Written by Vanya S. Hogen of Hogen Adams
Sovereign immunity—immunity from court or administrative process as well as from lawsuits themselves—is among the most significant aspects of modern tribal sovereignty. As a tribal advocate for the past 25 years, tribal sovereign immunity has been at issue in the vast majority of cases I litigate and in nearly every transaction I negotiate. But sovereign immunity is currently under attack on a variety of fronts.
In 2014, tribes around the country celebrated a 5-4 victory on tribal sovereign immunity in Michigan v. Bay Mills Indian Community, where the United States Supreme Court held that Michigan’s suit to enjoin the tribe from operating a gaming facility was barred by sovereign immunity. Much to the relief of tribal advocates, the Court reaffirmed that sovereign immunity is a “core aspect” of tribal power, “‘a necessary corollary to Indian sovereignty and self-governance.’”
But last year in a suit involving an off-reservation car accident against a tribal employee in his individual capacity, the Court unanimously held that tribal sovereign immunity was “not implicated” and did not bar the suit. And in early 2018, the Court heard another tribal-sovereign immunity case about whether immunity extends to in rem proceedings. In this case the question is whether tribal sovereign immunity protects the tribe from an adverse-possession suit. In that case, neighboring landowners claim their maintenance of a barbed-wire fence and clearing of some dead trees on tribal fee land amounted to adverse possession. The Washington Supreme Court not only found adverse possession, but also found that tribal sovereign immunity did not protect the tribe from the claims.
Perhaps most famously – or infamously – tribal sovereign immunity has been in the news because a company called Allergan, Inc., whose rights to patents for a type of eye drops were being challenged before the Patent Trial and Appeal Board (“PTAB”), transferred those patents to the St. Regis Mohawk Tribe. The Tribe promptly moved to dismiss the patent proceedings based on tribal sovereign immunity. The PTAB rejected the sovereign-immunity arguments and the case is now on appeal to the Federal Circuit, which has stayed the PTAB’s decision.
Unfortunately, the Allergan case, which has been viewed by some as an “offensive” (as opposed to “defensive”) use of the sovereign-immunity doctrine, has drawn the attention of Congress. Democratic Senator Claire McCaskill has introduced a bill that would prevent tribes from raising sovereign immunity as a defense to U.S. Patent and Trademark Office review of a patent. The bill was referred to the Committee on Indian Affairs last October; with any luck, it will stay there.
Tribal sovereign immunity is indeed a powerful tool, and one that tribes will have to exercise judiciously—and continue to litigate over carefully—to avoid further erosion of the doctrine.
 134 S. Ct. 2024 (2014).
 Id. at 2030 (internal citations omitted).
 Lewis v. Clarke, 137 S. Ct. 1285, 1288 (2017).
 Upper Skagit Indian Tribe v. Lundgren, No. 17-387.
 See generally Lundgren v. Upper Skagit Indian Tribe, 389 P.3d 569 (Wash. 2017), cert. granted, (U.S. Dec. 8, 2017) (No. 17-387).
 See generally Katie Thomas, How to Protect a Drug Patent? Give It to a Native American Tribe, N.Y. Times (Sept. 8, 2017) https://www.nytimes.com/2017/09/08/health/allergan-patent-tribe.html.
 Mylan Pharm. Inc. v. Saint Regis Mohawk Tribe, No. IPR2016-01127 (P.T.A.B. Feb. 23, 2018) https://turtletalk.files.wordpress.com/2018/02/order.pdf.
 See Saint Regis Mohawk Tribe, Allergan Inc. v. Mylan Pharm., __ Fed. Cir. ___ (March 28, 2018) https://turtletalk.files.wordpress.com/2018/03/stay-of-ptab-decision.pdf.
 After ‘Brazen’ Drug Company Move, McCaskill Takes Action to Protect Consumers with Bill Aimed at Ending Such Deals, Claire McCaskill U.S. Senator (Oct. 5, 2017) https://www.mccaskill.senate.gov/media-center/news-releases/after-brazen-drug-company-move-mccaskill-takes-action_to-protect-consumers-with-bill-aimed-at-ending-such-deals; see also McCaskill Continues Push to Hold Drug Companies Accountable with Bipartisan Effort to End Attempts to ‘brazenly exploit’ Patent System, Claire McCaskill U.S. Senator (March 13, 2018) https://www.mccaskill.senate.gov/media-center/news-releases/mccaskill-continues-push-to-hold-drug-companies-accountable-with-bipartisan-effort-to-end-attempts-to-brazenly-exploit-patent-system.