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June 04, 2019


"The Court's grant of cert. in Allen v. Cooper also stands in contrast to the Court's denial of cert. in... Saint Regis Mohawk v. Mylan Pharmaceuticals..."

Not much contrast. The two cases are *very* different.

First of all, The St. Regis Mohawks were asserting their patent against Mylan, and it can hardly come as a surprise that the act of asserting the patent should be expected to work a waiver of sovereign immunity. By contrast, North Carolina has not hailed Cooper into court in any fashion.

Secondly, SRV v. Mylan involved an administrative proceeding, not a trial in a court of law (as in the present Allen v. Cooper). The outcome in SRM v. Mylan hinged on the distinction between court of law proceedings and agency actions because "[g]enerally, immunity does not apply where the federal government acting through an agency engages in an investigative action or pursues an adjudicatory agency action." St. Regis Mohawks v. Mylan Pharma., 896 F.3d 1322, 1325 (Fed. Cir. 2018).

Finally, the St. Regis Mohawks were asserting tribal immunity. Tribal immunity is a creature of federal common law, and that same federal common law makes clear that Congress' power to revoke that sovereign immunity is plenary under the "commerce with tribes" clause. Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2030 (2014).

By contrast, state sovereign immunity is a creature of federal common law, but is rather a positive law deriving from the XI amendment to the constitution. Congress' power, therefore, to abrogate state sovereign immunity is much more restricted than its ability to abrogate tribal sovereign immunity. There is, in other words, a whole vista of legal analysis that was not conducted in SRM that would need to have been considered if that case had instead involved a state sovereign.

The differences between the present Allen case and the earlier SRM case are so many and different that the Justices' indifference to SRM are largely uninformative about their concerns in Allen.

"By contrast, North Carolina has not hailed Cooper into court in any fashion."

Whoops. Obviously enough I meant that North Carolina has not *haled Allen* into court.

The statement of "Not much contrast. The two cases are *very* different." is NOT supportable.

One only has to read what the court in the St. Regis Mohawk case ACTUALLY said to see why.

The court there held its position on the mechanism as to why Sovereignty -- as a general concept and NOT as differentiated by ANY differences that may exist between State Sovereignty and the "lesser" Indian Nations Sovereignty.

EVERY BIT of the St. Regis reasoning and holding -- on its face -- would apply to a case with the different facts of a State Sovereignty instead of the facts of an Indian Nations Sovereignty.

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