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| | Tribal Sovereignty Advancements Through Intellectual Property Law |
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< | -- By MariHulbutta - 28 Feb 2018 |
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> | -- By MariHulbutta - 14 April 2018 |
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I. Current Landscape of Native American Legal Practitioners and the Outsourcing Problem |
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> | 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? |
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< | 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. |
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> | 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 |
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< | 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. |
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> | Recent cases illustrate that tribes are taking steps to advance tribal sovereignty through IP law. |
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< | 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. |
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> | 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. |
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< | 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. |
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> | 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 passed a resolution affirming support for tribal immunity from patent litigation. |
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< | 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. |
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> | 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). |
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< | 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. |
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< | 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. |
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> | 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. |
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< | 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. |
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> | 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. |
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> | 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. |
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< | 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. |
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> | 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. |
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> | 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. |
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< | 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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