Mitchell Hamline School of Law
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Fundamental Funds: Tax Credits and the Increasing Tension between the Free Exercise Clause and Establishment Clause—Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020)
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Now the Border is Everywhere: Why a Border Search Exception Based on Race Can No Longer Stand
Get PDFJurisprudence and Recommendations for Tribal Court Authority Due to Imposition of U.S. Limitations
Get PDFThere are over 570 federally-recognized Tribal Nations in the United States and more than 330 tribal courts serving as the judicial branch of those nations. Yet, there is little mention of the existence of tribal courts in most mainstream civil procedure courses taught in the over 200 law schools in the United States. To gain any knowledge as to the existence of these courts, law students must take a course on federal Indian law, which is not available in the majority of law schools. In fact, less than twenty law schools offer a series of courses forming an Indian law program. Thus, the invisibility of tribal courts is perpetuated through curriculum omission in mainstream civil procedure courses and rarely remedied through offering a stand-alone course on federal Indian law. Tribal Nations have existed from time immemorial with their own laws, dispute resolution systems, and governing structures. This lack of attention and suppression of information serves only to reinforce colonizing ideas of subsuming tribal governance into the forums set up by the United States.
This article will discuss the history of formal tribal courts as first established to control American Indian populations in the late 1800s. As tools of oppression, the first judicial forums established on American Indian reservations were the Code of Indian Offenses Courts, also known as the C.F.R. Courts (Code of Federal Regulations Courts). The Indian Reorganization Act of 1934 signaled a shift in policy, which provided for the adoption of tribal constitutions. Under the Department of Interior, the Bureau of Indian Affairs personnel developed boilerplate constitutions for adoption by Tribal Nations. These constitutions often included provisions for the establishment of tribal courts.
Through U.S. Supreme Court decisions and federal laws, the criminal and civil jurisdiction of tribal courts has been limited. The U.S. Supreme Court has also opined that the U.S. Congress holds plenary authority over American Indian Tribes. Utilizing this authority, the U.S. Congress has legislated federal criminal jurisdiction as concurrent on all tribal lands with tribal court jurisdiction and has provided a mechanism to delegate federal criminal jurisdiction to state legal systems. In the civil jurisdiction sphere, the U.S. Supreme Court has established processes for federal courts to review tribal civil jurisdiction determinations and for the refiling of cases from tribal courts to federal courts based on the status of civil defendants as non-Indians or non-members.
Following a discussion on the history and function of tribal courts, this article will examine the limitations on tribal court civil jurisdiction set forth in U.S. Supreme Court decisions. Through a critical examination of the U.S. authority and legal basis for review of tribal court determinations or decisions, this article will provide commentary on the ungrounded nature of the assertion of U.S. federal court review over tribal court decision-making. Finally, the article will recommend a government-to-government treaty agreement to set the framework for civil jurisdictional issues arising between Tribal Nations and the United States
The Trade Secrecy Standard for Patent Prior Art
Get PDFA fundamental criterion of patentability is that an invention must be new as compared to the prior art—the corpus of preexisting knowledge and technology already available to the public. If an invention is in the prior art, or rendered obvious by it, it cannot be patented.
The U.S. Patent Act has traditionally envisioned a categorical approach for deciding what counts as prior art. Under this approach, courts are supposed to decide whether a particular disclosure about the invention (a reference) falls within one of the categories listed in Section 102 of the Patent Act, such as “described in a printed publication,” “in public use,” or “on sale.” Yet the categorical approach lacks a coherent theory of publicness. It is difficult to find guiding principles to explain courts’ decisions about what is, or is not, public. For example, a woman wearing a corset invention at home under her clothing was deemed to be an invalidating “public use” that barred future patenting; yet an employee liberally sharing his invention with others at work was not.
We argue that, while courts refer to the statutory categories, they are in reality turning to concepts of publicness that strikingly resemble those of a different legal regime: trade secret law. Indeed, our review of the cases shows that trade secrecy status is dispositive for what counts as prior art in many of the leading cases. At a normative level, we argue that trade secrecy provides a surprisingly effective way to manage the boundary between legally public and legally secret information, and for deciding whether a reference is truly “available to the public” in the ways that matter for patent policy and, indeed, information policy more broadly. Not only does the trade secrecy standard protect peoples’ justifiable reliance on information that is already available to them, but it simultaneously makes inventors’ paths to patenting more efficient