Tribal Sovereignty Advancements Through Intellectual Property Law

-- By MariHulbutta - 19 April 2018 (Revised version; 1000 words)

I. Current Landscape of Native American Legal Practitioners and the Outsourcing Problem

Native Americans make up one percent of American lawyers. The existence of few Native attorneys constitutes a low supply of legal advocates relative to the legal demands of 573 sovereign tribes. Tribes, though preferring to hire Native lawyers, must consequently outsource to non-Natives who may lack tribal legal knowledge. Of the handful of law schools offering Indian law certificates (ASU, MSU, OU, UNM, TU), only some count IP coursework toward the specialization (Univ. of Ariz.), which suggests that Native law students are trained to resolve conventional legal problems –not innovative ones.

As tribes diversify their economic portfolios by creating broadcasting, production, and publishing companies, tribal legal representation should broaden as well. Tribes are already using their sovereign status to explore pharmaceutical investments without permission of the U.S. government (e.g. a diabetic foot ulcer treatment in Cuba). The question this proposal seeks to address is not if tribes pursue ventures related to IP, but rather, when they continue pursuing these ventures, how can they keep sovereignty interests at the forefront and prevent outsourcing?

Ideally, tribes would choose between retaining their existing lawyers and hiring another firm well versed in other areas. In reality, however, firms with Indian law practice groups limit their expertise to more common areas such as gaming, land disputes, and healthcare. While some firms may be able to bring in a copyright attorney to help represent a tribe’s new publishing company, others are forced to refer the tribe to a random copyright lawyer. This outsourcing problem will continue unless more Natives attend law school and pursue a broad range of courses, and more Native attorneys seek a wide range of legal experience.

II. Converging Interests Between Tribes and Intellectual Property Law

Recent cases illustrate that tribes are taking steps to advance tribal sovereignty through IP law.

Patent Law

Indian lawyers and IP practitioners alike are following an ongoing case in which the Patent Trial and Appeal Board (PTAB) rejected tribal sovereign immunity within the context of patent review proceedings. The St. Regis Mohawk Tribe, represented by an IP law firm experienced in public university sovereign immunity, asserted sovereign immunity to bypass an inter partes review (IPR) of drug patents it acquired from drug maker Allergan and then licensed back. Generic drug companies sued Allergan and the tribe alleging that they sought to circumvent federal processes using tribal immunity.

Meanwhile Sens. McCaskill (D-MO) and Cotton (R-AR) introduced bills to prevent sovereign immunity in PTAB reviews. In response, the National Congress of American Indians (NCAI) passed a resolution affirming support for tribal immunity from patent litigation.

PTAB’s ruling against the tribe was based on a lack of precedent. The latest development in the case, however, presents hope for tribes and Allergan. The Federal Circuit granted the tribe’s request to stay the IPR proceedings until after oral arguments are heard in June 2018. This decision demonstrates that courts are interested in hearing the tribe’s view on this matter rather than deferring to administrative decisions. The question the court will consider is not entirely new. Previous cases where tribal sovereign immunity has successfully shielded tribes from patent disputes include: Specialty House of Creation, Inc. v. Quapaw Tribe of Oklahoma (N.D. Okla. 2011) (finding that sovereign immunity protected a tribe from a private patent suit); and Home Bingo Network v. Multimedia Games, Inc. (N.D.N.Y. 2005) (holding that federal patent law contains no abrogation of tribal sovereign immunity and that a tribe was immune from a patent infringement claim).

Copyright and Trademark Law

Tribes have navigated the copyright and trademark spaces as a way to preserve cultural property. Navajo Nation, for instance, successfully sued Urban Outfitters for establishing a “Navajo” line of clothing and violating the Nation’s trademark on the name. NCAI has advocated for creating an avenue for tribes to use copyright law to re-print works in tribal languages for purposes of tribal language preservation. NCAI has also devoted resources to galvanize a movement in support of litigation attacking the Washington, DC NFL team’s trademark on civil rights grounds (see Harjo v. Pro Football, Inc. (D.C. Cir. 2009) (overturning a decision by the Trademark Trial and Appeal Board to cancel the team’s registered trademarks); and Blackhorse v. Pro Football, Inc. (4th Cir. 2018) (vacating previous decision cancelling registration of the team’s trademarks)). Despite the most recent outcomes of these cases, tribes continue to confront trademark and copyright issues that hinder their ability to govern and preserve their culture. Outside of the U.S., a growing international movement proposes using IP rights as a means to promote indigenous autonomy.

III. Proposed Approach Toward Advancing Tribal Sovereignty Through Intellectual Property Law

As tribes diversify their economies and pursue IP ventures, they will require the assistance of IP lawyers. But, given IP lawyers’ unfamiliarity with tribal law, it will be crucial to ensure that they advocate tribal interests. Ultimately, tribes need a strategy to reconcile their interests in advancing sovereignty through IP law with the sensible business practice of not renting out tribal sovereign immunity. Elevating tribal sovereignty issues in IP law will also entice Native students to pursue IP law, which will further minimize outsourcing.

Continuing the Approach in the American Jurisprudence System

The number of amicus briefs supporting the tribe in the Allergan case shows that attorneys are ready to defend sovereignty in IP law. Future litigation will further provide cogency to tribes’ contentions for advancing sovereignty in IP law.

Advocacy through Legislation and Administrative Actions

Tribes already employing lobbyists to advocate their interests in Congress can easily utilize the firm’s IP lobbyists to combat measures like Sen. Cotton’s bill. Tribes should seek administrative action to establish rules applicable to their sovereignty like the rule detailed in NCAI’s language preservation resolution.

Education is Key

Tribes will not be able to hire more Native lawyers unless more Natives go to law school. A pipeline program from STEM to IP law may help prevent outsourcing. Law schools with robust Indian law programs could also count IP coursework toward the certificate.

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.