Originally published at: https://boingboing.net/2017/09/27/three-affiliated-tribes.html
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I still don’t understand how this tactic works. Patents are issued by the US government and US courts have jurisdiction to invalidate patents. I don’t see why it matters who brings the suit/“owns” the patents. It’s not like they’re suing in a foreign or sovereign court.
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It doesn’t matter who brings the suit (at least for purposes of this tactic; it matters whom the suit is brought against. Recognized Indian tribes, just like states or the federal government, can’t be sued without their own permission. That permission might come in the form of a contract (where the tribe agrees it can be sued if it breaches the contract), a tribal ordinance (where, for example, the tribe agrees that it can be sued if someone slips and falls on tribal property), or–in a scenario unique to Indian tribes–from the US Congress (because Congress has what’s called “plenary power” over Indian affairs).
So the theory here (at least in the case of the tribe being the defendant) is as follows:
(1) the St. Regis Mohawk Tribe is presumptively immune from suit unless that immunity is waived;
(2) the St. Regis Mohawk Tribe owns the patents at issue;
(3) the St. Regis Mohawk Tribe has not waived its immunity as relates to the patents at issue; so
(4) the St. Regis Mohawk Tribe cannot be sued to obtain a judgment that the patents are invalid.
Exactly what the Three Affiliated Tribes are trying to accomplish is tougher to work through, and I’d need to read more on it.
But remember how I said Congress has plenary power over Indian affairs? The problem here is that this gambit may result in the wholesale destruction of tribal sovereign immunity by act of Congress. That didn’t happen with the payday loan cases because the loan companies were sloppy about how they went about trying to use tribal immunity as a shield. Allergan, on the other hand, can afford an army of lawyers who know how to do it right. But Congress can take away that immunity at any time, with consequences for Indian Country that are far greater than just a patent suit.
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Also, the St. Regis Mohawk Tribe last week moved to dismiss the pending IPR involving the Allergan drug patents. https://turtletalk.files.wordpress.com/2017/09/tribe-motion-to-dismiss-iprs.pdf
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Also, for comparison, the University of Florida Research Foundation got an IPR dismissed on sovereign immunity grounds earlier this year because it’s an arm of the state of Florida, and Florida hadn’t waived immunity to suit. http://www.ipwatchdog.com/2017/03/16/ufrf-eleventh-amendment-defense-ptab-creates-ipr-immunity-iprs-public-universities/id=79341/
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I am still just relishing in the irony that the Indian tribes for 200+ years were walked all over in courts repeatedly, yet now are somehow a legal loop hole.
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But the tribes here are suing rather than being sued, so it seems like they’re opening their patent up to being invalidated in this process.
Good to see Derek Lowe writing – I’ve enjoyed his stuff since the days of ‘Things I Won’t Work With’.
so eventually the tribes dominate the DOW, compromise the corporate system and boot out any foreigners. (I don’t know HOW they do it. maybe it lands in their lap.)
It appears the theory is that it can’t be invalidated by IPR because Apple would have to institute an IPR against the tribal corporation, and the tribal corporation can’t be a defendant without a waiver. As a result, while the patent can be invalidated if the tribal corporation files a traditional lawsuit, it’s only after final judgment is rendered in the exact sort of lengthy, drawn-out proceeding that IPRs were designed to avoid.
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As a Native person (Six Nations Tuscarora, Ontario) with relatives and friends up at Akwesasne (which is part of St. Regis) I just don’t understand how this will help the ailing cause of Native Sovereignty. The idea that some darker skinned people within the borders of the U.S. have some special rights and privileges beyond the average U.S. citizen (native people belonging to recognized tribes, or tribes that have forged treaties with the U.S. are dual citizens of both their native nation and the U.S.) sticks in the craw of conservative-wypipo, and they’ve spent lots of money trying to erode tribal sovereignty over the years.
And if the sole point of your partnership with such a company is to engage in Martin Shkreli type price gouging, you’re going to piss off pretty much everyone. I’m sure the money was good, but tribal leadership is missing some of the larger consequences.
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It’s hard to see how this would look good in any context: It’s a state-owned corporation attempting to use its (almost certainly really, really, sordid, if anyone goes looking) connections to the state in order to avoid legal repercussions while engaging in severely questionable behavior on an international scale.
More novel than the old “just tax shelter like you are a sunny British protectorate”; but at least as scummy.
Among nation states with historically established state cred; it’s comparatively safe: prolonged pressure from US and EU tax authorities, yes; getting force-fed freedom and democracy by a marine strike force, probably not.
The Three Affiliated Tribes are…not… in that position.
The courts tend to look unfavorably on using something “both as a sword and as a shield:” operating a litigation business from behind an immunity from litigation.
Last I looked, to the extent that an entity (e.g. Tribe) operates as a business rather than a jurisdiction, it takes the same risks that any similar business does. IANAL, but I do a fair bit of volunteer work for a Tribe and get briefings from time to time on liability issues.
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I have to admit, if I was to gamble on an administration choosing to let this legal chicanery go through because they were afraid of the bad publicity of eroding aboriginal rights, it wouldn’t be this one.
Maybe if they only target California companies…
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What I don’t understand is what would keep the tribes from saying “We own these patents and now we transfer the ownership to the public domain”
It seems a risky move to transfer patents to an entity with sovereign immunity. It seems to me that they could do with them as they please.
As I understand it, the deals come with large payments from the former patent holders for the tribes to continue to hold them - so transferring them elsewhere means no more money.
Plus, if you think transferring the patents away wouldn’t immediately lead to litigation claiming the tribes were only holding the patents on trust, well… you’re much more inclined to believe that businesses stick to the original deal than I would suggest is justified.
They might actually be holding them on trust under the terms of the deal, I don’t know.
Might be too risky in terms of arguments about whether they are genuinely owned by the tribe.
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The United States Constitution makes for no provisions for:
- Indian sovereign nations. None of the asserted tribes possess any of the attributes of being a ‘sovereign nation:’ a. No U.S. Constitution recognition b. No international recognition c. No fixed borders d. No military e. No currency f. No postal system g. No passports h. et al
- Treaties with its own constituency
- Indian reservations whereby a select group of U.S./State citizens with “Indian ancestry/race” reside exclusively and to the exclusion of all others, on land-with rare exception-that is owned by the People of the United States according to federal documents readily available on-line that notes rights of renters as ‘occupancy and use’ by these distinguished U.S./State citizens with “Indian ancestry/race” only with the land owned by the People of the United States.
- Recognition of ‘Indian citizenship’ asserted by various tribes. There is no international/U.S. Constitution recognition of “Indian citizenship” as there is no ‘nation-state’ from which citizenship is derived.
A simple question for politicians and MSM to answer…a question so simple, it is hard:
“Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”
For all who have posted comments to my original post, none have overcome my Constituition based post…Once U.S./State citizenship was achieved, all Constitutional references to “Indians” was made null…they are U.S./State citizens with “Indian ancestry/race” period . To help all of you who lack Constitution understanding of one’e U.S./State citizenship and how the Constitution protect citizenship noting that politicians-state and federal-have no authority to ‘enlarge or abridge’ one’s U.S./State citizenship absent an Amendment to do so and none of you have provided that Amendment, these SCOTUS decisions puts to rest your posts:
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United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
“(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment; and a mature and well-considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.
(b) The Fourteenth Amendment’s provision that “All persons born or naturalized in the United States . . . are citizens of the United States . . .” completely controls the status of citizenship and prevents the cancellation of petitioner’s citizenship. Pp. 262-268” -
United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
Argued: Decided: March 19, 1824
“A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”
United States Supreme Court
ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
JUSTICE SCALIA, concurring in part and concurring in the judgment.
I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, 1 ("[N]or shall any State . . . deny to any person" the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, 3 ("[N]o Attainder of Treason shall work Corruption of Blood"); Art. I, 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement - even for the most admirable and benign of purposes - is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 1]
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS’ and JUSTICE GINSBURG’S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” post, at 3. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society,” ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly “benign” discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that “remedial” race legislation “is perceived by many as resting on an assumption that those who are granted this special [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 3] preference are less qualified in some respect that is identified purely by their race”).
In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.
Begin here:
and follow the references.
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Where in the United States Constitution is the proof to make your post
true? Produce the Constitution’s Article and paragraph. Wikipedia
provides many things but not even Wikipedia can provide proof citing the
United State Constitution to support their own document.
I’m not an American, but most of the laws of the US aren’t in the constitution.
Is this one of these “income taxes are illegal!” type beliefs?
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