by Dennis Crouch
Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc., App. No. 18-1638 (Fed. Cir. 2018)
The Federal Circuit has denied the Mohawk Tribe’s petition for en banc rehearing on the issue of whether sovereign immunity may be asserted in inter partes review (IPR) proceedings. Although the case focused on immunity of federally recognized Indian tribes, the Federal Circuit decision is broadly written to also include patents owned by individual states. [Fed.Cir.St.Regis.Decision] A parallel case involving Minnesota is pending before the Federal Circuit. Regents of the Univ. of Minn. v. LSI Corp. Appeal No. 18-1559. Of course, the states and tribes do not receive a lot of sympathy from private patent holders whose patents are subject to IPRs.
The St. Regis petition focused particularly on Federal Maritime Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002) (“FMC”). In FMC, the Supreme Court held that sovereign immunity applies to protect a state sovereign from having to defend itself in an administrative adjudicatory system involving adversarial private parties. As the Supreme Court explained in SAS, IPR is a “procedure allow[ing] private parties to challenge previously issued patent claims in an adversarial process before the Patent Office that mimics civil litigation.” SAS Inst. Inc. v. Iancu, 138 S.Ct. 1348 (2018).
The closest prior Federal Circuit case on-point may well be VasCath, Inc. v. Curators of University of Missouri, 473 F.3d 1376 (Fed. Cir. 2007). In that case, the court focused on whether interference proceedings trigger sovereign immunity. In its Saint Regis decision, however, the court did not discuss or even cite to that prior determination.
The case is now set-up for a petition for writ of certiori from the St. Regis tribe.
The Scheme: Any post about this case is not complete without a discussion of how the tribe came to own these Allergan patents at issue here. Basically, Allergan is paying the tribe to own these Restasis patents for the sole purpose of taking advantage of the Sovereign Immunity benefits. This involved a reverse-payment: Allergan paid St. Regis to take ownership of patents and is paying an annual royalty for their continued participation in the scheme.
What is the pretty graphic with the colored states in the map of the United States supposed to represent?
…sovereign states…?
Of course, the states and tribes do not receive a lot of sympathy from private patent holders whose patents are subject to IPRs.
Think so? I confess, that was not the impression that I got.
I am sure that the overwhelming majority of patentees whose patents get challenged in IPR simply do not think about tribes one way or the other. Among those who do, however, I got the distinct impression that there were a lot of non-tribal patent owners who were cheering the tribe. In the same way that there are a lot of clever attorneys working to figure out how one “drafts around” Mayo/Alice, there was a certain percentage of the patent-interested population that was hoping that the arrangement that Allergan had worked out with the St. Regis Mohawks would turn out to be a useful means to “draft around” IPRs. I expect that one could count on one hand the number of patentees who resented SRM’s assertion of tribal immunity.
I expect that one could count on one hand the number of patentees who resented SRM’s assertion of tribal immunity.
I think there are more lawyers disgusted with this kind of scam than you think. The profession has the reputation it deserves. Not everybody is happy about that.
Do you have anything besides feelings?
Can you track “this kind of scam” to the proper legal determination of “sham deal?”
Serious question.
“Feelings” are out of place, and a proper legal issue presents itself.
If you want to whine and grouse, your feelings are noted. If you want to contribute to a legal discussion, then by all means please start doing so.
I guess another way of looking at it, Billy, is that I don’t subscribe to the view that if I can squint my eyes and convince myself of the legality of some activity then that activity can’t be disparaged or even reviled.
Also there’s nothing wrong with “feelings” or expressing them. I know that you believe you are somehow “above it all” with your s00per d00per “objective” views on patent law and politics etc but … your belief is only that: a belief. You’re actually a million times more self-absorbed and preoccupied with your precious fee-fees than most normal people. [shrugs]
So … scam, sham, thank you ma’am, whatever. This maneuvering by Allergan is disgusting, and people should be disgusted by it. Of course, if drug prices or junk patents are something that doesn’t really affect you because, say, you’re very well off and can afford to pay the money, then you might feel differently. Right? Looking at things from this vantage point you begin to understand the bizarre behavior and views of a lot of rich @ h0les out there, particularly those rich @ h0les who grew up with a silver spoon in their mouth or who are so clueless that they don’t remember or don’t care about what life is like for people in more desperate economic straits.
A direct example of Accuse Others:
“You’re actually a million times more self-absorbed and preoccupied with your precious fee-fees than most normal people. [shrugs]”
Stultifying.
MM – I am curious as to whether you feel the same type of maneuvering by Google (et. al.) to game the system by partnering with RPX and Unified Patents to get around the IPR time bar is also “disgusting”?
Greg DeLassus: No such thing under the United States Constitution as a ‘sovereign Indian tribe!’ It is a hoax foisted off on non-Indian citizens aided and abetted by courts whose judge to not look to the U.S. Constitution before adjudicating such cases.
It is a hoax foisted off on non-Indian citizens
And on Native American as well, apparently.
No such thing under the United States Constitution as a ‘sovereign Indian tribe!’
Brother, you are wasting your breath arguing this point to me. I am a patent lawyer, and this is a patent law discussion board. I know little and care less about tribal immunity jurisprudence, and its basis (or lack thereof) in the Constitutional text. All I care about is that the CAFC said that the legal category of “tribal immunity” cannot be used to completely eviscerate IPRs. You should be happy about that much, rather than grousing that the CAFC did not go far enough.
Greg DeLassus: Well said. Sadly, the issue RE: U.S.C. Title 25-INDIANs Constitutionality, was dodged. The issue of U.S.C. Title 25-INDIANS will surely raise its head again and the brawls will continue.
I don’t know whether native American tribes are or should be considered sovereign entities. The tribes certainly believe that they are.
However, regardless of your opinion regarding the status of native American tribes, what if the same exact patent ownership/licensing arrangement had been carried out through a party that is clearly recognized as sovereign and independent of the United States, such as the Federated States of Micronesia or the Republic of the Marshall Islands or any other small nation that might wish to profit from such a scheme? Should sovereign immunity apply in that case and how should the patent challenge be handled?
Now that Allergen has let the genie out of the bottle, the courts will have to wrestle with how to handle variations on this sneaky scheme.
Mark: To put to rest any notion that U.S./State citizens with “Indian ancestry/race” since 1924 can create a ‘sovereign Indian nation’ within the United States is a political-state and federal-hoax regardless as to what these U.S./State citizens with “Indian ancestry/race” believe, the United States Constitution says NO!
Regarding your question, my first thought would be: Why is another sovereign country actually buying/renting/leasing a U.S. Patent? Second thought, business from a sovereign country such as Germany’s Bayer who buys a patent from a U.S. Company doesn’t receive special legal favors. And, in some cases depending on what the business enterprise is in the United States, purchase of the U.S.A. business enterprise by a foreign corporation can be denied. Control of U.S. shipping dockage/harbors comes to mind when the owning British company sold their interest in control of U.S. dockage/harbor to Yemen or some other middle eastern nation, the sale was blocked under U.S.C. Title 50-Exon Florio. Hope this helps.
Re: “Any post about this case is not complete without a discussion of how the tribe came to own these Allergan patents at issue here. … ”
This raises an interesting question. If it can be considered that there was a clear fact-finding under the APA on that issue by the PTAB, is that fact-finding still present in in this case for any cert since the Fed. Cir. did not overturn it? [Merely not even addressing it, as mooted by the denial of sovereign immunity.]
Not sure where you are going with this. There was no conclusions below reached on the “sham” aspect, so what “facts” (or fact finding) are you alluding to? Do you want the lack of reaching resolution on the issue of “sham” to carry forward? Of what good would that be?
One can read the PTAB decision below, which clearly does discusses the subject patents “ownership” fact issues, and draw one’s own conclusions as to whether or not they are fact findings.
Again Paul, the important conclusion from any such fact findings is absent from below. As we have discussed, below started down a path and it is a shame that they did NOT complete that journey.
They simply did not give the takeaway from the fact findings that you appear to want to have. Lacking that, what point are you driving at?
Considering no one can provide any enumerated powers in the United States Constitution for the existence of U.S.C. Title 25-INDIANS, the whole issue is a ‘scam’ by Allergan and the Mohawks.
As discussed on previous blogs, state sovereign immunity has a very different and stronger legal basis than tribal sovereign immunity.
As also discussed on previous blogs, the immediate decision here is written such that the stronger State sovereign immunity claims suffer the same consequences regardless of any difference.
I am not sure what point you were trying to make, Paul.
The immediate decision is only by the Fed. Cir. and since state sovereign immunity was not even in issue and not even specifically addressed that is not even dicta.
Try looking at the reasoning used Paul — the level of sovereignty (tribe OR state) is immaterial to the result.
Your quip on “not even dicta” does not reach.
Tribal sovereignty does not exist under the United States Constitution so any references to the subject is fatally flawed.
No such thing under the United States Constitution as ‘tribal sovereign immunity.’
No such thing under the United States Constitution as ‘tribal sovereign immunity!/’
[S]tate sovereign immunity has a very different and stronger legal basis than tribal sovereign immunity.
Exactly right. This is why—although I agree with Prof. Crouch’s assessment that Univ. of Mo. is the most on-point precedent—if the Univ. of Mn. panel needs to distinguish St. Regis Mohawks, the obvious basis to do so is to say “that case did not, like this one, involve X amendment immunity.”
Greg DeLassusa: Everyone who reads these article where federal Indian law is part-of or the whole issue, fail to determine the first core issue in the dispute at the bar: is the core issue ie. U.S.C. Title 25-INDIANS, in compliance with the United States Constitution? Readers who have little or no knowledge of our United States Constitution regarding one’s U.S./State citizenship get wrapped around the axle in accepting the lawyers premise-state and federal, plaintiff and defendant-that case law citing U.S.C. Title 25-INDIANS is absolutely, unequivocally, blindly accepted case law that is not in conflict with the United States Constitution to their detriment…ignoring the United States Constitution as the very document under which the issue is to be heard/adjudicated by a judge who does not ‘look’ at the Constitution is no better off by accepting case law over their required oath of office to support the U.S. Constitution by not looking at the Constitution first.
Marbury v. Madison posted below defines the oath of office conduct of a judge before any decisions can be made in a dispute at the bar turning on any assertions flowing from U.S.C. Title 25-INDIANS.
Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803):
…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.”
Unrelated to substance, I think after some research that Justice Gorsuch is likely to have a sympathetic ear for cert—recall he sat on the 10th, which is out West, and he authored (on the SCOTUS) Upper Skagit, a 7-2 late-term case on TSI. Justice Thomas dissented vociferously there.
link to writtendescription.blogspot.com
Did Associate Justice Gorsuch first look to the United States Constitution in accordance with his oath of office to support the Constitution to first determine if U.S.C. Title 25-INDIANS had enumerated powers in the Constitution for its existence? If not, he failed to uphold his oath and his authored Upper Skagit decision fatally flawed as it is at war with the Constitution.
“Any post about this case is not complete without a discussion of how the tribe came to own these Allergan patents at issue here.”
OK.
Let’s discuss.
Shall we first though dispense with the emotive red flag words (such as scheme)? The technical legal term that surrounds this arrangement is “sham.”
That term has a clear and definite legal meaning.
And while lots of people (and apparently the editors here) do not like the nature of the deal, one objectively can evaluate the deal as to it being a sham or not. There are lots of deals that one may not like, but that are fully permitted under the law. And if one wants to “get upset” at types of deals, a FAR bigger target exists in the world of “sham” (and not using that in a legal sense, hence quotes and italics) sales masquerading as “license” deals.
But back to a discussion on this deal.
The courts started down that path of determining whether or not the deal is a sham, but tellingly did NOT reach a conclusion that the deal is a sham deal.
One wonders why the courts did NOT reach that conclusion, eh?
Let’s hear from those that do not like this deal. Can you complete that which the courts did not? Can you complete the objective analysis showing that this is in fact a sham deal?
Or are we going to continue to play the emotive word games?
Premise: “Any post about this case is not complete without a discussion of how the tribe came to own these Allergan patents at issue here.”
Reply: My assertions: A. The Mohawk and Allergan parties have masterfully got everyone to ‘look’ in the wrong direction…a simple slight of hand that ‘tricked’ everyone. B. All opposition assumed the case laws RE. Tribal sovereignty, passed United States Constitutional muster…an ‘assumption’ is the Mother of All xxxxxxx
1. The Court judge’s fatal flaw was not looking to the United States Constitution to first determine if the core issue at the center of this dispute ie. Tribal sovereignty, is found in the United States Constitution. Their failure to do so promoted a fraud upon the United States Constitution manifest in U.S.C. Title 25-INDIANS et al.
Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803):
…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.
2. Failure of the Court’s judge’s to first look to the United States Constitution to determine the validity of U.S.C. Title 25-INDIANS (presences of enumerated powers/Statutes at Large) and the subsequent assertion of ‘tribal sovereignty’ is a failure to uphold their oath of office and is plain war against the United States Constitution.
United States Supreme Court COOPER v. AARON, (1958) No. 116 Argued: September 11, 1958 Decided: September 12, 1958: 9. No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it. P. 18.
3. Post passage of the Indian Citizenship Act of 1924, there are no more “Indians” within the original meaning of the United States Constitution…only U.S./State citizen with “Indian ancestry/race” entitled to no more and no less than every other non-Indian U.S./State citizen.
4. All who are opposing the Allergan/Mohawk ‘business deal’ RE. Restatis patent sale and invocation of ‘tribal sovereignty’ to ostensibly ‘protect’ the patent from generic production, failed to ask this fundamental question turning on United States Constitutional law and not the case law being challenged in court…in short, everyone in ‘looking’ in the wrong direction…for me, that makes the ‘Restatis’ patent deal a ‘sham.’ “Here’s the core question to ask: “Where is the proclamation ratified by the voters of the United States to amend the United States 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?”
Actually, sovereign immunity was not in dispute–only waiver. Moreover, the Federal Circuit held that there was a waiver, so the University of Missouri didn’t get the benefit of whatever sovereign immunity it may have had.
NS II,
With your comment of “Actually, sovereign immunity was not in dispute–only waiver.”…
…would it be too fine of a point to ask “waiver from what?”
If sovereign immunity were not a key, then waiver from that “non-key” would have been a moot point, eh?
You have to have sovereign immunity BE in play first before any waiver of such would (could) rise to be a meaningful decision point.
This whole “Indian tribal” thing is a plain fraud upon the United States Constitution.
It never ceases to amaze me how easy it is for politicians-state and federal-to dumb down as gullible non-Indian U.S./State citizens into believing that they-politicians-can pass statute law that regulates from the womb to the tomb the health, welfare, safety, benefits, capacities, metes and boundaries of a select group of U.S./State citizens made distinguishable from all other non-Indian U.S./State citizens because of their “Indian ancestry/race” at the same time the Constitution’s 14th Amendment’s ‘equal protection’ foreclosed the very same politicians from enacting statute law regulating from the womb to the tomb the health, welfare, safety, benefits, capacities, metes and boundaries for select group of U.S./State citizens with ‘slave ancestry/race’ all without a shred of Constitutional authority to do so. To date, no politician-state or federal-has answered this question…a question so simple, it is hard: “Where is the proclamation ratified by the voters of the United States that amends the United States 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?”
Well, the Native Americans were here first. Remind everyone why they should give a shirt about what some “Constitution” written by a bunch of funny-looking pasty white guys who insisted (and who insist to this day) on wearing absurdly impractical clothing in hot humid weather.
Great sarcasm
Not really.
What’s the point of his sar casm?
Nothing more than his usual Left Liberal “isms” and certainly no appreciation for the construction of the legal system in which he supposedly makes his career.
MM’s comment is so ‘over-the-top’ absurd, cynical, and filled with personal play on words mockery and contempt of our United States Constitution and Founders, it falls into the category of sarcasm.
I am not taking issue with what category the comment falls into. The use of “great” is what I am taking issue with.
His contempt and “isms” serve no purpose – the sar casm has no real “bite” because all that it is, is bitter and empty.
Great sar casm on the other hand advances a purpose and makes a point.
Malcolm’s post just does not do that.
“MM’s comment is so ‘over-the-top’ absurd, cynical, and filled with personal play on words mockery and contempt of our United States Constitution and Founders, it falls into the category of sarcasm.”
You’re mistaking unironic treason by a supposed officer of a court somewhere with “herp sarcasm”. IMPEACH MM!
Oh, look, its Mr. Make the Alien and Sedition Act of 1798 Great Again.
And while we are here, Trump is a quomodocunquizing clusterfist.
Or, borrowing the words of Mr. Matthew Lyon of Vermont, Trump has an’ “unbounded thirst for ridiculous pomp, foolish adulation, and self avarice.” (Mr. Lyon won reelection while in jail after being prosecuted under the Alien and Sedition Act for that statement.).
“Well, the Native Americans were here first. Remind everyone why they should give a shirt about what some “Constitution” written by a bunch of funny-looking pasty white guys”
Oooo oooo ooooo oooo I know this one! I know this one! Teacher teacher call on me!
It’s because the ebil white cis hetero christian capitalist democratic republican mans genocided and conquered on them! And if they don’t abide by it then the ebil white cis hetero christian capitalist democratic republican mans will do it again except this time they’ll just call it “jail”!
I love Ace-ing socio-history!
genocide
You just know that 6chan’s little weewee got stiff when he typed that.
Imagine no more how excit I am for muh socio history!
link to knowyourmeme.com
Man I keep getting cut off.
link to i.kym-cdn.com
link to google.com:
Third row first pic.
link to imgflip.com
MM bruh did you hear?
link to cnbc.com
Indian tribes are recognized in the Constitution has a unit of sovereign government (see, for example, Article 1, Clause 8). Your mistake is rooted in the following:
select group of U.S./State citizens made distinguishable from all other non-Indian U.S./State citizens because of their “Indian ancestry/race”
“Indian ancestry/race” is not actually the basis of why a different set of rules can apply. It is citizenship in a constitutionally-recognized sovereign government that allows them to have different rules, just as California has different rules than Delaware. It happens that citizenship in this constitutionally-recognized sovereign government is often based on ancestry (but not always). However, not all people who have Native American ancestry are members of a sovereign tribe. The 14th Amendment even recognizes a difference (though are there currently any non-taxed Native Americans?)
Nope. Post 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.
Exactly where in the U.S. Constitution’s 14the Amendment is a ‘sovereign Indian tribe’ recognized? To do so, requires an Amendment to make an exception to the “equal protection’ provisions and to date, there is no such exception to the Amendment
Nope: Passage of the Indian Citizenship Act of 1924 made them U.S./State citizens with “Indian ancestry/race” and the U.S. Constitution is controlling of their citizenship nullifying all U.S. Constitutional references to “Indians” by the U.S. Constitution itself…they are entitled to no more and no less than every other non-Indian U.S./State citizen. Period.
We’ve been over this before (although you refused to engage the exercise at that time as well), but let’s look at the structure of what you post here:
“Passage of the Indian Citizenship Act of 1924”
This is a normal act of Congress – fully lacking any power to change the Constitution, right?
Further (and as has been shown previously), that Act does not say what you think that it says.
“made them U.S./State citizens with “Indian ancestry/race” ”
Still only an Act of Congress, and still not saying what you think it says
“and the U.S. Constitution is controlling of their citizenship nullifying all U.S. Constitutional references to “Indians” by the U.S. Constitution itself…”
Here you go off the deep end. The Act your reference is being elevated by you to be the same force as the Constitution itself, and you then seek to nullify a different part of the Constitution – by a mere Act of Congress.
“they are entitled to no more and no less than every other non-Indian U.S./State citizen. Period.”
Except – as noted, that is NOT what the mere Act of Congress provided (even if you can get a mere Act to have the same force as a Constitutional change).
You have a nice fantasy here, but that is all that it is: a fantasy.
Clearly, you have not been doing your U.S. Constitutional homework regarding one’s U.S./State citizenship beginning with the 14th Amendment’s ‘equal protection’ provisions. This single SCOTUS decision debunks your post (there are 2-more SCOTUS decisions that debunk as well.) Once U.S./State citizenship is achieved, the U.S. Constitution is controlling and you have provided no Amendments to make a select group of U.S./State citizens with Indian ancestry/race distinguishable clearly stated in Osborn posted below. Nice try, though
1. United States Supreme Court AFROYIM v. RUSK, (1967) No. 456 Argued: February 20, 1967 Decided: May 29, 1967
2. United States Supreme Court
ADARAND CONSTRUCTORS, INC. v. PENA, (1995) No. 93-1841 Argued: January 17, 1995 Decided: June 12, 1995:
3. 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.”
Anon: You continue to ignore the simple Constitutional fact that once U.S./State citizenship is achieved, the United States Constitution is controlling. Period. Suggest you re-read this SCOTUS decision on achieving U.S./State citizenship…This sentence in Osborn puts to rest your post: “The constitution then takes him up, and, among other rights, extends to him the capacity of suing in the Courts of the United States, precisely under the same circumstances under which a native might sue. He is [22 U.S. 738, 828] distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction. The law makes none.”
The balance of your post is fallacious logic not supported by the United States Constitution…merely your 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.”
Squirrel of Ordinary Skill in the Art: Nope. They are U.S./State citizens with “Indian ancestry/race” under the full protection of the United States Constitution and the Constitution itself made null all references to “Indians” post citizenship. There is no Amendment to the 14th Amendment to make them distinguishable from all non-Indian U.S./State citizens. Ergo, you post has no U.S. Constitutional validity.
Exhibit A: Article 1, Clause 8 of the Constitution:
The Congress shall have Power To… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
Thus, the Constitution recognizes the Indian Tribes as separate sovereigns like states and foreign Nations.
Exhibit B: 14th Amendment, Section 2:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed…
The 14th Amendment recognizes the Indians are still a recognized group. More importantly, the 14th amendment does not change the sovereignty of the Indian Tribes. If you wanted to get technical, given that the constitution recognizes that the Indian Tribes are separate sovereigns deemed to be distinguishable from the several states and the Foreign nations and the 14th amendment only changes the power of states, you could argue that section 1 of the 14th amendment does not, on its face, apply to the Indian Tribes.
Exhibit C: The Indian Citizenship Act of 1924
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.
Your point about the act is contradicted in the text of the act itself!
Squirrel,
This has previously and explicitly placed before our friend previously. He was invited to have a dialogue and chose instead to run away.
As you can see, he is practicing the Malcolm-like drive-by monologue, “Internet-style shout down” of re-posting his original views with no reflection/recognition of previously supplied counter points.
Say “Le Vie”
anon: You have yet to provide the enumerated powers in the United States Constitution for the existence of U.S.C. Title 25-INDIANS nor the Statutes at Large for U.S.C. Title 25-INDIANS. Absent either of these fundamental Constitutional necessities for any of your posts to be true, you have merely offered your opinion you cannot support by the U.S. Constitution post passage of the Indian Citizenship Act of 1924.
Even a person who is not born within the United States and becomes a U.S./State citizen gives this oath:
Naturalization Oath of Allegiance to the United States of America
Oath
“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”
I am not the one that needs to do something.
That would be you.
Still.
Anon: You are still dodging the Constitutional question: “Where is the proclamation ratified by the voters of the United States to amend the United States Constitution to make the health, welfare, safety and benefits of a select group of U.S./State citizens with “Indian ancestry/race” to be distinguishable from all other non-Indian U.S./State citizens?”
Your question is a non sequitor to the point put to you.
Once you (finally) answer that point out to you, you may understand why.
But you need to try first.
Your claim of “dodge” is just not appropriate.
Squirrel of Ordinary Skill in the Art: 1. Nope. “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.”
This letter whose header is posted below as the whole letter is too long to post clearly states that only the Cherokee and Choctaw have fee to their land. All other U.S./State citizens with “Indian ancestry/race” are merely tenants on land owned by We, the People, with rights of ‘use and occupancy’ only: 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.
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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
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EXECUTIVE ORDER RESERVATIONS.
2. Nowhere in the 14th Amendment is your text:
“The 14th Amendment recognizes the Indians are still a recognized group post passage of the Indian Citizenship Act of 1924. “More importantly, the 14th amendment does not change the sovereignty of the Indian Tribes” does not exist in the 14th Amendment post 1924 citizenship
3. U.S. Constitution, Article IV, Section 4, the national government guarantees to provide the states a republican form of government. Indian tribes are not Republican in form
4. “Amendment 10 – Powers of the States and People. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” No such ‘sovereign Indian tribe’ can exist in a sovereign State of the Union absent an Amendment to do so. You have provided no such Amendment.
5. Article I, Section 8, Clause 17 not to have the State’s land disseizin by an un-Constitutional non-existent “Indian” tribe.
If you want to argue your post as written that Indian tribes are ‘sovereign’ as foreign nations, then each of the tribes falls under U.S.C. Title 50>Exon-Florio with the following results just for starters:
1. All state/federal laws applicable
2. No federal/state largess of any kind such as free food, housing, education, health care.
3. No voting or any other emoluments from We, the People. Nor, welfare, et al.
4. All appropriate taxes are paid
5. Prepare to be deported as being an illegal alien
Under the U.S. system of overlapping sovereignties, you can be a U.S. Citizen, a domiciliary of a state, and a member of an Indian Tribe at the same time.
When you get the Supreme Court to adopt your argument, then I’ll concede you have a point. Until then, I will not.
Squirrel. Where in the United States Constitution is there recognition of a select group of U.S./State citizens with “Indian ancestry/race” as a ‘sovereign nation’ that makes your statement true: “Under the U.S. system of overlapping sovereignties, you can be a U.S. Citizen, a domiciliary of a state, and a member of an Indian Tribe at the same time.”
As for your last sentence, that is your U.S. Constitution guaranteed right. The United States Supreme Court is well aware of my position as is clearly stated by Associate Justice Thomas in his dissent:
Upstate Citizens for Equality, Inc. v. United States, (2017) No. 15-1320. Argued: Decided: November 27, 2017>
“When our precedents permit such an absurd result, something has gone seriously awry. It is time to fix our error. We should have granted certiorari to reexamine our Indian Commerce Clause precedents, instead of standing idly by as Congress, the Executive, and the lower courts stray further and further from the Constitution.”