Sovereignty for Sale? Tribal Patent Shelters and the Risky Business of Sovereign Derivatives

Abstract:Sovereign tribal nations frequently conduct business with public and private entities. These transactions include routine transfers of goods and services, as well as more creative extraction technologies that locate revenue streams within tribal communities in desperate need of economic resources. One form of creative extraction involves tribal patent shelters. With this unique and emerging business partnership, nontribal corporations compensate an American Indian tribal nation for temporarily sheltering intellectual property from federal review using their sovereign immunity. These shelters demonstrate how the opportunities and challenges of tribal economic development are shifting in the current era of accelerated financialization. Using a set of court and legislative documents involving a patent partnership between the Saint Regis Mohawk Tribe and Allergan, a global pharmaceutical corporation, this article examines how the law has addressed these shifts and their expanding intersections between tribal sovereignty and commerce. Analyses show that the market value of sovereign immunity to protect the profits of intellectual property derives from a tribe's sovereignty and, when mobilized in this way, this valuation threatens to contract tribal sovereignty while expanding opportunities to increase corporate capital. Attention to this subtle but striking form of predation is key to preserving the future of tribal sovereignty and reflecting on the appeal these transactions have for economically depressed communities considering similar financial arrangements.