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November 01, 2017


This tactic assumes that a patent can be affirmatively sued on in a District Court and not be a waiver of sovereign immunity in a related validity challenge of the same patent by the same defendant in another forum. Is there not already authority on waiver of sovereign immunity by patent assertions even by state university patents? There is no authority for this argument for tribal [not state] sovereign immunity from patent validity challenges AND for only a partial waiver of it.

The St. Regis Mohawks (SRMs) are playing a dangerous game here. What they are doing endangers the whole system of sovereign immunity for native tribes.

U.S. courts have long recognized that native tribes are pre-Constitutional sovereigns that enjoy limited sovereign immunity, but this immunity (unlike the immunity enjoyed by the states) has *always* been within the plenary control of Congress. Congress can abrogate the immunity of tribes by a simple act of law (unlike the constitutional amendment that would be necessary to constrain states’ immunity).

So long as native tribes use their immunity simply to vindicate their own rights as sovereigns, nobody will much object to their exercise of sovereign immunity. The SRMs, however, are—in effect—renting their sovereign immunity to private entities that are *clearly* not themselves sovereigns. The SRMs are like pitchmen on the boardwalk shouting “get your sovereign immunity here! You want to do something legally skeevy, but are worried about getting sued? For just $10 thousand, we can sell you a ‘get out of court free’ card! Step right up…”

If the SRMs are allowed to get away with this, essentially all private tort causes of action will become null. Anyone who wants to commit a tort need only figure out the amount of money that the tort is worth, and then negotiate with a sovereign tribe to share the profits from the tort, so that the bad actor might be allowed to shelter under the tribe’s immunity.

For this reason, Congress *cannot* permit tribes to sell their immunity like a commodity. If the SRMs continue in this gambit, Congress will be left with no alternative but to constrain sovereign immunity of tribes. Other tribal conferences should see where this is headed and try to exert influence on SRM to cut it out. It will not end well for native tribes if this gambit is pursued or expanded.

"For this reason, Congress *cannot* permit tribes to sell their immunity like a commodity."

I do not agree with the leap to that conclusion (especially phrased with such an emotive-laden word).

Your equating this with known torts is also simply off-base.

"I do not agree..."

Your total lack of explanation for that disagreement speaks volumes. Incidentally, which word is "emotive-laden"?

Paul: that is a question not specifically resolved and gets into questions of Article I vs Article III courts that may be resolved by Oil States. It is resolved that an Indian tribe can invoke sovereign immunity as a shield against administrative agency action.

Thanks for the comment

Dozens: that is the political argument expected to be made. But recall that tribes are able to provide gambling venues in states with laws prohibiting it

From today in Law360:

"House Judiciary Committee Chairman Bob Goodlatte, R-Va., said he too had concerns about companies 'paying to rent' the sovereign immunity of Native American tribes... 'If questionable deals with sovereign entities can extend immunity to artificially protect low-quality patents, the entire IP system is harmed,' he said."

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