Sovereign Immunity and Federally Recognized Tribes

#2 probably goes on a case by case basis, as it depends on whether the other country will recognize a tribe separately from the US government. Many might not. The authority might be there, but realistically it might not be very effective. #1 I don't know the answer to. #3 I am referred to FLORIDA PREPAID POSTSECONDARY EDUCATION EXPENSE BOARD v. COLLEGE SAVINGS BANK et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT No. 98—531. Argued April 20, 1999–Decided June 23, 1999
http://www.law.cornell.edu/supct/html/98-531.ZS.html
It’s my understanding that a federally recognized tribe (nation) would have sovereign immunity unless it consented to a suit. However, issues are raised if say a copyright/patent violation by the nation was elevated to the level where it is a taking of property without due process in violation of the 14th amendment. From Florida Prepaid: “’A patent for an invention is as much property as a patent for land’. As such, they are surely included within the ‘property’ of which no person may be deprived by a State without due process of law. And if the Due Process Clause protects patents, we know of no reason why Congress might not legislate against their deprivation without due process under §5 of the Fourteenth Amendment.”:(quote)

The Due Process Clause provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” U. S. Const., Amdt. 14, §1 (emphasis added). This Court has accordingly held that “[i]n procedural due process claims, the deprivation by state action of a constitutionally protected interest . . . is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law.” Zinermon v. Burch, 494 U. S. 113, 125 (1990) (emphasis deleted).

(end quote) The issue is, I think, does the Indian Nation provide some other remedy for a person whose property is taken -- otherwise I think the US courts might be able to intervene and hold the Nation responsible under US copyright law. Whether a Nation has some way to address the taking might go on a Nation by Nation basis. I don't know the answer to this, I'm just guessing at this point. There also might be an issue regarding whether or not an infringement was negligent or intentional, as in Florida Prepaid the court talked about negligent taking as not rising to the level to be a 14th amendment due process violation.

But Justice Stevens opinion is interesting. It calls up the Chew case where a woman who invented a way to test car emissions and patented her invention brought suit against the State of California when it infringed on her patent. The court dismissed her claim saying the CA was sovereignly immune and didn't seem concerned that she might have no other remedy.

"Marian Chew had invented a method for testing automobile engine exhaust emissions and secured a patent on her discovery. Her invention was primarily used by States and other governmental entities. In 1987, Chew, an Ohio resident, sued the State of California in federal court for infringing her patent. California filed a motion to dismiss on Eleventh Amendment grounds, which the District Court granted. The Federal Circuit affirmed, id., at 332, expressly stating that the question whether Chew had a remedy under California law “is a question not before us.” Nevertheless, it implied that its decision would have been the same even if Chew were left without any remedy. Id., at 336. During its hearing on the Patent Remedy Act, Congress heard testimony about the Chew case. Professor Merges stated that Chew might not have been able to draft her infringement suit as a tort claim. “This might be impossible, o[r] at least difficult, under California law. Consequently, relief under [state statutes] may be not be a true alternative avenue of recovery.” House Hearing 33.7"