US Law generally holds that Indian Tribes are “Sovereign Powers” that “possess immunity from suit,” although only “to the extent that Congress has not abrogated that immunity and the tribe has not clearly waived its immunity.” Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort 629 F.3d 1173 (10th Cir. 2010), cert denied. As the Supreme Court wrote, “without congressional authorization,” the “Indian Nations are exempt from suit.” United States v. United States Fidelity & Guaranty Co., 309 U.S., at 512 (1940).
Questions in patent law remain, primarily: (1) Does the exemption from suit extent to exemption from an administrative action to cancel a tribal owned patent?; and (2) by purchasing a patent does a Tribe implicitly waive sovereign immunity regarding validity challenges to the patent.
In 2006, an en banc Federal Circuit decided the somewhat parallel case of Intel v. CSIRO, holding that the Foreign Sovereign Immunities Act (FSIA) permitted suit against Australia’s national science agency based upon the agency’s commercial activity — attempting to licence its WIFI patents. The Statute provides that:
[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case … in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. . . . Here, we are persuaded that these declaratory-judgment actions are “based on” CSIRO’s commercial acts of obtaining and asserting a United States patent.
My understanding is that FSIA does not apply directly to the Tribal immunity, which is judge-made-law.