Student Scholarship on the Allergan/Mohawk Case

Seth W. R. Brickey has published “Rent-A-Tribe: Using Tribal Immunity to Shield Patents from Administrative Review” in the Washington Law Review.

Here is the abstract:

 In 2017, Allergan Pharmaceuticals entered into an agreement with the Saint Regis Mohawk Tribe (SRMT). Allergan agreed to assign several patents to SRMT and to pay an initial sum of $13.75 million and annual royalties of approximately $15 million. SRMT, in exchange, licensed the rights to use the patents back to Allergan and agreed not to  waive its tribal immunity in any administrative proceeding challenging the patents. Two outcomes were expected as a result of this Allergan-Mohawk agreement. First, Allergan would retain the rights to manufacture and market a highly profitable drug while insulating the underlying patents from an unforgiving administrative inter partes review (IPR). Second, SRMT would embark on a new business venture of collecting and relicensing patents from third parties, effectively “renting out” its sovereign immunity. The response from lawmakers, the judiciary, the executive branch, and the public at large was acrimonious. The agreement was branded in public forums as a “sham” and the Patent Trial and Appeal Board held the patents assigned to SRMT were not shielded by tribal immunity. This Comment argues the Allergan-Mohawk agreement is a legally effective means of avoiding IPR. Absent an express waiver of tribal immunity by Congress or the tribe itself, a tribe may not be subject to a private claim. This rule extends to IPR proceedings which closely parallel private suits. Therefore, contracts like the Allergan-Mohawk agreement effectively shield patents from IPR.

Current Washington Law Review Features Several Indian Law Articles

Here.

A list:

Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280

Robert T. Anderson
87 Wash.L.Rev. 915

Full Article

Inextricably Political: Race, Membership, and Tribal Sovereignty

Sarah Krakoff
87 Wash.L.Rev. 1041

Full Article

Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights

Rebecca Tsosie
87 Wash.L.Rev. 1133

Full Article

Fleeing East from Indian Country: State v. Eriksen and Tribal Inherent Sovereign Authority to Continue Cross-Jurisdictional Fresh Pursuit

Kevin Naud, Jr.
87 Wash.L.Rev. 1251

Full Article

And a special treat (for me at least), an article by my legendary criminal law and criminal procedure prof:

The Rise, Decline, and Fall (?) of Miranda

Yale Kamisar
87 Wash.L.Rev. 965

Full Article

Bob Anderson on PL 280 Retrocession Legislation in Washington State

Robert T. Anderson has published “Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280” in the Washington Law Review. HIGHLY RECOMMENDED!

Here is the abstract:

The Public Law 280 legislation was approved by Congress in the face of strenuous Indian opposition and denied consent of the Indian tribes affected by the Act . . . .

The Indian community viewed the passage of Public Law 280 as an added dimension to the dreaded termination policy. Since the inception of its passage the statute has been criticized and opposed by tribal leaders throughout the Nation. The Indians allege that the Act is deficient in that it failed to fund the States who assumed jurisdiction and as a result vacuums of law enforcement have occurred in certain Indian reservations and communities. They contend further that the Act has resulted in complex jurisdictional problems for Federal, State and tribal governments.

S. Comm. on the Interior & Insular Affairs, 94th Cong., Background Rep. on Public Law 280 (Comm. Print 1975) (statement of Sen. Henry M. Jackson, Chairman).

Senator Jackson’s statement accurately described the issues then and now. This Article reviews the legal history of federal-tribal-state relations in the context of Public Law (P.L.) 280 jurisdiction. Washington State has recently taken progressive steps that could serve as the foundation for a national model to remove state jurisdiction as a tribal option. The federal self-determination policy is not advanced by adherence to termination era experiments like P.L. 280. The article concludes that federal legislation should provide for a tribally-driven retrocession model, and makes proposals to that end.

New Scholarship by Sarah Krakoff on Race, Tribal Membership, and Tribal Sovereignty

Sarah Krakoff has posted her new paper, “Inextricably Political: Race, Membership and Tribal Sovereignty,” forthcoming from the Washington Law Review, on SSRN. Here is the abstract:

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians “racial or political?” If the classification is political (i.e. based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This article challenges the dichotomy itself. The legal categories “tribe” and “tribal member” are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. laws and policies.

First, the article traces the evolution of tribes from pre-contact independent sovereigns to their current status as “federally recognized tribes.” This history reveals that the federal government’s objective of minimizing the tribal land base entailed a racial logic that was reflected in decisions about when and how to recognize tribal status. The logic was that of elimination: Indian people had to disappear in order to free territory for non-Indian settlement. The Article then examines two very distinct tribal places, the Colorado River Indian Tribes’ (CRIT) reservation and the former Dakota (Sioux) Nation of the Great Plains. The United States’ policies had different effects on the CRIT (where four distinct ethnic and linguistic groups were consolidated into one tribe) and the Sioux (where related ethnic and linguistic groups were scattered apart), but the causal structures were the same. Indian people stood in the way of non-Indian settlement, and federal policies defined tribes and their land base with the goal of shrinking both. Despite these goals, the CRIT and Sioux Tribes have exercised their powers of self-governance and created homelands that foster cultural survival for their people. Like other federally recognized tribes, they have used the given legal structure to perpetuate their own forms of indigenous governance, notwithstanding the law’s darker origins.

The legal histories of CRIT and the Sioux Tribes reveal that unraveling the logic of racism in American Indian law has less to do with tinkering with current equal protection doctrine than it does with recognizing the workings of power, politics, and law in the context of the United States’ unique brand of settler colonialism. The way to counter much of the prior racial discrimination against American Indians is to support laws that perpetuate the sovereign political status of tribes, rather than to dismantle tribes by subjecting them to judicial scrutiny in a futile attempt to disentangle the racial from the political.

HIGHLY recommended!

New Student Scholarship on Federal Court Jurisdiction over Tribal Banishments

Mary Swift has published “Banishing Habeas Jurisdiction: Why Federal Courts Lack Jurisdiction to Hear Tribal Banishment Actions” in the Washington Law Review. The article is available on SSRN here.

Here is the abstract:

The Indian Civil Rights Act (ICRA or ‘the Act’) of 1968 grants members of federally recognized Indian tribes individual civil rights similar to those enumerated in the federal Bill of Rights and Fourteenth Amendment. However, the Act provides only one explicit federal remedy for violations of the rights secured therein: the writ of habeas corpus. The U.S. Supreme Court has refused to read an implied cause of action into the Act. Some federal courts assert habeas jurisdiction to review tribal banishment actions alleged to violate ICRA, but not over disenrollment actions. Tribal banishment means an individual tribal member is cast out from tribal lands and often removed from tribal membership rolls. Tribal disenrollment means an individual tribal member is removed from tribal membership rolls and often denied access to some or all tribal facilities. This Comment argues that federal courts should not assert habeas jurisdiction over tribal banishment actions because: exercising habeas jurisdiction over tribal banishment actions contravenes federal Indian law canons of construction; expansive habeas jurisdiction disturbs the careful balance struck by Congress and the Court between individual rights and tribal sovereignty; declining jurisdiction protects tribes’ sovereign authority to determine their own membership; and the line between banishment and disenrollment is arbitrary because tribes have authority to exclude nonmembers from tribal lands. Though it may leave a few individual tribal members without a remedy to challenge tribal banishment alleged to violate ICRA, such a uniform rule best protects tribal sovereignty, preserves congressional intent, and promotes robust tribal court systems.

New Scholarship on McCarren Amendment and Groundwater

Aubri Golsbury has published “The McCarren Amendment and Groundwater: Why Washington State Should Require Inclusion of Groundwater in General Stream Adjudications Involving Federal Reserved Water Rights” in the Washington Law Review.

Here is the abstract:

All water is connected through the hydrologic cycle.1 When a farmer pumps water from an underground aquifer to irrigate crops, that act may affect a family relying on a nearby surface water stream for its water supply. Despite the scientific link between surface and groundwater, 2 the law often treats the two separately.3 The legal choice to ignore the interaction of surface and groundwater is particularly notable in “general stream adjudications.” States file these large-scale lawsuits against users in a particular stream or waterbody to determine, in a single lawsuit, all the rights existing in that water source.4 In 1952, Congress passed the McCarran Amendment, which allows states to adjudicate federal reserved water rights in state court in general stream adjudications.5 The United States Supreme Court has interpreted the Amendment as requiring that adjudications be “comprehensive” of all of the rights in a given water source, but has not yet ruled as to whether this requires inclusion of groundwater users.6 The Amendment itself is equally vague on this point. This Comment argues against Ninth Circuit precedent and asserts that for a general stream adjudication to be “comprehensive” under the McCarran Amendment, it must include users of hydrologically connected surface and groundwater.

Student Article Criticizing Carcieri v. Salazar

Sarah Washburn has published Distinguishing Carcieri v. Salazar: Why the Supreme Court Got It Wrong and How Congress and Courts Should Respond to Preserve Tribal and Federal Interests in the IRA’s Trust-Land Provisions in the Washington Law Review.

The abstract:

Section 5 of the Indian Reorganization Act (IRA) authorizes the Secretary of the Interior to acquire and hold land in trust for the purpose of providing land for Indians. In 2009, the Supreme Court held in Carcieri v. Salazar that to qualify for the benefits of Section 5, tribes must show they were under federal jurisdiction at the time the IRA was enacted in 1934. The Carcieri Court then determined that the Narragansett tribe, which obtained federal recognition in 1983 under the 25 C.F.R. Part 83 recognition process, had not proven that it was under federal jurisdiction in 1934. Carcieri was the first case in which the Court decoupled jurisdiction from recognition for purposes of the IRA. It could be read to suggest that federal recognition on its own is not enough to prove federal jurisdiction for purposes of the IRA and thus threatens the interests of all tribes; especially at risk are tribes that obtained federal recognition after Congress enacted the IRA. Many of those tribes were simply overlooked and excluded from a list of recognized tribes compiled upon enactment of the IRA, and all of them have demonstrable historical relationships with the federal government. While the Carcieri Court limited its holding to the timing question—that the phrase “now under federal jurisdiction” in the IRA means that a tribe must prove federal jurisdiction existed in 1934—it did not consider how tribes might prove such jurisdiction existed. This Comment argues that tribes recognized after the enactment of the IRA, through either traditional recognition processes or the recognition procedures set forth in 25 C.F.R. Part 83, were necessarily under federal jurisdiction in 1934 and should therefore qualify under the IRA’s Section 5 trust-land provisions. It argues that Congress should respond to Carcieri with legislation clarifying that all federally recognized tribes were necessarily under federal jurisdiction in 1934. It further argues that until Congress acts, courts should allow tribes recognized after 1934 to prove through additional evidence that such jurisdiction existed.