeck tribe?
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If she really does have her linage traced back to the 16 Century, could she find entry into a recognized tribe?
Here is the deal - there are a lot of “fake” tribes out there. Or tribes that existed, but whether they survived to today is debated. And there are probably some tribes that never got recognition, but I am not sure how many those are.
While there are plenty of “white Indians”, people who can trace their linage directly back to people in the tribal rolls and are included on tribal rolls today (including me), there are also a lot of people who are white with no Indian heritage, but they claim to be for one reason or another.
So, you know, her claims of legitimacy may or may not be grounded in fact.
Then you have the added issue of the law. I see the law as protecting Native Americans and their identity. To sell artworks that are “Indian made” by someone who is not an Indian is fraud, IMHO.
I mean, technically all our ancestors are from Africa, would you buy a spear or mask from me if I sold it as “African Made”, or would you felt lied to?
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Exactly.
The law was designed to keep white people posing as Natives from selling stuff as “Native Made”, which infringes on actual Native artists’ making a living.
What folks need to understand is that white culture just wants to suck dry any lasting remnant of Native culture, starting with the lives and livelihood of the people, to the continued theft and exploitation of the land, down to stealing their identity and spiritual practices for personal gratification, and in this case for making money.
And it’s also a fact that there are tribes which are not recognized by the BIA, and there are a couple of cases where states recognize tribes comprised of white people claiming to be Native. It’s unfortunate, and hopefully it will be sorted out.
If this seems like a “Dumb Law” then you’ve never actually had to look too deeply into the struggles of Indigenous People in a very active colonial setting (yes, I’m going to argue that the U.S. is still a settler colonial nation.)
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Why does it not? Anyone know more about it?
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A better course of action would be to work towards getting the tribe federally recognized.
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Here’s something weird.
Washington might not recognize them but they are asking the Washington Redskins to.
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The tribe was only recognized by the state in 2010. The BIA is notoriously underfunded, understaffed, and ill equipped.
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“…are probably a libertarian”
Is it weird?
It definitely sounds a “fuck you”, my enemy’s enemy is my friend and I will embrace these racists because it makes others angry/sad scenario.
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I don’t know about this group specifically, but Virginia in general has a higher number of state-recognized but federally-unrecognized tribes than other states. This is a combination of two factors:
First, because Virginia has been settled (by whites) for so long, native tribes were well and truly conquered by the time the United States got in the treaty-making business. The same types of conflicts the US Army fought with tribes in the west in the 1850s-70s had been fought 200 years earlier in colonial Virginia, and they were fought in the absence of US Supreme Court precedent dictating government-to-government relations with native people. So while, e.g., the various Sioux nations got a treaty and a reserve in exchange for allowing US access (although the US obviously reneged), the Virginia-based tribes didn’t even get that.
Second, in contrast to other states (such as California, with its Mission Indian population dating to Colonial Spain) that had pre-US conflict with native peoples, Virginia’s Racial Purity Act of 1924 expressly classed all persons in the state as either “white” or “colored,” based on the one-drop rule, and it provided for Jim Crow discrimination accordingly. (There was a limited exception for those who could prove direct descent from original Virginia colonists, as they were known to have intermarried with natives.) This gave people who outwardly appeared white but knew they were of native descent a very, very strong incentive to lie about their ancestry.
As a result, the easiest way for many Virginians to prove native descent–pointing to government records that identify them as “Indian” in some way, even if they don’t provide a tribal affiliation–was impossible, because they voluntarily self-identified as “white” when the state came around to avoid being second-class citizens.
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Yes. It only was officially organized in the 1990s by people who claim descent from a tribe that existed in the 1600s but whose members assimilated into other tribes. This is different from tribes that have a documented continuous existence but more like the people trying to revive Cornish culture and language and the like.
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They probably haven’t applied yet, but when they do, they should expect the process to take about 30 years.
From Judge Brown’s concurrence (starts on p. 9) in the recent case of Mackinac Tribe v. Jewell:
Patience may be a virtue but there’s nothing virtuous about the administrative delays the BIA has routinely forced recognition-seeking Indian tribes to endure. “At present day, a federal acknowledgment petition can be over 100,000 pages long and cost over $5 million to assemble; the BIA estimate time for completion of the review is 30 years.” See Harry S. Jackson III, Note, The Incomplete Loom: Exploring the Checkered Past and Present of American Indian Sovereignty, 64 RUTGERS L. REV. 471, 497 (2012). That means a case worker could start the review process her first day at BIA and retire with her full pension before ever completing it. That’s appalling.
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From what I understand its a fair bit more complicated than that, and the tribes that never got recognition part is larger issue than I ever expected.
Apparently a major source of the problem is that Federal and State government designations for tribes don’t bear much relation to actual cultural and political structures of your various Indian groups.
So as an example there are two NA reservations near me, populated with two distinct but closely related groups of people. And a third also closely related NA group nearby sans reservation. You’ve got the Shinnecock, Unkechaug, and the Montaukett.
Historically they were all part of the same culture block, closely affiliated, and spoke the same language (which is apparently now extinct, at least a dialect). But there wasn’t any sort of over-arching connection between them analogous to a “tribe”. And IIRC politically they were all part of the Indian “nation” that controlled southern New England an Eastern Connecticut. That being geographically cut off from us by the Long Island Sound. So you’ve got distinct, but related, small bands of people, with distinct identities. Even before white people show up.
So now it gets complicated. And I’m absolutely sure I don’t know all the ins and outs. The Shinnecock and Unkechaug have reservations. But until recently they were only recognized by the State not by the Feds. The Montaukett are unrecognized, except IIRC by some other tribes quite far away.
The Montaukett are what’s left of what used to be referred to as the Montauk Indians. A group widely held to have “died out” in the 19th century when the last “full blooded” member passed away. But those people didn’t go away, and there’s a shit ton of documentation that makes a pretty compelling argument for continuity and descent for the small group of people Identifying themselves as Montaukett. In trying to get recognition the state, feds, and other tribes often dismiss this group as just a sub band of the Shinnecock. Which is fine. But the Shinnecock won’t recognize them since they have “insufficient Indian blood”. That, itself, being an additional super weird artifact of the way the Government deals with Indian groups (and we’ll get back to this).
The Shinnecock for their part managed to get federal recognition a few years back. Previous to that they were repeatedly told that they were just a sub band of some other tribe, I forget which. Probably up in CT. But they couldn’t get membership in said tribe, or recognition through them. Because they were insufficiently native American (and again we’ll get back to that), had little connection to whatever group it was, and some other things.
The Unkechaug are recognized by the State but not the fed. And are often dismissed as a sub-band of either the Shinnecock or other Pequot speaking tribes in a different state. Or as being insufficiently native American.
The kicker is that down to a higher than average intermarriage with African Americans the “insufficiency” here is typically being black. Or too black. To qualify as Native American in many people eyes, even where these people hit the marks to qualify with tribes or the Bureau of Indian Affairs.
It’s not uncommon to see these groups dismissed by whites, or even Native American groups, as “just black people looking for special treatment”. And they all seem to subject each other to the same judgement.
And that’s all a massive over simplification. Like I said I wouldn’t ever be able to fully unpack all the bizarre it’s and outs and complications.
But I’ve never met a member of any of these groups who would pass as white. And whenever I start poking into the involved subjects I’m depressed to find out this is happening everywhere.
Under Oklahoma’s law, only the Shinnecock would be entitled to use “Indian” or “Native American” for sales/marketing here. The other groups aren’t likely to get access to that sort of thing through the Shinnecock, due to bad blood and weirdness. And more distant tribes are dismissive of the idea.
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They uhh… wait… I uhh… what?!
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The government isn’t legislating ethnicity here, only the terms under which a commercial advertisement can be considered fraudulent.
Are you seriously arguing that sweatshops in china should be able to sell their cheap goods a genuine American Indian produced products?
(which isn’t to say the government doesn’t get itself involved in legislating ethnicity in regards to tribes, but this specifically seems like it would an issue regardless)
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As both someone who can trace their own heritage to the Mohawk here in Ontario (Clan Turtle, Six Nations), and as someone who has had both a parent and uncle directly involved with intergovernmental affairs for aboriginal peoples at the municipal, provincial, and federal levels, I’d like to throw my voice in the ring to point out how distressingly disappointing it is that commerce laws like the one discussed are given more weight than the modernization of the “Indian Act”-equivalent laws that govern who can, and cannot, call themselves aboriginal.
And no, sadly, this is not one of those cases where Canada is “better” than the US.
Of course, there are fraudsters, like there are in any situation, but someone who can trace their history for centuries should not be denied the rights that heritage entails. Especially when there are so many negatives brought with it in our modern era.
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“A lawsuit filed Tuesday in U.S. District Court in Oklahoma City argues that Oklahoma’s law violates the First Amendment by restricting the speech of artists like Fontenot.”
But i’m not sure this is a free speech issue, it’s a commercial one. Also, correct me if i’m wrong but isn’t the Indian incorrect and insulting? They aren’t from India… They are Native Americans.
Many Native Americans use “Indian” to represent themselves because the original agreements and protections use the archaic language. To redefine oneself, even according to more accurate terminology would give many persons their own license to further break treaty.
And yes, many persons would and will seek to do so in the coming years.
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An unnecessary swipe.
While I don’t know all the details, there seems to be a lot of Native sites and articles against the rise of “fake tribes”. So I am hesitant to believe just anyone claiming heritage, especially with the number of people claiming Cherokee blood, which was really African blood.
But were they still part of a Federally recognized tribe, even if they were their own Band?
Your post makes it clear this isn’t a black and white issue. I know the Potawatomie has several Bands, under one Nation, such as the Prairie Band and Citizen Band.
