Court: Native American tribe can’t be a “sovereign” shield during patent review | Hacker News Reader

Court: Native American tribe can’t be a “sovereign” shield during patent review

arstechnica.com

92 pointsxoa39 comments

What would happen if more parties start proxying their unlawful or at least dubious behaviour through Native American tribes like this? Some tribes seem to be willing to sell their immunity for enough money.

I'm not from the U.S., what kind of actions could the U.S. government take?

This idea was one of the strands of the biggest, hugest conspiracy theory of the 90's variously known as the Inslaw scandal, The Octopus, etc., which pulled into itself events surrounding a murder involving an obscure (23 member, iirc) group of Native Americans, the Cabazon:

> Some believe Alvarez had discovered money-skimming by outsiders helping the tiny Cabazon Band of Mission Indians manage its fledgling casino. Others suspect, however, that he had stumbled onto plans for a top-secret weapons deal on reservation land.

> Witnesses and court documents diverge considerably, however, on whether a secret partnership between the Cabazon tribe and the private security firm Wackenhut Corp. was a deal to provide security services, build a munitions arsenal or sell weapons to the Nicaraguan Contras, a U.S.-backed rebel group. [1]

Trouble is, as far as your question goes, various government entities including the Justice Dept. and the CIA, etc. were the ones taking advantage of the territorial immunity of the tribe concerned (in various of the conspiracy scenarios, that is, which I in no way endorse, though I still read up on it when possible)

If you're interested, for an overview of the wider ramifications, [2] & [3] are not-bad entry points.

1: http://www.sandiegouniontribune.com/sdut-murder-case-dropped...

2: https://www.muckrock.com/news/archives/2017/may/16/FBI-promi...

3: https://www.muckrock.com/news/archives/2018/mar/15/danny-cas...

> Trouble is, as far as your question goes, various government entities including the Justice Dept. and the CIA, etc. were the ones taking advantage of the territorial immunity of the tribe concerned.

I just had the scary thought of the US setting up Guantanamo-like prisons on reservations. If it was legally possible, they probably would have done it already.

The plenary power doctrine holds that US tribes aren't sovereign with regard to the US federal government, which is why they're controlled by laws instead of treaties. This is also why you can't get tribal protection against federal criminal charges.

But the flip side of that is that tribal sovereignty can't protect government actions; as the superior power both Constitutional rules and international treaties would remain in force.

(I can't work out what's up with the Inslaw case. Tribal territory definitely doesn't legalize CIA arms deals, so there isn't even a motive for a conspiracy like that. But even Wikipedia suggests that case could "drive a sane man to madness".)

> various government entities including the Justice Dept. and the CIA, etc. were the ones taking advantage of the territorial immunity of the tribe concerned (in various of the conspiracy scenarios)

I'm sort of baffled by this. Kagama found that the US has plenary authority over tribes; they aren't sovereign states with regard to the US governmen. As far as I can tell that also means violations of federal law - even by the government - can't be shielded by tribal law no matter where they happen.

I know you're not endorsing the conspiracy, but is there any chance you could clarify how this legal dodge was alleged to work?

So, bearing the non-endorsement caveat in mind.. :)

One version was that the Cabazon immunity

> made it feasible to pursue on the reservation the development and/or manufacture of materials whose development or manufacture would be subject to stringent controls off the reservation.

- from Michael Riconosciuto's affidavit in the Inslaw case, which can be found at http://www.larsschall.com/wp-content/uploads/2017/03/Riconos...

The claims in this document were elaborated in various ways through the 90s and beyond by all shades of conspiracy-inclined folk, and I wouldn't put too much stock in any particular thing Riconosciuto says, let alone the elaborations of others, though the literature flowing from his various claims remains interesting to me personally.

Interesting, thanks very much. I guess "avoids manufacturing controls" is a bit more coherent than "you can buy and sell whatever you want on tribal land" since it's presumably about an agency regulation instead of directly violating a federal law.

Still doesn't sound correct, but then again everything I'm finding about the Inslaw case says it's an absolute maze of craziness, in both the official version and the conspiracies.

Thanks for some fun reading on a weird corner of history!

> Thanks for some fun reading on a weird corner of history!

Yeah, it would make a great basis for a movie / miniseries / 7 season flagship TV drama blockbuster.. ;)

The really weird thing about it, I guess, is that in the original Inslaw complaint an actual judge actually ruled in an actual court case that the actual frickin' Justice Department illegally obtained software by "trickery fraud and deceit!"

Anyway, muckrock.com has some sober and very well sourced and informed reading on the topic - the pages I linked are a sample of that - but of course it's the wilder end that would provide the best subplots in an adaptation.

Nice to see others still think of Danny Casalaro. PROMIS should be a huge deal here, he'll, Bill Hamilton used to frequent Schneider blog and even claim that back then the NSA was backdooring low level chip manufacturers, among many other interesting claims.

That whole thing is still super relevant.

This is quite a complex question, but the basic answer is that under US law native tribes are "domestic dependent nations". This means that they possess sovereignty as any separate nation would (which flows from Constitutional recognition of their pre-existing status), but it is a limited sort of sovereignty. Congress can limit that sovereignty through legislation and the federal government can make treaties with them. However, unless a treaty or federal statute removes a power, the tribe is assumed to possess it.

In practical terms, addressing your question, if tribes keep trying to sell their sovereignty like this Congress can pass a law removing their sovereign immunity with respect to patents. And, in fact, moves have already started in that direction:

https://www.reuters.com/article/us-allergan-patents-congress...

The tribes would probably be wise to knock this behavior off as it's almost certainly going to result in pieces of their sovereignty being carved away, because everyone seems to agree that this sort of scheme is an absurd abuse.

Many people do. Native American nations are magnets for scam artists and various criminals.

They are immune from state prosecution, so if they operate at a level below whatever the federal authorities care about, it’s lower risk.

> Many people do. Native American nations are magnets for scam artists and various criminals.

Wanna back that one up with some statistics?

> They are immune from state prosecution, so if they operate at a level below whatever the federal authorities care about, it’s lower risk.

Well, not quite. It really depends on what you are talking about. Besides, NA preying on NA is often ignored, but don't screw with the non-NA because then you get the Feds and State cooperating.

https://arstechnica.com/tech-policy/2017/10/1-4-million-jack...

https://arstechnica.com/tech-policy/2017/06/sorry-maam-you-d...

Google “smuggling Native American reservation site:nytimes.com” for a quick intro.

Smuggling, drug trafficking, and other things are common problems. It’s vicious and tragic cycle often driven by poverty and neglect. Many of these root issues are compounded by awful healthcare and other policies.

That isn't a reservation exclusive problem. For example, since the introduction of meth, you'll see a lot of problems everywhere in rural areas (beats blowing up an apartment building). Plus smuggling has always been a rural problem. Its just a lot more direct for the feds to intervene on a reservation.

It kills me to think people want US government healthcare after seeing what the government provides on reservations. I guess they figure since they would be serving "white folks" then it would be better. That also leaves a bad taste in my mouth (which had 3 operations because of a botched root canal).

The US Federal Government is the superior sovereign. Sovereign immunity is powerful but also specific in dealing with civil lawsuits, hence this very ruling. It doesn't apply to federal agency actions for example. It also in no way prevents Congress from carving out whatever exceptions it wants, in fact that's how civil lawsuits against the government in general happen, Congress passes laws saying "people may sue the government for this."

It'll actually be most interesting to see how this might ultimately affect other entities that have been using it, such as State Universities. This ruling didn't specifically address that, as usual courts like to stay specific to the case. But in their final paragraph CAFC clearly acknowledged the parallels with other cases, and it's hard to see how the same logic of this ruling wouldn't apply to any other such entity too.

> It'll actually be most interesting to see how this might ultimately affect other entities that have been using it, such as State Universities.

It's hard to say, as State sovereign immunity is a Constitutional guarantee (11th Amendment) and thus in principle less subject to Congressional whim than the sovereignty of any other entity, when it comes to application of US law by US courts.

I expect will see more of it. Companies, especially public ones, may be regarded as sociopaths of greed. Any and all actions are divided from any morality unless the public acts back with government action. So any act that is a technicality in order to gain more wealth will be done. We've already seen contracts widely used as a way to dissolve the sovereignty of US states and bypass their laws. Further proxying through native american tribes is an easy leap to try to further subvert any morals or justice encoded by the public in law.

We'll see less of it. The point of the court ruling was to prevent tribes from being used as legal proxies. If a company wants to transfer legal rights to a tribe, it means they're also going to need to transfer actual independent ownership interests as well.

We've already seen contracts widely used as a way to dissolve the sovereignty of US states and bypass their laws.

Contracts are enforced at the state level (not the federal level), so I'd like to know what cases you're referring to here?

Scott Tucker. Huge Asshole. https://jalopnik.com/convicted-payday-loan-mogul-scott-tucke...

Keep in mind that Scott Tucker was convicted of mail fraud and making false statements to a bank long before starting his payday loan business. His brother Joel has also been charged (not sure if convicted) with a few felonies. The other brother Blaine committed suicide when the payday loan business where he was partners with Scott and worked with their mother started being investigated. Seems like the entire family was just a bunch of assholes and the tribal business was just a way to enable that.

Related to the article, if a company was a legit tribal company and not just fictionally owned/run by the tribe, would this ruling still make sense? Or does it only hold if a non-tribal company is trying to use the tribe to skirt laws?

My understanding from watching the Netflix episode about him is that it was primary due to the blatant nature of the abuse of sovereign status. That being said, when you see what else they had going on the Indian reservation thing becomes simply one bullet points in the depth of the scam.

I haven't seen that episode but there were two things that really got the trouble started. First was funneling money from the payday loan company to fund his racing team. The other was his brother Joel selling fake debt to collectors claiming it came from Scott or one of the AMG portfolio companies. A whole lot of people that never had a loan suddenly started getting calls from debt collectors. Not to mention those debt collectors were pissed when they found out it was fake and/or sold to multiple other collectors.

If it was legally owned by the tribe it would still run into issues with violating local state laws for any loans issues outside of tribal territories.

That part I'm aware of. My question was not in reference to payday loans or the Tuckers. If a legit tribal company filed this patent, would the ruling be the same? Or does it matter that the patent was "tribal" only in an attempt to get around the review?

The latter. If they legitimately owned the patent (whether they filed it themselves or acquired it by purchase), then this case could have proceeded on its merits.

Yes but they have sovereign immunity so only the feds can come knocking. So it has to be a big enough enterprise or really devious to get in trouble with the feds.

I can recommend the whole "Dirty Money" series that the article refers to. The episode about Scott Tucker was really interesting (and to me, an European), I had no idea that the Indian tribes were immune for certain prosecutions.

I figured it wouldn't fly because of some of the earlier rulings with casinos.

Well, I cannot blame the tribe for trying to get in on some of that tech money. Its not like there has been much outreach in this era of diversity initives. The tech companies list Native Americans in the Other column. Their prefered universities to recruit from don't really recruit from the reservation schools, and those same universities give scholorships and positions slated for Native Americans to non-natives. I look at Apple's initiave to get community colleges programming in Swift and see no tribal community college. Google blocked a tribal community college on Google Voice (thanks AT&T for finding that one). One PC company, who has since changed their ways, refused to treat tribal community college as an educational instutions.

Native-Americans have a diverse background in the last hundred years, including military service, sports and film making.. generally not big on the Academic side, if that is possible to say.. the programs you allude to are fraught with difficulties, for all kinds of reasons.. not simple, and certainly not solved by urgent, well-meaning people..

This is an issue that I'm regularly amazed urgent, well-meaning people are not up in arms about. That lack of academic success is largely to blame on the Department of the Interior's ineptitude. Reservation schools are often so bad, parents send their children to still existing Residential Schools, where Church protected groups make millions a year to set kids up in foster homes and enroll them in the local public school.

The entire situation is a disgusting.

I'm just amazed that the whole of America is not offended by the Department of the Interior's ineptitude. Our internet got cut for two weeks because they were required to be removed from the internet because of how sloppy their IT security was. Made for some problems with our distance learning classes. Even the colleges who paid for their internet from a private provider were affected. Hell, BIE still thinks a T1 is good enough for a community college.

North Dakota has open enrollment, so there are a lot of buses from other schools on the rez each morning (which I find good for the students). The tribes runs the local school not the BIE, and I think that is much more common these days. We don't have any of the old BIA schools, and the most common boarding school in our area is a world of difference from the old government crap (it is now run by Native Americans and does wonders for troubled children).

I Grew up near a rez in ND, my dad worked at the tribal college for as long as I can remember. Open enrollment does help. A sizable chunk of the local public school population lived on the rez. The tribal highschool looks more like a prison (not a single window on the outside) and teachers rarely last more than a couple years.

On the note of the sad state of diversity initiatives, I recall a particular quote from a local restaurant owner: "If their last name has a verb or an animal in it I throw it in the trash"

I think I know which one you mean (opened in 1985, it does have a sky light, one window behind the concrete towerish thing, and a door on the 3rd floor boiler room). Amazingly, its a "celebrated" design from Texas. The "how do we vent a gas leak" was hilarious, not to mention how fast strep throat traveled.

Oh yeah, that place was a horrible place since it was half public (high school), half BIA (elementary). I am told they have improved, but it was not great when I went there. They finally got rid of the BIA.

Yeah, some of the "border" towns have some really, flat out racist people. The "safety inspections" on the first of the month positioned to stop all cars coming off the rez were some serious BS. Talk about hitting people when they are already down.

Though the tribes often do have more control over the schools now, the SD reservations are the poorest areas in the nation, so they still rely on the BIE for funding. My hunch is that this is another of the differences between the Dakotas caused by the oil boom.

As for the boarding schools, SD still has the definite residential schools. My hometown has one, and it's depressing. Over the past decade they've; drawn national criticism for for fraudulent fund raising, forbid a Lakota ceremony from being performed at HS graduation while allowing a Christian prayer, moved away a priest after decades of hushed up rape accusations, and passed a state law making them unable to be sued by any past victims of abuse.

Pine Ridge and Rosebud just have no luck. In ND the only tribe that really gets oil money is Three Affiliated. A tribe can take over the school and retain the BIE funding with an agreement. I know they have a boarding school in Pierre and have heard good things. The corruption in the old system was, well, I really cannot express it in polite society but it sadly makes me hope for the existence of hell.

> Native-Americans have a diverse background in the last hundred years, including military service, sports and film making..

Other than military service, the other two are not exactly employers of number.

> generally not big on the Academic side, if that is possible to say..

Well, if you don't see a oppurtunity in one area, then you are logically going to put the effort in another area. Frankly, the American Military at least plays it straight and is a know equation.

The tribes have spent quite a lot of effort in bringing their educational institutions along, and the main instution for all most of the tribes is the community college which follows the same accreditation as its state brethren.

> the programs you allude to are fraught with difficulties, for all kinds of reasons.. not simple,

No, they are not. Apple could have reached out to some of the tribal schools like they did with other community colleges. One out the initial 30 is not too much to ask. Google could have internally told the bean counters, No - we will not block a tribal community college. The PC company could have listened to reason and found we were are worthy as other accredited institutions. Heck, one friggin company clued in enough to tell the tribes, "Hey, we employ X number of your enrolled members".

I am happy to listen to the "all kinds of reasons", but when the institution does the full accrediation, vocational learning, NGO grants, state grants, and federal grants: its really hard to argue a lack of ability to execute on programs from a company.

> and certainly not solved by urgent, well-meaning people..

This is the fun copout that we often here. Its poor reasoning when all we want is a chance to be on the field. I'll take well-meaning over being ignored.

I took the first paragraph charitably, but I get the feeling others might not

The EFF has a good write-up on this also:

https://www.eff.org/deeplinks/2018/07/federal-circuit-reject...

Really trying to use any other sovereign in a patent case is just plain silly. It is US patents that are relevant for granting barring treaties. They are out of jurisdiction by definition - leaving only diplomatic consequences which are usually pretty mild. France can't stop the US from calling Californian white wine champagne.

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