Tribal Sovereign Immunity and Piracy: From Blackbeard to Copyright

Kehl Van Winkle 

At the height of the “Golden Age of Piracy,” Edward Teach, better known by his infamous moniker Blackbeard, lost his ship, Queen Anne’s Revenge, in a shipwreck off the coast of the South Carolina port of Beaufort. At the time Beaufort was a small, poor, village with people who lived under “constant threat from the Indians of the area.”[1] Over 200 years after the sinking of Queen Anne’s Revenge, a marine salvage company discovered the wreckage of Blackbeard’s lost ship. During that span the town of Beaufort transformed from a tiny coastal village into a popular tourism destination.[2] The “constant threat” posed by the once potent military defenses of Native American tribes eliminated through centuries of genocide, theft, termination, and assimilation.

                Despite hundreds of years under corrosive sea water, many remnants of the Queen Anne’s Revenge survive, including structural elements, weapons, and cookware. Over 300,000 artifacts have been recovered.[3] Local videographer Frederick Allen documented the recovery process. Allen registered copyrights to all of his works. The State of North Carolina, through the University of North Carolina, published Allen’s work without his permission. Allen filed suit in Federal District Court against North Carolina for copyright infringement. His case ultimately reached the Supreme Court which held that Congress lacked the constitutional authority, when it passed the Copyright Remedy Clarification Act of 1990 (“CRCA”), to abrogate State sovereign immunity in copyright claims. Justice Kagan, writing the majority opinion, ultimately concluded succinctly that “The power [of Congress] to secure an intellectual property owner’s exclusive Right under Article I stops when it runs into sovereign immunity.”[4]

Cannons from pirate ship recovered in Beaufort Inlet, N.C.
Photo courtesy of Coast Guard News licensed under CC BY-NC-ND 2.0

The Third Sovereign

                Just as the remnants of the Queen Anne’s Revenge survived, though weathered, through the last 200 years, so too has tribal sovereignty not been entirely extinguished. Justice Kagan’s sharp words leave no wiggle room in the court’s conclusion that a sovereign government maintains immunity from suit, even against potentially legitimate copyright claims. The claims in Allen v. Cooper revolved around a State’s sovereign immunity and the power of the Federal Government to waive that immunity. Beyond the State and Federal Government, where does that leave the “third sovereign:” Tribes?[5]

Federally recognized Indian Tribes retain certain inherent sovereign powers, including immunity from suit.[6] However, unlike the Federal Government’s authority to waive the sovereign immunity of a state, which is limited by the requirement that such waiver must be based in some constitutional provision of power granted to the Federal Government, the Federal Government has plenary authority over Indian Country, including the authority to waive sovereign immunity, if it so chooses. Nevertheless, such a waiver must be unequivocal.[7]

                When Congress passed CRCA it unequivocally abrogated the sovereign immunity of the States; it waived the sovereign immunity of “[a]ny State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State acting in his or her official capacity.”[8]  Noticeably absent from this language is any mention of tribes. In the most recent Supreme Court term, the Court opined in Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin that, while a waiver of tribal sovereign immunity must be unambiguous, “[t]he rule is not a magic-words requirement[.] . . . To abrogate sovereign immunity unambiguously, Congress need not state its intent in any particular way.”[9]

Before Lac Du Flambeau, the Court had never found a valid abrogation of tribal sovereign immunity “without expressly mentioning Indian tribes somewhere in the statute.”[10] After Lac du Flambeau, that is no longer the case. The Court held that while the statute in question, the Bankruptcy Act, did not expressly mention tribes, the statutory waiver therein was intended to be defined in the broadest sense and included tribes. The Court concluded that the text of the waiver found in the Bankruptcy Act, which abrogated the sovereign immunity of a “governmental unit” including not just States but “other foreign or domestic government[s],” was meant as catch-all and intended to include tribes.[11] However, the statutory waiver language present in the Bankruptcy Act is undoubtedly broader than CRCA. It is also worth noting that the Court contrasted the language in the Bankruptcy Act with statutory language in bankruptcy law that preceded the Bankruptcy Act and much more closely mirrored the language of CRCA (limiting the waiver to “the United States or any State or any subdivision thereof”).[12] Unlike the Bankruptcy Act, CRCA’s waiver of sovereign immunity neither contains broad catch-all language nor expressly mentions Indian tribes.

                This issue is not a merely hypothetical one. Tribal sovereign immunity over copyright claims has been litigated at least three times and in each case the tribe was found to be immune from suit.[13] These cases have included claims revolving around copyrights to film scripts, computer software, and grant writings. Tribes have become sophisticated business operators, most notably in the gaming and hospitality industries, which may include the performance of copyrighted works, utilization of copyrighted software, the display of copyrighted images or videos, etc. Much like the University of Carolina in Allen v. Cooper, tribes may have their own schools, including higher education, which utilize copyrighted works in numerous ways.[14]

Pushing the limits

                The modern world is rife with examples of companies looking for creative ways to avoid liability for infringement claims, most infamously companies like Napster and Limewire but even giants like Google (owners of YouTube) and Sony (developer of the Betamax VCR) have found themselves in the middle of major copyright infringement cases, with mixed results.[15] It is not unreasonable to speculate whether some enterprising business may seek to profit from a tribe’s potential insulation from infringement claims. Indeed, we have already seen one such attempt in copyright’s sister jurisprudence, patents.

                In 2017, Allergan, owners of the patent for prescription eye drops Restasis, transferred its patents to the Saint Regis Mohawk Tribe in New York State. The deal was done in part to utilize the tribe’s sovereign immunity to avoid challenges to the patent by competitors looking to make generic versions. While the Tribe was unable to shield the patents from review, that was merely because the Patent Trial and Appeal Board’s inter partes review was characterized as an administrative proceeding and therefore not subject to the defense of sovereign immunity.[16] However, in the copyright arena, where infringement claims are brought directly to litigation, tribes have already seen success claiming immunity from suit.

IP Law in Indian Country

                Where does this leave the IP Law practitioner when interacting with Indian tribes? An important reminder upfront is that sovereign immunity is not absolute, it can be waived not only by the Federal Government but by the tribe itself, either on a case-by-case basis through contract or more broadly through Tribal Law.[17] As is the case for many attorneys wading into dealings in Indian Country, it is highly advisable to involve co-counsel familiar with Federal Indian Law, which has many unique quirks, and potential pitfalls, for someone unfamiliar with the extensive caselaw surrounding Native American tribes. It is also necessary to understand the relevant Tribal Law, which is enacted by each tribe and can vary dramatically between tribes, of any tribal jurisdiction where the practitioner is appearing.

                Thus far, claims of tribal sovereign immunity against copyright infringement have been relatively few and far between, and the cases we have seen arise from claims of one-off infringement of discrete works with nothing approaching the widescale contributory infringement cases that make headlines. In looking to the future, as more and more tribes continue to grow and expand their business opportunities and their economies writ large, tribes will only interact with copyrighted works in greater numbers and in more commercial settings. It may be only a matter of time before tribal sovereign immunity against copyright infringement claims is tested in a grander scale.