In Property, I frequently hedge my answers to student questions by cautioning that I am not an expert in intellectual property. I’m writing on an IP blog today because, with Allergan’s deal with the Saint Regis Mohawk Tribe, IP scholars have suddenly become interested in an area of law I do know something about: federal Indian law.
Two principles lie at the core of federal Indian law. First, tribes possess inherent sovereignty, although their authority can be restricted through treaty, federal statute, or when inconsistent with their dependent status. Second, Congress possesses plenary power over tribes, which means it can alter or even abolish tribal sovereignty at will.
Tribal sovereign immunity flows from tribes’ sovereign status. Although the Supreme Court at one point described tribal sovereign immunity as an “accident,” the doctrine’s creation in the late nineteenth century in fact closely paralleled contemporaneous rationales for the development of state, federal, and foreign sovereign immunity. But the Court’s tone is characteristic of its treatment of tribal sovereign immunity: even as the Court has upheld the principle, it has done so reluctantly, even hinting to Congress that it should cabin its scope. This language isn’t surprising. The Court hasn’t been a friendly place for tribes for nearly forty years, with repeated decisions imposing ever-increasing restrictions on tribes’ jurisdiction and authority. What is surprising is that tribal sovereign immunity has avoided this fate. The black-letter law has remained largely unchanged, narrowly surviving a 2014 Court decision that saw four Justices suggest that the doctrine should be curtailed or even abolished.
So let me now turn to the Allergan deal and briefly discuss its doctrinal and normative implications. First, the doctrinal. I don’t profess any insight into the IP-specific aspects of the dispute, but tribal sovereign immunity is robust. Unlike foreign sovereign immunity, there is no commercial-activity exception to tribal immunity. The lower courts have instead crafted an “arm of the tribe” test to determine if an entity may benefit from the tribe’s immunity, looking toward whether the entity is chartered under tribal law, whether its proceeds serve to further the aims of tribal self-governance, and whether the tribe intended to confer its immunity. Tribal casinos and other commercial enterprises routinely receive the benefit of sovereign immunity under this test, and I assume Allergan’s attorneys were smart enough to engineer the deal accordingly. The Court did carve out a possible workaround last Term in the wonderfully named Lewis v. Clarke when it declined to extend tribal sovereign immunity to a tribal employee sued for damages in his individual capacity. But the Court’s decision said nothing about the argument of the United States as amicus curiae that official immunity should still be available, so this issue remains undetermined. As for waiver, the Court’s jurisprudence holds that the tribe’s intent to relinquish immunity must be “clear.” This principle has generally made lower courts to be reluctant to find constructive waiver, although there is some case law that voluntary participation in bankruptcy proceedings waives tribal immunity.
Now the normative. Many scholars are not fans of sovereign immunity in general, and their hackles may be raised still further by what may seem like tribes renting their immunity. It’s worth noting that the drug companies are latecomers to this particular scheme: payday lenders have been setting up in Indian country for a while to avail themselves of tribal immunity. There are good reasons to question whether exploiting what outsiders might read as a loophole is ultimately a wise strategic move on tribes’ part. It’s especially risky in an area of law where the federal government’s persistent tendency is to craft blanket policy for all 567 federally recognized tribes despite significant differences among them.
But it’s also worth pausing to think about why a tribe might engage in this particular enterprise. Popular imagination might envision casino riches, but Indian gaming revenue is spread very unevenly, with only a handful of well-situated tribes bringing in large sums. For the majority of reservations, some of the highest poverty and unemployment rates in the nation remain the norm. This reality is inseparable from centuries of colonial dispossession and violence. But it is also the perverse result of federal law, which allows states to tax businesses within Indian country as long as states provide de minimis services. As a result, tribes—often forced onto remote lands—face the choice of imposing double taxation on reservation businesses or foregoing their own tax revenue. Tribal leaders are understandably anxious to make deals that will bring much-needed jobs and money to places that have long lacked both.
If tribal sovereign immunity dramatically distorts patent law, there is a remedy available. Unlike in the state context, Congress can readily use its plenary power to abrogate tribal sovereign immunity in patent law. But I’d also urge IP scholars to look around during their virtual sojourn in Indian country. They might discover that immunity is but a small part of a patchwork of complex laws, many of which disadvantage Native peoples. To lawyers, these areas seem distinct—sovereign immunity seems distant from the criminal law complexities of jurisdiction, for instance, that have contributed both to an epidemic of sexual violence against indigenous women and some of the highest incarceration rates of any racial minority in the nation. But these issues are less much distinct for the people who experience these daily realities, and they help explain why tribal governments are scrounging for resources to try to provide desperately needed services for their citizens.