Last month the Senate Judiciary Committee passed S. 440, the "PACED Act", out of committee by a 12-10 vote. The bill was packaged with 3 other bills, which addressed affordable prescription drug prices and surprise medical billing. Overall, the medical package had bipartisan support, with the exception of the PACED Act.
S. 440 was introduced by Senators Tom Cotton (R-AR), Joni Ernst (R-IA), and Pat Toomey (R-PA), and would severely limit the ability of Tribes to hold patents by stripping away their right to exercise sovereign immunity in defense of those patents. While States and State-owned entities, such as universities and hospitals, can exercise sovereign immunity from suit, S.440 specifically strips Tribal Governments and Tribally-Owned entities from exercising their sovereign immunity in defense of government-owned patents.
Senators Dianne Feinstein (Ranking Member, D-CA) and Dick Durbin (D-IL) stated why there is bi-partisan opposition to S.440: "...on the reference to bipartisanship (on S.440)...The Senate Committee on Indian Affairs, both the Republican Chairman and Democratic Ranking Member, oppose this bill. I hope my colleagues will join me on opposing this and joining with the bipartisan opposition from the Senate Committee on Indian Affairs that also oppose this unnecessary legislation".
Senator Grassley ultimately pulled the PACED Act from the medical drug pricing package. NIGA has information that several Senators currently have a "Hold" on S.440's advancement while they consider Indian Country's concerns about the bill. However, S.440 could still move to a full vote on the Senate floor in the near future.
The National Indian Gaming Association (NIGA) is closely working with other tribal organizations to block this legislation from passing the full Senate. NIGA introduced, and helped pass, a resolution at the National Congress of American Indians (NCAI)'s Mid-Year Conference in Reno opposing recent litigation attacking tribal sovereign immunity and any legislation that would seek to do the same.
As Congress prepares for their Summer Recess, IT IS URGENT that all Tribes contact their Senators and all Members of the Senate Committee on Indian Affairs (SCIA) to voice Indian Country's opposition to this attack on tribal sovereignty.
Attached is the NCAI Resolution urging Congress to reaffirm tribal sovereign immunity and below we have provided a model letter opposing S.440 to send to your Senators and SCIA Members.
If you have any questions or concerns with this alert, please contact Danielle Her Many Horses at firstname.lastname@example.org, or Chelsea Blake at email@example.com.
Re: Indian Self-Determination, Tribal Sovereign Immunity and Risk Management
Dear Senators and Congressman:
The (Indian Nation) write to request your support for Indian Self-Determination and Indian Sovereignty, specifically tribal sovereign immunity. We request your opposition to S. 440, the PACED Act which would eliminate tribal sovereign immunity for patent litigation.
When our Native Nations made treaties with the United States, our Native Peoples reserved our original rights to liberty and self-government. Our sovereign rights and liberty are inalienable, natural law rights, enshrined in the Constitution, treaties and laws of the United States. Accordingly, we always work to maintain our government-to-government relationship with the United States through the Congress, as reflected in the Constitution's Indian Commerce, the Treaty and Supremacy, the Apportionment Clauses and the 14thAmendment.
Sovereign immunity is important to Indian nations and tribes because it assists, us as it does other government, to protect our treasury, lands and natural resources. Tribal sovereign immunity also promotes tribal economic development and self-sufficiency.
In the Constitution and Treaties, the United States acknowledged the foundation of our government-to-government relationship-mutual consent.Congress should work with
Indian tribes based upon mutual consent to respect Indian Self-Determination. Under the Indian Commerce Clause and in furtherance of our treaties, Congress and the Secretary of
the Interior and Attorney General should work with Indian tribes concerning sovereign immunity based upon best practices and consultation.
On behalf of our Member Indian nations and tribes, we respectfully request that you oppose S. 440, the PACED Act and protect tribal sovereign immunity.
Thank you for your hard work to assist Indian nations and tribes. We appreciate your leadership on behalf of Native Americans and all Americans.