A bill to abrogate the sovereign immunity of Indian tribes as a defense in inter partes review of patents

My Senator (McCaskill) has introduced S. 1948 titled “A bill to abrogate the sovereign immunity of Indian tribes as a defense in inter partes review of patents.”  [TribalImmunity]

The Bill provides one simple statement as follows:

Notwithstanding any other provision of law, an Indian tribe may not assert sovereign immunity as a defense in a review that is conducted under chapter 31 of title 35, United States Code.

As discussed previously, Tribal Nation Sovereign Immunity is not Constitutionally protected and may be eliminated by particular acts of Congress.  Thus, this Bill would seem to be effective to eliminate the ongoing concern regarding tribal immunity assertions.  The proposal does lack an effective date and so the only missing element would be whether the Bill would retroactively veto pre-enactment claims of immunity.

More on Tribal Immunity: Is a Tribal-Owned Patent Immune from IPR Challenge?

Allergan: Creating Sovereign Immunity with Tribal Pass-Through

 

 

 

190 thoughts on “A bill to abrogate the sovereign immunity of Indian tribes as a defense in inter partes review of patents


  1. anon October 15, 2017 at 4:42 pm
    Scotus Rule 37 is simply not material.

    You need to answer the very simple – and very direct question put to you.

    What IS the question that the Court has accepted?

    REPLY: Your comment regarding “SCOTUS Rule 37 is simply not material” makes the balance of your post irrelevant as you clearly have no understanding of Rule 31 and that further makes your question irrelevant…the answer has been asked and answered…Amicus are relevant to any question before the Court. Period.

    1. Amicus are relevant to any question before the Court. Period.

      What IS the single question that the Court agreed to let before it?

      Your lack of a direct answer to what it possibly the easiest question that you have to handle is most telling.

      1. Again, you have yet to read Rule 37.

        Unless you have submitted an Amicus to SCOTUS, you have no room to complain!

        link to scotusblog.com
        Issue: Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution’s separation of powers principles.

        1. Again, you have yet to read Rule 37.

          Again – just answer the question, Paul.

          1. (and compare that answer to MY answer and your errant view of what is before the Court).

            Do more than block quote.

            APPLY some reasoning to what you are block quoting.

  2. Joachim Martillo
    We’ve been around this merry-go-round Paul, and your accusations STILL fall flat.

    It is YOU that does note understand that a mere act of Congress can have Constitution changing power.

    It is YOU that refuses to unclench your eyes to the actual change in law brought on by the Act of 1924 – what that act did – and critically – did NOT do.

    I have provided these things to you in black and white, and yet you insist on persisting in plain error.

    Only when you are willing to unclench your eyes will you be able to see where YOUR errors get in the way of what you think the law is.

    REPLY: I agree. We have plowed this field very well.

    I rest my position on the United States Constitution’s protection of one’s U.S./State citizenship to be free from abuse by politicians and free from (a) fraud upon the Constitution ie. Title 25-INDIANS. The Indian Citizenship
    Act of 1924 provided U.S./State citizenship with folks having “Indian ancestry/race!”

    What is your position asserting…the common law of the Act cannot change the Constitution’s references to “Indians?”

    These newly minted U.S./State citizens with “Indian ancestry/race” are entitled to “what” that is different from all other non-Indian U.S./State citizens? Land…what land?

    Other than the Cherokee and Choctaw noted in the federal letter provided in my posts, what land are you referring-to? Treaties…no such thing under the Constitution…no treaties with constituency.

    To hold to your position that Indian ‘treaties’ still exist (and other Constitution references to “Indians” stayed the same post the Indian Citizenship Act of 1924 requires an Amendment to the Constitution whereby We, the People of the United States have ‘treaties’ with other We, the People of the United States because of the ‘others’ Indian ancestry/race”)…that makes a select group of U.S./State citizens with “Indian ancestry/race” distinguishable from all other non-Indian U.S./State citizens and that requires an Amendment.

    You have provided no such Amendment.

    You position relies on the notion that ‘citizenship’ did not change the Constitution’s reference to “Indians” when the Constitution clearly states (as do the 3-SCOTUS decisions provided) that once citizenship is achieve, the Constitution is controlling…you can’t have it both ways and still be in compliance with the Constitution absent an Amendment.

    1. You have provided no such Amendment.

      I need not.

      As has been pointed out to you, your view of the Act of 1924 remains in error.

      Still.

      It is YOU that seeks to violate the Constitution with your mere act of Congress changing it.

      1. Once again, you clearly have no understanding of the United States Constitution’s fierce protection of one’s U.S./State citizenship including citizens with “Indian ancestry/race, ” or “ex-slave ancestry/race,” et al.

        Congress passed the Indian Citizenship Act of 1924 (the Act has not be repealed nor can it be repealed as that option is foreclosed by the Constitution itself absent U.S./State citizens with “Indian ancestry/race” renounceing their U.S./State citizenship in which case, they are in this country illegally) and the United States Constitution all by itself did all of the rest in extending the mantle of protection to such U.S./State citizenship contrary to your position that U.S./State Citizenship made no changes to “Indians status” before or after their Citizenship which cannot be further from Constitutional truths!

  3. Your latest post affirms you have no idea how an Amicus works for the United States Supreme Court even with its purposes are put under your nose.

    anon October 14, 2017 at 8:35 am
    Paul,

    Your ramblings about “Amicus Curiae” are off point.

    Return to the DIRECT point at hand with this sliver of the thread and realize that there is ONLY a single question before the Supreme Court.

    Do NOT engage in ad hominem.
    Do NOT engage in non sequiturs.

    THIS sliver is extremely simple: what did the Court say it will do? What is the single question that the Court said it will take on?

    1. Why are you broadcasting your ig nor ance Paul?

      Let’s make it easy for you: find and reprint the single question that the Court granted cert on and compare what each of us has said in regards to that granted single question.

      This won’t take a wall of a block quote to provide.

      Can you stay on point that long Paul?

      1. Once again, you are not paying attention to the United States Supreme Court information on presentation of an Amicus Curiae…read it for yourself insure you don’t miss anything or ‘twist’ any text to serve your agenda :

        RULES OF THE SUPREME COURT OF THE UNITED STATES › PART VII. Practice and Procedure › Rule 37. Brief for an Amicus Curiae
        ..
        Rule 37. Brief for an Amicus Curiae

        1. The information on presentation of an Amicus Curiae is immaterial as to the question that the Court has agreed to hear.

          You remain off-point (and badly so).

          1. Clearly, you did not read SCOTUS Rule 37: Brief for an Amicus Curiae. That makes your post un-informed as has been all of your posts.

            1. Paul,

              You strive (repeatedly) at points nor pertinent, and then want to label as “un-informed” anything that does not fit your wayward mantra – ALL THE WHILE refusing to even bother acknowledging the points presented.

              Why is it then that you refuse to unclench your eyes?

              The simple point here: the Court accepted only one question for cert.

              Please tell me what that ONE question was.

              And then realize that our sub-exchange – ON THAT SINGLE TOPIC of what question was accepted gives a very black and white answer as to which of us have been in the weeds (hint: that would be you).

              Yet, you want to rail on and on and on….

              1. You have yet to read SCOTUS Rule 37.

                link to scotusblog.com
                Issue: Whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution’s separation of powers principles.

                An (My) Amicus brings to the attention of SCOTUS essential U.S. Constitutional Standards and information regarding the issue(s) before the Court.
                My question that sparked our current back and forth addresses a United States Constitution Article III tenant. That being, can any Article III Court (including SCOTUS) adjudicate a dispute at the bar turning on assertion of a common law in Patchak #1 (flowing from Title 25-INDIANS) that does not exist? Patchak #2 turns on the question above which is moot given the original issues flowing from Title 25-INDIANS does not exist under the Constitution to begin with (“promptly dismiss”) which leaves Congress with no common law to deal with to begin with that ficticious common law being Title 25-INDIANS!

                In short, the judges involved in the original Patchak #1 case did not fulfill their oath of office to support and defend the Constitution in performing due diligence in affirming that the common law at the core of the dispute conforms to the United States Constitution and Title 25-INDIANS does not do that. (It is irrelevant whether any of the parties attorneys raised the issue of the common law at the center of the dispute-Title 25-INDIANS-was in compliance with the Constitution as that duty falls to the Article III judge succinctly stated by CJ Marshall in Marbury) My question: “Where is the proclamation”….raises that issue in my Amicus in support of Patchak #2.

                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.”

                1. Scotus Rule 37 is simply not material.

                  You need to answer the very simple – and very direct question put to you.

                  What IS the question that the Court has accepted?

  4. The Patchak case before the Supreme Court raises substantially the same issue Professor Karshtedt raised in his Amicus in Oil States, namely, that Congress unconstitutionally directed that one side win in pending court case without otherwise changing the law. This usurps judicial power. link to scotusblog.com

  5. The Patchak case before the Supreme Court raises substantially the same issue Professor Karshtedt raised in his Amicus in Oil States, namely, that Congress unconstitutionally directed that one side win in pending court case without otherwise changing the law. This usurps judicial power. link to scotusblog.com

    1. I briefly reviewed the Oil States case and the questions posed for adjudication.

      My question posted below I have posed in a number of my replies challenges the Constitutionality of U.S.C. Title 25-INDIANS from which all progeny on “Indian issues” flow as being merely a ‘drop-file,’ ‘hodge-podge’ ‘catch basin’ of all related “Indian issues” post passage of The Indian Citizenship Act of 1924 AND, no one can provide the Statutes at Large of Title 25-INDIANS. Once citizenship was achieved, there is no Constitutional authority anyone can provide for Title 25-INDIANS to exist and as can seen from posts to this thread, the hoax is alive and well that politicians can pass common law to regulate a U.S./State citizen because of their “Indian ancestry/race” all without a shred of Constitutional authority to do so. Patchak’s case involved Title 25-INDIANS common law…but, there is no such thing under the Constitution as Title 25-INDIANS post citizenship. Ergo, the federal courts are attempting to adjudicate a common law dispute at the bar based on the core element of Title 25-INDIANS and that common law does not exist under the Constitution.

      I can find nothing in the United States Constitution’s Article III were a court-state or federal-can adjudicate a dispute at the bar turning on the assertion of a common law (or progeny thereof) that does not exist under the United States Constitution.

      This federal letter explains why Title 25-INDIANS does not exist…the Code is in violation of the Constitution:

      “United States Code
      The U. S. Code is not law, and has no meaning outside the “courts, tribunals, and public offices of the United States, at home or abroad, of the District of Columbia, and of each State, Territory, or insular possession of the United States”, even if “positive law.” According to the law enacting the original U. S. Code (44 Stat.), no new law is enacted or amended by revision of the U. S. Code. Subject matter jurisdiction can be challenged if a charge is brought only citing the U. S. Code, and not a real law behind the code.

      Preface to Volume 44 of the Statutes At Large (which first adopted the present U. S. Code)
      P R E F A C E
      This Code is the official restatment in convenient form of the general and permanent laws of the United States in force December 7, 1925, now scattered in 25 volumes–i. e., the Revised Statutes of 1878, and volumes 20 to 43, inclusive, of the Statutes at Large. No new law is enacted and no law repealed. It is prima facie the law. It is presumed to be the law. The presumption is rebuttable by production of prior unrepealed Acts of Congress at variance with the Code. Because of such possibility of error in the Code and of appeal to the Revised Statutes and Statutes at Large, a table of statutes repealed prior to December 7, 1925, is published herein together with the Articles of Confederation; The Declaration of Independence; Ordinance of 1787; the Constitution with amendments and index; tables of cross references to the Revised Statutes, the Statutes at Large, the United States Compiled Statutes, Anotated, of the West Publishing Co., and the Federal Statutes, Annotated, of Edward Thompson Co.; an appendix with the general and permanent laws of the first session of the Sixty-ninth Congress; and finally an exhaustive index of the laws in the Code and appendix.
      The first official codification of the general and permanent laws of the United States was made in 1874 and followed by a perfected edition in 1878. From 1897 to 1907 a commission was engaged in an effort to codify the great mass of accumulating legislation. The work of the commission involved an expenditure of over $300,000, but was never carried to completion. More recently the task of codification was undertaken by the late Hon. Edward C. Little as chairman of the Committee on the Revision of the Laws of the House of Representatives, who labored indefatigably from 1919 to the day of his death, June 24, 1924. The volumes which represented the result of his labors were embodied in bills which passed the Hose of Representatives in three successive Congresses unanimously but failed of action in the Senate.
      * * *
      Scrutiny of this Code is invited. Constructive criticism is solicited. It is the ambition of the Committee on the Revision of the Laws of the House of Representatives gradually to perfect the Code by correcting errors, eliminating obsolete matter, and restating the law with logical comleteness and with precision, brevity, and uniformity of expression.
      Address criticisms to Chairman of the Committee on the Revision of the Laws of the House of Representatives, Washington, D. C.
      WASHINGTON, June 30, 1926
      ROY G. FITZGERALD, Chairman.

      No one has yet answered this question publically:
      “Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

      1. You still are getting the Act of 1924 wrong.

        I have shown you where and explained why.

        You will have to unclench your eyes Paul to be able to grasp anything else going on about you.

      2. Paul R. Jones seems not to understand that the USA has a common law legal system and not a civil law legal system (except for Louisiana substantive law between private sector parties).

        US citizens can have different rights or obligations relative to local citizenship or residence according to the definition by a domestic sovereign of the laws within its jurisdiction. In the US Constitution a domestic sovereign can be a state or a tribe.

        The wiki page on state law is adequate.

        link to en.wikipedia.org

        Thus, as noted above, the U.S. must be regarded as 50 separate systems of tort law, family law, property law, contract law, criminal law, and so on.[3] (In addition, the District of Columbia and the federal territories also have their own separate legal systems analogous to state legal systems, although they do not enjoy state sovereignty.)

        Tribes do not have state sovereignty exactly, but their form of sovereignty is analogous to state sovereignty.

        Paul needs to read a basic text on US law. I’ve done it mostly because I don’t want to appear a blithering idiot when I talk with American lawyers. (Lawyers in this forum should feel free to correct me. There is a lot about US law that I do not know.)

        1. No such thing exists under the United States Constitution you can provide to make this sentence true: “In the US Constitution a domestic sovereign can be a state or a tribe.”

          This statement is true: “(Lawyers in this forum should feel free to correct me. There is a lot about US law that I do not know.)” You have yet to provide anything from the United States Constitution post the passage of The Indian Citizenship Act of 1924 to make any of your posts true.

          Your post citing Wikipedia fails to provide the U.S. Constitutional source by Article and Paragraph…it has no validity citing the U.S. Constitution post the passage of the Indian Citizenship Act of 1924.

          Nice try but no cigar…you are missing the U.S. Constitution’s source…provide that simple measure of where in the Constitution is the authority make the health, welfare, safety and benefits of a select group of U.S./State citizens with “Indian ancestry/race” distinguishable from all non-Indian U.S./State citizens and you have legitimacy. No Constitutional source, no legitimacy

          1. Article I Section 8 lists various sovereign authorities of which the US Constitution (and therefore the US government) takes cognizance.

            The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; …

            [paragraph 3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

            The passage lists as sovereigns: foreign Nations, States of the United States of American, and Indian Tribes.

            I suspect Paul R. Jones may base his comments on some theory of natural law jurisprudence, but outside of rights to abortion, contraceptives, and sodomy the justices of the Supreme Court have been reluctant to invoke natural law concepts as the basis for decisions.

            1. Once again, the Indian Citizenship Act of 1924 made null the Constitution’s reference to “Indians” in the documents original text…they are U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen. The words in the Constitution you cite were not removed but made null by U.S./State citizenship. Plain and simple. And, your post jumps over the 14th Amendments’ protection of one’s U.S./State citizenship and my already posted SCOTUS decisions defining one’s U.S./State citizenship you failed to understand.

              The balance of your post is merely sophistry and off topic.

              1. Once again you are trying to make a mere act of congress have Constitution changing powers…

                Sophistry indeed.

            2. You continue to trumpet the Indian Commerce Clause that was made null by citizenship…period. Proofs from SCOTUS and the 14th Amendment debunk your post.
              The words in the Commerce Clause were not removed…they were made null by citizenship.
              You have provided no amendments to make any of your posts true.

              1. that was made null

                And you continue to pretend that a mere act of Congress has Constitution changing powers…

                1. Clearly, you STILL have no knowledge of the United States Constitution…once U.S./State citizenship was achieved at the passage of the Indian Citizenship Act of 1924, they are now U.S./State citizens with “Indian ancestry/race” entitled to no more and no less than all non-Indian U.S./State citizens.

                  That Act made null any assertion of treaties as well as removing any authority for poliliticians-state and federal-to regulate U.S./State citizens because of their “Indian ancestry/race!”

                  Once again for your benefit, Osborn defines citizenship. That citizenship made null the Constitution’s reference to what, at the time of the writing of the Constitution, WERE NOT U.S./State citizens…the Act made them citizens and the Constitution is controlling on their citizenship. The Constitution makes for no provisions to have it your way and the Constitution’s way. Period.

                  What is it you believe these U.S./State citizens with “Indian ancestry/race” are entitled-to that their U.S./State citizenship already provides?

                2. We’ve been around this merry-go-round Paul, and your accusations STILL fall flat.

                  It is YOU that does note understand that a mere act of Congress can have Constitution changing power.

                  It is YOU that refuses to unclench your eyes to the actual change in law brought on by the Act of 1924 – what that act did – and critically – did NOT do.

                  I have provided these things to you in black and white, and yet you insist on persisting in plain error.

                  Only when you are willing to unclench your eyes will you be able to see where YOUR errors get in the way of what you think the law is.

        2. A post script to my earlier post:
          1. Find the Statutes at Large for Title 25-INDIANS.
          2. Review the legal precepts of ‘stare decisis’ in any of the legal dictionaries…I used this source posted below. My point being, that citations of any “Indian court cases”-state or federal-pre-passage of The Indian Citizenship Act of 1924 carries no weight as Citizenship ‘changed’ the “…certain state of facts,” permanently altering the criteria of Stare Decisis; and therefore, these cases are merely of historical note and carry no weight in court post 1924 Citizenship ie. Marshall’s Indian Trilogy often cited by U.S./State citizens with “Indian ancestry/race” and their advocates a legitimate decisions ignoring the fact that Stare Decisis debunks that thinking. Adhering to stare decisis that are in conflict with the United States Constitution promotes and perpetuates a ‘fraud upon the Constitution!’

          Black’s Law Dictionary, Sixth Edition, p. 1406:
          Stare decisis. Lat. To abide by, or adhere to, decided cases.
          Policy of courts to stand by precedent and not to disturb settled point. Neff v. George, 364 Ill. 306, 4 N.E.2d 388, 390, 391. Doctrine that, when court has once laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, when facts are substantially the same; regardless of whether the parties and property are the same. Horne v. Moody, Tex.Civ.App., 146 S.W.2d 505, 509, 510. Under doctrine a deliberate or solemn decision of court made after argument on question of law fairly arising in the case, and necessary to the determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy. State v. Mellenberger, 163 Or. 233, 95 P.2d 709, 719, 720. Doctrine is one of policy, grounded on theory that security and certainty require that accepted and established legal principle, under which rights may accrue, be recognized and followed, through later found to be not legally sound, but whether previous holding of court shall be adhered to, modified or overruled is within court’s discretion under circumstances of case before it. Otter Tail Power Co. v. Von Bank, 72 N.D. 497, 8 N.W.2d 599, 607. Under doctrine, when point of law has been settled by decision, it forms precedent which is not afterwards to be departed from, and, while it should ordinarily be strictly adhered to, there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. The doctrine is not ordinarily departed from where decision is of long-standing and rights have been acquired under it, unless consideration of public policy demand it. Colonial Trust Co. v. Flanagan, 344 Pa. 556, 25 A.2d 728, 729. The doctrine is limited to actual determination in respect to litigated and necessarily decided questions, and is not applicable to dicta or obiter dicta. See also Precedent; Res (Res judicata).
          [Black’s Law Dictionary, Sixth Edition, p. 1406]

          1. How is recognizing the Cherokee, Wampanoag, or Mohawk Tribes as domestic sovereigns comparable to states an issue of race? It is not a matter of race to be a citizen of Massachusetts. Why is it an issue of race to be a citizen of the Wampanoag Tribe? As far as I know, one can be a citizen of the United States of America, of the Commonwealth of Massachusetts, and of the Wampanoag Tribe all at the same time.

            1. Your first sentence places the balance of your text in the ‘fraud upon the Constitution’ catagory: “How is recognizing the Cherokee, Wampanoag, or Mohawk Tribes as domestic sovereigns comparable to states an issue of race?

              There is no such thing under the United States Constitution as a ‘… Cherokee, Wampanoag, or Mohawk Tribes as domestic sovereigns comparable to states an issue of race?”

              The United States Constitution recognized no such thing as “Indian citizenship” as there is no such thing under the Constitution as a “Indian nation/state” from which “citizenship” as you have discribed would arise. There is no U.S. Constitution nor International recognition of any “Indian nations” in the United States! It is a myth foisted off by U.S./State citizens with “Indian ancestry/race” and their advocates lacking any Constitutional support.

              1. There is no such thing as France, the UK, or Massachusetts in the text of the US Constitution, but the USA can make a treaty with France or the UK, and Massachusetts is allowed to collect state taxes from residents and those that work in Massachusetts. For a time homosexuals had more rights in Massachusetts than in other states because their marriages were recognized in Massachusetts but not in other states.

                1. And your point being…
                  France and UK are internationally recognized nation-states and are foreign; U.S./State citizens with “Indian ancestry/race” are neither. The balance of your post is off topic.

                  link to lexrex.com
                  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.


  6. anon October 12, 2017 at 6:40 am
    (only question one is before the Supreme Court, Paul)
    Stupid comment. You desperately need to brush up on the United States Constitution and certainly brush up on the United States Supreme Court procedures in adjudicating a dispute at the bar regarding presentations of Amicus Curiae regarding the Plaintiff(s)/Defendant(s) position and in particularly Amicus that address Constitutional protections of We, the People, For the People and By the People from being abused by politicians-state and federal-specifically housed in Title 25-INDIANS.

    1. (only question one is before the Supreme Court, Paul)

      Stupid comment.

      Why is it “stupid” to point out that you are incorrect in your statement of which question is before the Court?

      Ad hominem – and errantly applied at that – only highlights YOUR lack of understanding.

      What exactly do you think it means when the Court states that it will only address a particular question among a plurality of questions presented for cert?

      You want to lecture me on learning civil procedure in the face of your own egregious error?

      1. Anon: Had you done any investigation of SCOTUS procedures in adjudicating a dispute, you would have discovered Amicus Curiae…my question is in my Amicus in support of Patchak. The balance of your post affirms your lack of SCOTUS amicus curiae as well as the United States Constitution.

        n. Latin for “friend of the court,” a party or an organization interested in an issue which files a brief or participates in the argument in a case in which that party or organization is not one of the litigants. For example, the American Civil Liberties Union often files briefs on behalf of a party who contends his constitutional rights have been violated, even though the claimant has his own attorney. Friends of the Earth or the Sierra Club may file a supporting amicus curiae brief in an environmental action in which they are not actually parties. Usually the court must give permission for the brief to be filed and arguments may only be made with the agreement of the party the amicus curiae is supporting, and that argument comes out of the time allowed for that party’s presentation to the court.
        (Source: law.com)

        1. Great – you STILL have not hit on the key point here: the Court accepted ONLY question 1.

          There are NO OTHER questions from the cert before the Court.

          1. Anon: You STILL are not doing any meaningful investigation. And, you lack any knowledge of what is presented to you from legitimate outside sources on what an Amicus Curiae!
            You are confused about what the ‘cert’ question is and what the purpose of Amicus Curiae are regarding the core issues before the Court Amicus raises to assist the Court in deciding the dispute. Read and re-read if you have to this independent text on the purposes of an Amicus:
            Source: link to thefreedictionary.com
            Amicus Curiae

            “Literally, friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action, may petition the court for permission to file a brief, ostensibly on behalf of a party but actually to suggest a rationale consistent with its own views. Such amicus curiae briefs are commonly filed in appeals concerning matters of a broad public interest; e.g., civil rights cases. They may be filed by private persons or the government. In appeals to the U.S. courts of appeals, an amicus brief may be filed only if accompanied by written consent of all parties, or by leave of court granted on motion or at the request of the court, except that consent or leave shall not be required when the brief is presented by the United States or an officer or agency thereof.

            An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise miss. The person is usually, but not necessarily, an attorney, and is usually not paid for her or his expertise. An amicus curiae must not be a party to the case, nor an attorney in the case, but must have some knowledge or perspective that makes her or his views valuable to the court.

            The most common arena for amici curiae is in cases that are under appeal (are being reconsidered by the court) and where issues of public interest—such as social questions or civil liberties—are being debated. Cases that have drawn participation from amici curiae are those involving Civil Rights (such as 1952’s brown v. board of education), Capital Punishment, environmental protection, gender equality, infant Adoption, and Affirmative Action. Amici curiae have also informed the court about narrower issues, such as the competency of a juror; or the correct procedure for completing a deed or will; or evidence that a case is collusive or fictitious—that is, that the parties are not being honest with the court about their reasons for being there.

            The privilege that friends of the court are granted to express their views in a case is just that: amici curiae have no right to appear or to file briefs. Unless they represent the government, amici curiae must obtain leave (permission) to do so from the court, or consent of all parties in the case, before filing. No court is obligated to follow or even to consider the advice of an amicus curiae, even one it has invited.

            The principle that guides the appropriate role of a friend of the court is that he or she should serve the court without also acting as “friend” to either of the parties. Rules of court and case law (past court decisions) have attempted to spell out the sometimes tricky specifics of how an amicus curiae should—and should not—participate in a case.

            For example, Missouri’s supreme court in 1969 distinguished the role of amicus curiae from the normal role of the attorney in assisting the court. In this case, the court requested the attorney who had formerly represented the parties in the case to help elicit testimony and cross-examine witnesses. The lawyer also made objections and argued objections against the city, which was defending the lawsuit over Zoning. In seeking the payment of attorney fees for his services, the attorney argued that he had served as amicus curiae due to his acting at the court’s request. The supreme court found that “in the orderly and intelligent presentation of the case, he rendered assistance to the court, the same as any attorney who contributes to the orderly presentation of a case. He was appearing, however, not as an adviser to the court but as a representative of private litigants … advancing their partisan interests … and is not entitled to have the fee for his admittedly valuable and competent professional services taxed as costs” (Kansas City v. Kindle, 446 S.W. 2d 807 [Mo. 1969]).

            The amicus curiae walks a fine line between providing added information and advancing the cause of one of the parties. For instance, she or he cannot raise issues that the parties themselves do not raise, since that is the task of the parties and their attorneys. If allowed by the court, amici curiae can file briefs (called briefs amicus curiae or amicus briefs), argue the case, and introduce evidence. However, they may not make most motions, file pleadings, or manage the case.

            Whether participating by leave or by invitation, in an appearance or with a brief amicus curiae, a friend of the court is a resource person who has limited capacity to act.

            1. You spin nonsense Paul.

              This subset of the thread is on one single topic: what was the question before the Supreme Court.

              I showed you that only one single question was accepted by the Court.

              All I see from you in reply is vacuous (and excited) arm waving.

              I am not the one confused on the legal matter of what specific question is in front of the Court.

              Clearly.

              1. Clearly, you did not understand what an Amicus Curiae is even when provided information as to what an Amicus Curiae does.

                1. Paul,

                  Your ramblings about “Amicus Curiae” are off point.

                  Return to the DIRECT point at hand with this sliver of the thread and realize that there is ONLY a single question before the Supreme Court.

                  Do NOT engage in ad hominem.
                  Do NOT engage in non sequiturs.

                  THIS sliver is extremely simple: what did the Court say it will do? What is the single question that the Court said it will take on?

  7. Ned Heller October 11, 2017 at 7:43 pm
    Can one believe this? Congress passed a bill of attainder? Can you believe it?

    They take petitioner’s property. He sues. Congress passes a bill ordering the lawsuit dismissed.

    Reply: The President has to sign it to make it actionable. Then, the injured party can sue citing the very same point you made: Bill of Attainder. Now, that will be a suit to watch.

  8. anon

    October 11, 2017 at 9:06 am

    The request of

    “Provide the explicit Article and paragraph source in the United States Constitution to prove your post: “The issue does not seem to be the citizenship status of native American Indians. The issue relates to the status of Indian tribes as domestic sovereigns comparable to the states. The US Constitution has recognized the tribes as domestic sovereigns from its first introduction, and there is considerable case law on the subject.”

    Is exactly the point being made to you Paul.

    You are simply off in the weeds (legally speaking) as to what needs to be “proven.”

    Joachim’s post was geared to distinguish the context of the issue at hand.

    You take that as some “legal point to be proven” and on top of that mistake, want that legal point to be proven with some Constitutional source.

    Joachim’s post was merely pointing out that your walls of citations and other voluminous copyings are preoccupied with something that is not the issue at point. You continue to want to make the “individual is a citizen” (change in law that was by an Act of Congress) into some larger Consitutional directive.

    First (and perhaps foremost), you continue to “get it wrong” in that you still have not grasped the limitations of that very Act of Congress.

    Second (and persistence here is no virtue), you continue to attempt to make a mere Act of congress have Constitutional-changing power, even as it has been pointed out to you that one of the Supreme Court (wall) quotes you provided says that such is not to be, and even after it has been shared with you that there are indeed other separate mechanisms that must be engaged to change the Constitution.
    Reply:
    Neither of you would survive in a court of law when presented my single question:“Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

    1. After an objection, the judge would disallow the question as irrelevant or immaterial.

      You clearly are not a lawyer. Why don’t you go read about courtroom procedure? I’ve done it.

      1. Please Pardon Potential (re)Post…

        You nailed it Joachim.

        Paul R. Jones for whatever reason believes that his position is “air-tight.”

        So much so, that he refuse to visit the actual law passed by Congress in order to see that he has that law incorrectly understood (his error in the first instance that thus requires no further “proving” of anything).

      2. You are wrong. The question is currently sitting at the United States Supreme Court.

        1. The question is currently sitting at the United States Supreme Court.

          Which question is that – specifically?

          1. “Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

            1. You are saying that specific question is right now sitting at the United States Supreme Court?

              In which case?

              1. IN THE
                UNITED STATES SUPREME COURT
                DAVID PATCHAK,
                Petitioner,
                V.
                RYAN ZINKE, IN HIS OFFICIAL CAPACITY AS SECRETARY
                OF THE UNITED STATES
                DEPARTMENT OF THE INTERIOR, ET AL.,
                Respondents.
                On Petition for a Writ of Certiorari to
                the United States Court of Appeals for the
                District of Columbia Circuit
                Case No. 16-498

                1. Can one believe this? Congress passed a bill of attainder? Can you believe it?

                  They take petitioner’s property. He sues. Congress passes a bill ordering the lawsuit dismissed.

                2. On Petition for a Writ of Certiorari to
                  the United States Court of Appeals for the
                  District of Columbia Circuit

                  That is NOT before the US Supreme Court.

                  Your statement of “ The question is currently sitting at the United States Supreme Court.” at 14.1.2 is not correct.

              2. Anon> Wrong again. Brush up on how the United States Supreme Court works before you make such a post.

                Top of Form
                Bottom of Form
                No. 16-498
                Title: David Patchak, Petitioner
                v.
                Ryan Zinke, Secretary of the Interior, et al.
                Docketed: October 13, 2016

                Lower Ct: United States Court of Appeals for the District of Columbia Circuit
                Case Numbers: (15-5200)
                Decision Date: July 15, 2016
                Rehearing Denied:
                Discretionary Court Decision Date:
                Analyst:
                Questions Presented

                Date Proceedings and Orders
                Oct 11 2016 Petition for a writ of certiorari filed. (Response due November 14, 2016)

                Nov 11 2016 Brief of respondent Match-E-Be-Nash-She-Wish band of Pottawatomi Indians in opposition filed.

                Nov 14 2016 Waiver of right of respondent Sally Jewel, Secretary of the Interior, et al. to respond filed.

                Nov 14 2016 Motion for leave to file amici brief filed by Federal Courts Scholars.

                Nov 28 2016 Opposition of intervenor-respondent Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, to motion for leave to file amicus curiae brief of Federal Courts Scholars filed.

                Nov 30 2016 DISTRIBUTED for Conference of January 6, 2017.

                Dec 15 2016 Response Requested. (Due January 17, 2017)

                Jan 12 2017 Order extending time to file response to petition to and including February 16, 2017.

                Feb 15 2017 Order further extending time to file response to petition to and including March 20, 2017.

                Mar 20 2017 Brief of Federal Respondents in opposition filed.

                Apr 03 2017 Reply of petitioner David Patchak filed.

                Apr 05 2017 DISTRIBUTED for Conference of April 21, 2017.

                Apr 24 2017 DISTRIBUTED for Conference of April 28, 2017.

                May 01 2017 Motion for leave to file amici brief filed by Federal Courts Scholars GRANTED.

                May 01 2017 Petition GRANTED limited to Question 1 presented by the petition.

                May 16 2017 The time to file the joint appendix and petitioner’s brief on the merits is extended to and including July 13, 2017.

                May 16 2017 The time to file respondents’ briefs on the merits is extended to and including September 11, 2017.

                Jul 12 2017 Joint appendix filed. (Statement of costs filed)

                Jul 12 2017 Brief of petitioner David Patchak filed.

                Jul 19 2017 Brief amici curiae of Federal Courts Scholars filed.

                Aug 31 2017 SET FOR ARGUMENT on Tuesday, November 7, 2017

                Sep 07 2017 CIRCULATED

                Sep 11 2017 Brief of respondent Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians filed. (Distributed)

                Sep 11 2017 Brief of Federal Respondents filed. (Distributed)

                Sep 12 2017 Record requested from the U.S.C.A. District of Columbia Circuit.

                Sep 15 2017 Blanket Consent filed by Respondent, Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians on 09/15/2017

                Sep 18 2017 Brief amici curiae of Wayland Township, et al. filed. (Distributed)

                Sep 18 2017 Brief amicus curiae of U.S. House of Representatives filed. (Distributed)

                Sep 18 2017 Brief amicus curiae of National Congress of American Indians filed. (Distributed)

                Sep 18 2017 Brief amici curiae of Federal Courts and Federal Indian Law Scholars filed. (Distributed)

                Sep 18 2017 Brief amicus curiae of Professor Edward A. Hartnett filed. (Distributed)

                Sep 18 2017 Motion for divided argument filed by respondent.

                Oct 10 2017 Motion for divided argument filed by respondent GRANTED.

                NAME ADDRESS PHONE
                Attorneys for Petitioner
                Scott E. Gant
                Counsel of Record 1401 New York Ave., NW
                Washington, DC 20005 202-237-2727
                Party name: David Patchak
                Attorneys for Respondents
                Noel J. Francisco
                Counsel of Record Solicitor General
                United States Department of Justice
                950 Pennsylvania Avenue, NW
                Washington, DC 20530-0001

                SupremeCtBriefs@USDOJ.gov 202-514-2217
                Party name: Federal Respondents
                Pratik Arvind Shah
                Counsel of Record Akin Gump Strauss Hauer & Feld LLP
                1333 New Hampshire Ave., NW
                Washington, DC 20036

                pshah@akingump.com 202-887-4000
                Party name: Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
                Conly John Schulte Fredericks Peebles & Morgan LLP
                1900 Plaza Drive
                Louisville, CO 80027

                cschulte@ndnlaw.com (303)-673-9600
                Party name: Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians
                Other
                Ruthanne Mary Deutsch
                Counsel of Record Deutsch Hunt, PLLC
                300 New Jersey Ave., NW, Suite 900
                Washington, DC 20001

                rdeutsch@deutschhunt.com (202-868-6915
                Party name: Federal Courts and Federal Indian Law Scholars
                Thomas G. Hungar
                Counsel of Record Office of the General Counsel
                U.S. House of Representatives
                219 Cannon Building
                Washington, DC 20515

                Thomas.Hungar@mail.house.gov (202) 225-9700
                Party name: U.S. House of Representatives
                Robert Allen Long Jr.
                Counsel of Record Covington & Burling, LLP
                One CityCenter
                850 Tenth St., NW
                Washington, DC 20001

                rlong@cov.com (202) 662-6000
                Party name: Wayland Township, et al.
                Ethan G. Shenkman
                Counsel of Record Arnold & Porter Kaye Scholer, LLP
                601 Massachusetts Ave., NW
                Washington, DC 20001

                ethan.shenkman@apks.com 202-942-5000
                Party name: National Congress of American Indians
                Erik R Zimmerman
                Counsel of Record Robinson, Bradshaw & Hinson, P.A.
                1450 Raleigh Road, Suite 100
                Chapel Hill, NC 27517

                ezimmerman@rbh.com 0919-328-8826
                Party name: Professor Edward A. Hartnett
                Stephen I. Vladeck 727 East Dean Keeton Street
                Austin, TX 78705

                svladeck@law.utexas.edu (512) 475-9198
                Party name: Federal Courts Scholars

      3. Good luck in convincing a judge-state or federal-to disallow a question turning on Constitutional core tenants! Clearly, you missed the part in your patent law courses about the simple fact the United States Constitution controls everything transpiring in a court beginning with Article III of the Constitution. And, there can be no activity in the Court in conflict with the United States Constitution.
        My question will stand-up in an Article III court

  9. anon

    October 10, 2017 at 6:37 am

    “…cite the Constitution error of my posts regarding the Indian Citizenship Act of 1924?”

    Another massive wall of meaningless text and another request that simply need not be answered because it is simply not on point.

    Paul, how much more simple can I make this for you? Your premise is flawed in what you are holding the Act of 1924 to be doing. It is rather odd that you keep on ignoring the critical flaw in your foundation and want others to “prove” something on a Constitutional basis.

    The oddity is that NOT ONLY do you have the Act wrong – you then turn around and want to have a mere act of Congress have Constitution-changing powers…

    Reply:
    You remain all bluster….produce your Constitution-based proofs my posts are in Constitutional error! It is simple: Put up or shut up! Provide the Constitutional proofs you claim that proves my posts are in Constitutional error or withdraw from the discussion as having nothing to contribute but bluster and Ad Hominem

    1. You remain all bluster….produce your Constitution-based proofs my posts are in Constitutional error!

      You are having a difficult time reading what I have actually posted.

      I am beginning to suspect that this is on purpose – but let’s try one more time:

      Your understanding of the Act of Congress in the Act of 1924 is deeply flawed.

      As to “proof” with your attempted reading of an Act of Congress “nullifying Constitutional sections, YOU have provided previously a Supreme Court case cite backing up what I am saying, as well as I have already pointed you to how our Constitution is actually amended.

      I am not the one “having nothing to contribute but bluster and Ad Hominem” – that would be you.

  10. anon October 10, 2017 at 6:44 am
    “ You have provided no Constitution Amendment(s) to change that citizenship”

    Not needed, as it is YOUR premise that is flawed.

    You have provided no Constitution changing power from a mere Act of Congress (and yet, that is what you want to happen with the Act of 1924). I wonder why this dichotomy continues to escape your attention….
    Reply:
    Excuses, excuses, excuses. You offer nothing to support your post…typical of you and your colleagues…all bluster and no substance.

  11. Joachim Martillo October 9, 2017 at 2:18 pm
    Maybe I lack some understanding because I am a non-lawyer, but I don’t quite understand why an individual American Indian’s citizenship status has any relevance to the question of Indian tribe’s status as a sovereign.

    Reply: Excellent question. I encourage you to read my other posts and answers to questions regarding the Constitutional validity of my posts:
    1. As of passage of the Indian Citizenship Act of 1924, there are no more “Indians” within the original meaning of the United States Constitution ie. Treaty and Commerce Clause. They are U.S. State citizens entitled to no more and no less than every other non-Indian U.S./State citizen. They are a ‘citizen’ of no Constitutionally or Internationally recognized ‘nation-state’ to which ‘citizenship’ can be attributed. The Mohawk attorney is merely claiming ‘Indian citizenship’ with nothing to support the assertion citing the United States Constitution. The Mohawks can call themselves anything they want but a ‘nation-state’ isn’t in the United States Constitution.
    2. There is no such thing under the United States Constitution as a ‘sovereign Indian tribe!’ No one posting to this thread has provided any authority citing the Constitution post the 1924 Citizenship Act to make the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizen distinguishable from all other U.S./State citizen because of their “Indian ancestry/race.”

    Therefore, the Mohawk Indian tribe is in name only and has no U.S. Constitutional authority to proclaim they are a ‘sovereign Indian tribe!” It is a political/Indian advocate myth foisted off on non-Indians to dumb down as gullible into believe that they-politicians state and federal like the Senator in this article-can pass common law the makes the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race!”

    The U.S. Constitution forecloses politicians from passing common law that regulates a select group of U.S./State citizens with “slave ancestry/race” and yet, politicians tell gullible non-Indian U.S./State citizens they can regulate U.S./State citizens with “Indian ancestry/race” all without a shred of Constitutional authority to do so.

    This answers your question.

    1. Regarding Paul R. Jones@11,

      Is it being claimed that the Bureau of Indian Affairs does not exist or that it should have ceased to exist with the passage of Indian Citizen Act of 1924?

      1. Paul R. Jones continues to commit to his fundamental misunderstanding of how law works.

        First he does not understand – nor care to understand – what exactly the Act of 1924 did – and did not – do.

        Second, he elevates the error of what he believes that Act to do to have Constitution-changing power.

        With these two points, he then turns and asks others to provide things that simply need not be provided in order to prove some point that need not be proven.

        His basic premise is simply – but fundamentally – flawed, and it is HE that needs to account for the laws as they actually are.

        (and yes, Paul R. Jones does believe that the Act of 1924 was and does things that it does not, and in truth, cannot)

        1. Once again, you stake out your position but provide nothing from the Constitution to support your position…a typical tactic of yours and your colleagues…deny my posts as ‘errors’ while failing to provide proofs citing the Constitution my Constitution-based posts are in error. Again, all bluster and no substance. You are merely carrying out an Ad Hominem string of un-supported remarks my Constitution-based posts with proofs are in error. Provide proofs my posts are in error citing the United States Constitution or withdrawn from the discussion as having nothing to contribute but Ad Hominem.

      2. Once the Indian Citizenship Act of 1924 passed, they became U.S./State citizens under the complete protection of the United States Constitution…U.S./State citizenship clearly protected in the SCOTUS decision-Osborn-posted below. No where in the United States Constitition has anyone posted to this thread the source of authority for the creation of a federal department/agency to regulate from the womb to the tomb the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens because of their “Indian ancestry/race!”

        The U.S. Constitution makes for no provisions to have it both ways: Citizenship under the protective mantle of Constitutional vs. common law passed by politicians-state and federal-that regulates one’s citizenship because of “Indian ancestry/race!”

        The Constitution forecloses passage of common law that regulates a U.S./State citizen because of their “ex-slave ancestry/race!” and yet, politicians pass common law that dumbs down gullible non-Indian U.S./State citizens into believing that they-politicians both state and federal-can pass common law that regulates a select group of U.S./State citizens because of their “Indian ancestry/race!”

        No one following this thread has ansered this question posted below the SCOTUS decision in Osborn:
        “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.”

        “Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

        Once the Indian Citizenship Act of 1924 was passed, there is no Constitutional authority anyone has provided for politicians to create a federal department to regulate an entire race of U.S./State citizens because of their “Indian ancestry/race” absent an Amendment to do so! The whole concept is a fraud upon the Constitution by politicians bought hook, line and sinker by dumb down gullible non-Indian U.S./State citizens!

        1. I am not convinced that native born American Indians declared citizens by fiat in 1924 are in the same legal category as an immigrant that is later naturalized as a citizen.

          IANAL, but United States Supreme Court OSBORN v. BANK OF U.S., (1824) No. 80 Argued: Decided: March 19, 1824 seems completely irrelevant.

          This argument as a whole reminds me of the 1865 racist Democratic campaign slogan: “The Union as It Is. The Constitution as It Was.”

          1. There is more than just the Osborn decision that makes a U.S./State citizen protected from political enactments not in compliance with the Constitution itself absent an Amendment…a decision you take as ‘irrelevant’…exactly what part of the decision regarding the Constitution’s protection of one’s citizenship do you believe is irrelevant to the Mohawk’s assertion their “Indian tribe” is a sovereign Indian tribe’ notwithstanding the simple fact the enrolled members of the Mohawk tribe are all U.S./State citizen?… that affirms once U.S./State citizenship is achieved, the following happens…a citizen’s rights, privileges and immunities, health, welfare, safety and benefits are completenly protected by the Constitution itself. Incidentially, if you word search Title 25-INDIANS, you will find the word or words ‘blood quantum’ in the enactment that specifies blood quantum in order to be a legitimately enrolled member in various tribes. That makes a common law…Title 25-INDIANS…in direct conflict with the Constitution’s protection from common law based on ‘race!’

            Then, SCOTUS provides the following to affirm the Constitution’s protection of a U.S./State citizen from politicial acts that do not conform to the Constitution itself. Make special note of AJ Scalia’s dicta in Adarand excerpted here>: “…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. ”

            Joachim, unless you can provide a Constitutionally valid argument to dispute these SCOTUS decisions, they stand in opposition to Title 25-INDIANS.

            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
            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.

            1. The issue does not seem to be the citizenship status of native American Indians. The issue relates to the status of Indian tribes as domestic sovereigns comparable to the states. The US Constitution has recognized the tribes as domestic sovereigns from its first introduction, and there is considerable case law on the subject.

              I don’t know in which state Paul R. Jones lives, but the status of the tribes as domestic sovereigns is generally much more important in the western states than along the east coast. Paul R. Jones can make as many arguments about citizenship as he wants, and the lawyers here will roll their eyes and wonder why he is babbling irrelevancies.

              Because I am a little obsessive compulsive, I have to note that despite some of Supreme Court Justices’ comments in their decisions, generally the US Constitution has distinguished 6 types of citizens:

              1) native born white males,

              2) native born white females,

              3) black slaves (obsolete),

              4) freed blacks and their descendants,

              5) naturalized immigrants, and

              6) natives originally not under the jurisdiction of the US (American Indians in the terminology of the fourteenth amendment) and naturalized by fiat in 1924 as well as their descendants.

              Now I suspect some of the lawyers cringed upon reading that citizenship classification, but I am not trained as lawyer, and I only passed the patent bar on September 11. I was trained as an historian before I became a physicist, and such is the history, which is still being worked out.

              One thing is certain. The citizenship issue is irrelevant to the effort of Allergan to avoid losing patent claims in an IPR. The question relates to the powers of the tribes as domestic sovereigns and the degree to which they are like to the states or differ from them.

              1. Joachim Martillo: You have not understood one word I have posted in my Constitution-based posts. Worse yet, you have no knowledge of the United States Constitution’s protection of one’s U.S./State citizenship.

                Provide the explicit Article and paragraph source in the United States Constitution to prove your post: “The issue does not seem to be the citizenship status of native American Indians. The issue relates to the status of Indian tribes as domestic sovereigns comparable to the states. The US Constitution has recognized the tribes as domestic sovereigns from its first introduction, and there is considerable case law on the subject.”

                Cite the United States Constitution to prove this post:
                “Because I am a little obsessive compulsive, I have to note that despite some of Supreme Court Justices’ comments in their decisions, generally the US Constitution has distinguished 6 types of citizens:

                1) native born white males,

                2) native born white females,

                3) black slaves (obsolete),

                4) freed blacks and their descendants,

                5) naturalized immigrants, and

                6) natives originally not under the jurisdiction of the US (American Indians in the terminology of the fourteenth amendment) and naturalized by fiat in 1924 as well as their descendants.

                Lastly, your post is debunked in its entirety by Associate Justice Scalia’s dicta in Adarand posted below…pay special attention these few words: “In the eyes of government, we are just one race here. It is American.”

                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.

                1. The request of

                  Provide the explicit Article and paragraph source in the United States Constitution to prove your post: “The issue does not seem to be the citizenship status of native American Indians. The issue relates to the status of Indian tribes as domestic sovereigns comparable to the states. The US Constitution has recognized the tribes as domestic sovereigns from its first introduction, and there is considerable case law on the subject.”

                  Is exactly the point being made to you Paul.

                  You are simply off in the weeds (legally speaking) as to what needs to be “proven.”

                  Joachim’s post was geared to distinguish the context of the issue at hand.

                  You take that as some “legal point to be proven” and on top of that mistake, want that legal point to be proven with some Constitutional source.

                  Joachim’s post was merely pointing out that your walls of citations and other voluminous copyings are preoccupied with something that is not the issue at point. You continue to want to make the “individual is a citizen” (change in law that was by an Act of Congress) into some larger Consitutional directive.

                  First (and perhaps foremost), you continue to “get it wrong” in that you still have not grasped the limitations of that very Act of Congress.

                  Second (and persistence here is no virtue), you continue to attempt to make a mere Act of congress have Constitutional-changing power, even as it has been pointed out to you that one of the Supreme Court (wall) quotes you provided says that such is not to be, and even after it has been shared with you that there are indeed other separate mechanisms that must be engaged to change the Constitution.

  12. Anon: I need not “prove my post” because it is YOU that is not understanding the Act of 1924 that is serving as your premise.

    A Supreme Court case of 1924 does not – and will not – help you with the Congressional Act of 1924 that is at the foundation of your errors.

    Reply: Then your post is merely your unsupported opinion. You have yet to offer any support for your opinion while my posts are centered on the United States Constitution’s protection of one’s U.S./State citizens succinctly defined in SCOTUS decisions you have not refuted plus the 14th Amendment. Sir Winston Churchill provides the perfect reply to your posts:“The truth is incontrovertible. … Malice may attack it, ignorance may deride it, but in the end, there it is.” – Winston Churchill

    1. Yet again Paul – the error remains in your view of the Act of 1924.

      There is NO “my opinion” involved with YOUR error.

      Your quote from Churchill falls far short of your aim.

      …and your WALL of text at post 9 simply showcases your lack of appreciation of the very law that you want to serve as your premise. Property is what it is. That includes land. That includes other property as well (for example, patents).

      Here’s a suggestion for you: far LESS block quotes and far MORE critical thinking about your position in the first instance.

  13. Anon: “abridge” ==> “shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.”

    You want to act as if Indian tribal or other property concerns vanished completely – but the words of the Act are clear that those very things SHALL NOT IN ANY MANNER be impaired or otherwise (far more extensive in fact than merely ‘abridge’) affected.

    Anon:
    What “Indian property” are you referring-to? If you are pointing to the “Indian reservations,” that land is owned by the People of the United States as is clearly stated in the below federal letter with the rare exceptions noted in that letter ie. Cherokee and Choctaw. As for business enterprise on land commonly known as an “Indian reservation,” they are tenants with rights of ‘use and occupancy’ of the land and ‘use and occupancy’ of the enterprise located on the land…but, they DO NOT own the land! And, they should be paying rent for use of the land owned by the People of the United States:
    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
    Page Images

    ________________________________________
    EXECUTIVE ORDER RESERVATIONS.
    Page 1056
    WASHINGTON, D. C., May 27, 1924.
    MY DEAR MR. SECRETARY: I have your letter of February 12 asking my opinion on the question whether Executive order Indian reservations are subject to the leasing act of February 25, 1920 (41 Stat. 437).
    On the day before the date of your request, the President asked for an opinion on the same question propounded by you. Both requests and all papers transmitted with them, together with briefs and arguments submitted in behalf of other parties interested, were fully considered and an opinion formulated and sent to the President with the suggestion that he transmit a copy thereof to you.
    The opinion transmitted to the President, copy of which is handed to you herewith, and which I now also give in response to your question of February 12, is as follows:
    The general leasing act (41 Stat. 437) is entitled “An act to promote the mining of coal, phosphate, oil, oil shale, gas, and sodium on the public domain.” Its first section reads in part:
    “That deposits of coal, phosphate, sodium, oil, oil shale, or gas, and lands containing such deposits owned by the United States, including those in national forests, but excluding lands acquired under the act known as the Appalachian Forest act, approved March 1, 1911 (36 Stat. p. 961), and those in national parks, and in lands withdrawn or reserved for military or naval uses or purposes, except as hereinafter provided, shall be subject to disposition in the form and manner provided by this act” * * *.
    Page 1057
    The title refers solely to the “public domain,” and nowhere in the whole act is there any mention of Indians, Indian lands, or Indian reservations of any kind.
    The long settled rule of construction is that general laws providing for the disposition of public lands or the public domain do not apply to lands which have been set aside or reserved for particular public uses, unless the contrary clearly appears from the context or the circumstances attending the legislation. (Newhall v. Sanger, 92 N. S. 761; Bardon v. Northern Pac. R. R. Co., 145 W. S. 535, 538; Mann v. Tacoma Land Co., 153 U. S. 273, 284; Union Pac. R. R. Co. v. Harris, 215 U. S. 386.) Concerning Indian reservations, Indian lands, and Indian affairs generally, Congress habitually acts only by legislation expressly and specifically applicable thereto. (Missouri, Kansas & Texas Ry. Co. v. Roberts, 152 U. S. 114, 119.)
    This is true historically, and the fact is one of necessity, because Indians, and especially tribal Indians, remain a people apart, for whom it is impracticable to legislate in terms common to them and the whites. (Ex parte Crow Dog, 109 U. S. 566, 571.)
    Now, however, the Secretary of the Interior, explicitly reversing the attitude of his predecessors (47 L. D. 424, 437, 489), has decided that an act of Congress purporting to deal with lands of the public domain and a certain class of reservations owned exclusively by the United States, is applicable to Executive order Indian reservations, although it contains no express or specific reference to Indians, Indian reservations, or Indian lands.
    The first section of the act describes the deposits and lands to which it applies. They are deposits and lands “owned by the United States.” Then follow words of inclusion which make it clear that the act applies to the national forests of the West. This language in turn is followed by expressions of exclusions, and the reserves expressly excluded are Appalachian forest lands, national parks, and lands reserved for military or naval uses.
    It is obvious that the words of inclusion and the words of exclusion, taken together, do not by any means embrace all the lands “owned by the United States.” Neither Indian reservations, national monuments, bird reservations, nor lighthouse reservations, are either expressly included or excluded; and of course the United States is the sole owner of other bodies of land such as the Capitol Grounds at Washington, parks, and squares in the District of Columbia, national cemeteries, etc., which are neither expressly included nor excluded.
    Yet no one would contend that any of these latter lands are subject to the leasing act, whatever mineral deposits they may be found to contain. It is thus apparent that there are many classes of lands owned by the United States to which the leasing act does not apply, although they are not expressly excepted from it. Nevertheless, the Secretary of the Interior and others who take the same view base their conclusions mainly upon the broad language “owned by the United States.” But this language is not new in the legislation of Congress. The mineral law of May 10, 1872, now embodied in Revised Statutes, section 2319, provides for the disposition of “all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed.” * * * The Supreme Court had occasion to consider this language in Oklahoma v. Texas (258 U. S. 574). After quoting it the court said (pp. 599, 600):
    This section is not as comprehensive as its words separately considered suggest. It is part of a chapter relating to mineral lands which in turn is part of a title dealing with the survey and disposal of ‘The public lands.’ To be rightly understood it must be read with due regard for the entire statute of which it is but a part, and when this is done, it is apparent that, while embracing only lands owned by the United States, it does not embrace all that are so owned. Of course, it has no application to the grounds about the Capitol in Washington or to the lands in the National Cemetery at Arlington, no matter what their mineral value; and yet both belong to the United States. And so of the lands in the Yosemite National Park, the Yellowstone National Park, and the military reservations throughout the Western States. Only where the United States has indicated that the lands are held for disposal under the land laws does this section apply; and it never applies where the United States directs that the disposal be only under other laws.
    Page 1058
    The court accordingly held that the mining laws did not apply to certain lands “belonging to the United States” and lying in the south half of the bed of Red River.
    The general mining laws never applied to Indian reservations, whether created by treaty, act of Congress, or Executive order. (Noonan v. Caledonia Min. Co., 121 U. S. 393; Kendall v. San Juan Silver Min. Co., 144 U. S. 658; McFadden v. Mountain View M. & M. Co., 97 Fed. 670; Gibson v. Anderson, 131 Fed. 39.) Yet “owned by the United States” and “belonging to the United States” are equivalent expressions, and there seems to be no ground whatever for giving one a broader meaning than the other.
    The foregoing considerations, I think, are conclusive. However, the leasing act contains a number of other provisions leading to the same result, two only of which will be mentioned. Section 28 declares that “rights of way through the public lands, including the forest reserves, of the United States are hereby granted for pipe-line purposes for the transportation of oil or gas.” If the act were intended to provide for the leasing of Indian reservations, there would be the same need of rights of way for pipe lines through those reserves, but none are granted.
    Again, the act, in section 35, provides in mandatory language for the disposition of all the royalty moneys realized. They are to be divided in certain proportions between the Treasury, the reclamation fund, and the States within which the leased lands lie. Yet, as hereafter shown, it would violate practically all legislative precedents for Congress to dispose of lands and mineral deposits in Indian reservations of any kind without directing the payment of some portion of the proceeds to the Indians. It is notable that Secretary Fall, in making his decision, realized this so strongly that, ignoring the mandatory directions of the act, he ordered the royalties from Executive order Indian reservations to be deposited in the Treasury in a special fund to await disposition by Congress.
    In view of the foregoing, any reference to legislative history seems hardly necessary, yet, in fact, none of the numerous committee reports made during the long pendency of the measure before Congress shows any indication whatever of an intent to embrace Indian reservations of any kind, but they do show affirmatively an understanding that the only lands to be affected were public lands, western forest reserves, and lands withdrawn by various Executive orders to protect the minerals therein pending congressional action for their final disposal. Thus, in the report of the conference committee dated February 11, 1919, occur the following significant statements (65th Cong., 3d sess., H. Repts., vol. 2, H. R. 1059, p. 20):
    This bill makes possible the leasing, in whole or in part, of approximately 700,000,000 acres of public land, approximately 365,000,000 acres of forest reserve, 35,000,000 acres of coal land, 6,000,000 acres of oil land, and 3,500,000 acres of phosphate land. Under present law all of this land may be passed to patent, without Government regulation, without Government royalties, and without the receipt of any remuneration by the Government, excepting such purchase price as may be provided for the patenting of the same.
    * * * * * *
    This legislation is made necessary by certain withdrawals made by President Taft during his administration and later by President Wilson during his administration. Both Presidents Taft and Wilson and the Secretaries of the Interior under them have felt the necessity of passing this legislation.
    I might stop here; but the reasons advanced by the Secretary, reinforced as they have been by arguments and briefs submitted to me in behalf of lessees or permittees now exploring Executive order reservations under this legislation, seem to require some comment. The gist of the argument is that the President could not reserve the minerals for the Indians; that they remained the property of the United States and were therfore “deposits owned by the United States” in the meaning of the leasing act.
    That the President had authority at the date of the orders to withdraw public lands and set them apart for the benefit of the Indians, or for other public purposes, is now settled beyond the possibility of controversy. (United States v. Midwest Oil Co., 236 U. S. 459; Mason v. United States, 260 U. S. 545.) And aside from this, the
    Page 1059
    general Indian allotment act of February 8, 1887 (24 Stat. 388, sec. 1), clearly recognizes and by necessary implication confirms Indian reservations “heretofore” or “hereafter” established by Executive orders.
    Whether the President might legally abolish, in whole or in part, Indian reservations once created by him, has been seriously questioned (12 L. D. 205; 13 L. D. 628) and not without strong reason; for the Indian rights attach when the lands are thus set aside; and moreover, the lands then at once become subject to allotment under the general allotment act. Nevertheless, the President has in fact, and in a number of instances, changed the boundaries of Executive order Indian reservations by excluding lands therefrom, and the question of his authority to do so has not apparently come before the courts.
    When by an Executive order public lands are set aside, either as a new Indian reservation or an addition to an old one, without further language indicating that the action is a mere temporary expedient, such lands are thereafter properly known and designated as an Indian reservation; and so long, at least, as the order continues in force the Indians have the right of occupancy and use, and the United States has the title in fee. (Spalding v. Chandler, 160 U. S. 394; In re Wilson, 140 U. S. 575.)
    But a right of “occupancy” or “occupancy and use” in the Indians, with the fee title in the sovereign (the Crown, the original States, the United States), is the same condition of title which has prevailed in his country from the beginning, except in a few instances, like those of the Cherokees and Choctaws, who received patents for their new tribal lands on removing to the West. And the Indian right of occupancy is as sacred as the fee title of the sovereign.
    The courts have applied this legal theory indiscriminately to lands subject to the original Indian occupancy, to reservations resulting from the cession by Indians of part of their original lands and the retention of the remainder, to reservations established in the West in exchange for lands in the East, and to reservations created, by treaty, act of Congress, or Executive order, out of public lands. The rights of the Indians were always those of occupancy and use, and the fee was in the United States. (Johnson v. McIntosh, 8 Wheat., 543; Mitchell v. United States, 9 Pet. 711, 745; United States v. Cook, 19 Wall. 591; Leavenworth, etc., R. R. Co. v. United States 92 U. S. 733, 742; Seneca Nation v. Christy, 162 U. S. 283, 288-289; Beecher v. Wetherby, 95 U. S. 517, 525; Minnesota v. Hitchcock, 185 U. S. 375, 388 et seq.; Lone Wolf, v. Hitchcock, 185 U. S. 553; Jones v. Meehan, 175 U. S. 1; Spalding v. Chandler, 160 U. S. 394; McFadden v. Mountain View Min. & Mill. Co., 97 Fed. 670, 673; Gibson v. Anderson, 131 Fed. 39.)
    In Spalding against Chandler, supra, which involved an Executive order Indian reservation, the Supreme Court said (pp. 402, 40-3):
    It has been settled by repeated adjudications of this court that the fee of the lands in this country in the original occupation of the Indian tribes was from the time of the formation of this Government vested in the United States. The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land, with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the Government. When Indian reservations were created, either by treaty or Executive order, the Indians held the land by the same character of title, to wit, the right to possess and occupy the lands for the uses and purposes designated.
    In McFadden v. Mountain View Min. & Mill Co., supra. the Circuit Court of Appeals for the Ninth Circuit said (p. 673):
    On the 9th day of April, 1872, an Executive order was issued by President Grant, by which was set apart as a reservation for certain specified Indians, and for such other Indians as the Department of the Interior should see fit to locate thereon, a certain scope of country “bounded on the east and south by Columbia River, on the west by the Okanagon River, and on the north by the British possessions,” thereafter known as the “Colville Indian Reservation.” There can be no doubt of the power of the President to reserve those lands of the United States for the use of the Indians. The effect of that Executive order was the same as would have been a treaty with the Indians for the same purpose, and was to exclude all intrusion upon the territory thus reserved by
    Page 1060
    any and every person other than the Indians for whose benefit the reservation was made, for mining as well as other purposes.
    The latter decision was reversed by the Supreme Court and on an entirely different ground (180 U. S. 533). The views expressed in the McFadden case were reaffirmed by the same court in Gibson v. Anderson, supra, involving a reservation created by Executive order for the Spokane Indians.
    The general Indian allotment act of February 8, 1887 (24 Stat. 388, sec,. 1), is based upon the same legal theory as the decisions of the courts, for it is expressly made applicable to “any reservation created for their use either by treaty stipulation or by virtue of an act of Congress or Executive order setting apart the same for their use,” etc.
    If the extent of the Indian rights depended merely on definitions, or on deductions to be drawn from descriptive terms, there might be some question whether the right of “occupancy and use” included any right to the hidden or latent resources of the land, such as minerals or potential water power, of which the Indians in their original state had no knowledge. As a practical matter, however, that question has been resolved in favor of the Indians by a uniform series of legislative and treaty provisions beginning many years ago and extending to the present time. Thus the treaty provisions for the allotment of reservation lands all contemplate the final passing of a perfect fee title to the individuals of the tribe. And that meant, of course, that minerals and all other hidden or latent resources would go with the fee. The same is true of the general allotment act of 1887, which applies expressly to Executive order reservations as well as to others. Then, beginning years ago, many special acts were passed—with or without previous agreements with the Indians concerned—whereby surplus lands remaining to the tribe after completion of the allotments were to be sold for their benefit. In all these instances Congress has recognized the right of the Indians to receive the full sales value of the land, including the value of the timber, the minerals, and all other elements of value, less only the expenses of the Government in surveying and selling the land. Legislation and treaties of this character were dealt with in Frost v. Wente (157 U. S. 46, 50); Minnesota v. Hitchcock (185 U. S. 373); Lone Wolf v. Hitchcock (187 U. S. 553); United States v. Blendaur (128 Fed. 910, 913); Ash Sheep Co. v. United States (252 U. S. 159).
    Similar provisions have been made in many other cases for the sale of surplus tribal lands, all the proceeds of all elements of value to go to the tribe. In a recent act for further allotment of Crow Indian lands (41 Stat. 751), the minerals are reserved to the tribe instead of passing to the allottees (sec. 6); and moreover, unallotted lands chiefly valuable for the development of water power are reserved from allotment “for the benefit of the Crow Tribe of Indians” (sec. 10). The Federal water power act of June 10, 1920 (41 Stat. 1063), applies to tribal lands in Indian reservations of all kinds, but it provides (sec. 17) that “all proceeds from any Indian reservation shall be placed to the credit of the Indians,” etc.
    Again, by a provision in the Indian appropriation act of June 30, 1919, the Secretary of the Interior was authorized to lease, for the purpose “of mining for deposits of gold, silver, copper, and other valuable metalliferous minerals,” and part of the unallotted lands within “any Indian reservation” within the States of Arizona, California, Idaho, Montana, Nevada, New Mexico, Oregon, Washington, or Wyoming heretofore withdrawn from entry under the mining laws. These States contain numerous Executive order reservations, and yet the act declares that all the royalties accruing from such leases shall be paid to the United States “for the benefit of the Indians.” (41 Stat. 3, 31-33.)
    The opening to entry by Congress of a part of the Colville Reservation, established in Washington by Executive order, has been cited as an exception to this line of precedents. (Act July 1, 1892, 27 Stat. 62.) But the exception is more apparent than real, for Congress, though it expressly declined to recognize affirmatively any right in the Indians “to any part” of that reservation (sec. 8), yet, in fact, preserved the right of allotment, requiring the entrymen to pay for the lands, and set aside the proceeds for the benefit of the Indians for an indefinite period. Later the proceeds of timber sales from the former reservation lands were secured to the Indians, but the mineral lands were subjected to the mineral laws without any express direction
    Page 1061
    for the disposal of the proceeds, if any. (Act July 1, 1898, 30 Stat. 571, 593.) The committee reports show that the reservation was considered as improvidently made, excessive in area, and that the action taken was really for the best interests of the Indians. (Senate Rept. No. 664, 52d Cong., 1st sess., vol. 3; House Rept. No. 1033, 52d Cong., 1st sess., vol. 4.)
    In respect to legislation and treaties of this character two views are possible. First, that the right of occupancy and use extends merely to the surface and the United States, in providing that the Indians shall ultimately receive the value of the hidden and latent resources, merely gives them its own property as an act of grace. Second, that the Indian possessions extended to all elements of value in or connected with their lands, and the Government in securing those values to the Indians recognizes and confirms their preexisting right. If it were necessary here to decide as between these opposing views I should incline strongly to the latter; mainly because the Indian possession has always been recognized as complete and exclusive until terminated by conquest or treaty, or by the exercise of that plenary power of guardianship to dispose of tribal property of the Nation’s wards without their consent. Lone Wolf v. Hitchcock (187 U. S. 554). Moreover, support for this view is found in many expressions of the courts. Thus, in the case just cited, the court quotes from Beecher v. Wetherby (95 U. S. 517, 525) as follows:
    But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the Indians; that occupancy could only be interfered with or determined by the United States.
    If a transfer by the United States would convey only the naked fee, it goes without saying that the complete equitable property was in the Indians. The earlier and fundamental decisions make this plain. In Worchester v. Georgia (6 Pet. 515, 543, 544) Chief Justice Marshall clearly states that the right asserted in behalf of the discovering European nations was merely a right, as against each other, which he defines as “the exclusive right of purchasing such lands as the natives were willing to sell.” As late as 1872 the Supreme Court said:
    Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the sign * * * to prohibit the sale of the land to any other governments or their subjects. (Holding v. Joy, 17 Wall. 211, 244.)
    The important matter here, however, is that neither the courts nor Congress have made any distinction as to the character or extent of the Indians’ rights as between Executive order reservations and reservations established by treaty or act of Congress. So that if the general leasing act applies to one class there seems to be no ground for holding that it does not apply to the others.
    You are, therefore, advised that the leasing act of 1920 does not apply to Executive order Indian reservations.1
    Respectfully,
    HARLAN F. STONE, Attorney General.
    Hon. HUBERT WORK,
    Secretary of the Interior, Washington, D. C.
    ________________________________________
    134 Opp. Atty. Genl., 181.
    ________________________________________
    OPINION BY THE SOLICITOR OF THE DEPARTMENT OF THE INTERIOR AS TO THE EXTENT OR CHARACTER OF TITLE ACQUIRED BY INDIANS IN LANDS WITHDRAWN FOR THEIR BENEFIT BY EXECUTIVE ORDER.
    DEPARTMENT OF THE INTERIOR,
    OFFICE OF THE SOLICITOR,
    Washington, March 6, 1926.
    The SECRETARY OF THE INTERIOR.
    MY DEAR MR. SECRETARY: My opinion has been requested as to the extent or character of title acquired by the Indians in lands withdrawn for their benefit by Executive order.
    The solicitor for this department had occasion to deal somewhat extensively with this matter in connection with the applicability of the public land leasing act
    Page 1062
    of February 25, 1920 (41 Stat. 437), to lands within Indian reservations created by Executive order, and in an opinion dated February 12, 1924, it was held that the title to such lands rests in the United States. It was further therein pointed out, however, that with but few exceptions this was equally true with respect to unallotted lands in Indian reservations created by treaty or by act of Congress. That is, as to all three classes of lands or the lands within all three classes or reservations—treaty, act of Congress, or Executive order—the legal title is in exactly the same place, to wit, the United States. It was there held that the public land leasing act did not apply to lands within Indian reservations created by Executive order and on submitting the matter to the Attorney General those views were upheld in an opinion by that officer dated May 27, 1924 (34 Op. Atty. Gen. 181). The conclusions so reached are amply fortified by a long line of court decisions, including the Supreme Court of the United States. From an early date the latter court laid down the rule that under the doctrine of “discovery” the fee to the lands in this country, in the absence of an express grant from the sovereign, was not in its aborigines and that the only right or title existing in them was that of use and occupancy. This doctrine was ably expounded by Chief Justice Marshall, of the Supreme Court, in Johnson v. McIntosh (8 Wheat. 543), and was again reiterated by the same court in Beecher v. Wetherby (95 U. S. 517), wherein the court said (pp. 525-526)
    But the right which the Indians held was only that of occupancy. The fee was in the United States, subject to that right, and could be transferred by them whenever they chose. The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians. That occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action toward the Indians with respect to their lards is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the Government.
    In both of the decisions referred to it was further stated:
    The right of the Indians to their occupancy is as sacred as that of the United States to the fee, but it is only a right of occupancy. The possession, when abandoned by the Indians, attaches itself to the fee without further grant.
    During earlier times, at least, Congress accorded to the Chief Executive a broad discretion about setting apart lands from our public domain for various national purposes, including the protection of the Indians (228 U. S. 243), and the power so resting in the President was never seriously questioned or curtailed until June 30, 1919, when Congress by act of that date (41 Stat. 3-34), provided:
    That hereafter no public lands of the United States shall be withdrawn by Executive order, proclamation, or otherwise, for or as an Indian reservation except by act of Congress.
    That the title to lands within Indian reservations created by Executive order rests on .substantially the same basis as lands with reservations created by treaty or by act of Congress is amply illustrated by that holding of the Supreme Court in Spaulding v. Chandler (160 U. S. 394-402), wherein it was said:
    It has been settled by repeated adjudications of this court that the fee of the lands in this country in the original occupation of the Indian tribes was from the time of the formation of this Government vested in the United States. The Indian title as against the United States was merely a title and right to the perpetual occupancy of the land with the privilege of using it in such mode as they saw fit until such right of occupation had been surrendered to the Government. When Indian reservations were created, either by treaty or Executive order, the Indians held the land by the same character of title, to-wit, the right to possess and occupy the lands for the uses and purposes designated.
    Even as to Indian treaty reservations, however, the same court in Lone Wolf v. Hitchcock (187 U. S. 553-565), held that the plenary power of Congress over tribal
    Page 1063
    Indian property is such that the provisions of an existing treaty with the Indians could be abrogated without their consent, but that presumably such action would not be had without full consideration of justice, humanity, and public policy. It will be seen therefore that it is largely a question of policy for Congress to determine and this gave rise to that further ruling by the same court in Blackfeather v. United States (190 U. S. 368), wherein it was held that the moral obligation of the Government toward the Indians are for Congress alone to recognize and that the courts can exercise only such jurisdiction over the subject matter as Congress has or from time to time may see fit to confer upon them.
    Manifestly, from the foregoing, the extent or character of the Indian title in lands withdrawn for their benefit by Executive order is not easily defined with particularity. Admittedly, the legal title to such lands is in the United States. A reservation so created is not in the nature of a private grant, but is rather a setting apart of designated lands for a manifest public purpose, subject to such further grant or recognition of title as Congress from time to time may see fit to accord.
    While this disposes of the strictly legal aspects of the situation generally, yet I am reluctant to dismiss it without inviting attention to the further fact that Executive orders withdrawing lands for Indian purposes are by no means uniform. For instance:
    THE WHITE HOUSE, October 20, 1910.
    It is hereby ordered that the following-described lands in the State of Arizona, viz, all of sections 1 and 12 in township 1 north, range 4 east of the Gila and Salt River meridian, be, and the same are hereby, withdrawn from settlement, entry, and sale, and set apart as an addition to the Salt River Indian Reservation: Provided, That nothing herein shall affect any existing valid rights of any person to the lands described.
    ________________________________________
    THE WHITE HOUSE, March 22, 1911.
    It is hereby ordered that Executive order of June 14, 1879, creating a reservation for use of the Pima and Maricopa Indians, be, and the same is hereby, amended so as to make said reservation available for use of the Pima and Maricopa Indians, and such other Indians as the Secretary of the Interior may see fit to settle thereon.
    ________________________________________
    WHITE HOUSE, November 14, 1901.
    It is hereby ordered that the following-described tract of country in Arizona, viz, cerrimencing at a point where the south line of the Navajo Indian Reservation (addition of January 8, 1900) intersects the Little Colorado River; thence due south to the fifth standard parallel north; thence east on said standard to the middle of the south line of township 21 north, range 15 east; thence north on the line bisecting townships 21, 22, 23, 24, said range 15 east, to the south line of the Moqui Reservation; thence due west to the place of beginning, be, and the same is hereby, withdrawn from sale and settlement until such time as the Indians residing thereon shall have been settled permanently under the provisions of the homestead laws or the general allotment act approved February 8, 1887 (24 Stat. 388), and the act amendatory thereof, approved February 28, 1891 (26 Stats. 794).
    Omitting a description of the lands involved, which is quite lengthy, Executive order of February 1, 1917, reads:
    Executive orders dated June 16, 1911, December 5, 1912, and January 14, 1916, withdrawing certain lands in Arizona for the benefit of the Papago Indians, be, and the same hereby are, revoked, and, exclusive of a tribal right to the minerals therein contained, all surveyed land and all unsurveyed land which, by protraction of the regular system of public-land surveys from the township corner at the intersection of the Gila and Salt River meridian with the third
    Page 1064
    standard parallel south, would fall within the townships and ranges listed below, be, and the same hereby are, withdrawn and set apart as a reservation for the benefit of the Papago Indians in Arizona.
    * * * * * *
    The foregoing reservation is hereby created with the understanding that all mineral lands within the reservation which have been or which may be shown to be such and subject to exploration, location, and entry under the existing mining laws of the United States and the rules and regulations of the Secretary of the Interior applying thereto, shall continue to be subject to such exploration, location, and entry notwithstanding the creation of this reservation; and town sites necessary in connection with the development of the mineral resources of the reservation may be located within the reservation under such rules and regulations as the Secretary of the Interior may prescribe, and patented under the provisions of the town-site laws of the United States: Provided, That nothing herein contained shall affect any existing legal right of any person to any of the lands herein described.
    These but illustrate the fact that as to particular reservations, or a particular tribe or band of Indians, relevant facts and circumstances surrounding the creation of the reservation should not be disregarded in determining the character or extent of the Indian title. It may also be mentioned that by Executive orders of November 9, 1907, and January 28, 1908, some 3,000,000 acres in Arizona and New Mexico were added to the Navajo Reservation. Out of this area some 328,000 acres were allotted in severalty to 2,064 members of the Navajo Tribe, authority for this latter action being found in section 1 of the general allotment act of February 8, 1887 (24 Stat. 388), as amended. The surplus or unallotted land within this addition to the Navajo Reservation, approximating 2,600,000 acres, have since been restored to the public domain as required by section 25 of the act of May 29, 1908 (35 Stat. 444-457). Needless to add, the unallotted lands were so restored to the public domain without compensation to the Indians. This alone amply illustrates the power of Congress over the subject matter.
    Respectfully,
    E. O. PATTERSON, Solicitor.
    Approved, March 6, 1926.
    JOHN H. EDWARDS, Assistant Secretary.
    ________________________________________
    DEPARTMENT OF THE INTERIOR,
    Washington, March 6, 1926.
    The ATTORNEY GENERAL.
    MY DEAR MR. ATTORNEY GENERAL: Some question having arisen as to the character or extent of the title resting in the Indians to lands withdrawn for their benefit by Executive order, your opinion in the matter is respectfully requested.
    For your information in this connection I am inclosing an opinion by the solicitor of this department on the question here presented. In so far as consistent with your other duties an early expression of your views would be appreciated.
    Very truly yours,
    HUBERT WORK.
    ________________________________________
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  14. Bandaid, bandaid, who’s got a bandaid!

  15. This novel game may be up soon. The judge in the Allergan v. Teva E.D.TX patent suit [William Bryson] has specifically asked if the deal “should be disregarded as a sham” if Allergan does not answer by 10/13/17 if the Saint Regis Mohawk Tribe will join the suit as a co-plaintiff, as it had said it would a month ago. If they do so they will waive sovereign immunity.
    Allergen has argued that dismissing the IPR case using the tribe’s sovereign immunity had nothing to do with the federal case. But as I had noted earlier, the Fed. Cir. does not allow sole suing on a patent without full ownership control.
    It is further reported that Michael Shore, an attorney with the firm Shore Chan DePumpo, arranged the partnership between the tribe and Allergan, and argues that participation in one forum does not waive immunity in another.

    1. Everyone seems to be ‘tippie-toeing’ around the U.S. Constitution elephant in the room…why is it no one asks this simple question in federal court regarding the Mohawk’s assertion they possess ‘sovereign immunity’ from suit in court:
      ““Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

      1. NO ONE is tipoie-toing.

        Your premise remains flawed.

        You seek something that is not there BECAUSE it need not be there.

        1. Really!!! I don’t see anything from you to disprove any of my Constitution-based truths. And, you failed to answer my question. Clearly, you have no knowledge of the United States Constitution’s protections of one’s U.S./State citizenship.

          1. You don’t see anything because you have steadfastly refused to even consider the very words of the Act of 1924 that serves as your premise.

            ANYTHING else that you are asking for is just not necessary. IN the first instance, you need to better understand just what the law that serves as your premise actually did – and did not – do.

            Not seeing anything because you refuse to unclench your eyes is simply not persuasive.

            1. Your post affirms you have no U.S. Constitution understanding…they are U.S./State citizens with “Indian ancestry/race!” Period. You have proved nothing to change their citizenship to be one of distinguishing because of their “Indian ancestry/race” from all other non-Indian U.S./State citizenship.

              1. You are back to beating that drum?

                Your need to understand the Act of 1924 still remains. Your premise is grounded in error.

                1. Nice pun…beating that drum.

                  You claim “Your premise is grounded in error”…cite the Constitution error of my posts regarding the Indian Citizenship Act of 1924?

                  While you are gathering your proofs to support your position that my posts are grounded in United States Constitution error, also product the SCOTUS decision(s) that over-ruled the definition of one’s U.S./State citizenship in relation to the United States Constitution in these SCOTUS decisions:
                  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.
                  And, while your are at it in your search of the Constitution for proofs of your posts, provide the Statutes as Large for the enactment of Title 25-INDIANS.

                  4. And lastly, you have yet to provide proofs that Title 25-INDIANS has Statutes at Large affiming its Constitutional roots, this SCOTUS decision debunks your arguments that Title 25-INDIANS is good common law: “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” [Norton v. Shelby County, 118 US 425 (1885)]

                2. …cite the Constitution error of my posts regarding the Indian Citizenship Act of 1924?

                  Another massive wall of meaningless text and another request that simply need not be answered because it is simply not on point.

                  Paul, how much more simple can I make this for you? Your premise is flawed in what you are holding the Act of 1924 to be doing. It is rather odd that you keep on ignoring the critical flaw in your foundation and want others to “prove” something on a Constitutional basis.

                  The oddity is that NOT ONLY do you have the Act wrong – you then turn around and want to have a mere act of Congress have Constitution-changing powers…

      2. Everyone seems to be ‘tippie-toeing’ around the… Mohawk’s assertion they possess ‘sovereign immunity’ from suit in court…

        This is a patent law discussion board, not a sovereign immunity discussion board. For aught I know, you could be correct in your assertions. I, for one, really do not care if you are, and I expect that is true of a lot of others on this board. If you want a really good discussion about the applicability of sovereign immunity doctrine to Amerindian tribes, you would probably do well to take your (rather lengthy) posts to some other board. At present, you are in a position much like a pigeon fancier at a cat show—there is not much ground for engaging conversation here.

    2. Paul, I think you are correct that waiver will be found when the tribes attempt to assert their patents. However, I agree with Allergan that PTAB adjudication of issued patents requires consent of the patent owner (regardless of sovereign status).

      1. agree with Allergan that PTAB adjudication of issued patents requires consent of the patent owner (regardless of sovereign status)

        Importantly, this is simply not how Congress, in the AIA, wrote the law at point.

        Sure, arguments can (and should) be made that THAT law cannot be valid – but that is an entirely different line of thought than the sovereign status issue (and yes, I do recognize that you understand that).

  16. Where’s Senator McCaskill’s outrage at hedge funds that short biotech stocks and then file worthless IPRs, whose cancellation rate is so high that the mere filing of an IPR request is enough to make millions for the biotech hedge funds? Hypocrisy is a DC spesh-ee-ality. Fix the disease, not the symptoms. The PTO has turned into a scam business; “thanks for your dough, here’s your ‘patent’, … whoops, let me have that back, sorry no refund”. IP stakeholders need predictability.

    1. Exactly what I was thinking. Allergan wants quite title to it’s issued patents so it found a way to park them out of reach of the IPR star- chamber. Obviously the infringer lobby said jump and McCaskilll jumped.

  17. This proposed bill is a fraud upon the Constitution…it presumes that “Indian tribes” possessed ‘sovereign immunity’ to begin with which cannot be further from a Constitutional truth!
    This article is an astonishing piece of a deplorable lack of journalist curiosity regarding U.S./State citizens with “Indian ancestry/race” since The Indian Citizenship Act of 1924! That single Indian Citizenship Act of 1924, made null all previous common law-state and federal-including Presidential Executive Orders, Commerce Clause and Treaty Clause alleged Indian Treaties (if any U.S. Senate confirmed Indian treaties actually existed pre-1924 Citizenship) regarding U.S./State citizens with “Indian ancestry/race” so often touted by politicians and Indian advocates as being legitimate law.
    And yet, politicians and MSM continue to perpetuate willful blindness to the Constitutional absurdity that Congress, Presidents/Governors, Initiatives and Referendums can make distinguishable the capacities, metes and boundaries of a select group of U.S./State citizens with “Indian ancestry/race” post citizenship. There is nothing in U.S.C. Title 25-INDIANS that speaks to the Constitution’s mandate that common law must be for “We, The People, By The People and For The People’s” health, welfare, safety and benefits for a specific geographic area of a State or the Union.
    The United States Constitution makes for no provisions for:
    1. Indian sovereign nations. None of the asserted tribes possess any of the attributes of being a ‘sovereign nation:’ a. No U.S. Constitution recognition b. No international recognition c. No fixed borders d. No military e. No currency f. No postal system g. No passports h. et al
    2. Treaties with its own constituency
    3. Indian reservations whereby a select group of U.S./State citizens with “Indian ancestry/race” reside exclusively and to the exclusion of all others, on land-with rare exception-that is owned by the People of the United States according to a federal document readily available on-line that notes rights of renters as ‘occupancy and use’ by these distinguished U.S./State citizens with “Indian ancestry/race” only with the land owned by the People of the United States.
    4. Recognition of ‘Indian citizenship’ asserted by various tribes. There is no international/U.S. Constitution recognition of “Indian citizenship” as there is no ‘nation-state’ from which citizenship is derived.
    A simple question for politicians and MSM to answer…a question so simple, it is hard:
    “Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

    1. Setting aside the question of “sovereign immunity”, when you read anything like this more than a paragraph long that fails to acknowledge the genocidal activities of the people who colonized this part of the world, then you know you’re reading the w@ nkery of a truly special class of rotting fecal matter.

      But, hey, it’s a patent blog. These kind of people are a big part of the patent bar for a long time … at least as long as the gates were opened to the lowest form of innovation. Anyone surprised? Don’t be.

      1. First of all, the Indian tribes lost the wars! Get over it!
        Secondly, there is no such thing as “Setting aside the question of “sovereign immunity” as the whole issue turns on this fraud upon the Constitution.
        Third, you are mired in ‘Indian victimhood scenarios’ more than 130-years old…time to move on. As of 1924, there are no more “Indians” within the original meaning of the Constitution…time to stop with the ‘victimhood’ arguements and get off the federal welfare rolls since 1924!

        1. Third, you are mired in ‘Indian victimhood scenarios’ more than 130-years old

          LOL

          The people you meet on the Internet. Wow.

      2. I really doubt that “Paul R. Jones” is part of the patent bar.

        (But then again, YOU profess to be a part of the patent bar, so I suppose anything is possible)

        1. Not true. You are presenting ‘fake’ information.

          1. Not true.. what?

            Paul – straight up, are you or are you not a member of the patent bar?

            1. Irrelevant to the discussion regarding the Mohawks assertion of ‘sovereign Indian tribe.’

              1. Whether it is irrelevant or not has nothing to do with you providing a simple and direct answer.

                And while you are correct in that your “status” is not material to the underlying legal issue (but note that it is not I, but Malcolm that is kicking up that dust), you have already expended more energy not giving that simple and direct answer – thereby drawing even more attention to the dust.

                Maybe just say “yes” or “no,” and move on…

                1. My answer remains the same: “Irrelevant” to the discussion. If you want to discussion the Constitutional validity of my posts, fine. Your YES or NO (including Malcolm’s) question is but another thinly veiled fallacious argument variant of Ad Hominem.

                2. …yet more effort into NOT giving an answer…

                  The clear take-away, Paul R. Jones is that you are not a member of the patent bar.

                  Hey – to me its not a big deal either way, and you are correct in the sense that Malcolm does appear to ask the question solely as an attempt to v0m1t forth some type of ad hominem.

    2. Actually, that Act of 1924 did the exact opposite, clearly providing for NO abrogation or diminishment of the rights and powers that proceeded the Act.

      If you want to pontificate, at least get your understanding right.

      1. Wrong! You need to brush-up on the Constitution’s protection of one’s U.S./State citizenship. You have provided no Constitutional authority for politicians to make a select group of U.S./State citizens with “Indian ancestry/race” distinguishable from all other non-Indian U.S./State citizens because of their “Indian ancestry/race!”

        Once again, for your edification on the United States Constitution’s protection of one’s U.S./State citizenship:
        The United States Constitution makes for no provisions for:
        1. Indian sovereign nations. None of the asserted tribes possess any of the attributes of being a ‘sovereign nation:’ a. No U.S. Constitution recognition b. No international recognition c. No fixed borders d. No military e. No currency f. No postal system g. No passports h. et al
        2. Treaties with its own constituency
        3. Indian reservations whereby a select group of U.S./State citizens with “Indian ancestry/race” reside exclusively and to the exclusion of all others, on land-with rare exception-that is owned by the People of the United States according to a federal document readily available on-line that notes rights of renters as ‘occupancy and use’ by these distinguished U.S./State citizens with “Indian ancestry/race” only with the land owned by the People of the United States.
        4. Recognition of ‘Indian citizenship’ asserted by various tribes. There is no international/U.S. Constitution recognition of “Indian citizenship” as there is no ‘nation-state’ from which citizenship is derived.
        A simple question for politicians and MSM to answer…a question so simple, it is hard:
        “Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

        1. I need NO “Constitutional authority” to comment on what the ACTUAL Act of 1924 says.

          You really need to find some basic understanding here.

          1. Clearly, you have no understanding of the United States Constitution’s protection of one’s U.S./State citizenship! As of the passage of the Indian Citizenship Act of 1924, they are 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 Constitutional Amendment to change a U.S./State citizens protections because of their “Indian ancestry/race!” The whole issue with the Mohawk turns on this fraud upon the Constitution they are ‘distinguishable’ from all other non-Indian U.S./State citizens…no one following this thread has provided any Constitutional Amendment to make the Mohawks’ assertion true.

            1. Your entire premise falters on your lack of understanding of just what the Congressional Act Of 1924 did – and did not – do.

              1. Prove your post. You have staked out your position, now, cite the United States Constitution where common law by politicians can regulate from womb to tomb the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens because of their “Indian ancestry/race?” While you are looking for your proofs citing the Constitution, review this specific SCOTUS decision regarding one’s U.S./State citizenship and then cite the SCOTUS decision that over rules the Osborn decision. If you cannot do any of these, your post is merely your unsupported opinion.
                “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.”

                1. I need not “prove my post” because it is YOU that is not understanding the Act of 1924 that is serving as your premise.

                  A Supreme Court case of 1924 does not – and will not – help you with the Congressional Act of 1924 that is at the foundation of your errors.

    3. US Constitution Article I, Section 2, Clause 3 refers to non-taxation of Indians whether tribal or non-tribal.

      US Constitution Article I, Section 8 refers to regulation of commerce with Indian tribes along with commerce with foreign nations and along with commerce among the states.

      1. You are correct…those words are in the United States Constitution. The Indian Citizenship Act of 1924 made those words null…they are now U.S./State citizens whose citizenship is jealously guarded by the United States Constitution. You have provided no Amendments to the Constitution to make a select group of U.S./State citizens with “Indian ancestry/race” distinguishable from all other non-Indian U.S./State citizens. Title 25-INDIANS has no Constitutional authority to exist!
        Period. If you believe that Title 25-INDIANS exists, provide the Statutes at Large for its passage! Here’s your place to do your research to prove your point that Title 25-INDIANS exists post 1924 citizenship:
        United States Statutes at Large

        The United States Statutes at Large is legal and permanent evidence of all the laws enacted during a session of Congress (1 U.S.C. 112). It also contains concurrent resolutions, reorganization plans, proposed and ratified amendments to the Constitution, and proclamations by the President. It is published under the direction of the Office of the Federal Register through the Congressional Printing Management Division, U.S. Government Printing Office. The United States Statutes at Large can be obtained:
        As electronic documents, free of charge, on the GPO’s Federal Digital System (FDsys), maintained by the U.S. Government Printing Office

        In paper format, by purchase from the Superintendent of Documents, or at any Federal Depository Library”

        Again, for your benefit, carefully read these SCOTUS decisions on United State citizenship and then re-visit your post:

        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.

        1. The Indian Citizenship Act of 1924 made those words null

          LOL – now you are (again) trying to make a mere Act of Congress have Constitution changing capabilities…?

          You are aware that to make anything “void” in the Constitution, you need an actual Constitutional amendment, right?

          1. Wrong! Citizenship made the referenced Constitutional words null…they are U.S./State citizens! Period. Once again, for your benefit, read what SCOTUS says in this single decision. What part of this decision and the text on “citizenship” do you not understand? Citizenship trumps the words in the Commerce and Treaty Clause because the Constitution makes for no regulations of a citizen based on their ancestry/race! And, there is no such thing under the Constitution as a Treaty with constituency! The protection of one’s citizsenship is clearly stated in the Constitution clearly stated in the dicta for this case: United States Supreme Court ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:

            “…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. ”
            thus rendering the Indian Commerce and Treaty Clause null. The Constitution cannot make it any more clear than that! If you do not understand what Citizenship means and how the Constitution protects one’s U.S./State citizenship, then you will remain a Constitution stupid person. You clearly lack any comprehension that once U.S. Citizenship was achieved, Citizenship trumps the Indian Commerce and Treaty Clause as the two (Citizenship vs. Commerce and Treaty Clause) cannot exist concurrently under the Constitution with Citizenship; and, Citizenship held in the passage of the Indian Citizenship Act of 1924 post dates the writing of the Constitution…the words in the Commerce and Treaty Clause remain but have no meaning and the Constitution makes for no provisions to have it both ways!
            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.”

            1. You keep on saying”Period” as if somehow that makes up for your plain errors in understanding what the Act of 1924 does – and does not (and cannot) – do.

              Your Supreme Court cites are simply not on point.

              1. Again, you have provided nothing from the Constitution to prove your post…merely saying my post is in error because of your opinion of the Indian Citizenship Act of 1924…an opinion you cannot support citing the Constitution. You remain all bluster and no substance!

                1. I have shown you details of the Act of 1924 that you refuse to look at (or even acknowledge).

                  The “all bluster and no substance” is thee, not me.

  18. Medical and health based goods and services are always first to be attacked by the regressive left.

    Never mind the rights to the fruits of their own labor, of those individuals who have created the medicines and techniques and miracle devices that save and improve countless lives. Never mind a doctor’s inalienable right to set the terms of the services he provides to his potential clients on a voluntary basis.

    According to the regressive left, need is an entitlement, a claim on the goods and services of others, a claim on the life and rights of others. Patents? IP rights for inventions on pharmaceuticals? A right to profit from what you sell or what services you provide? What of those concerns… when people are in need… (the left to the pharma companies) “their right to live trumps your right to live because they need what you have made possible.”

    It is no surprise that such a swift attack would occur. As long as need trumps rights in the culture there will be continual erosion of the rights of individuals in the medicine and healthcare business, leading eventually until there is single payer medicare, at which point doctors will become de facto government workers, after which there will be price controls on all medical services and pharmaceuticals, and what will follow after complete violation of the rights of those who would dare aspire to practice in the business of medicine and health, is a shambling ineffective guarantee of third world medicine at bloated costs, for everyone.

    1. Thanks for the laughs. That’s a heckuva parody of contemporary glibertarian “thinking.”

      I especially like the clear tie-in to overly-clever completely lawyer-concocted Indian sovereignty gambit being employed by the patentee here. Very well reasoned and s00per compelling. LOL

      Remember folks:

      WE THE PEOPLE … IN ORDER TO ….PROMOTE THE GENERAL WELFARE

      The words must mean something. Pretty sure it doesn’t mean that people are Constitutionally entitled to become billionaires because “patent”. In fact I’m absolutely sure of that.

      W@nk on, glibertarians. W@nk on. It’s what you do best. It’s all you do.

      1. “The words must mean something”

        Note the context tho re re.

        “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

        You can’t “sacrifice liberty for the general welfare”, at least that was what it was supposed to be in this country. In this country we were supposed to be promoting the general welfare through securing the blessings of liberty, not by taking liberty away. That’s why george washington got a key to the bastille (used in the storming of the bastille) from the marquis de lafayette that hangs mounted still in Mount Vernon to this day. It was a symbol from france that both countries (US and revolutionary france) were dedicated (at that time) to liberty.

        link to mountvernon.org

        link to smithsonianmag.com

        Washington being known at the time as literally “the patriarch of liberty”.

        1. Hey, thanks for that awesome history lesson which I totally did not read.

          Please remind me again: what does this have to do with a big corporation (or anyone else) hiding behind some judge-created “Indian sovereignty” silliness so that its junk patent can continue to shrink everyone else’s “liberty”?

          Also, a friendly reminder to everyone else dropping by: this commenter “6” is a desperately frustrated kl@nboy who thinks that Emperor M – -0n McCheet0hair is going to make it easier for him to get laid. And that’s putting it generously.

          1. “Please remind me again: what does this have to do with a big corporation (or anyone else) hiding behind some judge-created “Indian sovereignty” silliness so that its junk patent can continue to shrink everyone else’s “liberty”?”

            It is because of the perceived overall attack on liberty by the regressive left (noted at the beginning of the post way above) in order to promote the general welfare by the gubmit pocketbook/gubmit takeover (single payer) rather than through liberty itself.

            And that all of this silliness about the tribes immunity and big corps trying to hide behind it is a result of what the original poster above sees as an overall attack on the medical/medical device fields by the regressive left.

            But that’s just his view. He may even fancy google (pretty far leftist as recent actions indicate) as being in on this AIA creation.
            And yes the patent (junky or not) is a temporary restriction (challengeable in court still) on one of a gazillion possible actions for a medical provider to take, but it one the white cis hetero patriarchy deemed and still deems acceptable for its overall purpose of promoting the progress of this useful art.

            “Also, a friendly reminder to everyone else dropping by: this commenter “6” is a desperately frustrated kl@nboy who thinks that Emperor M – -0n McCheet0hair is going to make it easier for him to get laid. And that’s putting it generously.”

            Slander will get you nowhere with this crowd lefty.

            1. attack on the medical/medical device fields

              Oh, the suffering.

              1. It isn’t like I’m the one saying there’s suffering necessarily. Though I am somewhat concerned about what would happen to those fields if we went single payer (the leftist end goal after all).

                Have you looked into what is likely to happen to the field if we go single payer?

          2. which I totally did not read.

            Were you being…

            …glib?

            😉

            glib:
            adjective
            (of words or the person speaking them) fluent and voluble but insincere and shallow.

            That number one meme of Accuse Others in work yet again…

          1. MM is literally that barely to the ta rded point guy in that vid when it comes to the country or the history thereof.

        2. How does Allergan’s deal with the St. Regis Mohawks implicate “liberty” one way or the other?

          1. To the extent it keeps a junk patent pending and prevents the public from practicing the prior art “legally”, that would seem to create a liberty issue.

            Of course, if you multiply it by millions, then you’ve got a clearer picture of what’s at stake.

          2. …perhaps the liberty of freedom to contract…

            Unless you think that some type of paternalism is needed to protect the indian tribes since they don’t know better and are so susceptible to being taken advantage of and used (to their detriment) with such deals from the big bad Pharma industry…

            1. That is a perfectly fair response to my 4.1.1.3. I phrased my question inartfully.

              I should have asked what “liberty” is at stake one way or another from Sen. McCaskill’s bill?

              Certainly not freedom to contract. Allergan & the St. Regis Mohawks would be just as free to make their assignments and licenses after the bill matures into law as they are now.

              1. Perhaps you are still “inartfully posing your question” because you have completely missed the statement given by Ms. McCaskill as to why she is doing what she is doing.

              2. There is a fatal U.S. Constitutional flaw to the notion that Allergan and the Mohawks are “…free to make their assignments and licenses…” as the ‘deal’ rests upon the alleged legal theory by the Mohawk’s attorney that the “Mohawk tribe” possesses ‘sovereign immunity’ from suit in court…there is absolutely no U.S. Constitutional authority the Mohawk attorney can point-to to make his ‘pitch’ true! The Mohawk attorney successfully dumb down as gullible the Allergan attorneys into believing that a select group of U.S./State citizens with “Indian ancestry/race” (Mohawk in this instance) post The Indian Citizenship Act of 1924 are somehow a ‘sovereign Indian nation’ within the United States…a notion that is the furthest from a Constitutional truth as possible!
                Senator (McCaskill) is yet one more politician that is a Constitution stupid person!
                It never ceases to amaze me just how easily it actually is for politicians-state and federal-to dumb down as gullible non-Indian U.S./State citizens into believing that they-politicians like Sen. McCaskill-can pass common law that makes the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens with “Indian ancestry/race” distinguishable from all other non-Indian U.S./State citizens because of their “Indian ancestry/race;” and, she is floating a bill to ‘strip’ ‘sovereign immunity’ from this select group of U.S./State citizens with “Mohawk Indian ancestry/race” that does not exist to begin with under the United States Constitution and people believe this political fraud upon the Constitution and We, the People!

          3. All patents are a temporary restriction on the liberty to take whatever action you please that isn’t against normal everyday lawls.

    2. Medical and health based goods and services are always first to be attacked by the regressive left.

      I expect that you are basically correct in this assertion. Sen. Sanders is not, for example, calling on the government to exercise march-in rights on software patents, or automotive patents in which the government has rights, but he is calling for the NIH to be more aggressive in its use of march-in rights against drug and medical device patents.

      That said, this seems a strange thread in which to air this particular topic. It is not as if the IPR system is uniquely targetted against health technologies. Quite the opposite. Drug and device patents make up a only a small percentage of IPRs.

      Moreover, this thread is not even really about IPRs. It is about one rather quirky strategy for avoiding IPRs. Even if Sen. McCaskill’s bill should proceed and mature into law, this is scarcely the same thing as “doctors… becom[ing] de facto government workers, after which there will be price controls on all medical services and pharmaceuticals… .”

      Your complaint here, on this thread, seems somewhat misplaced.

      1. As if march-in rights for therapeutics represents some kind of arbitrary choice. Once again: “general welfare.” It means something. It’s a problem for glibertarians. It’s also not going away.

        1. Once again: “general welfare.” It means something. It’s a problem for glibertarians. It’s also not going away

          Neither is liberty.

          I know that your Liberal Left has a difficult time with that (just like PERSONAL property), but you are really going to have to learn (better) how to deal with that.

        2. “[G]eneral welfare”… means something.

          No doubt. Consider me skeptical, however, that either text or precedent should give us to understand that it means price controls on medical technology.

      2. So you do not see the motivation behind Sen. McCaskill’s efforts as having anything to do with the particular technology at issue? i.e. with the fact that it has to do with pharma?

        You think she would have noticed this and drafted this bill if the patent at issue was some GUI for a smartphone?

        Perhaps she was already very interested in the whole “pressing issue” of patents rights and efforts to protect them using Tribal Nation Sovereign Immunity which is catching the headlines these days and likely has her constituents up in arms and deluging her with requests to “do something”. Grudgingly, she decided to roll up her sleeves, because well it was inevitable that it such a crucial issue would come to a head.

        This is a much likelier explanation, so yep, what I said has nothing to do with reality.

  19. It is premature to put out a proposal like this. It isn’t clear at all that Indian tribe sovereign immunity would even apply to IPR/PGR/CBM reviews. It’s an untested theory, at best, and I could see the PTAB and CAFC rejecting the immunity claim. But introducing a bill like this gives fodder to the argument that Indian tribe immunity, in fact, applies here. Seems like McCaskill should have waited until there was a bad ruling before doing this.

    1. Maybe it’s the precisely correct moment; it warns jurists that supporting the notion would lead to, if not rapid legislation, at the least controversy and uncertainty, and it warns other pharma that if they think this is a cute trick, it’s not going to slide under anyone’s radar for very long.

      Politics is war by other means, but litigation is actually politics by other means, and when it comes to politics, prediction is a tricky business.

      1. Say the Native tribe gambit ultimately fails. Any reason why a state university wouldn’t take title to patents to shield from IPR/PGR/CMB and use the revenue stream to fund university R&D? I could see a big pharma company assigning to a state university with an exclusive license-back and the royalties to the university funding R&D into drug research, with the big pharma company then having rights to the R&D results. Sure, there is the university mission of information dissemination, but that does not stop university-industry collaborations now.

        1. Say the Native tribe gambit ultimately fails. Any reason why a state university wouldn’t take title to patents to shield from IPR/PGR/CMB and use the revenue stream to fund university R&D?

          The answer would depend on why the tribal gambit “ultimately” fails. As Dennis has suggested, it’s entirely possible that this kind of gaming fails because it is a sham.

          Once again, we see the incredibly hypocricy of maximalist/Re pu k k ke positions. These are the same people who lay awake at night (or so they would have us believe) in a cold sweat worrying that transgender people are going to be molesting kids in bathrooms. But slick disgusting blatantly transparent lawyer games to hide junk patents from being tanked? Whatevs! Freedom!

          And then they whine and cry like little snowflake babies when people point out what a bunch of disgusting whining hypocrites they are.

          1. As Dennis has suggested, it’s entirely possible that this kind of gaming fails because it is a sham.

            Actually, Prof. Crouch has explicitly said NO SUCH THING.

            As has been pointed out, the term “sham” is a legal term of art and the current tribal gambit does NOT meet the legal definition of that term.

            The rest of your rant is typical Malcolm “feelings,” but you should at least realize that your attribution is incorrect in multiple ways (having never been put forth by the person you ascribe, as well as being incorrect in legal content).

        2. Any reason why a state university wouldn’t take title to patents to shield from IPR/PGR/CMB and use the revenue stream to fund university R&D?

          I think that the obvious reason why a state university would not agree to play along with such a deal is that state universities live or die according to the good will of their respective state legislatures. If Allergan’s move here is so unpopular that Sen. McCaskill (who is perhaps the single most politically endangered member of the senate at present) feels comfortable taking this move, then you have to imagine that any state university that agrees to play along would be risking the wrath of the legislature in its own state.

          1. If Allergan’s move here is so unpopular that Sen. McCaskill (who is perhaps the single most politically endangered member of the senate at present) feels comfortable

            Comfortable?

            I think if she is – as you put it – “single most politically endangered” comfort is the opposite of what is in play.

          2. Greg, first, I’m not sure what steps a state legislature would take against a university that accepts ownership of drug patents – cut funding? That’s cutting your nose to spite your face, especially since these ownership/licensing deals will generate revenue for the universities – would you want to face your constituents and say, “We cut funding to state u. b/c they cut a deal that made a profit for state u.”?

            Second, if the legislature in, say, Missouri wants to cut funding to Dennis’ employer for taking such ownership, I’ll bet there’s another legislature that will have no qualms about doing so. And in this case, all it takes is one.

            1. Greg, first, I’m not sure what steps a state legislature would take against a university that accepts ownership of drug patents – cut funding?

              I suppose that some might cut funding, but a more straightforward response might simply be to pass a law preemptively waiving a university’s sovereign immunity with regard to all IP not developed inside the university.

              [W]ould you want to face your constituents and say, “We cut funding to state u. b/c they cut a deal that made a profit for state u.”?

              I would rather eat earthworms than pursue elected office. If however, I were a politician, then I would rather face my constituents by saying “I have taken action to prevent high drug prices for you fine people,” than to have to defend “quirky and irregular financial ‘kickbacks’ between ‘Big Pharma’ and the state government, intended to keep generic drugs off the market,” which is how the issue would actually be framed in the media. I do not dispute the accuracy of the way that you framed it, but I am dubious that this is how it would be framed by the press.

              [I]f…, say, Missouri wants to cut funding… I’ll bet there’s another legislature that will have no qualms about doing so. And in this case, all it takes is one.

              I agree that all it takes is one. I am much more skeptical than you are, however, that there exists even one such state. Sen. McCaskill is facing a very tough reelection, and she would not be taking this position if she did not think it entirely uncontroversial. She believes (and I expect that she is right) that scapegoating “Big Pharma” is a bipartisan winning position. I doubt that there is a block of legislators out there in any of our 50 states who would value the added revenue stream more than the political points that can be scored with Sen. McCaskill’s framing of the debate.

              1. Greg,

                From the fairly wide blowback that McCaskill is receiving, I think that your gauge on the scapegoating is a bit off. Her problem is that her solution does not solve the problem except for a thin (and rather paternalistic – perhaps even offensively so) sliver.

                I further do NOT see the strength of the argument that stopping a state university from a lucrative deal (in the present day and age of constrained state funding of education) just because of “Big Pharma.” I do “get” where you are coming from with the argument – I just do not see it as coming across nearly as strong as you do.

                As to “the press,” well, that’s a whole ‘nother can of worms…

                1. From the fairly wide blowback that McCaskill is receiving…

                  Where are you seeing this blowback? I confess that I have not seen any such thing (except on this thread, which hardly counts, given that IP professionals constitute such an infinitesimally slight fraction of the electorate). I would be obliged if you could point me to a published report showing that voters are turned off by Sen. McCaskill’s bill.

                2. Fair enough – the other source is also IP-related (as well as specific party-related), so is not likely to satisfy your point, but here it is anyway:

                  link to ipwatchdog.com

                  On a similar token, can you point to something external that would satisfy your level of objectivity indicating support for what the good senator is doing?

                3. Consider this article reporting Sen. McCaskill’s actions. Do you see the framing here as more like “Senator attacks private property” or more like “Big Pharma company engages in skeevy shenanigans”? I know how the framing looks to me.

                  As for evidence of how voters are responding to this line of argument, no, I have no evidence on that point. It is possible that Sen. McCaskill has stepped in it. Consider me dubious on that proposition, however. Sen. McCaskill has survived several very tough state wide elections by now. She is a shrewd political operator. I am dubious that she would be taking this position if she did not have extensive internal polling showing that this is a winning position to take.

                4. I considered both the article and the video clip.

                  The video clip is as you portray – the article a bit less so.

                  From the article:

                  A PhRMA spokeswoman told CNBC in a statement Monday that “as a trade association, we can’t comment on individual company business decisions.”

                  But it added that “the threat of inter partes reviews (IPRs), coupled with having to defend patents in multiple venues under different standards, creates significant business uncertainty for biopharmaceutical companies that rely on the assurance of their patents to justify long-term investments needed to discover new treatments and cures.”

                  The association supports reforms to the IPR process, the spokeswoman said.

                  Allergan pointed out that patents owned by state universities “have been exempted from this same process” of inter partes review, which a spokesman called “deeply flawed.”

                  (that “deeply flawed” being IPR itself and not that state universities have been exempted from the same process)

        3. Nope. I think WARF will already accept patents form outside for management. Actually a heck of an arbitrage play created by the AIA-IPR. Here, again yet another Constitutional anomaly created by the IPR scheme.

        4. I’ve wondered the same thing: since there’s already case law establishing that state universities enjoy sovereign immunity rooted in the constitution, it would seem to make more sense to transfer title to state universities than to tribes.

          1. I doubt that any state legislature is going to object to a state university defending IP that the university itself invented. This seems—to me, at any rate—very different from a university taking a payment from a company to launder IP that the university had no hand in creating, to shield that which is, essentially, the company‘s IP against IPR challenge.

            1. Indeed Greg, and if the company paid the university for being the “patent owner” just for IPRs, and the company retains control over the conduct of the IPR or its settlement, I fail to see how the company can avoid being a statutory “real party in interest or its privy” in the IPR?
              And see comment 8 for what the D.C. judge has already said about this tactic in his court on the D.C. suit on the same patents as the IPR. Failure to of the joint owner of a patent to join in a patent suit would be just as fatal for a partial ownership transfer to a university as for a tribe.

              1. I fail to see how the company can avoid being a statutory “real party in interest or its privy” in the IPR?

                THIS is an excellent point.

              2. ..but the structure of the deal, if I recall correctly, is that in fact, they are NOT joint owners….

            2. You say “launder” as if this is but a mere sham.

              Yet we both know that as that legal term goes – this is not a sham.

    2. It is premature to put out a proposal like this.

      ROTFLMAO

      introducing a bill like this gives fodder to the argument that Indian tribe immunity, in fact, applies here.

      No, it doesn’t. There is no “in fact” when it comes to a legal question like the one presented here. This is the Supreme Court’s call. And the patentee in this case is free to continue to throw its money down the t let if it wants. Liberty!

      1. I have not investigated any of these issues, but doesn’t Congress have to specifically abrogate immunity? Couldn’t this be argued to be suggestive that Congress doesn’t believe it has done so?

        1. The fallacy of this article is the presumption that a select group of U.S./State citizens with “Indian ancestry/race” possess ‘sovereign immunity’ as a ‘tribe!’ No where in the United States Constitution has anyone provided the source for such an assumption…it is a political myth foisted off by politicians-state and federal-to dumb down gullible non-Indian U.S./State citizens into believing that they-politicians-can pass common law that can regulate the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens because of their “Indian ancestry/race” post 1924 citizenship.

        2. doesn’t Congress have to specifically abrogate immunity

          Not if there’s nothing to abrogate.

          Congress doesn’t believe it has done so

          I just see one congressperson proposing a bill.

        3. Like yourself, I do not pretend to know a lot about the sovereign immunity of native tribes. I agree, however, that Sen. McCaskill’s submission is suggestive (if not quite probative) that Congress (or at least she) does not believe that it has abrogated the tribes immunity with enough specificity or particularity.

          If so, however, that rather tells against Lode Runner’s point in #3 above. Rather than being premature, this legislation is absolutely necessary (if one want to accomplish the end that Sen. McCaskill is pursuing). Congress needs to speak to the issue specifically, because any ambiguity about abrogation of immunity cuts in favor of a finding of immunity.

          1. This whole myth turns on a fatal assumption by We, the People, that a select group of U.S./State citizens with “Indian ancestry/race” somehow possess ‘sovereign immunity’ because of their “Indian ancestry/race!” No one, not politicians-state or federal-nor MSM has question the notion that post 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. This whole notion of ‘sovereign Indian tribes’ is plain ‘smoke and mirrors’ foisted off to dumb down non-Indian U.S./State citizens that politicians-state and federal-can pass common law that regulates the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens with “Indian ancestry/race!” First things first in the fraud upon the Constitution…answer this question:
            ““Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

            1. You might just want to understand that Act of 1924 a bit more there…

              1. The Act made all “Indians” not already U.S./State citizens…citizens. Once U.S./State citizenship was achieved, the United States Constitution is controlling over one’s U.S./State citizenship. You have provided no changes to the Constitution to make a U.S./State citizen with “Indian ancestry/race” distinguishable from all other non-Indian U.S./State citizens because of their “Indian ancestry/race!” Period!

              2. Passage of The Indian Citizenship Act of 1924 made U.S./State citizens. Period. You have provided no Constitution Amendment(s) to change that citizenship

                1. You have provided no Constitution Amendment(s) to change that citizenship

                  Not needed, as it is YOUR premise that is flawed.

                  You have provided no Constitution changing power from a mere Act of Congress (and yet, that is what you want to happen with the Act of 1924). I wonder why this dichotomy continues to escape your attention….

          2. Oddly, no one posting to this thread has focused on the Constitutional elephant in the room: Assertion of Mohawk tribal sovereign immunity from suit in court (presumably federal court)?

            “Where is such ‘Indian tribal sovereign immunity’ found in the United States Constitution?”

            The balance of all of the posts are mooted by an answer to that question as no one has provide such U.S. Constitutional authority whereby a select group of U.S./State citizens with “Indian ancestry/race” possess ‘sovereign immunity’ as a ‘tribe.’

            The U.S. Constitution provides for but one sovereign…that being the individual citizen. Citizens, in turn, created two other functioning sovereigns: The national and state governments.

            No one has provided an Amendment(s) to the Constitution whereby a select group of U.S./State citizens with “Indian ancestry/race” can create a ‘sovereign Indian tribe!” Period.

      2. There is no “in fact” when it comes to a legal question like the one presented here. This is the Supreme Court’s call.

        ? On what basis does this become a Supreme Court call?

        1. The dispute at the bar turns on the Constitutionality of whether common law can ‘enlarge or abridge’ one’s U.S./State citizenship because of one’s Indian ancestry/race collectively housed in a fraud upon the Constitution…Title 25-INDIANS…the same common law-Title 25-INDIANS, the Mohawk tribe is relying upon in their assertion they are a ‘sovereign Indian tribe’ that cannot be sued because of their “sovereignty.” Here is the singular question to be presented in the federal trial court by anyone opposed to this Constitutional fraud by the Mohawk/Allergan gambit:
          ““Where is the proclamation ratified by the voters of the United States that amends the Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens distinguishable because of their “Indian ancestry/race?”

          1. Or abridge…

            You STILL have not connected the dots on that line of thought.

            1. Can’t fix your cognitive reading abilities of the United States Constitution’s protections of one’s U.S./State citizenship with “Indian ancestry/race!” If you are unable to read and understand these SCOTUS decisions, you should retire from the discussion as having no Constitution understanding:
              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.

              1. Those cases are simply not on point to what you are trying to say and have zero intersection with what the Act of 1924 says.

                Start with understanding what that Act actually did. Focus on the aspect that I have pointed out to you.

                1. A typical reply from someone who has consistenly presents no knowledge of the Constitution’s protection of one’s U.S./State citizenship placed squarely under your nose and what is clearly stated in each of the cited SCOTUS decisions already provided…you have yet to provide any Amendment(s) to the Constitution to make a select group of U.S./State citizens “distinguishable” because of their “Indian ancestry/race” and absent that Amendment you offer nothing. The Indian Citizenship Act of 1924 made all “Indians” not already U.S./State citizens…citizens. What is it about that simple Constitutional fact you do not understand? To help once again to provide the Constitution’s protection of one’s U.S./State citizenship,
                  read this SCOTUS decision again…if you don’t understand what Osborn says, I cannot fix your lack of cognative understanding of a SCOTUS decision.

                2. …or abridge

                  (STILL out there for you to understand what this means and why this was insisted on being included in the Act of 1924)

                3. Your incessant reference to ‘abridge’ is nowhere to be found in the Indian Citizenship Act of 1924…the word ‘abridge’ appears in SCOTUS decision Osborn posted below the Congressional document. Osborn decision clearly states that once U.S./State citizenship is achieved, Congress has no authority to ‘enlarge or abridge’ one’s citizenship. Title 25-INDIANS does just that…it ‘enlarges’ the health, welfare, safety and benefits of a select group of U.S./State citizens because of their “Indian ancestry/race” and you have provided no Amendments to the Constitution to change their citizenship because of their “Indian ancestry/race!”

                  The Indian Citizenship Act of 1924 Passed by Congress
                  June 2, 1924
                  Indian Citizenship Act of 1924
                  2
                  Transcript
                  3
                  Courtesy National Archives and Records Administration
                  Indian Citizenship Act of 1924 2
                  Courtesy National Archives and Records Administration
                  Indian Citizenship Act of 1924 3
                  Transcript
                  Indian Citizenship Act of 1924
                  (Passed by Congress May 27, 1924. Ratified June 2, 1924.)
                  Sixty-eighth Congress of the United States of America;
                  At the First Session,
                  Begun and held at the City of Washington on Monday, the third day of
                  December, one thousand nine hundred and twenty-three.
                  ________________________________
                  AN ACT
                  To authorize the Secretary of the Interior to issue certificates of citizenship to Indians.
                  ________________________________
                  Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.
                  F. H. Gillette
                  Speaker of the House of Representatives.
                  A. B. Cummins
                  Acting President pro tempore of the Senate.
                  Approved June 2, 1924.
                  (Signature unreadable)
                  Courtesy National Archives and Records Administration

                  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.”

                4. “abridge” ==> “shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

                  You want to act as if Indian tribal or other property concerns vanished completely – but the words of the Act are clear that those very things SHALL NOT IN ANY MANNER be impaired or otherwise (far more extensive in fact than merely ‘abridge’) affected.

                5. Maybe I lack some understanding because I am a non-lawyer, but I don’t quite understand why an individual American Indian’s citizenship status has any relevance to the question of Indian tribe’s status as a sovereign.

  20. I think the efficient infringer lobby (like MM) just stepped into it.

    1. the efficient infringer lobby (like MM)

      Everybody is an efficient infringer, Ned.

      Find a better script. Or better yet: keep screeching this silly one. It fits you.

    2. Do you feel that swagger yet, Ned?

      😉

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