Tribal Sovereignty Advancements Through Intellectual Property Law

-- By MariHulbutta - 28 Feb 2018

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

Comprising one percent of the public school population, Natives are less likely than other students to reach or graduate high school, matriculate to college, or earn a bachelor’s degree. The American Bar Association reported that Native American lawyers make up one percent of the American lawyer population – a percentage remaining unchanged since 2008. The National Native American Bar Association found that 19.61 percent of Native attorneys work in private law firms and most practice federal Indian law or tribal law. NNABA did not list intellectual property as an option for respondents to choose. The existence of few Native attorneys constitutes a low supply relative to the legal demands of 573 tribes. Tribes, although preferring to hire Natives, must consequently outsource to lawyers who are not Native and who have never represented a tribe. That not all law schools offering an Indian law concentration include IP coursework suggests that Native law students are training to resolve conventional legal problems –not innovative ones. Unless more Native students attend law school and seek out a wide range of coursework and professional experiences, outsourcing will continue.

II. Converging Interests Between Tribes and Intellectual Property Law

The link between tribal sovereignty and IP law may not be apparent, but recent cases illustrate that tribes are taking steps to advance tribal sovereignty through IP law.

Patent

The Patent Trial and Appeal Board (PTAB) addressed the question of tribal sovereign immunity within patent law. The St. Regis Mohawk Tribe, represented by an IP law firm, asserted sovereign immunity to bypass an inter partes review of drug patents it acquired from Allergan and then licensed back. Generic drug companies sued Allergan alleging that it sought to circumvent federal processes through tribal immunity. Sen. McCaskill? (D-MO) introduced a bill to prevent sovereign immunity in PTAB reviews. PTAB denied the tribe’s motion for dismissal and ruled that tribal sovereign immunity does not extend to inter partes review given the lack of precedent. While the ruling did not favor tribes, it elevated the notion of tribal sovereign immunity within patent law and prompted IP lawyers to question the concept.

Copyright and Trademark

Navajo Nation successfully sued Urban Outfitters for establishing a “Navajo” line of clothing and violating the Nation’s trademark on the name. One Crow artist’s widow sued a gallery owner for reproducing the artist’s work without permission. The Colorado District court dismissed the widow’s copyright complaint because she was not the legal owner of the work in controversy. Despite the outcomes of these cases, tribes should not be discouraged from expanding and protecting their asset to advance sovereignty.

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

A multi-faceted approach towards tribal IP matters will permit tribes to increase their assets, expand their economies, and advance their sovereignty. The proposal aims to diversify expertise of Native lawyers so tribes aren’t forced to outsource to non-Indian attorneys. Elevating tribal sovereignty issues in IP law will entice Native students to pursue tribal IP law, which will further minimize outsourcing.

Continuing the Approach in the American Jurisprudence System

Considering the Allergan case, it is reasonable to anticipate more suits involving tribal sovereignty within IP law. The sheer number of amicus briefs supporting the tribe in that case shows that attorneys are ready to defend sovereignty in IP law. IP lawyers, alongside tribes, possess the capacity to convince decision-makers that immunity is not inhibited simply because of a lack of precedent. Future litigation will provide cogency to tribes’ contentions for advancing sovereignty in IP law.

Advocacy through Legislation and Administrative Actions

Tribes already employ lobbyists to advocate their interests in Congress, so tribes with these relationships will likely be afforded the opportunity to utilize the firm’s IP lobbyists to combat measures like McCaskill? ’s bill. Outsourcing in this way does not go outside a firm that the tribe already trusts.

Administrative actions, such as proposed rule changes, will clarify IP regulations and their applicability to tribes. The Federal Trade Commission holds companies accountable when they falsely market a product as a Native American object. Tribes should seek administrative action to establish rules applicable to their sovereignty.

Education is Key

Tribes will not be able to hire Native lawyers unless more Natives go to law school—meaning that more Natives need to earn college degrees. Tribes need to depict law school as an obtainable reality in order to address the outsourcing problem. The need for tribal lawyers with expertise in areas like intellectual property needs to be discussed more. Fortunately, the campaign to encourage Native students to pursue STEM careers is strong. The American Indian Science and Engineering Society membership and programming continues to grow. A pipeline program from STEM to IP law may be one means of diminishing outsourcing. Law schools with robust Indian law programs could count IP coursework toward the certificate.

IV. Challenges to Consider

Serving Heterogeneous Economic States Throughout Indian Country

The economic diversity among 573 tribes is vast and each tribe’s economic status depends on governmental structure, history, region, and politics. Thus, one cookie-cutter solution will not fit all. This proposal enhances legal strategies that tribes possessing funds to hire outside firms to handle their legal issues. It may cater to wealthy tribes, however, when positive legal precedent results from this approach, all tribes will benefit.

Pipeline to Big Law?

This proposal could be misunderstood as encouraging reliance on big law firms, instead of re-directing knowledge to tribal communities. The idea actually is that Native attorneys work in firms only to the extent they feel comfortable and are training to serve a tribe needing specialized advice. The long-term objective is to expand expertise among Native attorneys and to contribute that expertise from within a tribe’s legal infrastructure. Eliminating the need to outsource entirely may appeal to some tribes, but is probably not a goal for all. This proposal intends to expand capacity among Native lawyers and afford tribes the option to outsource to Native practitioners.

It's an interesting outlook. I think the Allergan patent immunity boomlet was pure bullshit, for reasons that seem evident to me, so I don't think there's any future business for Native lawyers in it. The occasional trademark case is hardly going to produce any significant business for Native lawyers, so I wonder about the economic analysis of this "IP is going to be good for us" proposition, where it is so obvious, on the other hand, that contemporary copyright and patent law distributes wealth upward. If both copyright and patent law ceased to exist, so that educational materials and drugs were far less expensive, surely Native America would be much better off, from an aggregate welfare point of view, than it will be with a few supplements to lawyers' incomes.

Instead, this seems to me an agile and engaging argument of a false case: a sort of greenwashing by the intellectual property industries, advertising why people who have little if any reason to be on their side should suddenly regard them as allies. In that genre, it is very well done. I'm not the best-placed commentator to decide how to make it better, but it meets the fairly stringent standard of review that I think it's very good even though I don't believe a single word.

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