We all support free expression, but in one art exhibition after another in 2017 the issue has been which artists have the right to express themselves freely. The white artist Dana Schutz earned condemnation for her painting Open Casket in the most recent Whitney Biennial because it referenced the 1955 lynching of Emmett Till. The white artist Sam Durant’s sculptural installation Scaffold at the Walker Art Center was taken down after Dakota Indians complained that the artwork seemed to make light of a mass execution of thirty-eight tribesmen in 1862 in nearby Mankato, Minnesota. The white Cleveland painter and sculptor Tom Megalis also faced condemnation when his painting Within 2 Seconds, the Shooting of Tamir Rice, which expressed his outrage over the 2014 shooting of a twelve-year-old African-American boy by a white police officer, was accepted into the annual juried Three Rivers Arts Festival in Pittsburgh. In all three instances, it wasn’t the artworks themselves that drew resentment but the fact that white artists had produced them.

The subject matter is ours, members of various minority groups claim. You can’t have it.

An even more problematic version of this controversy has shown up this summer at the Walker Art Center, where a retrospective organized by the Hammer Museum of UCLA of the multi-media artist Jimmie Durham, titled “Jimmie Durham: At the Center of the World,” opened in late June (the exhibition will move to The Whitney Museum in early November). Durham identifies as Cherokee, and many of his paintings and sculptures refer to Native American history and culture or depict individual Native Americans who appear to be alienated from American society and even their own tribal identities. (My guess is that Swiss sculptor Alberto Giacometti had a strong formative influence on his work.) Durham has detractors, but they aren’t art critics; rather, they are enrolled members of the Cherokee tribe who claim that the artist is not registered with them and is, therefore, a fraud and an impersonator who uses Native American history and imagery for fun and profit.

For his part, Durham acknowledges not being a registered member of the Cherokees or any other tribe—his primary identification is the “tribe” of sculptors, he has said, in the same way that many artists who are women assert that they are artists and not the subcategory of “women artists”—but still insists that his ancestry includes Cherokees. Perhaps artists should submit to DNA tests (Ancestry.com?) whenever they choose to comment on the world around them in order to establish whether or not theirs is an authentic voice.

Native American artists, artisans, and tribes have reason to be sensitive on the subject: the market for Native American arts and crafts objects is more than $1 billion annually. The bulk of these sales take place in Arizona, New Mexico, and throughout the southwest—at roadside stands, art galleries, and special fairs often called “Indian Markets”—although buyers may also find works sold through the online auction company eBay, as well as on other websites, Native American and otherwise. The strength of this market has led to instances of fraud, from mass-produced items imported from abroad and sold as American Indian–made to individual artists who proclaim themselves Native American but cannot produce any proof of that assertion.

“We get reports of people claiming to be Seminoles all the time, selling their copies of Seminole designs, when they don't have a speck of Seminole blood in them,” a spokeswoman for the Seminole Tribe of Florida in Hollywood said. “We call them members of the Wannabe tribe.” To be an enrolled member of the Seminoles, one must have no less than 25 percent Seminole blood line.

Numerous claims of misrepresented American Indian art led Congress to pass the Indian Arts and Crafts Act of 1990, a truth-in-advertising statute that stipulated stiff penalties (up to $1 million in fines and five years in jail for the first offense) for creators and sellers who knowingly make false claims about the heritage of those who made the artwork. Under the law, “someone who claims to be an American Indian must be an enrolled member” of one of the 557 federally recognized tribes in the United States. The tribes themselves, as legally established sovereign nations, determine qualifications for enrollment, and the federal government is bound to support their decisions with both criminal and civil prosecutions.

The law has helped to rid the market of many artworks and objects not created by actual Native Americans, although more may need to be done. The U.S. Senate Committee on Indian Affairs held hearings this past July to consider ways to strengthen enforcement of the law. For instance, Gretchen C. F. Shappert, a U.S. attorney in the federal Department of Justice, testified that, under the current law, felony prosecutions are permitted only when individual goods and products reach “a total price of $1,000 or more.” Because many so-called Native American objects are relatively inexpensive, she recommended that the Senate amend the law to make felony prosecutions possible when the aggregate value of items reaches $1,000.

According to Meridith Stanton, the director of the Indian Arts and Crafts Board of the Department of the Interior, “there have been twenty-two federal prosecutions in New Mexico, Alaska, Utah, South Dakota, and Missouri. The Board has also worked with the Office of the New Mexico Attorney General on five cases involving the misrepresentation of Indian art.”

All well and good, but the law also created some innocent victims: those who are unable legally to claim themselves Native American. Richard Zane Smith, a sculptor and potter in Glorietta, New Mexico, for example, noted that he would be in violation of the law if he described himself as Native American because he is a member of the Wyandot tribe of Kansas, which is recognized by the state of Kansas but not by the federal government (only the Oklahoma Wyandots are federally recognized). Further problems arise since every tribe determines its enrolled membership in different ways. The Pueblos, for instance, allow people to claim tribal descent only on the mother’s side; the son of a Pueblo man and non-Pueblo woman could not be enrolled. One tribe in Alaska reportedly employs a DNA test to determine who is a member. The Hopis require 50 percent “blood quantum” for enrollment, while other tribes permit those who can prove only one-quarter blood line; yet still other tribes require proof of blood lines as well as some ongoing connection to the community, which often is troublesome for individuals raised in cities.

The blood quantum issue generally poses difficulties for people who are the product of intermarriage, which was the aim of the federal government’s policy of forced assimilation that persisted until only a few decades ago. The Indian Arts and Crafts Act requires Native Americans to register with only one tribe, which also creates quandaries for some. “I belong to three nations,” said Michael Horse, an actor and painter in North Hollywood, California. “I’m one-eighth this and one-eighth that. I’m tired of explaining myself in fractions. I know who I am.” And, because the law does not respond to his personal situation, Horse has refused to apply to any one tribe for enrollment.

Jimmie Durham is not subject to prosecution because he does not claim his artwork is authentically Native American. It is authentically Jimmie Durham, but the protests have nonetheless followed him for years because of the specifically Native American content of much of his art and because he is not on the rolls of the Cherokee tribal nation.

In trying to right the consumer protection wrong of inauthentic Native American objects deliberately advertised and sold as American Indian–produced, the federal government gave in to a crazy-quilt patchwork of tribal enrollment standards and clearly discriminatory rules about “blood quantum.” In the Jim Crow south, having “one drop of Negro blood” defined someone as black and thereby subject to rules of racial segregation. Presumably, we know better now, having gotten rid of segregation laws; judging individuals on the basis of the percentage of ancestral bloodlines would seem similarly outmoded. Applicants for today’s affirmative action programs are not required to prove that they are 25 or 50 percent black, nor that they grew up in an urban slum, in order to qualify. Latinos needn’t pass a Spanish language test in order to be accepted within their communities. Strident Native American activists may continue to dog the seventy-seven-year-old Jimmie Durham for the remainder of his life and career, but the federal government should not be in the business of endorsing such blatant discrimination.