The PTAB lacks authority to decide the applicability of tribal sovereign immunity

By Terry Fokas
December 10, 2017

Tribal Sovereign Immunity - SovereigntyA question of first impression is now awaiting a decision from Patent Trial and Appeals Board (the “Board”): Does the Board have the authority to decide whether the Saint Regis Mohawk Tribe – which is a federally recognized, sovereign Native American Tribe and which is indisputably a non-consenting sovereign – is subject to the jurisdiction of the Board?

This dispute began on June 3, 2016, when Mylan Pharmaceuticals Inc. (“Mylan”) filed six petitions for inter partes review against U.S. Patent Nos. 8,685,930, 8,629,111, 8,642,556, 8,633,162, 8,648,048, and 9,248,191 (collectively, the “Patents-at-Issue”), which were then owned by Allergan, Inc. (“Allergan”).[1]

On September 8, 2017, Allergan, Inc. assigned the Patents-at-Issue to the Saint Regis Mohawk Tribe (the “Saint Regis Tribe”). Concurrently with this assignment, the Saint Regis Tribe granted back to Allergan an exclusive limited field-of-use license and then notified the Board that it was the new owner of the Patents-In-Issue. On September 22, 2017, the Saint Regis Tribe filed a Motion to Dismiss For Lack of Jurisdiction Based on Tribal Sovereign Immunity (the “Motion To Dismiss”).

Supreme Court has continuously reaffirmed unqualified tribal sovereign immunity

It is undisputable that as domestic dependent nations, Native American tribes possess and exercise inherent sovereign immunity. It is also undisputable that such power may be abrogated, limited or qualified only by the express and unequivocal action of Congress. In Kiowa Tribe of Oklahoma v Manufacturing Technologies, Inc., the U.S. Supreme Court explicitly affirmed that no court or administrative agency may interfere with that power absent Congressional legislation.

The U.S. Supreme Court has been steadfast in upholding this principle against any challenges to the breadth and scope of Native American tribal sovereign immunity. In Bay Mills, which was decided just three years ago, the Court noted that the holding in Kiowa Tribe was unambiguous, had been relied on by Native American tribes and by parties in subsequent cases, and had been considered (and left alone) by Congress, making any departure from it unwarranted. The Court reaffirmed that Native American tribes are domestic dependent nations that exercise sovereignty based on the fact that immunity “is ‘a necessary corollary to Indian sovereignty and self- governance.’” The Supreme Court further recognized that tribal immunity is qualified only to the extent it has been placed “in Congress’s hands.” The Court also noted that in Kiowa Tribe, it had refused to limit tribes’ inherent immunity to commercial activities on Indian land, deferring any such action to Congress. And that after the Court’s decision in Kiowa Tribe, Congress considered legislation specifically meant to proscribe tribal immunity, but tellingly chose not to pass any such limiting legislation.

In re-affirming Kiowa Tribe, the Court in Bay Mills held that “[i]t is fundamentally Congress’s job . . . to determine whether and how to limit tribal immunity.” The Court again reiterated that absent congressional limitations, tribes exercise unqualified immunity. The Court even went so far as to note that “a fundamental commitment of Indian law is judicial respect for Congress’s primary role in defining the contours of tribal sovereignty.”

In Bay Mills, the Court, when presented with an opportunity to abrogate, or at least qualify, tribal sovereign immunity, instead chose to unequivocally underscore that the power to qualify or limit tribal immunity is within the sole purview of Congress and that tribal immunity is clearly not subject to judicial review or administrative agency oversight.

The Board is not equipped to undertake the relevant analysis

Even assuming arguendo that the Board has the power (which it doesn’t) to decide whether sovereign immunity may be used by a patent owner to divest the Board of jurisdiction over an administrative patent challenge, the Board is simply not the appropriate venue to make this determination for at least the following three reasons: First, every assertion of sovereign immunity to defeat the Board’s jurisdiction in a particular case will necessarily involve intensive factual discovery and analysis – regardless of whether that discovery is being sought to prove/disprove that the assignment of a challenged patent is a sham transaction (as alleged by Mylan in this case) or whether discovery is being pursued to ascertain if the patent assignee is indeed a bona-fide claimant to sovereign immunity. The proceedings before the Board – which afford parties only limited discovery coupled with the fact that the Board has no subpoena powers over non-parties – means that the relevant factual determination will likely be incomplete or even fatally flawed. Second, a finding by a panel of the Board that sovereign immunity is proper in a particular case will not be binding on future petitioners as a result of due process prerogatives. This will undoubtedly lead to serial challenges to assertions of sovereign immunity thereby increasing costs to both patent owners and petitioners. Third, although sovereign immunity, which precludes the Board’s assertion of jurisdiction, is necessarily a gateway matter, it is also a collateral issue to the central function of Board proceedings, which are to adjudicate the validity of challenged patents. Requiring panels of the Board and litigants to determine whether a particular assignment to an alleged sovereign was a bona-fide transaction or requiring parties to contest/defend whether a particular assignee is entitled to claim sovereign immunity will undoubtedly further tax the time and resources of both the Board and litigants who are already laboring under a compressed trial schedule to determine the core issue of patent validity.

If the Board does believe there is reason to allow a challenge to a claim of sovereign immunity (notwithstanding the fact that the U.S. Supreme Court has unequivocally held that Congress has the sole authority to review or qualify the scope of tribal sovereign immunity), the proper forum to raise such a challenge to tribal sovereign immunity is not the Board. Instead, and based on analogous proceedings involving Indian tribes and assertions of tribal immunity, the correct forum for such challenges is clearly in federal district court.

For example, when a party challenges whether the relationship between the tribe and the entity asserting immunity is sufficiently close to properly permit that entity to share in the tribe’s immunity, federal district courts undertake an analysis of the bona-fides of an assertion of sovereign tribal immunity.[2] This analysis is commonly referred to as the “arm of the tribe” test. To that end, all of the federal courts of appeals have developed standards for determining which tribally affiliated entities are allowed immunity from regulation and legal suit. Rather than depending on the nature of the business a tribe is conducting through a particular entity, the question of whether tribal immunity is to be extended to the entity depends on whether, the entity is an “arm of the tribe” such that the activities of the challenged entity are properly deemed to be those of the tribe.[3]

As part of that analysis, each of the federal courts of appeals applies a unique arm of the tribe test, taking numerous and varied factors into consideration when determining which entities are entitled to tribal sovereign immunity. In general, the federal courts of appeals implement tests that typically evaluate the following: (1) the creation, funding and control of the entity; (2) the benefits accorded to the tribe by the entity; (3) the amount of control the tribe exerts over the entity; and (4) whether the policies of tribal sovereign immunity would be served by holding the entity as an arm of the tribe.[4]

Having challenges to assertions of tribal immunity heard in federal district court would also not impose any undue hardship or unfair burden upon litigants. Based on a five-year study (from 2012 through the end of the second quarter of 2017), nearly 80% of patents being challenged in Board proceedings are also subject to concurrent district court litigation. For the great majority of parties, asking the district court to resolve the issue of whether sovereign immunity applies in a particular case would be a relatively simple matter of filing motions in an already pending district court litigation. Moreover, federal district courts with their broad jurisdictional discovery powers and ability to issue subpoenas to third-party witnesses are uniquely situated to allow the parties a full and fair opportunity to develop a comprehensive factual record to challenge or defend assertions of sovereign immunity.

Conclusion

Because the Board lacks the adjudicatory authority to decide the applicability of tribal sovereign immunity, and because the better forum to raise such challenges is federal district court, the Motion to Dismiss For Lack of Jurisdiction Based on Tribal Sovereign Immunity filed by patent owner Saint Regis Mohawk Tribe should be granted.

_______________

[1] See IPR2016-01127; IPR2016-01128; IPR2016-01129; IPR2016-01130; IPR2016-01131; IPR2016-01132. Additional petitions for inter partes review of the Patents- In-Issue were then filed by Teva Pharmaceuticals USA, Inc. (“Teva”)(IPR2017-00576; IPR2017-00578; IPR2017-00579; IPR2017-00583; IPR2017-00585; IPR2017- 00586) and by Akorn Inc. (“Akorn”) (IPR2017-00594; IPR2017-00596; IPR2017-00598; IPR2017-00599; IPR2017-00600; IPR2017-00601). Each of the corresponding Mylan, Teva and Akorn petitions for inter partes review were subsequently joined See, e.g., Paper Nos. 18 and 19 in IPR2016-01127.

[2] See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuch Housing Authority, 207 F.3d 21, 29 (1st Cir. 2000)(stating that tribal housing authority “as an arm of the Tribe, enjoys the full extent of the Tribe’s sovereign immunity”); Marceau v. Blackfeet Housing Authority, 455 F.3d 974, 978 (9th Cir.2002) (recognizing that tribal sovereign immunity “extends to agencies and subdivisions of the tribe”).

[3] Allen v. Gold Country Casino, 464 F.3d 1044, 1046 (9th Cir. 2006); see also Hagen v. Sisseton- Wahpeton Community College, 205 F.3d 1040, 1043 (8th Cir. 2000); Ninigret Dev. Corp. v. Narragansett Indian Wetuomuch Housing Authority, 207 F.3d at 29.

[4] See Ninigret Dev. Corp. v. Narragansett Indian Wetuomuch Hous. Auth., 207 F.3d 21 (1st Cir. 2000); Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040 (8th Cir. 2000); Allen v. Gold Country Casino, 464 F.3d 1047 (9th Cir. 2006); Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort, 629 F.3d 1173, 1181 (10th Cir. 2010)

The Author

Terry Fokas

Terry Fokas is President and CEO of Parallel Networks. Terry manages Parallel Networks software intellectual property licensing programs, including oversight of outside patent prosecution counsel, patent litigation and licensing counsel in cases pending in the federal district courts in the District of Delaware, Northern District of Texas, Eastern District of Texas and the Court of Appeals for the Federal Circuit.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

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  1. Anon December 10, 2017 11:07 am

    While I agree with the conclusion (or at least, the conclusion that tribal sovereign immunity prevails) I am not sure that I agree with your procedural logic.

    For better or worse, we must face the fact that the IPR system was set up by Congress as an alternative path to the Article III direct mechanism.

    That does mean that ALL items – such as figuring out what is or is not a sham, such as applying its own jurisdictional limitations (not deciding whether or not such applies in the first instance) – necessarily inure – whether or not these are “difficult” or “taxing” or “inconvenient.”

    The system set up by Congress rises and falls as a single system. The “desire” to parse out this difficult aspect merely because it is difficult does not flow from how Congress wrote the AIA, and while perhaps this “remedy” seems on its face to make sense, any and all remedies must accord with procedural law.

  2. Paul R. Jones December 10, 2017 5:16 pm

    It never ceases to amaze me just how United States Constitution-stupid politicians-state and federal-are piled on top of how stupid their attorney’s are! As of the Indian Citizenship Act of 1924, there are no more “Indians” within the original meaning of the United States Constitution…only U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen in accordance with the U.S. Constitution’s 14th Amendment’s ‘equal protection’ Clause! And, yet, faux Title 25-INDIANS and faux ‘Indian treaties’ whereby these attorneys and politicians-state and federal-assert the United State Constitution has provision whereby We, the People, have ‘treaties’ with Other We, the People, because of the “Other’s” Indian ancestry/race and non-Indians believe this hoax.

    Worse yet are judges-state and federal-who woefully fail to uphold and defend the United States Constitution in their oath of office clearly articulated in CJ Marshall’s Marbury decision posted below by accepting both sides attorney’s petition there are “Indian Treaties” and “Indian reservations” where politicians-state and federal-continue to regulate from womb to tomb a select group of U.S./State citizens health, welfare, safety, benefits, capacities, metes and boundaries because of their “Indian ancestry/race” at the same time condemn “Jim Crow Laws” citing the United States Constitution’s 14th Amendment for one….what hypocrites!

    The United States Constitution makes for no provisions for “Indian reservations!” Land commonly known as an “Indian reservation” with rare exception is land owned by the People of the United States according to a federal document readily available on-line where U.S./State citizens with “Indian ancestry/race” residing on said land are merely tenants with rights of ‘use and occupancy’ only!

    If I can find these federal documents on-line, why are high-powered politicians-state and federal-and their highly paid attorneys and judges-state and federal-too stupid to do the same?

    United States Supreme Court MARBURY v. MADISON, (1803) Argued: Decided: February 1, 1803:
    “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.
    It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [5 U.S. 137, 178] So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
    If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.
    Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.
    This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.”

  3. angry dude December 10, 2017 6:48 pm

    Paul R. Jones@2

    “The Flaying of Sisamnes”

    “Sisamnes was a corrupt judge under Cambyses II of Persia. He accepted a bribe and delivered an unjust verdict. As a result, the king had him arrested and flayed alive. His skin was then used to cover the seat in which his son would sit in judgment”

    Me thinks this would be good practice to establish, maybe not so radical but painful or at least shameful enough

  4. Paul R. Jones December 10, 2017 6:56 pm

    For our elected servants-state and federal, perhaps more should be investigated for mischief against their oath of office to support and defend the Constitution especially with taxpayer money being spent for things other than for the health, welfare, safety and benefits of a demographic area of a state or the union as a whole, if found to have violated statute law regarding fradulent expenditures of taxpayer monies, to be tried and if convicted, get to wear federal colored jump-suits at the most convinent federal pokey! Perhaps, that would be a great object lesson for those who want to be elected.

  5. Anon December 11, 2017 8:19 am

    Mr. Jones,

    Until you address the substantial shortcomings in your position, your repetition of that position with nothing more than name-calling for those with a better position under the law is unavailing.

  6. T David Petite December 11, 2017 10:03 am

    Mr. Jones laws laws laws and more laws, you might want to go read on the 1934 Indian Arts Act or the Wheeler Act, it was reverse assimilation, if you do a bit more deep diving you might see that pale faces gave American Indians a intending slant on protecting their culture and native art, intellectual property; so as per you the drum keeps going what the Whiteman giveith the White man take away.

  7. Paul R. Jones December 11, 2017 11:52 am

    Anon: I don’t see anything from you to disprove any of my Constitution-based truths. As of the passage of the Indian Citizenship Act of 1924, there are no more “Indians” within the original meaning of the U.S. Constitution…only U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen. You have provided no Amendments to the Constitution make them ‘distinguishable.”

  8. Paul R. Jones December 11, 2017 12:15 pm

    T. David Petite: Nope. Nice try though. Passage of the Indian Citizenship Act of 1924 made null all Constitution references to “Indians!”
    Stare Decisis forecloses any citation of court cases pre-1924 Citizenship and Citizenship forecloses common law that makes the health, wellfare, safety and benefits distinguishable because of their “Indian ancestry/race” clearly stated in this one (there are 2-more such SCOTUS decisions) SCOTUS decision. You have provided no Amendments to change their statues as U.S./State citizens with “Indian ancestry/race” and the Constitution recognizes no such thing as ‘dual citizenship:’
    United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
    Argued: Decided: March 19, 1824
    “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

    The balance of your post are merely “Indian victimhood scenarios” more than 130-years old that do no harm to any living U.S./State citizens with “Indian ancestry/race!” Considering enrolled tribal members have been of the federal welfare rolls since 1924, time to get off the rolls and earn your own keep instead of squandering billions and billions of taxpayer dollars given to the tribes year after year after year that achieve what? More racial entitlement welfare?

  9. Anon December 11, 2017 12:37 pm

    Passage of the Indian Citizenship Act of 1924 made null all Constitution references to “Indians!”

    Once again, you shoot yourself in the foot Mr. Jones.

    Please explain how a mere passage of a normal act of Congress has Constitution-changing impacts.

    You continue to ask for things that simply do not need to be provided (your post at 7) because your very own position is simply not reflective of actual controlling law.

    As has also been presented, the Act itself that you reference (the Act of 1924) explicitly does not do that which you want it to do.

    The defects of your position – and the onus on you to correct those defects 0 remains entirely with you.

  10. Paul R. Jones December 11, 2017 2:01 pm

    Anon December 11, 2017 12:37 pm. You have yet to provide any Constitution tenants that disproves my Constitution-based truths…they are U.S./State citizens with “Indian ancestry/race” post passage of the Indian Citizenship Act of 1924. As is clearly stated in Osborn posted once again for your benefit, ‘…The constitution then takes him up…” as U.S./State citizens with “Indian ancestry/race” providing the full mantle of protection of one’s citizenship whereby neither Congress, Presidents, Initiatives or Referendoms can “…enlarge or abridge those rights…” absent an Amendment to the Constitution to do so…you have provided no such Amendment.
    Nice try but the onus to disprove my Constitution-based truths is with you.
    2. United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
    Argued: Decided: March 19, 1824
    “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

  11. Anon December 11, 2017 5:21 pm

    Mr. Jones,

    To your reply of “You have yet to provide any Constitution tenants that disproves my Constitution-based truths…” all I have to do is state:

    read what I have already provided.

    You ask for things not necessary given the fact that your position is not valid. I have shared with you the exact details of why that position is not valid, and you have done nothing at all with what I have provided to you.

    Repeating your errors won’t make them into non-errors.
    Asking (repeatedly) for something not needed ALSO will not make your errors into non-errors.

    Nice try but the onus to disprove my Constitution-based truths is with you.

    No. It is not. The onus remains on you.

  12. Paul R. Jones December 11, 2017 5:39 pm

    Anon December 11, 2017 5:21 pm: Since you have provided nothing to disprove any of my Constitution-based truths and clearly do no comprehend the Constitution or SCOTUS decision, your replies merely give excuses by saying “things not necessary given the fact that your position is not valid” is your unsubstantiated opinion while my posts flow from the United States Constitution and SCOTUS decisions. You have ‘shared’ nothing that disproves my Constitution-based truths as you claim…there are no ‘short-coming’ in my Constitution-based truths you can show citing the United States Constitution and not common law-state or federal…just an unsubstantiate opinion. Come to think of it, you have cited nothing in any of your posts…not the Constitution, not common law or case decisions. That fact, once again, makes you all bluster and no substance!

  13. Anon December 11, 2017 6:24 pm

    Mr. Jones,

    You have yet to reconcile the errors in your “Constitution-based truths” as you call them.

    You have yet to answer ANY of the points that I have previously supplied to you – about your own position (thus NOT requiring the things that you continue to ask for – in error).

    Even on this page, without venturing any further, above at post 9 I indicate a weakness in your position (vis s vis: Please explain how a mere passage of a normal act of Congress has Constitution-changing impacts.).

    You are the one that blusters, and then accuse others of bluster.

  14. Paul R. Jones December 11, 2017 7:14 pm

    There are no ‘errors’ you can identify in my post…your lack of any Constitutional knowledge regarding U.S./State citizenship is the error. Your question has been answered repeatedly by the Constitution itself…they are U.S./State citizens with “Indian ancestry/race” post 1924 Citizenship Act…that fact you don’t understand that is your error! Once citizenship is achieved, the Constitution is controlling…clearly stated in the SCOTUS decision in Osborn…the simple fact you don’t understand that, is the error. You need to brush-up on our Constitution as you have yet to find any ‘errors’ as you claim….read the Osborn decision again…it says is all….they are U.S./State citizens with “Indian ancestry/race” and absent an Amendment to make their ancestry/race distinguishable from all non-Indian U.S./State citizens cannot be made more clear in Osborn plus the other two SCOTUS decisions provided for your education plus an excerpted essay on ‘treaties’:
    Have a great day.

    1. United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
    “(a) Congress has no express power under the Constitution to strip a person of citizenship, and no such power can be sustained as an implied attribute of sovereignty, as was recognized by Congress before the passage of the Fourteenth Amendment; and a mature and well-considered dictum in Osborn v. Bank of the United States, 9 Wheat. 738, 827, is to the same effect. Pp. 257-261.
    (b) The Fourteenth Amendment’s provision that “All persons born or naturalized in the United States . . . are citizens of the United States . . .” completely controls the status of citizenship and prevents the cancellation of petitioner’s citizenship. Pp. 262-268”

    2. United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80
    Argued: Decided: March 19, 1824
    “A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulate, or to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual. The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”

    3. United States Supreme Court
    ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
    JUSTICE SCALIA, concurring in part and concurring in the judgment.
    I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
    It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 1]
    JUSTICE THOMAS, concurring in part and concurring in the judgment.
    I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS’ and JUSTICE GINSBURG’S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
    That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
    These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” post, at 3. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society,” ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly “benign” discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that “remedial” race legislation “is perceived by many as resting on an assumption that those who are granted this special [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 3] preference are less qualified in some respect that is identified purely by their race”).
    In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.
    http://lexrex.com/enlightened/AmericanIdeal/aspects/limited_gov_treaty.htm
    The object of treaties is the regulation of intercourse with foreign nations, and is external.”
    An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments),
    [Section 52.] “Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.”

    Another fallacious statement is that a treaty “can override the Constitution;” which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty “can cut across the rights given the people by the constitutional Bill of Rights”–than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.

    The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed … An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)

  15. Anon December 12, 2017 8:28 am

    Retreading (at length) the court cases does NOT fix your errors Mr.Jones.

    Let’s start with baby steps with the single item reposted here:

    Please explain how a mere passage of a normal act of Congress has Constitution-changing impacts.

  16. Anon December 12, 2017 8:30 am

    (we do not even have to – yet – get to the point that the Act of 1924 explicitly negates the reading that you are attempting to provide to it)

  17. Paul R. Jones December 12, 2017 9:07 am

    Anon December 12, 2017 8:28 am: You have been given the answer to this question multiple times by the United States Constitution…they are U.S./State citizens with “Indian ancestry/race” post passage of the Indian Citizenship Act of 1924; and, are under the full mantle of protection by the United States Constitution repeatedly provided to you in Osborn and the other SCOTUS decisions that address the fierce protection of one’s U.S./State citizenship by the Constitution! No common law can ‘enlarge or abridge’ that citizenship! What part about that Constitutional tenant don’t you understand???
    Faux Title 25-INDIANS is a blood quantum race/based common law that ‘enlarges or abridges’ their U.S./State citizenship w/o benefit of an Amendment.
    Each time you ask this same question, the answer STILL remains the United States Constitution itself nullifies all references to “Indians” in the Constitution ie. ‘treaty and commerce clause!’ Considering you lack any Constitutional knowledge about citizenship even when given SCOTUS decisions under your nose, I assume you will remain a Constitution ignorant person and a waste of time in providing U.S. Constitution tenants on U.S./State citizenship w/o mentioning the 14th Amendment’s ‘equal protection’ of one’s U.S./State citizenship which you don’t understand either!
    There is no U.S.Constitution error to my posts including this one you have provided!

  18. Anon December 12, 2017 9:20 am

    No Mr. Jones – you are still trying to read an ordinary act of Congress as having Constitution changing power.

    Not only is your attempted read incorrect on the face of the law itself, what you are attempting to do with an ordinary act remains unexplained. You are aware that it takes more to amend the Constitution, right?

  19. Paul R. Jones December 12, 2017 9:30 am

    Anon December 12, 2017 9:20 am: Once again, you exhibit the fact you simply lack any U.S. Constitution knowledge. They are U.S./State citizens with “Indian ancestry/race” whose U.S./State citizenship is protected by the Constitution itself.

    Given you simply do not understand any part of the 3-SCOTUS decisions in particular the Osborn decision that explicitly states that once U.S./State citizneship is achieved, Congress cannot change it by common law ie. Title 25-INDIANS, nor are there ‘treaties’ between We, the People and ‘other’ We, the People because of the ‘others’ ancestry/race nor the 14th Amendment’s ‘equal protection’ provisions nor have you provided any court cases or Constitutional tenants to dispute my posts beyond your opinion you cannot support citing the Constitution, further discussion in providing Constitutional tenants to you is a waste of time.

  20. T David Petite December 12, 2017 10:02 am

    Mr. Jones you might want to look at history relationship with the laws then consider your own words. You say we flounder money away and we should earn our own keep instead we have squandered billions and billions of taxpayer dollars that was given to the tribes year after year after year that achieve what? More racial entitlement welfare?. “I am a American Indian that is an enrolled Tribal member and I can assure you that is not the case.

    Imagine being a citizen of a government that the government responsible for looking after all your best interests. All of your assets must be managed by bureaucrats on your behalf. A special bureau is even set up to oversee your affairs. Every important decision you make requires approval, and every approval comes with a mountain of regulations where you live in a absolute socialized environment that is controlled by the government. And then imagine you have no right to vote or control those who make that decision for you.

    The 1924 Citizens Act was put in place largely because America felt an obligation to Indians that fought in WW1. Though not yet U.S. citizens, more than 10,000 American Indians serve in the U.S. Army and more than 2,000 in the U.S. Navy, according to Bureau of Indian Affairs records. American Indians enlist at high rates; fewer than one-quarter of Indians serving in the military are drafted. The rate of death and injury among American Indian soldiers is extremely high because they are often assigned dangerous scouting assignments—missions that many of them view as opportunities to demonstrate their strength as Indian warriors. Even after the act was passed Indians did not vote until1957, so how do you control who you are and what you do in a country controls everything about you?

    Chief Justice John Marshall who’s court opinions helped lay the basis for United States constitutional law, set American Indians on the path to poverty in 1831 when he characterized the relationship between Indians and the government as “resembling that of a ward to his guardian.” With these words, Marshall established the federal trust doctrine, which assigns the government as the trustee of Indian affairs. That trusteeship continues today, but it has not served Indians well.

    Underlying this doctrine is the notion that tribes are not capable of owning or managing their lands. The government is the legal owner of all land and assets in Indian Country and is required to manage them for the benefit of Indians, one of the only thing the tribes have is their cultural dignity with sovereignty, everything else has been taken and stripped away by people like you.

  21. Anon December 12, 2017 11:27 am

    Mr. Jones,

    Your protest simply has no teeth.

    Repeating yourself that my views lack “Constitutional knowledge” because I am not citing a Constitutional clause simply is not availing because you continue to seek something not required.

    Your view is simply incorrect at its foundation. You refuse to do anything about it. You are stuck in what you feel to be a position supported by cases not on point, continue to not understand what the Act of 1924 actually did (and did not do) and want a mere act of Congress to have Constitution changing power.

    Since you will not – and likely cannot – address this single simple starting point, you resort (yet again) to name-calling and repetition of your position instead of actually dealing with the counterpoint presented.

    Instead of more of the same from you (as that is not working for you), perhaps you should stop, think, and consider the foundations that you are attempting to build your castle upon.

    Try answering the single point here that I have presented.

    Do not deviate into name-calling.
    Do not deviate into merely repeating what you have already stated.

    Answer the point directly.

  22. Paul R. Jones December 12, 2017 12:48 pm

    Anon December 12, 2017 11:27 am: Sir Winston Churchill certainly had you in mind when he coined this assessment of people unable to comprehend the true even when put under their nose as you remain a U.S. Constitution ignorant person unable to understand Constitutional tenants and SCOTUS decisions on U.S./State citizenship!
    ““The truth is incontrovertible. … Malice may attack it, ignorance may deride it, but in the end, there it is.” – Winston Churchill”

  23. Anon December 12, 2017 2:03 pm

    Your quote is unavailing as you still are doing nothing more than name-calling when you need to be tending to the errors in your foundation.

    Your errors remain.

    Please address them.

  24. Concerned CCC-B December 14, 2017 7:39 pm

    I think that Tribal disputes with the federal government and in court actions are better decided in formal tribunals. Although some Native elder leadership and sacred persons who would be important to the decision making could have younger family members who use electronic communication that the internet is not the place for deciding or expecting an agreement to anything that has historically has not come to resolute. Also, the watchdog position is important and a legal vital for persons prepared to be thoughtful about any dispute….However, I’m afraid it falls short of formal reports or reporting which often happens many ways. I couldn’t say Churchill is the best reference for the dispute above….the nature of the discussion really requires legal knowledge, historical information and an understanding of the cultural dispute that is not as simple as race here. Without detailing much, I think there’s a basis for land ‘tending’ (which is not the best word) that gives more reference point for example what a sovereign nation can decide on its land that has no meaning that matches American property law that is largely adapted and then changed to the condition to survive persons who did travel to North America post crime to settle upon land lived on differently. No one can change the war and even if ‘all is fair in love and war.’ There are treaties that still exist that are honored and respected. A difficulty is when people have no reference point and still enter into Tribal boundaries that are clearly decided and marked without respect for cultural study to ‘observe’ or invade with building or illegal dispossession for purposes foreign to the cultural language and understanding.

  25. angry dude December 16, 2017 5:28 pm

    R u people crazy?
    This is ip blog and you discuss tribal rights?
    Wtf is wrong with you and this country?

  26. Anon December 17, 2017 9:16 am

    This is ip blog and you discuss tribal rights?

    Your sense of reason is once more absent, angry dude.

    The discussion of tribal rights is directly on point as to the intersection of those very rights with IP.

    Get out of your own way.

  27. Paul R. Jones December 17, 2017 12:21 pm

    Concerned CCC-B December 14, 2017 7:39 pm: Culture is maintained in the private sector not paid-for by taxpayers nor common law. This excerpted text debunks your post regarding ‘treaties:’
    http://lexrex.com/enlightened/AmericanIdeal/aspects/limited_gov_treaty.htm

    “The object of treaties is the regulation of intercourse with foreign nations, and is external.”
    An especially interesting piece of evidence supporting the conclusion that the Treaty Clause was intended and understood by the Framing and Ratifying Conventions not to authorize the President and Senate, by a treaty, either (a) to override the Constitution, in whole or in part, or (b) to make domestic law (as distinguished from governance of relations with foreign governments),
    [Section 52.] “Treaties are legislative acts. A treaty is a law of the land. It differs from other laws only as it must have the consent of a foreign nation, being but a contract with respect to that nation . . . 2. By the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated. 3. It must have meant to except out of these the rights reserved to the States; for surely the President and Senate cannot do by treaty what the whole Government is interdicted from doing in any way.”

    Another fallacious statement is that a treaty “can override the Constitution;” which defies historical truth, as we have seen. A related and most preposterous allegation is that a treaty “can cut across the rights given the people by the constitutional Bill of Rights”–than which nothing could be further from the truth, partly for two reasons: the Constitution does not authorize any such treaty and, secondly, the people are, of course, given their rights by God and not by themselves through their own creation: the Constitution (including its Bill of Rights, or Bill of Prohibitions, Amendments). The quoted statement is farcical.”
    With the exception of the Choctaw and Cherokee who have fee to their land according to this federal document, the other ‘faux’ federally recognized Indian tribes are merely renters with rights of ‘use and occupancy’ only and should be paying rent to the owners.
    INDIAN AFFAIRS: LAWS AND TREATIES
    Vol. IV, Laws (Compiled to March 4, 1927)
    Compiled and edited by Charles J. Kappler. Washington : Government Printing Office, 1929.
    ________________________________________
    Home | Disclaimer & Usage | Table of Contents | Index
    ________________________________________
    PART III.— EXECUTIVE ORDERS RELATING TO INDIAN RESERVATIONS FROM JULY 1, 1912, TO NOVEMBER 23, 1927.

    ARIZONA | CALIFORNIA | COLORADO | IDAHO | KANSAS | MINNESOTA | MONTANA | NEBRASKA | NEVADA | NEW MEXICO | NORTH DAKOTA | OKLAHOMA | OREGON | SOUTH DAKOTA | UTAH | WASHINGTON | WISCONSIN | EXECUTIVE ORDERS RELATING TO INDIANS ON PUBLIC DOMAIN | EXECUTIVE ORDER RESERVATIONS

  28. Anon December 17, 2017 2:23 pm

    Mr. Jones,

    Please stop repeating your strawmen.

    You have other work to do.

  29. Paul R. Jones December 17, 2017 4:07 pm

    T David Petite December 12, 2017 10:02 am: Clearly, you did not understand one word in my citing the U.S. Constitution?SCOTUS I provided to you in my Paul R. Jones December 11, 2017 12:15 pm post. You have provided nothing to change the Constitution to make your Indian ancestry/race distinguishable from all other non-Indian U.S./State citizens post passage of the Indian Citizenship Act of 1924…when you can provide an Amendment to the Constitution to make your Indian ancestry/race distinguishable, provide such to these posts. Notwithstanding an Amendment, you remain a U.S./State citizen with “Indian ancestry/race” the Constitution has provided no means to make your “Indian ancestry/race” distinguishable post citizenship. The balance of your post is opinion not supported by the Constitution…my posts, on the other hand, are supported by the Constitution beginning with the 14th Amendment’s ‘equal protection’ provisions followed by these other Constitutional tenants noted by Justice Scalia and Thomas in this decision:

    United States Supreme Court
    ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
    JUSTICE SCALIA, concurring in part and concurring in the judgment.
    I join the opinion of the Court, except Part III-C, and except insofar as it may be inconsistent with the following: In my view, government can never have a “compelling interest” in discriminating on the basis of race in order to “make up” for past racial discrimination in the opposite direction. See Richmond v. J. A. Croson Co., 488 U.S. 469, 520 (1989) (SCALIA, J., concurring in judgment). Individuals who have been wronged by unlawful racial discrimination should be made whole; but under our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution’s focus upon the individual, see Amdt. 14, 1 (“[N]or shall any State . . . deny to any person” the equal protection of the laws) (emphasis added), and its rejection of dispositions based on race, see Amdt. 15, 1 (prohibiting abridgment of the right to vote “on account of race”) or based on blood, see Art. III, 3 (“[N]o Attainder of Treason shall work Corruption of Blood”); Art. I, 9 (“No Title of Nobility shall be granted by the United States”). To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.
    It is unlikely, if not impossible, that the challenged program would survive under this understanding of strict scrutiny, but I am content to leave that to be decided on remand. [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 1]
    JUSTICE THOMAS, concurring in part and concurring in the judgment.
    I agree with the majority’s conclusion that strict scrutiny applies to all government classifications based on race. I write separately, however, to express my disagreement with the premise underlying JUSTICE STEVENS’ and JUSTICE GINSBURG’S dissents: that there is a racial paternalism exception to the principle of equal protection. I believe that there is a “moral [and] constitutional equivalence,” post, at 3, (STEVENS, J., dissenting), between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality. Government cannot make us equal; it can only recognize, respect, and protect us as equal before the law.
    That these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government’s racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged. There can be no doubt that the paternalism that [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 2] appears to lie at the heart of this program is at war with the principle of inherent equality that underlies and infuses our Constitution. See Declaration of Independence (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness”).
    These programs not only raise grave constitutional questions, they also undermine the moral basis of the equal protection principle. Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society. Unquestionably, “[i]nvidious [racial] discrimination is an engine of oppression,” post, at 3. It is also true that “[r]emedial” racial preferences may reflect “a desire to foster equality in society,” ibid. But there can be no doubt that racial paternalism and its unintended consequences can be as poisonous and pernicious as any other form of discrimination. So-called “benign” discrimination teaches many that because of chronic and apparently immutable handicaps, minorities cannot compete with them without their patronizing indulgence. Inevitably, such programs engender attitudes of superiority or, alternatively, provoke resentment among those who believe that they have been wronged by the government’s use of race. These programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are “entitled” to preferences. Indeed, JUSTICE STEVENS once recognized the real harms stemming from seemingly “benign” discrimination. See Fullilove v. Klutznick, 448 U.S. 448, 545 (1980) (STEVENS, J., dissenting) (noting that “remedial” race legislation “is perceived by many as resting on an assumption that those who are granted this special [ ADARAND CONSTRUCTORS, INC. v. PENA, ___ U.S. ___ (1995) , 3] preference are less qualified in some respect that is identified purely by their race”).
    In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. * In each instance, it is racial discrimination, plain and simple.”

  30. T David Petite December 17, 2017 5:27 pm

    Mr. Jones I am starting to believe you need to find a job or you have allot of free time using it to try and dumb down America

  31. CCC-J December 17, 2017 8:32 pm

    The federal government does maintain an interest in the study and promotion of culture….hence museum study and maintenance of cultural records that are not all funded by private interests, the State of Michigan does this as well. There are several cultural dialogues that occur in public forums on many levels and some are privately funded. However not all tribal lands are in the same category, as referenced by ‘PRJ.’ The constitution and treaty rights are not presumptively either or in nature. However, it is true that whether militaristically or by private privilege some historical treaty violations still do occur. Intellectual Property rights are different than cultural ideas or land rights. Although some people do argue that cultural history can inform geographical boundaries. A cartographer depending upon his or her employ or an academician with historical reference research could likely participate in settling those disputes in appropriate government forums unless a way to territory disputes outside of county records supercedes their debated lines. However patent disputes have other legal requirements for remedy.

  32. Anon December 17, 2017 8:46 pm

    Mr. Jones,

    Your position is NOT “of Constitutional basis” – or whatever it is that you like to label your (same old) position, and the Supreme Court cases that you have strung together (yet again), simply do NOT take care of the base error underlying your entire thesis.

    You STILL need to rectify your own error in understanding BOTH what the Act of 1924 actually did (and what it did not do) and – if you persist – you need to show how a mere act of Congress can itself alter the Constitution.

    None of your replies to date – full of ad hominem baseless name calling, dust kicking and mere repetition of what you have already put forth accounts for your blatant error in law.

    I would love for you to take the time to actually address the item put to you.

    I do not know what your emotional driver is, but surely there is one. You remain unreasonably blinded to what the law actually is and how the law actually works. I believe that if you took the time to recognize your error in what you think the law of the Act of 1924 did, and then took the time to try to explain that even if the Act does what you think it does, HOW does a mere act of Congress change the Constitution.

    I think that having to explain that simple single item – if you approached this with any sense of reason – would open your eyes to how incorrectly steadfast you have been, and continue to be.

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