AuthorTitleCitationSummaryYearKey Terms
John Mixon Patently Inconsistent: State and Tribal Sovereign Immunity in Inter Partes Review 93 Saint John's Law Review 233 (2019) From 2016 to 2017, the Patent Trial and Appeals Board (PTAB or the Board), an adjudicatory branch of the United States Patent and Trademark Office (USPTO), instituted five separate inter partes review (IPR) proceedings against patents owned by various state universities. Upon instituting these proceedings, the universities all moved to... 2019 Yes
Christopher B. Phillips Patently Unjust: Tribal Sovereign Immunity at the U.s. Patent Office 92 Southern California Law Review 703 (March, 2019) C1-2TABLE OF CONTENTS INTRODUCTION. 704 I. SOVEREIGN IMMUNITY. 708 A. Tribal Sovereign Immunity. 709 1. Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc.. 710 2. Michigan v. Bay Mills Indian Community. 711 3. Upper Skagit Indian Tribe v. Lundgren. 713 B. State Sovereign Immunity. 714 1. Florida Prepaid Postsecondary Education Expense... 2019 Yes
Lucas Paez Reviewing St. Regis: Unresolved Issues at the Intersection of Tribal Sovereign Immunity and Patent Law 21 Vanderbilt Journal of Entertainment and Technology Law 1125 (Summer, 2019) In July 2018, the Federal Circuit ruled that sovereign immunity does not circumvent an inter partes review brought by the Patent Trial and Appeal Board. By deciding against the tribe in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals (St. Regis), the court determined that inter partes reviews are adjudicatory proceedings brought by the United... 2019 Yes
Katrina Grace Geddes Sovereign Immunity for Rent: How the Commodification of Tribal Sovereign Immunity Reflects the Failures of the U.s. Patent System 29 Fordham Intellectual Property, Media and Entertainment Law Journal 767 (Spring, 2019) Last year, a Fortune 500 pharmaceutical company attempted to rent the sovereign immunity of an American Indian tribe in order to shield its patents on a dry-eye drug from invalidation by generic competitors in inter partes review. Pharmaceutical firms are notorious for pursuing unconventional methods to extend the duration of their patents and, in... 2019 Yes
Gregory Ablavsky Sovereign Metaphors in Indian Law 80 Montana Law Review 11 (Winter, 2019) The status of Native nations under federal law, the Supreme Court has repeatedly stated, is unique. The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence, Chief Justice Marshall announced in Cherokee Nation v. Georgia; it was marked by peculiar and cardinal distinctions which... 2019 Yes
Andrea M. Seielstad The Need for More Exacting Assessment of the Individual Rights and Sovereign Interests at Stake in Federal Court Interpretation of "Detention" under the Indian Civil Rights Act's Remedy of Habeas Corpus 14 Tennessee Journal of Law and Policy 63 (Summer, 2019) Pursuant to its federally-recognized plenary power over Indian affairs, Congress enacted the Indian Civil Rights Act in 1968 as a major civil rights initiative aimed at filling the gap in civil rights enforcement within tribal communities. Its aim was to bind tribes, who otherwise are not accountable to the protections of the United States... 2019 Yes
Jason Zenor Tribal (De)termination? Co Native American Imagery and Cultural Sovereignty 48 Southwestern Law Review 81 (2019) The U.S. Supreme Court ruled in Matal v. Tam that the disparagement clause in the Lanham Act was unconstitutional. This case was just another in a line of commercial speech cases to expand the rights of corporations. This ruling also further limits the legal options for tribes to protect their cultural identity from exploitation. In response, this... 2019 Yes
Rebecca Tsosie Tribal Data Governance and Informational Privacy: Constructing "Indigenous Data Sovereignty" 80 Montana Law Review 229 (Summer, 2019) There is a growing movement among Indigenous peoples to assert a right to Indigenous data sovereignty, and yet, the term data sovereignty is not widely understood. What does it mean to control the collection, use and management of information in an era of Big Data, in which digital technology transforms knowledge into electronic form, to be... 2019 Yes
Brianne Marino Glass Tribal Lending under Cfpb Enforcement: Tribal Sovereign Immunity and the "True Lender" Distinction 23 North Carolina Banking Institute 401 (March, 2019) Tribal sovereign immunity is an important protection that enables Indian tribes and their entities to regulate their own affairs in a way that benefits the tribe and its members. In recent years, however, this sovereign immunity structure has become prone to abuse within the payday lending industry as some non-tribal lenders have established links... 2019 Yes
  Tribal Sovereign Immunity Overcomes Bankruptcy Code Abrogation 28 Norton Journal of Bankruptcy Law and Practice Art. 5 (12/1/2019) Principal shareholder of Rosen & Associates, P.C., New York 2019 Yes
Cody Wilson Tribal Sovereignty and Online Gaming: Fantasy Sports Offer Tribes What Other Games Do Not 72 SMU Law Review 351 (Spring, 2019) [A]T gambling, the deadly sin is to mistake bad play for bad luck. Native American tribes should keep those words in mind following the decision issued by the Unites States Court of Appeals for the Ninth Circuit in State of California v. Iipay Nation of Santa Ysabel. In that case, the Ninth Circuit addressed an issue of first impression, holding... 2019 Yes
  United States-crow Treaty--federal Indian Law-- Indian Plenary Power Doctrine--herrera v. Wyoming 133 Harvard Law Review 402 (November, 2019) As the United States expanded and its territories received statehood, questions naturally emerged about how the nature of relationships between the territories and Indian tribes on those lands would change. These questions were complicated by a changing perspective on the inherent sovereignty of Indian Tribes and how that informed what the courts... 2019 Yes
Jason Mitchell Unoccupied: How a Single Word Affects Wyoming's Ability to Regulate Tribal Hunting Through a Federal Treaty; Herrera v. Wyoming 19 Wyoming Law Review 271 (2019) I. Introduction. 272 II. Background. 274 A. The Second Treaty of Fort Laramie. 274 B. Precedent Implicated in the Treaty's Interpretation. 275 1. Ward v. Race Horse. 275 2. Crow Tribe of Indians v. Repsis. 277 3. Minnesota v. Mille Lacs Band of Chippewa Indians. 278 III. Wyoming State District Court Opinion. 280 A. Procedural Posture. 280 B. Issue... 2019 Yes
Andrew Rome Black Snake on the Periphery: the Dakota Access Pipeline and Tribal Jurisdictional Sovereignty 93 North Dakota Law Review 57 (2018) [W]hen one strips away the convoluted statutes, the technical legal complexities, the elaborate collateral proceedings, and the layers upon layers of interrelated orders and opinions from this Court . what remains is the raw, shocking, humiliating truth at the bottom: After all of these years, our government still treats Native American Indians as... 2018 Yes
Michalyn Steele Congressional Power and Sovereignty in Indian Affairs 2018 Utah Law Review 307 (2018) The doctrine of inherent tribal sovereignty--that tribes retain aboriginal sovereign governing power over people and territory--is under perpetual assault. Despite two centuries of precedential foundation, the doctrine must be defended afresh with each attack. Opponents of the doctrine of tribal sovereignty express skepticism of the doctrine,... 2018 Yes
Rob Roy Smith Contract Waivers for Tribal Sovereign Immunity: What Every Idaho Attorney Needs to Know 61-APR Advocate 28 (March/April, 2018) You've negotiated thousands of contracts in your career. You're convinced you can draft a binding contract between an Indian tribe and a non-Indian business. You may want to think again. Whether you represent an Indian tribe or seek to do business with a tribe, a basic understanding of tribal sovereign immunity is critical. Working with tribes can... 2018 Yes
Christopher B. Chaney Data Sovereignty and the Tribal Law and Order Act 65-APR Federal Lawyer 22 (April, 2018) The provision of criminal justice services in Indian country is a key aspect of tribal sovereignty. These services, which may include policing, investigations, courts, corrections, sex offender registration, and probation/parole, are vital to the safety, vitality, and economic security of all communities. With the rapid development of technology in... 2018 Yes
Mary Kathryn Nagle Environmental Justice and Tribal Sovereignty: Lessons from Standing Rock 127 Yale Law Journal Forum 667 (1/20/2018) ABSTRACT. The environmental movement in the 1970s secured many landmark victories, including the passage of important legislation and the establishment of the EPA. However, these activists, while identifying critical environmental problems, failed fully to consider their cause. In particular, the environmental movement ignored the longstanding... 2018 Yes
Ryan Hickey Highway Culverts, Salmon Runs, and the Stevens Treaties: a Century of Litigating Pacific Northwest Tribal Fishing Rights 39 Public Land & Resources Law Review 253 (2018) I. Introduction. 254 II. Early Treaty Years and Origins of Conflict. 256 III. The Tribes Take on the State. 258 IV. The Ninth Circuit's 2016-2017 Decision. 263 A. A duty to protect salmon populations and habitat. 263 B. The United States did not waive its ability to allege a Treaty violation. 264 V. From Circuit to Supreme: Exhausting Remedies and... 2018 Yes
Morgan Medders How the Ninth Circuit Severed the Indian Civil Rights Act from Federal Habeas Corpus Precedent under the Guise of Tribal Sovereignty 42 American Indian Law Review 423 (2018) Two competing interests dominate the interplay between federal Indian law and individual civil rights. On one hand, the U.S. government uplifts tribal sovereignty and recognizes the importance of tribal self-governance, and nowhere is this more special than setting the guidelines for tribal membership. On the other hand, the individual liberties... 2018 Yes
  Income from Selling Gravel Not Exempt under Seneca Indian Treaties 100 Practical Tax Strategies 43 (April, 2018) In Perkins, 150 TC No. 6 (2018), the Tax Court analyzed two treaties with the Seneca Indian Nation and determined that income earned by a Seneca Indian from selling gravel mined on Seneca land was not exempt from taxation under those treaties. The taxpayers, Mr. and Mrs. Perkins, enrolled members of the Seneca Nation, removed gravel from Seneca... 2018 Yes
James Choi Our Sovereignty, Patently: a Historical Perspective on Fitting Patent Rights with State and Tribal Sovereign Immunity 16 Georgetown Journal of Law & Public Policy 591 (Summer, 2018) Modern courts recognize state and tribal sovereign immunity defenses asserted against patent lawsuits and IPRs, even while states and tribes can still initiate their own patent lawsuits against private parties. This immunity enables patent arbitrage by local governments in ways unrelated to incentivizing innovation. Tracing the historical... 2018 Yes
James Choi Our Sovereignty, Patently: a Historical Perspective on Fitting Patent Rights with State and Tribal Sovereign Immunity 16 Georgetown Journal of Law & Public Policy 591 (Summer, 2018) Modern courts recognize state and tribal sovereign immunity defenses asserted against patent lawsuits and IPRs, even while states and tribes can still initiate their own patent lawsuits against private parties. This immunity enables patent arbitrage by local governments in ways unrelated to incentivizing innovation. Tracing the historical... 2018 Yes
Maya Ginga Patently Absurd: Critiquing the Uspto's Disparate Treatment of Tribal and State Immunity in Inter Partes Review 75 Washington and Lee Law Review 1703 (Summer, 2018) C1-3Table of Contents I. Introduction. 1704 II. Introduction to Patent Law. 1715 A. Philosophical Justifications. 1715 B. The Contemporary Patent System. 1718 III. Sovereign Immunity. 1725 A. Tribal Sovereignty. 17285 B. Tribal Economic Liberty and Self-Determination. 1735 C. State Sovereignty. 1736 IV. The Intersection of Intellectual Property and... 2018 Yes
Claudia Azzam Piercing the Tribal Veil: Tribal Sovereign Immunity in the Anomalous Context of the Pharmaceutical Industry 20 Rutgers Race & the Law Review 39 (2018) The pharmaceutical giant, Allergan, recently transferred ownership of its patents covering its blockbuster eye medication for Restasis to a Native American tribe. Allergan did so in an attempt to use the Saint Regis Mohawk Tribe's sovereign immunity to shield its patents from inter partes review, an administrative proceeding conducted by the Patent... 2018 Yes
Robert J. Miller Sovereign Resilience: Reviving Private-sector Economic Institutions in Indian Country 2018 Brigham Young University Law Review 1331 (2018) C1-2Contents I. Introduction. 1332 II. Current Economic Conditions in Indian Country. 1335 III. Traditional American Indian Private-Sector Institutions. 1339 A. Private Rights in Real Property. 1341 B. Personal Property. 1347 C. Trade. 1349 D. Native Business Skills. 1353 E. Indian Currencies. 1354 F. Accumulating Wealth. 1356 IV. Reviving... 2018 Yes
Alma Orozco The Dark Side of Tribal Sovereign Immunity: the Gap Between Law and Remedy 19 Nevada Law Journal 689 (Winter 2018) C1-2Table of Contents Introduction. 690 I. United States Patent Law. 693 A. The Leahy-Smith America Invents Act. 695 B. Inter Partes Review. 696 C. Build On or Build Around. 697 II. The King Can Do No Wrong: The Doctrine of Sovereign Immunity. 699 A. Federal, State and Foreign Sovereign Immunity. 700 B. The Scope of Federal, State, and Foreign... 2018 Yes
George Emmons The Unseen Harm: U.s.-Indian Relations & Tribal Sovereignty 48 Golden Gate University Law Review 185 (May, 2018) L1-2Table of Contents Introduction. 186 I. Indian Treaty Interpretation. 189 A. Domestic Dependent Status of Tribes. 189 B. Treaty Rights: The Judiciary's Key Role in Interpretation. 190 C. Historic Canons of Treaty Interpretation. 191 1. Winters v. United States: A Broad Interpretation of Treaty Rights. 191 2. United States v. Dion: Congressional... 2018 Yes
Adam Crepelle Tribal Lending and Tribal Sovereignty 66 Drake Law Review Rev. 1 (First Quarter 2018) The short-term lending industry involves millions of consumers and billions of dollars. Several Indian tribes have entered the lending industry as a means of economic development. These tribes have created their own lending enterprises that are headquartered in Indian country but attract customers from around the United States via the internet.... 2018 Yes
Geoffrey D. Strommer, Starla K. Roels, Caroline P. Mayhew Tribal Sovereign Authority and Self-regulation of Health Care Services: the Legal Framework and the Swinomish Tribe's Dental Health Program 21 Journal of Health Care Law and Policy 115 (2018) Across the United States, an important shift is taking place in the Indian health care arena. Over the past forty years, many American Indian Tribes have transitioned away from relying primarily on federal officials to provide a bare minimum in health care services to Indian people and have begun instead to develop and operate complex tribal health... 2018 Yes
Hunter Malasky Tribal Sovereign Immunity and the Need for Congressional Action 59 Boston College Law Review 2469 (October, 2018) Abstract: Native American Indian tribal sovereign immunity is a judicially created doctrine that provides immunity from suit for Indian tribes in the United States. Although judicially created, the United States' courts have repeatedly emphasized that only Congress has the power to limit Indian tribal immunity. As a result, tribal sovereign... 2018 Yes
Elana Williams Tribal Sovereign Immunity as a Defense in Overcoming Ipr Challenges of Brand Name Pharmaceutical Patent Validity at Ptab--effects on the Industry 18 University of Pittsburgh Journal of Technology Law and Policy Pol'y 1 (2017-2018) Tribal sovereignty has been recognized by the American government since the establishment of the United States and tribal sovereign immunity has been a part of American jurisprudence for over a century. Tribal sovereign immunity continues to play an important role in modern times, especially in the last few years with the rise of inter partes... 2018 Yes
Brandon Andersen Tribal Sovereign Immunity at the Patent and Trademark Office 100 Journal of the Patent and Trademark Office Society 332 (2018) The America Invents Act was at least partially designed to weed out invalid patents through administrative proceedings. One such proceeding, inter partes review, is popular among challengers but criticized by patent holders for its high invalidation rate. Some disgruntled patent holders have discovered an old doctrine as a potential new tool to... 2018 Yes
Peter J. Smith IV , Jillian H. Caires Tribes Are Sovereign Nations: State Court Recognition of Tribal Court Judgments in the Post-coeur D'alene Tribe v. Johnson Era 61-SEP Advocate 29 (September, 2018) From 1982 to 2017, the Idaho courts recognized tribal judgments under the full faith and credit clause of the U.S. Constitution. Now Idaho courts will recognize tribal court judgments under the doctrine of comity. This change recognizes that tribes are sovereign nations within the State of Idaho. This article explains why. Federally recognized... 2018 Yes
Lane Kaiwi Opulauoho Tru Native Hawaiian Nation: Lessons from Federal Indian Law Precedents 43 American Indian Law Review 75 (2018) From time immemorial, Native Hawaiians, the aboriginal peoples who settled the isolated Hawaiian Archipelago surrounded by the vast Pacific Ocean, have lived and prospered. These peoples provided the foundation of a nation that exercised sovereignty over these islands. This jurisdiction has had several titles: first, the Hawaiian Kingdom, a... 2018 Yes
Susan M. Larned Wa Native American Tribal Role in Protecting Natural Resources 8 Barry University Environmental and Earth Law Journal 52 (2018) So, the monarch [butterfly] is also part of the protest, part of the movement, with its drumbeat reverberating across the planet. The tribal peoples of Earth are making their voices heard in so many ways. Their mission is to reconnect the modern world with the circle of life--a circle that much of humanity left behind maybe ten millennia ago, in... 2018 Yes
Cecilia (Yixi) Cheng, Theodore T. Lee When Patents Are Sovereigns: the Competitive Harms of Leasing Tribal Immunity 127 Yale Law Journal Forum 848 (3/2/2018) abstract. Under the Hatch-Waxman and America Invents Acts, Congress has established a system for judicial and administrative review of prescription-drug patents that balances exclusive rights for patent holders and the entry of generic competitors. Threatening this balance, the pharmaceutical company Allergan recently transferred prescription drug... 2018 Yes
Michalyn Steele Breaking Faith with the Tribal Sovereignty Doctrine 64-APR Federal Lawyer 48 (April, 2017) The great Seneca Nation leader and diplomat Red Jacket is said to have illustrated the tribe's frustration with the insatiable encroachment of those seeking Seneca lands during a negotiation with the Holland Land Company's agent, Joseph Ellicott. The two were seated on a log. Every few minutes during their discussion, Red Jacket crowded Ellicott on... 2017 Yes
Jessica A. Shoemaker Complexity's Shadow: American Indian Property, Sovereignty, and the Future 115 Michigan Law Review 487 (February, 2017) This Article offers a new perspective on the challenges of the modern American Indian land tenure system. While some property theorists have renewed focus on isolated aspects of Indian land tenure, including the historic inequities of colonial takings of Indian lands, this Article argues that the complexity of today's federally imposed reservation... 2017 Yes
Jacob Franchek Digitizing Tribal Law: How Codification Projects Such as Tribal Law Online Could Give New Rise to American Indian Sovereignty 94 Washington University Law Review 1025 (2017) Well, neither could . anybody, right? I mean if anybody could find it, you could. It's because it's not published anywhere, right? --Chief Justice John Roberts, in response to being told by an attorney arguing for the Cheyenne River Sioux Tribe that his office had been unable to discover applicable Cheyenne River Sioux precedent. Today, in the... 2017 Yes
Hope Babcock Here Today, Gone Tomorrow--is Global Climate Change Another White Man's Trick to Get Indian Land? The Role of Treaties in Protecting Tribes as They Adapt to Climate Change 2017 Michigan State Law Review 371 (2017) Indian Tribes are at the tip of the spear when it comes to climate change. Their dependence on their homelands for subsistence and cultural sustenance has made them vulnerable to climate-driven changes like sea level rise, shoreline erosion, and drought. As climate change makes their land less suitable for the animals and plants they depend on,... 2017 Yes
Michael C. Blumm Indian Treaty Fishing Rights and the Environment: Affirming the Right to Habitat Protection and Restoration 92 Washington Law Review Rev. 1 (March, 2017) Abstract: In 1970, several tribes in the Pacific Northwest, along with their federal trustee, sued the state of Washington claiming that numerous state actions violated their treaty rights, which assured them the right of taking fish in common with white settlers. The tribes and their federal trustee maintained that the treaties of the 1850s... 2017 Yes
Dr. Waseem Ahmad Qureshi Indus Waters Treaty: an Impediment to the Indian Hydro-hegemony 46 Denver Journal of International Law and Policy 45 (Fall, 2017) Water is the most exquisite commodity, and its utility in the sectors of economy, food, and power production is exceptional. To capture this resource more effectively, powerful nations are racing to raise water management infrastructure in order to seize the reins of regional political supremacy by establishing hydro-hegemony. Within this context,... 2017 Yes
Allison Hester Maxwell, Lewis v. Clarke, and the Trail Around Tribal Sovereign Immunity 88 University of Colorado Law Review 721 (Summer, 2017) Tribal sovereign immunity is an important tool available to American Indian tribes as they have rebuilt, restructured, and rejuvenated their communities in the era of Self-Determination following centuries of colonialism, land grabs, and cultural genocide. Sovereign immunity protects tribes by establishing a barrier to both trampling of tribal... 2017 Yes
Riley Plumer Overriding Tribal Sovereignty by Applying the National Labor Relations Act to Indian Tribes in Soaring Eagle Casino and Resort v. National Labor Relations Board 35 Law & Inequality: A Journal of Theory and Practice 131 (Winter, 2017) On July 1, 2015, the United States Court of Appeals for the Sixth Circuit decided Soaring Eagle Casino and Resort v. NLRB. The three-judge panel unanimously concluded that the National Labor Relations Act (NLRA), a generally applicable federal statute, should not apply to Indian tribes. However, by a 2-1 vote, the court held that the NLRA would... 2017 Yes
Douglas C. Harris Property and Sovereignty: an Indian Reserve and a Canadian City 50 U.B.C. Law Review 321 (June, 2017) Property rights, wrote Morris Cohen in 1927, are not about things, but about relations between the owner and other individuals in reference to things. The law of property constructs a particular set of relationships between people, and, in the case of private property, he continued, its essence is always the right to exclude. This right,... 2017 Yes
Valerie Lambert, University of North Carolina at Chapel Hill Rethinking American Indian and Non-Indian Relations in the United States and Exploring Tribal Sovereignty: Perspectives from Indian Country and from Inside the Bureau of Indian Affairs 40 PoLAR: Political and Legal Anthropology Review 278 (November, 2017) This article uses materials from field research conducted at the level of tribal homelands and at the federal level of the Bureau of Indian Affairs to rethink and reconceptualize Indian-non-Indian relations and federal-Indian relations in the United States. I document the ways Chickasaw and Choctaw tribal officials are moving beyond the deadliest... 2017 Yes
Briana Green San Manuel's Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty 6 Michigan Journal of Environmental & Administrative Law 463 (Spring, 2017) Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that... 2017 Yes
Briana Green San Manuel's Second Exception: Identifying Treaty Provisions That Support Tribal Labor Sovereignty 6 Michigan Journal of Environmental & Administrative Law 463 (Spring, 2017) Inspired by the holding in WinStar World Casino, this Note considers the potential for tribes to make treaty-based arguments when facing the threat of National Labor Relations Board jurisdiction. This Note presents the results of a survey of U.S. government treaties with Native Americans to identify those treaties with language similar to that... 2017 Yes
Michael I. Fiske Self-determination for Native American Sovereign Immunity & Disability Rights 10 Albany Government Law Review 271 (2017) Both Native American tribes and individuals with disabilities are historically oppressed minorities that have experienced a variety of profound social, cultural, and economic barriers. From the very beginnings of the United States, dominant societal attitudes have perceived Native Americans as being inferior and uncivilized, and commonly referred... 2017 Yes
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