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There’s been a lot of very loose talk recently from the press, politicians and think tank wonks about “decoupling”—that is, entirely eliminating trade, investment and migration—the United States and Chinese economies. Proponents of decoupling the two economies never grapple with the enormity of the task and thus it’s useful to consider what such an idea actually entails as well as the costs to the U.S. and global economies. In reality, a hard decoupling is not nearly as simple and painless as proponents argue. Washington bureaucrats and politicians one day flipping a switch and cutting off all economic ties between the world’s two largest economies is as unworkable as it would be economically disastrous. Practically speaking, in order to operationalize a hard economic break with China, the U.S. would need to hire dramatically more customs agents as well as export control and investment monitors to police everyday transactions. Furthermore, as Adam Posen, president of the Peterson Institute for International Economics, recently noted in an excellent Foreign Policy essay, A unilateral U.S. withdrawal from commerce with China would be partially offset by other economies taking up market share where the United States no longer operated. If anything, it would increase the arbitrage opportunities for other countries and for companies headquartered elsewhere to trade and invest where the United States ceased to do so. […] In order for such restrictions to succeed, the United States would have to become a commercial police state on an unprecedented scale. The United States would also have to monitor and prevent its own headquartered companies from moving activities abroad. Washington has done this, on a limited scale, on specific technology transfers. But scale matters, and current proposals would be an order of magnitude more ambitious and thus infeasible. Even more daunting than the feasibility of administering such a regime are the tremendous economic costs of a hard decoupling. When the Trump administration levied extensive tariffs on imports from China—nearly 70 percent of all imports are now covered by an average tariff of 20 percent, up from about 3 percent before the trade war began—the results were predictably bad. According to the New York Federal Reserve, the tariffs cost the average American household an estimated $830 per year when accounting for direct costs and efficiency losses and led to a staggering $1.7 trillion loss in market capitalization for businesses due to slowed investments. My Cato colleague Scott Lincicome and I estimate that the tariffs effectively nullified about half the average household’s savings from the Tax Cuts and Jobs Act of 2017. The tariffs likewise triggered inevitable retaliation from Beijing, which fell particularly hard on American farmers and ranchers, resulting in a massive taxpayer-funded bailout program for agriculture producers who lost vital market access in China. Moody’s Analytics estimated that the trade war caused the loss of approximately 300,000 jobs. My Cato colleague Alfredo Carrillo Obregon and I recently documented some of the real-world harms from the Trump-Biden China tariffs, particularly the pain inflicted on a lot of small and medium-sized businesses in the United States. Despite the tariffs, two-way goods trade between the United States and China reached an all-time high in 2022 on a nominal basis, perhaps owing a bit to U.S. inflation. (Real goods trade, meanwhile, was lower than in 2021, but still represented an increase from 2019 and 2020.) A total ban on trade, investment and migration between the United States and China would make the enormous costs of the Trump tariffs look rather quaint. If the world economy were separated into disparate economic blocs—one led by the United States and one led by China—the global economy would suffer tremendously. Earlier this year, the International Monetary Fund (IMF) released a study on the economic impact of such a system. In an excellent essay for his own Substack, economist Bert Hoffman summarized the IMF paper’s findings, [T]he costs of investment fragmentation could lower global GDP by 1 percent, and double that for GDP in China. Trade and technology fragmentation can be more damaging still: the cost to the global output from trade fragmentation could range from 0.2 percent in a limited fragmentation scenario to up to 7 percent of GDP (in a severe fragmentation/high-cost adjustment scenario). With additional technological decoupling, the loss in output could reach 8 to 12 percent in some countries. […] These are massive costs. Indeed, this is not trivial—it’s trillions of dollars on a yearly basis. Washington politicians, journalists and think tankers wouldn’t bear the brunt of such a policy; as the IMF report notes, “[T]he unraveling of trade links would most adversely impact low-income countries and less well-off consumers in advanced economies.” Meanwhile, economists at the World Trade Organization (WTO) estimate that such a fragmentation as envisioned by some members of Washington’s political class would decrease real incomes around the world by 5.4 percent on average. It takes an immense amount of arrogance to simply hand waive away the costs of a hard decoupling. Perhaps these costs would be worth it if a ban on trade, investment and migration forced Beijing to make holistic changes to its economic practices, but that almost certainly would not be the case. Recent history suggests that China will not change its troubling economic practices due to Washington’s protectionism. In early 2018, on the eve of the trade war, other Cato scholars and I predicted that the tariffs would simply impose costs on Americans while doing virtually nothing to change Beijing’s course. Sadly, our warnings were prescient: China’s aggressive 21st-century mercantilism continues apace. Are we really to believe that cutting off all economic exchange between the United States and China will stop, say, Beijing-directed cyber hacking into U.S. commercial networks to steal trade secrets? Of course not. While it is likely that some trade and investment between the United States and China will—and maybe should—decline in this era of strategic competition between near-peers, the reality is that a lot of two-way trade and investment is largely benign—and in no way “strategic,” i.e., at the nexus of technology and national security. Sabine Weyand, the European Union’s Director-General for Trade, recently noted in an essay for Internationale Politik Quarterly that 94 percent of EU trade with China is “unproblematic” and that only about six percent is the result of a one‐​sided dependency for EU member nations. A comparable analysis for the United States would almost certainly produce similar results. To be clear, the Chinese Communist Party (CCP) is an increasingly illiberal actor: it is more aggressive on the world stage and repressive at home. Still, of the 1.4 billion people living in China, only about 100 million people have any connection to the CCP. The rest of China’s citizens are not responsible for their government’s relatively rapid and ill-advised turn away from liberalism. The United States desperately needs a thoughtful response to Beijing’s economic practices, but mimicking Chinese protectionism and industrial policy is a recipe for stagnation. Last month, my Cato colleague Scott Lincicome and I released a policy analysis charting a better course to outcompete China in the 21st century—one that is much more practical to implement in a relatively globalized world.

America’s innovation partnership with the People’s Republic of China is seeking a new equilibrium, recognizing China as the most important strategic competitor on one hand, and acknowledging the realities of mutual dependencies and economic pragmatism on the other. Treasury Secretary Janet Yellen’s visit to China has to balance both these realities. China has emerged as the second largest economy and military spender in the world behind the U.S., prompting some experts to frame the ongoing innovation competition between the two nations as a “Tech Cold War.” Unlike the Cold War between the United States and the Soviet Union, however, the Chinese and American economies are deeply integrated. Each nation relies on the other for a significant portion of its global trade. Given their economic integration yet profound ideological differences, some experts call for the United States to engage in technological “decoupling”—a reduction in dependency on Chinese industry for critical technologies. National security officials assert that dependence on China for critical technologies and raw materials is a grave security risk, as it may allow China to weaponize its control of these resources to pursue its strategic objectives. China has done this in the past, for example, by imposing a near complete ban on Lithuanian exports after Lithuania increased diplomatic relations with Taiwan. More recently, China has banned the export of gallium and germanium-related items—two metals required for manufacturing semiconductors, mostly used in electric vehicles, displays, and defense equipment—in response to U.S. actions to ban the export of leading-edge semiconductor equipment to China. Critics of decoupling assert that it will undermine U.S. innovation and potentially increase the odds of armed conflict if done indiscriminately. Speaking recently at a House Financial Services Committee hearing Secretary Yellen said “I think we gain and China gains from trade and investment that is as open as possible, and it would be disastrous for us to attempt to decouple from China”. While there is truth to these arguments, the impetus to decouple is not a unilateral U.S. decision. Indeed, it is being actively driven by Chinese actions that appear to conform to that nation’s long-term strategic planning. China has striven for decades to limit its dependence on foreign firms while increasing its influence over globally critical technologies and their supply chains. When considering the risks of decoupling, it is imperative to recognize China’s actions and objectives.

The “Great Firewall” of China

Weijian Shan understands the delicate U.S.-China dynamic as well as anyone. He was born in China, and his life was upended during the Cultural Revolution, when he was sent off to do farm labor in the Gobi Desert. Eventually he came to the United States, where he earned a master’s and a PhD at UC Berkeley, worked for the World Bank and J.P. Morgan, and taught at the Wharton School. A candid observer of Asian society and business, Shan is the author of Out of the Gobi: My Story of China and America and the newly published Money Games: The Inside Story of How American Dealmakers Saved Korea’s Most Iconic Bank. Now CEO of the Hong Kong–based $40 billion private-equity firm PAG, Shan spoke with HBR Editor in Chief Adi Ignatius about the economic prospects for China and the United States. HBR: China’s economy seems to be the healthiest in the world at the moment. Does that create new investment opportunities? Shan: Despite initial blunders, China has handled the coronavirus pandemic well through strict lockdowns and mass testing. Its GDP dropped 6.8% in the first quarter of 2020, but resumed growth from the second quarter onward. China has been shifting away from an investment-driven growth model to one led by private consumption. A decade ago its retail-goods market was about $1.8 trillion—less than half that of the United States. In 2019 that market reached $6 trillion, surpassing the U.S. level of $5.5 trillion. Even now China’s private consumption represents only about 39% of its GDP—way below the U.S. level of 68% and the world average of 63%. That leaves much room for growth and many opportunities for investors, particularly in businesses that cater to consumers. Investors have always been enticed by China’s vast market. How accessible is it these days? Our firm, PAG, invests throughout Asia and occasionally beyond. China’s is the only major economy that requires no special approval for foreign direct investments, although some sectors, such as Lived Change media and the internet, are on a “negative list” that restricts them. However, there are usually lawful ways to get around that. PAG invested about $100 million in a digital music business in China a few years back which subsequently merged with a similar business and changed its name to Tencent Music Entertainment. Today it’s traded on the New York Stock Exchange with a market cap of about $45 billion and has more than 800 million unique active users. The name of the game in China is scale. If a business is successful, it’s usually open to taking outside capital so that it can quickly expand nationwide. That’s why China is the most active private-equity market in Asia. Trade wars, nationalism, and the pandemic have led many companies to question their supply chain strategy—in particular basing manufacturing in China, thousands of miles from their markets. Are you seeing a significant shift in supply chains out of China? Some manufacturing has been relocated away from China since the trade war with the U.S. began in 2018, but that hasn’t made a dent in either China’s exports or America’s trade deficit. In fact, the pandemic has made the world more dependent on Chinese exports, which grew 21% in November over the previous year. The point is that a China-based supply chain has proved a blessing, not a curse, in this pandemic. Any shift in supply chains will be gradual and partial, because it’s very costly to move from the most efficient supplier to the second or third best. American companies will do so only if U.S. tariffs become more penalizing than moving would be. Also, while it’s relatively easy to shift the sourcing of a low-value-added product from China to Vietnam or Mexico, how can you move an entire supply chain with many indigenous players? And what if the market itself is in China? GM sells more cars in China than in the U.S., Canada, and Mexico combined. Where can it move its production if the target market is China? China is also Apple’s biggest market for iPhones: It has about twice as many iPhone users as the United States does. The U.S. continues to vilify China, and China does itself no favors with its poor policy on human rights. How can outside investors ensure that they don’t become collateral damage in a bigger political and economic war? Both countries have human rights issues, although in different forms. Investors anywhere should invest in a socially responsible way to advance human rights, adhering to a high standard for labor practices, gender equality, investment in human capital, and charitable contributions. Wherever PAG operates, we adhere to the same environmental, social, and governance policies. The Trump administration was determined to damage China’s economy and businesses. Does the U.S. even have the power to hurt China economically? Here and there, yes, but not in a meaningful way in general, and not without harm to itself. Trump’s trade war was an abject failure. Its stated purpose was to reduce America’s trade deficit. In November 2020 China’s trade surplus with the U.S. was 70% greater than it had been in January 2017, when Donald Trump took office. Meanwhile, American consumers have paid for the higher tariffs, because the average prices of Chinese exports haven’t decreased. China’s GDP is forecast to grow 7% to 8% this year. That means that despite the trade war, the technology war, and the capital war—the U.S. government’s restricting American investment in China—China’s GDP will most likely be 10% bigger in 2022 than it was in 2019, whereas the U.S. economy probably will only recover to 2019 levels by 2022, according to the International Monetary Fund. It seems that the only country that can stifle China’s growth is China itself—if it makes major policy mistakes. And only the U.S. can threaten America’s economic supremacy—by underinvesting in its own infrastructure and by limiting trade. What are the dangers in America’s continued demonization of China? Much of Donald Trump’s rhetoric and his actions on China were meant to deflect attention from his leadership failures at home, such as neglecting his duty to protect the public from the coronavirus. With less than a quarter of China’s population, America has a death toll about 100 times China’s and counting. Some real differences between the two countries do exist, but they have historically managed them without escalating tensions. The United States had maintained a fairly consistent foreign policy until Trump. The Biden administration is expected to restore that policy and to work within the rules of international institutions, which I expect will defuse tensions. When Nixon first visited China, in 1972, the differences between the two countries were vast, in political and economic systems and of course in ideology. Yet they found common ground to work in mutually beneficial ways. Today the differences are arguably a lot smaller, and there are many areas in which the two can benefit from cooperation. After all, each is the other’s largest trading partner, and China has lent more than $1 trillion to the U.S. government by holding U.S. Treasury bills. Let’s be honest: A rising China may be a threat to America’s economic and technological supremacy, but not to its national security, because China doesn’t export its ideology or political system and doesn’t seek regime change anywhere in the world. But it won’t back off from its territorial claims, all of which predate the People’s Republic of China. The real danger is the Taiwan issue. If the U.S. abandons the one-China policy and supports Taiwan’s independence, conflict will be inevitable, with unimaginable consequences for the world market. Is a China-U.S. decoupling a real possibility? Not completely and not without very high costs. The technology war waged by the Trump administration forced China to develop critical technologies, such as semiconductor chips, for which it has relied on U.S. suppliers. It will take years if not decades for China to catch up in some areas, at great cost. But the technology war also hurts U.S. suppliers. The top 10 American semiconductor chip makers sell about three times as much in China as in the United States. Losing the China market will be costly for American tech companies and deprive them of funds for further R&D. What are the biggest risks for China’s economy in the coming years? The economy has grown 36-fold over the past three decades, chiefly because of market-oriented reforms that have created a vibrant private sector, which now accounts for about two-thirds of China’s GDP. But the state-owned sector remains too big and inefficient. Great challenges lie ahead. China’s saving rate will drop significantly as its population ages, and investment will slow. The country will need to continue to reform and privatize its state-owned firms—and shift from investment to private consumption—or it will not be able to sustain its growth. Are you concerned about China’s debt? I see no systemic risk either in China’s banking system or in its economy. Pundits tend to be alarmed by a default here and there. But defaults and bankruptcies are common in a market economy. Only a sudden surge of such events would herald an economic crisis. In 2020, a year of severe difficulties all over the world, there was no significant increase in Chinese corporate defaults. In fact, China is the only G20 country to have posted positive growth. Its monetary policy is reasonably tight, with the yield on government bonds about 3.5 times that on U.S. Treasuries. Its currency appreciated 6% against the dollar last year. All these testify to the strength of the Chinese economy. What is it that Americans don’t understand about China? They don’t know how capitalist China is. China’s rapid economic growth is the result of its embrace of a market economy and private enterprise. China is among the most open markets in the world: It is the largest trading nation and also the largest recipient of foreign direct investment, surpassing the United States in 2020. The major focus of government expenditure is domestic infrastructure. China now has better highways, rail systems, bridges, and airports than the United States does. For example, over the past 15 years it has built the longest high-speed rail system in the world. At 22,000 miles, it is twice as long as the rest of the world’s combined. China’s high-speed rail could cover the distance between Boston and Chicago in about four hours, whereas Amtrak’s fastest service takes 22 hours. One reason China can spend so much on infrastructure is that its defense budget, after years of increases, is still only about a quarter that of the United States. And what is it that the Chinese don’t understand about the United States? They don’t know how socialist it is, with its Social Security system and its policies to tax the rich by collecting capital gains taxes. China is still in the process of building a social safety net that is largely undefined and underfunded, and it has no tax on personal capital gains. In 2020 China had more billionaires than the U.S. did, and it outpaces the U.S. three to one in minting them. Consequently, inequality is greater in China than in the United States, measured by the Gini coefficient.

Chinese Premier Li Qiang warned of negative consequences for the world if nations part ways economically, while also countering criticism that his country’s industrial policy has led to overcapacity. The “regressive actions of decoupling” would only “drag the world into a destructive spiral where the fierce competition for a larger slice ends up in a diminishing pie,” Li said at the World Economic Forum’s meeting Tuesday in the northeastern city of Dalian. “This is something we do not want to see.” Li also defended his nation against claims it is dumping cheap goods on the world, touting its prowess in science and technology for building “a broad stage for enterprises to pursue innovation and upgrade their products.” “Exploration should not be seen as zero-sum game,” he added. The remarks followed Canada’s move to clamp down on imports of Chinese-made electric vehicles, aligning itself with the Biden administration on trade. The European Union also plans to increase tariffs on EVs. China has suggested there may be benefits for Germany if the EU backs off on its plan, floating lowering its existing tariffs on large-engine cars in return for scrapping the planned EV levies, according to people familiar with the discussions. Li’s comments come a day after Chinese leader Xi Jinping called on China to step up innovation because other countries dominate certain key technologies, remarks that underscore his nation’s escalating confrontation with the US over semiconductors. Speaking at a national science conference, Xi pointed to “bottlenecks and constraints in areas such as integrated circuits, industrial machine tools, basic software, advanced materials” and more. Li also sounded a note of optimism on China’s economy despite a prolonged property slump, weak consumer confidence and rising local government debt. “We are confident and capable in achieving the growth target of about 5% for this year,” he said, referring to a goal he announced while delivering a government work report in March. China would adopt combination of measures, including fiscal policy and financial means, to boost its economy, he added. The World Economic Forum meeting, known as “Summer Davos,” has attracted global business executives and world leaders including Polish President Andrzej Duda and Vietnamese Prime Minister Pham Minh Chinh, who also spoke at the gathering. It comes before a major meeting of the ruling Communist Party in July that could unveil a series of reforms to jump start the sluggish economy. Underscoring his view that technology is key to China’s future, Xi said at a Politburo study session in the run-up to the plenum that higher education courses should be adjusted to meet the needs of new industries.

First, the extent of such theft is overblown. Much of this “theft” is in fact in-kind taxation. Beijing requires that certain foreign companies seeking to do business in China share their intellectual property with the Chinese. Companies that attach a high value to the opportunity to do business in that large country often agree to these terms. But IP belonging to companies that are willing to forego the opportunity to operate in China is not stolen or otherwise acquired by the Chinese. This in-kind tax is unfortunate. But IP acquired through it no more counts as stolen property than does cash paid in taxes to Beijing (or, for that matter, to Uncle Sam) count as stolen property. Like all taxes, Beijing’s requirement of IP sharing discourages foreign companies from doing business in China. And so by making China a less-attractive place to invest, this in-kind tax reduces China’s rate of capital accumulation. In turn, worker productivity there grows more slowly, as does the Chinese economy as a whole. In short, the chief victims of this tax are the people of China. Second, Uncle Sam’s taxes imposed on Americans who buy imports from China is a poor remedy for China’s IP violations. The direct harm that these tariffs inflict on us Americans might be a price worth paying if they offered the best hope of persuading the Chinese to treat our IP with greater respect. But they don’t. The World Trade Organization (WTO) has in place a mechanism to settle IP disputes among its member nations, which include the U.S. and China. And China’s record at complying with WTO rulings is not bad. If the Trump administration were truly concerned about reducing Chinese violations of Americans’ IP rights, its first step — before inflicting painful tariffs on Americans — would be to bring complaints of such violations to the WTO. Yet so far it has brought only one such complaint. This fact suggests that the administration cares less about whatever actual IP theft might be occurring and more about being able to fling charges of IP theft as a convenient means of stirring up public support for protective tariffs. Further evidence that the administration really isn’t deeply worried about China’s alleged IP theft is its indifference to Uncle Sam’s high and growing fiscal indebtedness. If we rank the looming threats to our future economic well-being, IP theft ranks much lower than does our children’s and grandchildren’s burden of paying off Uncle Sam’s gargantuan debt — debt in the form of outstanding bonds and of unfunded liabilities, such as Social Security obligations.

The current U.S. administration sees China as the United States’s principal global rival, and it has effectively declared economic war on the country. Its justification for this is largely that China is (1) stealing American jobs and (2) pirating American intellectual property. Data collected by the Long US-China Institute suggest that China is far less guilty of these crimes than many policymakers and commentators would have us believe. As the exhibit just below shows, consumer incomes in both countries have enjoyed continuous growth in purchasing power since 1985. Only two years of decline are discernable in the U.S. trendline: 2008 and 2009, coinciding with the 2008/9 recession. During the period covered in the exhibit, two major trading agreements were struck. The United States granted Permanent Normalized Trade Relations (PNTR) to China in 2000 and, in the following year, China joined the World Trade Organization (WTO). Neither event hampered the steady growth in purchasing power for Americans, whose per capita GNP rose from $37,900 to $62,600. The story on jobs is less clear, but it’s hard to argue that trade with China has had much impact on U.S. payrolls. As the next exhibit shows, the U.S. unemployment rate had reached a 30-year nadir of 4.0% in 2000, just before the China’s admission as a PNTR and WTO member. It did rise to 6% in in 2002, which could be attributed to trade with China, but the 9/11 terrorist attacks and the dot.com bust make this an uncertain conclusion at best. The unemployment spike we see in 2009 is probably best explained by the 2008/9 recession, and since then, unemployment has steadily declined to a rate (3.9%) lower than that reached in 2000. Few would conclude from this that trade with China has damaged US incomes or jobs.

What about intellectual property theft and corruption? To be sure, China has offended on these fronts. There have been well-documented cases of IP theft and bribery, so the concern is valid. But the data shows that Chinese practices are improving. Transparency International ranks more than 180 countries according to the prevalence of bribery of government officials. As the exhibit below shows, marginal improvements can be seen in mainland China since 2000 – and Hong Kong’s number is actually superior to that of the United States. On this front, therefore, there’s certainly no evidence to suggest that China is getting more corrupt. In terms of IP theft, there’s actually a clear improvement. The Business Software Alliance reports the extent of losses to American software producers in 116 countries. As the exhibit below shows, these losses are declining in the United States, China, and Hong Kong. It’s worth noting also that while piracy measured by percentage of unlicensed use in China is far higher than in the U.S. (as the exhibit shows), the position is reversed when you calculate theft by value. In fact, more money is lost to software piracy in the U.S. than in any other country. The 2016 losses in the U.S. were $8.6 billion, compared with China’s $6.8 billion, and Hong Kong’s $277 million. On a per capita basis that is about $5 in China and $26 in the United States. In assessing the significance of property theft numbers in China, we should take an historical perspective. Some readers may be surprised to learn that Americans in the 19th century cheerfully copied European and British intellectual property. But as the country developed economically, socially, and technologically, piracy vis-à-vis other nations diminished. Since then, Japan, South Korea, and Taiwan and others have traveled the same road, with IP theft declining as they developed. It’s highly likely that the pattern will be repeated in China. As per capita income rises, more and more people will be able to afford to pay reasonable prices for books, music, movies, and so forth. And as Chinese companies begin to develop new technologies, they themselves will need IP protections in order to maintain their profits and growth. The next exhibit supports that argument. Growth in U.S. patents granted to Chinese inventors and teams of Chinese and American inventors are both rising even as piracy has declined, at least in software. There are, of course, concerns that some Chinese firms are weaponizing the U.S. patent system in order to hobble U.S. innovation in key technologies — notably Huawei, which boasts an impressive 56,492 patents worldwide. But a breakdown of comparisons of U.S. patents granted to individuals by country provides a reassuring empirical context for interpreting the headlines. What’s more, on a per company basis, the 1,628 US patents granted to Huawei in 2018 is hugely overshadowed by Samsung’s 9,245, IBM’s 9,100, and more than 2,000 each for Intel, Microsoft, Qualcomm, Apple, Ford, Google, and Amazon. While Huawei is focused on telecoms and is growing fast, it’s a stretch to see its patents as a competitive threat. To be sure, China and the United States are not without their troubles. Both countries are showing stubborn growth in their carbon footprints and military spending, to name just two disturbing trends. But the data of the last 25 years portray U.S.-China commerce as the most synergistic bi-lateral relationship in world history, bringing peace along with mutual prosperity.

Republican China hawks have a problem. They're eager to sell us on the notion that China is, as old GOP hand Newt Gingrich puts it, "the greatest threat to a free America that we have faced in our lifetime." Gingrich pins China's ascendancy on its "totalitarian system, extraordinary organization, and immense population," brushing aside the economic liberalization and market reforms initiated by former leader Deng Xiaoping—which ushered China out of Maoist isolation and into the global market—as mere smoke and mirrors, a "40-year-long propaganda campaign" masking the "real China." This presents a quandary for the hawks. If they argue that China's meteoric rise is indeed the fruit of its "totalitarian system and extraordinary organization," does that mean they'll have to eat their words on the virtues of free enterprise and stop scoffing at socialist economies? Could it be that China has cracked the code on making a centrally planned economy thrive, a feat unseen elsewhere? Fortunately for the Republican hawks, a more politically palatable theory has taken root: China's ascent to becoming the world's second-largest economy and a tech behemoth wasn't a result of economic reforms or strategic planning but rather stealing. Behind the Numbers In a landscape where political rhetoric often blurs reality, the narrative spun by America First Republicans and echoed by institutions from the FBI to the Organization for Economic Cooperation and Development (OECD) portrays China's remarkable growth as the grand larceny of intellectual property (I.P.). Claims that China has siphoned off $200 billion to $600 billion annually in I.P. have found a home in numerous reports, with some hawkish voices now inflating that estimate to trillions. These reports, echoed through the media and in the halls of Congress, have one goal, perfectly captured by Trump-era Trade Representative Robert Lighthizer. "My objective was to convince people that China is a problem, an existential threat to the U.S.," Lighthizer told The Wall Street Journal. "I think we convinced people." Indeed they did. A recent Gallup poll reported that 50 percent of Americans now view China as America's "greatest enemy"—four times as many as in 2018. (Russia took second place, despite its war with Ukraine.) The campaign to make Americans hate and envy China has been so successful that American media and politicians now openly urge us to prepare for war with China. Sen. Ted Cruz (R–Texas) has claimed that "China is waging a thousand-year war against the United States." Washington Times foreign policy correspondent Bill Gertz recently posted on X that China clearly sees war with the United States as "inevitable." And in 2023, four-star Air Force general and head of Air Mobility Command Mike Minihan sent a memo to the officers he commands predicting that in two years, the U.S. will be at war with China. "I hope I am wrong," Minihan's memo read. "My gut tells me we will fight in 2025." Beneath this crescendo of warnings, however, lie some questionable assertions. Central to the argument are two reports, one by the U.S. International Trade Commission (USITC) and another by the OECD, which have become the linchpins of the fearmongering campaign against China. A closer examination reveals that these reports, and the staggering figures they tout, are little more than sloppy guesswork grounded in speculative modeling rather than solid evidence. The USITC study, China: Effects of Intellectual Property Infringement and Indigenous Innovation Policies on the U.S. Economy, was published in 2011. The OECD study, Trade in Counterfeit and Pirated Goods, wasfirst issued in 2008 and updated in 2016. Nearly every other report on the theme ultimately cites these two studies. The OECD's bold assertion that China's I.P. theft tallied up to a whopping $200 billion to $600 billion annually throughout the 2010s hinges on a dubious concoction known as the General Trade-Related Index of Counterfeiting (GTRIC) for products. This algorithm supposedly crunches customs data to gauge the global counterfeit trade, attributing a significant chunk of it to China. Delve into the mechanics of the GTRIC and you'll find it operates on a blend of educated guesses and less educated assumptions. Modelers assign two "propensities": the propensity of a given country to export counterfeits, and the propensity for certain product types—like sneakers or watches—to be counterfeited. Comparing these figures with data on all international trade, the model generates estimates of the total volume of counterfeit goods from various source nations. The critical moment in the model's calculations, and the place where the methodology raises eyebrows, is the determination of a "fixed point"—essentially, a guess at what percentage of goods in a specific category are fake. Depending on which number you pull out of the hat, the scale of counterfeiting can swing wildly from mere billions to an eye-watering trillion dollars annually. Therefore, determining the most accurate fixed point to use is vital for the results of the study to be trustworthy. So how did the OECD wizards arrive at their fixed point? They took a stab in the dark. Initially setting their sights on a 20 percent figure for "counterfeit or pirated apparel, leather articles, and tobacco products exported from Asian economies," they dialed it back to 5 percent after deciding 20 percent "appeared excessive." Noting that the amount "could be higher" and needing to establish a "credible ceiling" for counterfeit trade, they picked 10 percent as their high fixed point. This manifestly arbitrary methodology was then glorified in various reports as "rigorous." Further guesswork was needed to factor in how much counterfeit merchandise customs actually seize—a variable that drastically swings the estimated total of counterfeit trade from less than $40 billion to over $200 billion. Ultimately, the OECD planted its flag on a $200 billion estimate for 2005's counterfeit trade, with the caveat that it could be much more. Thus, a figure of legend was born. Fast forward to 2016, when the OECD unveiled a headline-grabbing figure: "In 2013, international trade in [counterfeit] products represented up to 2.5 percent of world trade, or as much as USD $461 billion. This is the equivalent of the GDP of Austria, or the combined GDP of Ireland and the Czech Republic." This 2.5 percent figure has since become a talisman for anyone keen to substantiate claims of rampant I.P. theft by China, despite the foundation of these claims being as solid as quicksand. Even with all of this guesswork at play in the OECD reports, the 2011 USITC report makes them look like high scholarship. Focusing on I.P.-intensive U.S. firms operating in China in 2009, the report claims these firms "reported losses of approximately $48.2 billion in sales, royalties, or license fees" due to I.P. infringement. Yet a closer look reveals the range of estimated losses, stretching from $14.2 billion to $90.5 billion, was based not on direct reports from companies but on third-party guesstimates from industry associations. Essentially, these firms were parroting back guesses fed to them by industry groups with a vested interest in painting the grimmest picture possible to grab government attention. The claim that the oft-cited USITC report was based on accounts by victim companies is a fraud. We're Talking About Sneakers But the plot thickens—or rather, the truth thins out. Though these two reports are wielded in accusations that China's tech ascendancy is owed to stolen I.P., neither has anything to do with high tech. The "I.P." allegedly stolen mostly consists of trademarks affixed to faux high-fashion sneakers (a perennial leader), watches, handbags, and other accessories, or copyrights on pirated music. Most shipments intercepted are in retail quantities, often fewer than 10 items. Most come by mail. Somewhere in China, Mom and Pop are ripping off Rolex, Louis Vuitton, and probably Taylor Swift. They may have some bad karma coming their way, but they are not the reason China is rich. Yet that is what we are meant to believe. Nearly every commentary on the subject promotes itself as evidence that China stole its way to technological prowess and then cites these irrelevant numbers as the sole quantitative evidence. Again and again, we are told "China steals hundreds of billions or trillions in intellectual property," with no mention that we're talking about sneakers.

Through much of history, the Western world took — by stealth or strength — Chinese knowhow. The secrets of making paper, silk, porcelain and other staples of modern life leaked out of the Middle Kingdom, despite rigorous attempts by emperors and mandarins to preserve the intellectual property rights. Why then, asks Howard Chua-Eoan, should we now be surprised if the process is reversed? In a sign that Beijing is making progress in circumventing US efforts to contain semiconductor technology, Huawei Technologies Co. and China’s top chipmaker have built an advanced 7-nanometer processor for the Mate 60 Pro smartphone. The Kirin 9000s chip was fabricated in China by Semiconductor Manufacturing International Corp., according to a teardown of the handset that TechInsights conducted for Bloomberg News. And this may only be the thin end of the wedge: With the Chinese government raising $40 billion to support homegrown manufacturing, better (and thinner) chips are inevitable. This will raise eyebrows at Apple, which would like to maintain its substantial technological edge over Huawei. But it also poses a challenge to the Joe Biden administration, which has made a priority of keeping cutting-edge technology from getting into Chinese hands, driven in large part by fears it could be used to boost Beijing’s military capabilities. History suggests this is a fool’s errand. The US “can always tighten its sanctions regimes and strengthen the safeguards to slow the proliferation,” says Chua-Eoan. “But commerce will almost always force out technological secrets.” Think of that when you drink your next cup (porcelain, natch) of tea. (Free read!) Climate Policy Hovers Over Auto Tensions The impending showdown between America’s Big Three carmakers and the United Auto Workers is about profit margins, salaries and benefits. It is also, Liam Denning points out, about Biden’s signature legislative achievement, the Inflation Reduction Act. The IRA is designed to push the auto industry to remake itself entirely, switching from gasoline-powered cars and trucks to electric vehicles in roughly a decade. To this end, the administration aims to reshore the supply chain, loosening China’s grip on clean technologies. (The West still craves some Chinese knowhow.) The White House will subsidize companies for domestic content and manufacturing, and reward them for paying workers federally defined prevailing wages. As Denning puts it: “While the IRA is often dubbed climate policy, it is more accurately described as green industrial policy with a notable labor component.” But it creates some anxieties for carmakers and the UAW alike. For the union, electrification promises some new jobs — in reshored battery factories, for example. But many of the battery and EV plants that have been announced since the IRA was passed are in states where unions are hamstrung by right-to-work laws. Electrification will also make obsolete gasoline and diesel engines and transmissions, which account for roughly half of current vehicle manufacturing capacity. Carmakers, for their part, face the prospect of investing billions to build EVs which are, at least for now, loss-making. At the same time, the unions and manufacturers need each other in order to overcome the so-called “messy middle” of the energy transition, during which the industry must wind down the manufacturing of profitable legacy products while simultaneously investing heavily in new ones that won’t make money for a while yet. Can the two sides get along? Crash Course “We are witnesses to violent extremities that are often unpredictable and difficult to manage. We are the authors of the disasters and victims of the consequences.” On the latest episode of Crash Course, Timothy L. O'Brien spoke with Mark Gongloff, a Bloomberg Opinion columnist who specializes in covering the environment and climate change. Telltale Charts To judge by the performance of real estate investment trusts, the office market hysteria is easing. But, warns Jonathan Levin, it “isn’t out of the woods yet, and risks could loom over the market for years to come if interest rates stay anywhere near current levels.” From dizzying highs after the banking crisis, dividend yield spreads on office property REITs have dropped closer to historical norms. The spread was 1.74 percentage points at the end of last month. But that doesn’t mean we should forget the risks posed by the office market. Borrowing costs remain high, and the mortgage rate is around 7.2%. If interest rate expectations “become anchored at current levels, maybe out of long-term inflation fears or concerns about sustainably high government deficits. If that happens and regional banks remain shy about extending new credit, the wave of refinancings over the next year could easily get ugly in a hurry.”

Chapter 4 Biopolitical Correspondences: Anthropology, Native Administration, and Cultural Nationalism “[P]hysiographic factors work slowly . . . Ultimately the Australian race will be quite different from the ‘English’ race and hence Australian literature will be quite different from the merely English literature, of England.”1 P. R. Stephensen How does (post)colonial literary culture, so often annexed to nationalist concerns, interface with the biopolitical regulation of race and sexuality? Colonial biopolitics can be defined as the regularisation of a population according to the perceived insistence on norms. Unlike the diffuse, microscopic, governmental mechanisms of surveillance that identify the need for disciplinary interventions, biopolitics concerns itself with the regularisation of societies on a large scale, notably through demography. As Ann Laura Stoler has put it, Foucault’s identification of these two forms of power, “the disciplining of individual bodies . . . and the regularization of the life processes of aggregate human populations” has led to much productive work in the postcolonialist critique of “the discursive management of the sexual practices of the colonized,” and the resultant “colonial order of things.”2 Indeed, biopolitics is crucially concerned with what is perceptible at the macroscopic level of an entire population – often rendering its operations blind to more singular, small, identitarian, or even communitarian 184 representations and imaginaries. Certainly one can find representations of disciplinary power across the canon of oft-taught postcolonial texts, from Ngugi Wa Thiong’o’s critique of colonial policing in Petals of Blood, to Tsitsi Dangarembga’s meditation on the affective violence of mimicry in Nervous Conditions, to Salman Rushdie’s magical realist parody of Indira Gandhi’s state of emergency in Midnight’s Children.3 Such texts are cognizant of policing, colonial education, and the retention of exceptional measures threatening the democratic form emergent from the subcontinent. But what does one begin to write of the lettered settler colony, particularly since so much of the national imaginary, including its positioning of indigenous peoples, has been conjured as an intertext, a canon, an inheritance by the simultaneously antipodean and (nonetheless) colonizing imaginaries of settler colonists? As Wolfe suggested, settler colonies are not merely premised on the subjection of indigenous peoples, but very often also on their total disappearance. As we have seen, the natal-thanatopolitical, biopolitical, and other mechanisms by which this is attempted are variegated. It is incumbent to similarly survey the cultural correlates of such ideas. In the Australian context, the processes of absorption and assimilation directed toward Aboriginal people in the twentieth century clearly involve disciplinary practices driven by biopolitical projections of future normativity and homogeneity. But literary texts, while making truth claims about such contexts, rarely prescribe policy. Those singular settler imaginaries that traverse the backdrop of the governance and policing of indigenous people—constrained by the inheritance of genre, form, convention, and voice—nonetheless hardly reproduce the fantasies and anxieties of colonial governance as facsimiles of Aborigines Department memoranda. How do we read the narration of subaltern death, survival, or indeed assimilation when such an imaginary of doom in literary and cinematic texts has found itself displaced within the discursive formations of colonial governance: why do Aboriginal characters in novels keep dying after the turn to cultural assimilation? Why do settler poets consistently return to a melancholic lamentation of Aboriginal loss (as though it were their own) after this turn? Is it too much to say (as Foucault did not, at least not in so many words) that postcolonial texts—these small and particular representations—can be read alongside texts from the archive of settler colonial biopolitics? Taking seriously the degree to which such literary frames are not mere carbon copies, this chapter nonetheless insists on a tactical attempt to map the occasional correspondence of such archival and literary expressions. Doing so, I contend, brings into greater relief the moments of non correspondence: when imaginaries of death subsist after the supposed turn to assimilation, when policies about subaltern peoples are debated by white settler characters and not resolved. This notion off correspondence also allows us to tell the story of the way anthropological conceits and practices of colonial administration produced concrete concurrent effects in the cultural sphere, particularly, the emergent literary nationalist public sphere. The projected outcome of both absorption and assimilation was the homogenization of the Australian national polity. Where absorption imagined the disappearance of Aboriginal people via natal-thanatopolitical methods, assimilation— while retaining its disciplinary measures—turned on a more subtle articulation of its outcome vis a vis ideas of race, culture, and national homogeneity. Assimilation’s vision of national homogeneity was paralleled by regularizing functions that correspondingly 186 operated in anthropological discourse as well as literary nationalist discourse; it is these correspondences which I examine here. In the post-war period anthropologists, literary nationalists, and agents of assimilation variously contributed to a networked discursive formation that anxiously concerned itself with the place that Aboriginal culture and social life was to have in the new nation. Mid twentieth century Australian cultural nationalism drew heavily on the physiognomic, racial, and eugenic data that was also significantly in play in the discourse of Aboriginal policy. A key methodological investment of this chapter arises from the assertion that the biopolitical outcome of regularization and homogenization parallels the concerns of cultural nationalism, drawing out imaginaries, forces and desires that exceed and outlast their concrete governmental implementation. Many of these imaginaries insist on the symbolic value of settler nativity over against the voice of the too often expendible indigene. As Chadwick Allen suggests, “Aboriginal inhabitants of what are now First World nations have been forced to compete for indigenous status with European settlers and their descendants eager to construct new identities that separate them from European antecedents.”4 This is often the way indigenous characters operate in settler texts heavily concerned with indigeneity. While Aboriginality is avowed to the point of fetishization, it is also often made so at the expense of the indigenous body and mind as living presence. One organizing question, which precipitates this observation asks: how, as the physical anthropological and absorptionist elements retained by assimilationist doctrine called for the biological incorporation of the “Australoid race” into the settler nation’s normative population, were the correlative cultural appropriations disseminated as a party to the settler nation’s cultural uniqueness and homogeneity? How does the settler nation 187 imagine its coherence and independence through the sublation of an indigenous identity which it simultaneously destroys, constrains, and normativizes? Here I explore the way a certain artifactual Aboriginal constellation would have to be regularized and presented as acceptable to the dominant white population of the nation. Assimilation required that Aboriginal tradition be regularized as a “primitive” social form adaptable to the settler cultural model of nuclear familialism. If orientation to an environment hostile to whiteness was a problem for what Warwick Anderson has called Australia’s “reproductive frontier,” and if adaptation to this environment could (for many assimilationists) benefit from the biological absorption of Aboriginality, would there emerge an analogous desire for cultural adaptation?5 Discourses of Aboriginality were disseminated alongside government policies of assimilation in order to negotiate a form of nativist primitivism that would be acceptable to the nation’s future cultural homogeneity. The late 1930s are a key period in the government of Aboriginal people in Australia. I want to mark three further dates from the late 1930s that index three acutely biopolitical instances of the settler nationalist imaginary: October 1937. Elkin would continue a correspondence with his lay-ethnographer contact, W. E. “Bill” Harney, who was gathering ethnographic data at the Missions on Bathurst and Melville Islands. In this particular letter, alongside notes on the subsection systems of neighbouring peoples, the Anula and the Mudbura, Harney would insert his opinion about the potential normativization of the Aboriginal family and what precisely could be “abolished or modified”: 188 The system of polygamy seems to me to be quite OK in a nomadic race and can be eradicated without going to extreme means as I have found that the natives try to imitate the white and this they do in marriage and it is incredible the amount of natives in the bush working with the white man that have only one wife, they do not want another and when questioned on this, they remark that two women would be a nuisance as they would be jealous of each other.6 For Harney, the “imitat[ion of] the white” was a process that was already taking its course. Harney would elsewhere criticize the attitude (among missionaries and government agents) of “no compromise” in approaching the modification of native customs.7 His correspondence with Elkin would help produce a genre of popular narrative inviting settlers into the transforming Aboriginal life-world. January 1936. After its first two instalments had been published in The Australian Mercury, P.R. Stephensen’s The Foundations of Culture in Australia: An Essay Toward National Self Respect is published in book form by W.J. Miles. A short way into the essay’s third instalment, Stephensen would declare, ‘[a]ll parties agree that population is Australia’s paramount need’ (149). For Stephensen, a large population was one of the preconditions of a culturally nationalist Australia, independent of the British metropole. Yet, questions of race, hybridity, and the legitimacy of settler belonging would also not be absent from his prose. Coinciding with key transformations in Australian Aboriginal policy, Stephensen’s tract would influence a number of nativist and nationalist writers who desired both cultural independence and the incorporation of Aboriginal motifs into their writing; these included Rex Ingamells, Ian Mudie, and, most notably, Xavier Herbert. 189 June 1936. Herbert writes to his friend Arthur Dibley, a manuscript reader at P.R. Stephensen and Co., from the veranda of his house in the Kahlin Aboriginal Compound in Darwin.8 In early 1934, Herbert and Stephensen had worked closely on the revision of Capricornia;9 indeed, in the early 1960s Stephensen even claimed his role in editing to be so extensive as to warrant co-authorship.10 When Herbert wrote to Dibley, he was employed as acting superintendent of the compound—an agent of the surveillance and discipline of Aboriginal people. In his letter, Herbert clearly related his literary ambitions to grandiloquent dreams of nationalism and race-consciousness: Do you know what I’ve been dreaming of doing? Why, no less than teaching the Aboriginal race to accept citizenship & win a place in the Nation, & honourable place [sic], so that they may cross with the invaders & enrich the new Nation with their blood. Already I have founded a Euraustralian League, the members of which are Halfcastes and Quartercastes whose blood is pure Aboriginal and European, the aim of which is to teach pride of race to these people & to teach others to honour them & ultimately to found a Nation.11 Herbert’s imagined project of a hybrid nation was not only premised on the citizenship of Aboriginal Australians. It was also an appeal to contemporary population and attitudes toward potential preservation of ‘full blood’ natives through reserve land12. Before turning to limn the correspondences between these events, it is incumbent upon me to say something further about the methodological stakes of correspondence itself.

Introduction In settler colonial contexts, biopolitics is an instrument of naturalization and depoliticization. The categorization of Indigenous peoples as a specifically racialized population group of “Indians” works to construe conflicts with Indigenous peoples as merely domestic problems of the set tler nation-state, such as the United States, best dealt with through implementation and enforcement of settler nation state laws. At the same time, specific modes of living that are privileged by settler nation-state institutions such as heteronormative coupling, patriarchal households, nuclear family living arrangements, and individual land ownership, are biopolitically regulated so as not to appear linked to a particular form of settler governance but expressive of the natural course and order of life. To this end, settler colonialism has been analyzed particularly in recent years not only as a geopolitical project, operating through logics of dispossession, removal, and containment, but also as a biopolitical project, operating through logics of racialization, regulation, and naturalization.1 At the same time, especially with the advancement of biopolitical theories in “mainstream” cultural studies and critical theory, numerous Indigenous studies scholars have also pointed out the necessity not to favor a biopolitical analysis of sovereignty, for instance, at the expense of geopolitical considerations that need to remain crucial for a thorough analysis and critique of settler colonialism, because: “Territoriality is settler colonialism’s specific, irreducible element” (P. Wolfe, 2006, p. 388).2 Notably, then, recent iterations of settler colonial and critical Indigenous studies approaches put an emphasis on how biopolitical and geopolitical forms of settler governance operate in conjunction, as for instance in the ongoing attacks against Indigenous lands, bodies, and lives so as to produce colonial space in the United States and Canada (Mishuana Goeman) or in the employment of “Indianness” for the transit of U.S. empire (Jodi Byrd) in geopolitical and biopolitical terms. The attention to geopolitical and biopolitical forms of settler colonial violence and governance thus serves to address the manifold, and oftentimes intersecting ways in which settler nation-states attempt to control Indigenous lands, lives, and bodies. At the same time, however, it also helps to make manifest the settler colonial assumption that there is, at least in theory, a geos divorced from the bios, and vice versa, which can be targeted distinctly. Such a logic ultimately rests on a European tradition of thought (which is then universalized in settler colonial contexts) that land itself is not a living thing, is not animate, is not a form of life. Within a hierarchical order of the biopolitical, land is as such excluded from the sphere that constitutes political life. Such an exclusion, based on the Aristotelean hierarchy of all forms of life from the human to the seemingly inanimate stone, furthermore places political systems of thought and organization for whom the non-hierarchical relationality of all forms of life is constitutive, outside of the sphere that gets to count as political in dominant Euro-American society. In this essay then, I want to interrogate how the biopolitical logics of settler colonialism work to discredit the valid ity of a place-based politics of relationality in which Indigenous land and all forms of life, including the land itself, make up, through their mutually constitutive relation ships, the sphere of politics. Through the matrix of a settler colonial logic, such a politics is de facto placed outside the realm of what is acknowledged as political, since it extends its understanding of political life to spheres that are credited no political existence in Western or European accounts of politics. The essay is thus concerned with an issue similar to that outlined by Mark Rifkin (2009) in “Indigenizing Agamben” when he argues that “the state of exception pro duced through Indian policy creates a monopoly on the legitimate exercise of legitimacy, an exclusive uncontest able right to define what will count as a viable legal or polit ical form(ul)ation” (p. 91). My focus is slightly different, however, as I want to examine to what extent Indigenous polities are illegible and unrecognizable as political forma tions to universalized paradigms of European political thought in the first place, which then enables the constitu tion of settler states and the subsequent biopolitical produc tion of Indigenous peoples as depoliticized populations or cultures. My main object in this essay is thus to outline the biopo litical logics of settler colonialism as they are embedded in hierarchical distinctions of forms of life foundational to European political thought, and additionally to theorize a politics of place-based relationality that seeks to disrupt these logics. In order to do so, I will engage and connect two distinct sites of knowledge production. First, I turn to Foucault’s and Agamben’s theorizations of the biopolitical particularly so as to reread their use of Aristotle and to ask in which way certain premises of Aristotle’s philosophy inform Foucault’s and Agamben’s thoughts on life and poli tics in distinct ways—which then remain largely unac knowledged in their own writing, however, and can continue to operate without being subjected to a biopolitical analytic. Second, I address Cherokee scholar and author Daniel Heath Justice’s (2011) fantasy novel The Way of Thorn and Thunder: The Kynship Chronicles not as a text on which to apply my reading of Foucault and Agamben, but rather with Mark Rifkin, as “a form of political theory” (2012, p. 2). Building also on the work of Indigenous legal theorists and law-and-literature scholars who posit that Native writing is characterized by, as David Carlson (2006) argues for early Native autobiography, “an engagement with colonial legal discourse,” (p. 23), I seek to read Justice’s novel as a means to theorize the possible framework for social, political, and legal formations of Indigenous peoples within, or opposed to, the settler state. My interest, however, lies not so much in reading Justice’s text as a possibility to enter into a con tested dialogue with the legal framework of U.S. Indian policy, or as a way to counter through literature the legal racism Robert A. Williams (2005) has detected as being instrumental for the history of U.S. Indian policy. Instead, I seek to read Justice’s novel as a means to illuminate Native writing, conventionally perceived as foremost a form of cultural expression, in its possibility to indicate an alterna tive horizon of politics. More precisely, I read his novel as gesturing towards a form of political normativity based on what is also conventionally perceived as a mere cultural trait of Indigenous ways of being, that is the strong empha sis on the relationship among all forms of life and (includ ing) the land. Precisely because of its position outside of the range of officially acknowledged politico-legal texts, while deeply engaging these discourses, Justice’s anticolonial fantasy offers itself to be analyzed as a site of Indigenous political knowledge production. I thus want to read it as a site of what I term disruptive relationality that generates ways to think about forms of political life which, in center ing principles of relationality, exceed what officially gets to count as political in settler colonial contexts. As such, a reading of Justice’s novel can point out the potentials of the literary and the fantastical for denaturalizing settler colonial rule, imagining decolonization, and indicating the possibilities of Indigenous futurity beyond settler fantasy.

THE!GLOBAL!SITUATION!IN!SETTLER!COLONIAL!TIME Scholars must examine the past and present biopolitics of settler colonialism to challenge presentist horizons in theories of biopower and colonialism. I argued that liberal governance under Western law is presaged and instituted by the biopolitics of settler colonialism. Here, Indigenous peoples are recognised with a provisional humanity for amalgamation by settler nations, where their elimination nevertheless follows whether they defy or conform to a promised consanguinity with settlers who replace. Sherene Razack and Sunera Thobani have modelled the acknowledgment of settler colonialism as a condition of the colonial biopolitics scholars increasingly diagnose in contemporary states and global regimes. Yet my argument extends theirs by requesting even broader enunciation of settler colonialism as an activity directly manifesting as the biopolitics of the present. My account suggests that the growth of liberal modernity by universalising Western law and its exception was facilitated by settler states that circulate and sustain them today. Here I echo Anna Tsing’s account of the conditions of theories and practices of globalisation – ‘the global situation’ – when I argue that they also arise in relation to the intimate and systemic procedures of settler colonialism.37 In particular, scholars must challenge ahistoricity in accounts of the coloniality of biopower, as these temporalise colonialisms in various pasts only to link them to supposedly unprecedented power relations in the present. Certainly distinctions within present power relations must be specified. But to posit their temporality as advanced beyond colonialism is to naturalise how settler colonialism acts continuously within them. The persistence and naturalisation of settler colonialism defines the present as colonial, while occluding settler colonialism’s action in and as the power we wish to critique. Even to mark this would transform most work on coloniality and biopower. Yet while I did intend my words to call for such analysis, my argument more deeply marks the specific biopolitics of settler colonialism as generalised tactics of late modern power relations, which proliferate by naturalising their settler colonial conditions. Agamben’s work is ripe for such analysis given that, by the appearance of State of Exception, the superpower status of the United States becomes his central case. Yet given that his prior scholarship concertedly traced a European horizon, citing the United States as exemplary of ‘Western’ sovereignty occludes its formation outside Europe through settler colonial processes that remain opaque to his critique. For instance, when Agamben traces the history of the camp to Spanish Cuba in 1896 and to the twentieth century British conquest of the Boers, he omits knowledge in Native studies that nineteenth-century U.S. expansion used internment camps to relocate Indigenous peoples and to model their militarised containment on reservations.38 Some scholars date this process to the 1837 Treaty of New Echota – passed by Congress in disregard of Cherokee protest – which through military force contained Cherokee people for removal on the Trail of Tears.39 Another noted example is the 1862 Dakota War, in which Dakota peoples denounced the breaking of treaties by Congress and the State of Minnesota by fighting back against land theft. The war concluded with the largest mass hanging in U.S. history, of 38 Dakota men at the Lower Sioux Agency; the three-year internment of 1700 Dakota people at Fort Snelling on Pike Island, Minnesota, where over 300 died of starvation and disease; and the forced relocation of survivors hundreds of miles to militarised reservations.40 Pike Island sits at the confluence of the Minnesota and Mississippi Rivers, a central site of the traditional spiritual homeland of the Dakota people. Today it remains a Minnesota state park, where the now-forested internment site is overlooked by the massive stone fort, its gun turrets still pointing down at passing bicyclists and day hikers, while historical reenactors of U.S. soldiers employed by the fort educate visiting children by teaching them how to march in formation while pretending to hold bayonets.41 Dakota activist, historian and critical theorist Waziyatawin has helped lead annual Dakota Commemorative Marches the 150 miles from Lower Sioux Agency to Pike Island during the cold autumn season when these events transpired. Dakota activists continue to mobilise to ‘Take Down the Fort’ and return the lands and internment site to the Dakota people.42 Given that the 1862 events followed Minnesota Governor Ramsey declaring that ‘the Sioux Indians of Minnesota must be exterminated or driven forever beyond the borders of the state’, the genocidal biopolitics that defined Dakota people for one and a half centuries would seem relevant to a history of the camp within Western modernity.43 I do not mark Agamben’s neglect of histories such as this as an erasure correctable by citation. Rather, I am identifying here a naturalisation and continuation of settler colonialism within Agamben’s theoretical apparatus and the horizons of critical theory. Certainly, Agamben’s account of the camp elides the encampment of Indigenous peoples as distinctive nations resisting incorporation by a settler nation. Yet, at once, Agamben obliquely invokes, without discussing, two more cases of settler colonialism: Spanish removal of Cuban revolutionaries seeking self-rule on lands erased of Indigenous national difference; and British containment of Boer settler colonists so as to pursue their own white settler conquest of African peoples and lands. We see here that white supremacist settler colonialism was already fully present, yet fully occluded in the history of the camp provided by Agamben, whose citational trail leads to twentieth century Europe and National Socialism. 44 But what if we took Agamben seriously, so that whether marked or unmarked, his citations prove the case: that the camp does arise within white supremacist settler colonisation, only later to be transported to the Nazi regime? Does our understanding of the camp shift if its definition and containment of racialised populations by the modern biopolitical state was a lesson learned in settler colonial situations and subsequently applied to Europe? Does the camp’s spatialisation of the exception come to exemplify Western law only on its returnarrival to Europe; or, might it have borne that capacity on Indigenous American and African lands? Does its European arrival then constitute a reckoning with what the West could become by following lessons already learned under settler colonialism? And once the camp finally returns again to Cuba – this time, under the United States as supreme arbiter of global law and its exceptions – is settler colonialism irrelevant to its form? Does settler colonialism represent only a historical footnote to U.S. rule at Guantanamo Bay, as representative of an unprecedented scope of power in the contemporary world? Or does the ongoing life of settler colonialism in fact condition and produce all that is new and transformative about that power? Scholars can trace how the U.S. establishment of a ‘zone of indistinction’ for ‘enemy combatants’ on settled Indigenous lands learns from the conquest of Indigenous peoples and its naturalisation, which remain the state’s foundational and sustained activity. Regardless of the answers to my questions, the evidence that they have been unimaginable in theory of biopower – even if a theorist cites settler situations – indicates that settler colonialism remains naturalised within theory and requires a new genealogy to be transformed. Scholars must not interpret modern state biopolitics or its extrapolations in global governance as recent rather than deeply historical phenomena. Nor should we let the preeminent role of any settler state in those processes appear to be the action of ‘the West’, without specifying how settler colonialism acts as the West’s leading edge by establishing grounds for the globalisation and universalisation of its governance. The biopolitics of settler colonialism sustain in the persistence of settler states, and we must interpret their activities as precisely enacting settler colonialism. These notably include the proliferation of Western modernity and liberal governance using methods first learned and still defended by settlement. National resistance to incorporation in the body of Western law continues to result in being placed in the camp. The power of Western law demands incorporation and justifies excision by containing the differences it encounters in a globalizing world: a process highlighted already by Indigenous peoples who confront the West and its law as settler colonial. In conclusion, I hope my analysis illuminates a key implication of Agamben’s work: that ‘if today there is no longer any one clear figure of the sacred man, it is perhaps because we are all virtually homines sacri’. 45 Agamben’s statement acknowledges here a longstanding premise of the state of exception, that anyone incorporated into Western law may be assigned to this state: as the defiant son is eliminated by the father in exception to their bond, so the law excises people to constitute a People that returns to conformance with its rule. Yet his statement clearly foregrounds a more recent temporality in which proliferating permutations of the state of exception seem to blur its target, and suggest – using Butler’s paraphrase – that today ‘we are all potentially exposed to this condition’. 46 I submit that how Agamben’s statement reads to you depends largely on whom you think he means by ‘we’. Some of us will always appear to be part of ‘the People’ Agamben perceives within the body of Western law, as if our consanguinity is not in question until confronted by what we do with it. Some of us, however, only appear within the body of Western law once ‘recognition’ of consanguinity arrives as a violence to destroy collective and resistant difference. Thus, today, we are all exposed to bare life not because we appear similarly to Western law, but only to the extent that we are all caught distinctly in the hierarchies that structure its persistently colonial formation. While I expect this point is not lost on my readers, it bears repeating. Ongoing reaction to the U.S. Patriot Act or the war on terror by many white Europeans and white settlers suggests that their potential exposure to bare life comes as an unwelcome surprise. Produced by the securitisation of liberal modernity, white liberal subjects might think that the Act or the war abrogate freedoms promised by a law that should protect them – the very law that they invite racialised and colonised peoples to affirm, as if extending its rule leads to liberation rather than subjection. Yet if we situate the Patriot Act or the war on terror in context of settler colonialism, as does Indigenous feminist theorist Andrea Smith, we can ask what shifts ‘if we understand the Bush regime not as the erosion of U.S. democracy but as its fulfillment? If we understand American democracy as premised on the genocide of indigenous peoples?’47 Such a perspective informs alliances by Palestinians and Indigenous Americans who critique the war on terror for having linked white supremacy, Orientalism, and racial nationalism to reinforce the United States and Israel as settler colonial states. In such a light, Agamben’s assertion might suggest that ‘we’ are all exposed to bare life to the extent that the colonial exception and its universalisation within Western law now mark all peoples for elimination just as Indigenous peoples always were and still are marked. Yet, conversely, if Agamben names an exception that settlers assigned to others now being potentially assigned to them, then for all of us to be exposed to bare life is to potentially position us all as settlers. I write provocatively here to suggest that a normative relationality between ‘Indigenous’ and ‘settler’ structures all logics of inclusion and exclusion in settler law and, therefore, in its universalisation as Western law. Scholars must interrogate how this power-laden distinction imbues not only settler societies, but also their conditioning of liberal modernity along global scales. We must theorise settler colonialism as historical grounds for the globalisation of biopower, and as an activity producing biopower in the present that requires denaturalising critique.

INTIMATE!RELATIONALITIES!IN!WESTERN/SETTLER!LAW The colonial power of Western law can be traced distinctly by explaining its formation by the intimacies of settler societies – notably, Indigenous replacement via containment, erasure and amalgamation – that perpetually trouble differentiations of settler nations from what they attempt to replace. ‘Settler’ literally signifies the displacement of Indigenous peoples. Yet a host of scholarship in Native studies explains that settler subjects normatively recall and perform indigeneity as a history they at once incorporate and transcend, inhabit and defer.22 Settlers thus are inexplicable apart from their relationality to Indigenous peoples, as well as to forms of indigeneity of their own imagining that undergird settler subjectivity. All this structures how European settlers ever come to represent the West. To the extent that they do, their relationality to indigeneity through settlement also constitutes the West, even if this quality remains naturalised. To date, critics who adapt Agamben to explain colonial biopower have tended to associate the state of exception with the ejection of racialised primitivity from the West. Thus, a most recurrent definition of the exception in such work is the externalisation of racialised and colonised statuses from the body of Europe, whiteness, or their national or global appearance as Western law. Centreing settler colonialism troubles such accounts. If critics ever feel assured that the colonial exception functions through externalisation, this may be an assumption that attends on theory having already normed ‘colonialism’ so as to elide settler colonialism and its ongoing naturalisation. European settler societies enact Western law – indeed, in ways often validated as exemplary of that law – by occupying and incorporating Indigenous peoples within white settler nations. The indigenisation of white settlers and settler nations thus shifts our reading of their capacity to represent the West. Rather than presuming that the West is defined by enforcing boundaries to preserve purity, we must consider that the state of exception arises in settler societies as a function of settlers’ inherent interdependence with indigeneity. Accounts of the intimate relationality of Indigenous peoples and settlers in settler societies are enhanced by theorising biopower. I highlight a quality in Agamben’s account of homo sacer in Roman law that, I argue, illuminates how Indigenous peoples and settlers have negotiated their conjuncture by plying ties of kinship and its elimination. Agamben cites a story of patriarchal consanguinity as a governmental origin of the state of exception. In Roman law, the potential extension of bare life to any male citizen appears to have derived from a prior correlation of sovereignty to the rule of the patriarch. According to Agamben, the death of homo sacer – not murdered, but negated; ‘necisque’ as opposed to ‘vitae’ – appears in Roman law through the image of the son who, defying the father’s rule, becomes life that must be abandoned, to death.23 Here, the patriarch embodies a sovereign power that may be enacted at any time he deems necessary, and one that exists beyond the power of the law of citizens to abrogate. Agamben suggests that the extension into law of a paternal power to put the defiant son to death binds a society of law to a thesis of patriarchal consanguinity. 24 Following this model, Roman law distinguished the citizens it protected from those it evicted along their degree of respect for or flouting of filial duty to paternal authority. Here, the state of exception potentially accrues to all citizens to the extent that any might forfeit consanguinal protection by a paternal state. I am intrigued by the travels of this formulation of the state of exception at the inception of Western law. In light of Agamben’s account, even if the terms of subjection to Western law shift across places or times, they do so in relation to a law that first posits subjects as a consanguinal People before any are excised. What happens to this quality under European settler colonialism, once Western law endeavours to be established intimately with Indigenous peoples? A question first arises of whether Western law recognises Indigenous people as human. But if it were to do so, it would confront the degree to which Indigenous people become recognisable within the People of the settler nation, which in turn would condition their particular exposure to the state of exception. The settler colonisation of Indigenous Americans demonstrates that questioning their degree of humanity and their genealogical relationship to European patriarchal authority defined their subjection to Western law and its exception. Dale Turner examines these questions by reference to the Valladolid debate of 1550-51, in which Bartolomé de las Casas and Juan Gines de Sepulveda deliberated the deadly treatment of Indigenous Americans under Spanish rule by considering the theological and legal significance of their humanity.25 The Valladolid debate was contextualised by a Papal bull of 1537 having already decreed an end to formal enslavement of Indigenous Americans by deeming them unequivocally human and capable of salvation. Las Casas argued that Papal recognition of Indigenous peoples’ humanity meant that they should be brought to Christian belief and law without force or coercion. In contrast, Sepulveda argued that even if recognizably human, Indigenous peoples remained in Aristotelian terms ‘barbarians’ who were naturally inclined to enslavement, and furthermore that the Spanish remained bound to punish them for crimes against God’s law. Sepulveda thus portrayed Indigenous people as human only to the extent that their abjection followed having defied divine authority, which demanded their treatment as bare life subject to genocide. Las Casas, by contrast, sought to protect Indigenous people as subjects acceptable to God’s law, but only to the extent that they conformed to the Church and sovereign as paternal educators, whom they must not resist lest in violating the terms of their protection they be returned to the ever-present possibility of death. Interestingly, the position Sepulveda defended played out in Spanish and Portuguese colonies precisely not through modes of separation but of amalgamation. The classification of Indigenous peoples as barbarians facilitated the forced intermarriage and rape of Indigenous women by European men, whose children incompletely inherited a patriarchal lineage even as their suspect primitivity located them proximate to the state of exception.26 In turn, despite the semblance that Las Casas sought to protect Indigenous people from violence, his position justified subjecting Indigenous and growing mestizo constituencies to a racialised colonial economy, wherein promises of salvation and civilisation framed people of Indigenous heritage as children whose potentially wayward inclinations still placed them near the state of exception. While specific to the early Latin American settler colonies, these contrastive positions recur across white settler societies that attempt to eliminate Indigenous nations by amalgamating Indigenous people as potentially protected children whose racialisation leaves their consanguinity open to excision. Adjudicating life for Indigenous people defines settler law’s extension of elimination into governmental procedures of ‘recognition’ – even, of ‘nationality’ or ‘sovereignty’. For instance, the Dominion of Canada established its relationship to Indigenous peoples under law in the 1876 Indian Act, which in ever-revised form still structures Canada today. The Act pursued elimination through the settler colonial governmentality of ‘identity regulation’, to use Bonita Lawrence’s term.27 While this procedure may appear to preserve life, in its definition of over six hundred ‘First Nations’ whose members received ‘Indian status’ by state decree, the Act also separated myriad communities of common nationality, radically reduced land bases (if any remained), and enabled the state to determine the fact or erasure of their existence. Duncan Campbell Scott, deputy director of the Department of Indian Affairs, argued in 1920 that his effort to place Indigenous people in a ‘state of tutelage’ sought its own end, in a time when ‘there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question’. 28 The settler colonial governmentality that here wrests identity from Indigenous peoples also imposed a patriarchal authority within the law to assimilate them into the settler nation. Aboriginal women activists in Canada exposed this by challenging the Indian Act’s restriction of status inheritance to patrilines. Women who inherited status from their fathers found that it was rescinded for them and their children if they married a person without status. This broadly-applied rule first facilitated marriages of white men with Indigenous women, which absorbed their children through the patriline into the settler nation and its citizenship. Aboriginal women activists specifically targeted the Act’s contradictory enabling of Indigenous men with status to confer it to non-Indigenous spouses and their children. Keeping in mind that status and band structure were defined by the Act, we see here that empowering Indigenous patrilineality replicated patriarchal consanguinity as law for settler and Indigenous nations, while departures from paternal law remained cause for eviction. As Aboriginal women’s movement activists argued, evicting Indigenous women harmed them while simultaneously reinforcing the colonial authority that Indigenous men gained from the settler state. While after long protest the passage of Canadian Bill C-31 reinstated status for recent generations of Indigenous women, Lawrence argues that the Act already had achieved ‘statistical genocide’: with over 25,000 women between 1876 and 1985 having had status rescinded, estimates range that from one to two million descendants of these women are incapable of asserting legally-recognised Indigenous identity in Canada, and remain removed from relationship with or even awareness of their peoples or lands. Yet alongside this elimination, a governmental effect also arises here, as constituencies that remain Indigenous-identified are narrowly delimited by the patriarchal authority of the state, which by continuing to assimilate indigeneity sustains a practice that, as Scott stated, linked recognition to its erasure. Indigenous theorists in Canada argue that the subjection of bands to definition by the sovereign power of the settler state characterises the entire project of ‘recognition’. Taiaiake Alfred targets ‘sovereignty’ itself as a logic that presumes and produces apparatuses of colonial rule while precluding distinctive modes of Indigenous governance. So long as Indigenous politics is constrained in this way, he argues, ‘the state has nothing to fear from Native leaders, for even if they succeed in achieving the goal of selfgovernment, the basic power structure remains intact’. 29 Addressing a moment in Canadian politics described for Australia by Elizabeth Povinelli as ‘liberal settler multiculturalism’, Glen Coulthard specifies that the ‘politics of recognition’ precisely sustains ‘the colonial relationship between Indigenous peoples and the Canadian state’. 30 ‘Recognition’ reproduces within land claims, capital disbursements, and political authority ‘the very configurations of colonial power that Indigenous people’s demands for recognition have historically sought to transcend’. Citing Frantz Fanon, Coulthard insists that the reproduction of a colonial structure of dominance like Canada’s rests on its ability to entice Indigenous peoples to come to identify, either implicitly or explicitly, with the profoundly asymmetrical and non-reciprocal forms of recognition either imposed on or granted to them by the colonial-state and society. 31 Alfred and Coulthard compellingly argue for the renewal of modes of Indigenous governance that redefine collectivity in excess of settler colonial governmentality. I wish to emphasise in their accounts their specification of Indigenous nations through ‘recognition’ in a childlike subjection to the authority of the state. For Indigenous peoples in settler societies – notably, those who resist elimination by asserting national difference and distinctive modes of governance – the threat of the exception is ever-present. Coulthard and Alfred highlight the bind Indigenous people face if seeking state recognition of their survival elicits the power of settler sovereignty to eliminate Indigenous difference as a threat by granting, rescinding and managing ‘recognition’. Amalgamation as a tool of elimination echoes back to Valladolid as a theme of the settler colonisation of Indigenous peoples. Yet following Agamben, entering into a recognisable status under the law also opens to elimination and replacement by settler rule. I cited a thesis of consanguinity in Agamben’s account of Roman law not merely, or even literally to invoke mestizaje/metissage as a phenomenon of settler societies or of the place of Indigenous peoples or their descendants within them. Nor do I suggest that indigenising white settler nations eclipses their concurrent definition by hypodescent, which in opposing whiteness to blackness attempts to erase the sexual violence of slavery and deny consanguinity across the colour line, all of which – as Gilroy and Sylvia Wynter argue – contributes to making the African diaspora definitive of Western modernity.32 By citing Wolfe, I indicated that the settler colonisation of Indigenous Americans, the transatlantic slave trade, and all colonised indentured labour invoke a global history of colonial modernity in which Indigenous and African diasporic peoples appear relationally. My argument has been that when slavery and its legacies exclude blackness from whiteness, this also intersects a prior and simultaneous indigenising of settler whiteness. We saw glimmers of these positionings in a relational contrast in the Valladolid debate. Without conflating either claim across distinct contexts, Sepulveda’s position appears to echo when Fanon, Mbembe or theorists of colonial biopolitics link the state of exception to subjects who exist not just beyond the law but beyond humanity, within what Mbembe calls ‘animal life’. 33 Such a reading appears to explain the irremediability of blackness in Western modernity and settler nations. It also appears in postcolonial critiques that presume that this mode of racialisation defines the colonial exception. My argument is that such readings are conditional on another that they occlude, and that in turn is conditioned by them. In the sixteenth centuries, as colonisation took shape in the settler societies of the Americas, a relational position purposefully formed. Countering the overtly genocidal violence of Sepulveda’s contravention of Indigenous humanity, Las Casas argued, for his time, a more compassionate, inclusive, and – I will return to this – liberal mode of settler colonial governance. Las Casas affirmed Indigenous humanity under God’s universal law and the necessity of its defence within a settler society. Yet his claim functioned precisely as a logic of elimination, in that recognising people of Indigenous heritage as subject racialised populations barred them from any difference that could trouble settler rule. As the incompletely consanguine children of Western law, they remained ever on the verge of eviction from it if they troubled the terms of their protection: amalgamation. Their proximity to exception arose under settler rule precisely by considering the degree to which Indigenous peoples may be included in the body of the West and its law. Far from being arbitrary, this concern was requisite to a settler society defining its relation to racialised differences on the lands it remade. A capacity in Western law to simultaneously incorporate and eliminate, recognise and except racialised and primitive difference was learned in settler projects of Indigenous elimination that established Western law on lands beyond ‘the West’. To the extent that they succeeded, settler colonialism made Western law spatially nonspecific and demonstrably universal, long prior to late modern mechanisms of global governance, and as their genealogical condition. Today, the ongoing naturalisation of settler colonialism positions settler states as exemplary of liberal governance universalised within and as Western law. A noted example transpired at the 2009 G20 Summit, when Prime Minister Stephen Harper found it useful to portray a gentle face for Canadian leadership by pointedly asserting that Canada ‘has no history of colonialism’. 34 The significance of his comment was its clarity – notable for a leader quite familiar with critiques of Canada bearing a colonial relationship to Indigenous peoples. Harper obliquely invoked here the baggage of states such as the United Kingdom, France and Japan that negotiate tense relations with former conquests when governing global economics. On a global stage, Harper’s Canada separates from colonial legacies in Africa and Asia to assert a moral neutrality that is conveniently consistent with the universality of international law. The confidence in Harper’s statement would be implausible if his audiences – broader than we may care to think – truly believed that Canada practices colonisation. From theses of terra nullius, to justifications that ‘guns, germs, and steel’ made Indigenous replacement inevitable, to a sense that settler states ‘decolonised’ after rule devolved to white citizens: settlers readily present as other than colonists.35 Yet while Harper might believe that as a Canadian he inherits something other than conquest, I suggest that his exoneration hinges less on such belief, and more on a general appearance that ‘Canada’ exemplifies the universalisation of liberal modernity on the global stage. Interestingly, Harper’s statement appeared barely a year after his government responded to years of Indigenous activism by issuing a state apology for the Residential School system. As a primary agent in the genocidal histories Lawrence recounts, Residential Schools forcibly relocated Indigenous children to sites where they were killed by disease or neglect, or survived to be assimilated into settler society via enforced separation from and erasure of familial and community ties. As an educative mode of disciplinary power, Residential Schools situated internees and all Indigenous peoples as children: wards of a state whose paternalism appears not only in past abuse but in the present apology, which suggests that the state will better manage the Indigenous people over whom it retains a power to protect or destroy. The apology’s consistency with Harper’s disavowal of colonial history naturalises settler colonialism both ‘at home’ and ‘abroad’. We see here that the ongoing coloniality of settler states conditions their practice of liberal governance as not only Western, or even originally Western, but as universal through its instantiation by settler colonialism. I have argued that settler law presents an apotheosis of Western law by utilising its consanguinal logic to amalgamate and eliminate Indigenous peoples and thereby enable settler states to performatively universalise the West. To the extent that they succeed, then global governance precisely continues, naturalises, and globalises settler colonialism in and as our ‘colonial present’. 36 The Western law universalised by settler states formed precisely by incorporating and excising Indigenous peoples as potentially yet incompletely consanguine with the social body. If settler law as Western law is projected as liberal governance, it follows a principle that it may arrive and settle anywhere, as itself. Such law then encompasses the provisional humanity of all whom it occupies as racialised and primitive children, whose capacity for defiance nevertheless invests the West with a paternal authority to act as caretaker or killer of ‘kin’ under its care. My argument modifies our interest to read Afghanistan or Iraq as sites of settler colonialism, once the United States gathers its allies for occupation. Settler colonialism occurs at these sites not, or not only because the U.S. or other states occupy Afghani and Iraqi peoples. It occurs more importantly because occupation performatively universalises Western governance through the nominal inclusion of Afghanis and Iraqis within its body of law, only to face elimination of their racialised primitivity: if not by being summarily placed ‘outside’ the law, then by being educated and contained through amalgamation as a potentially ever-endangering difference. Western law attains universality by containing and eliminating differences in the functional extension of settler colonialism as liberal governmentality. Yet even as the West and its governance are liberated from attachment to place, their globalisation naturalises ongoing settler colonisation of Indigenous peoples in settler states. Indeed, by permanently remaining in a state of exception to settler law as Western law, Indigenous peoples model this status for all others who come under Western law’s global reach. The settler colonial elimination of Indigenous peoples requires them to have existed and to tenuously exist in settler societies, for only their perpetual replacement demonstrates settlers’ achievement of Western law where it would not otherwise exist.

THEORISING!SETTLER!COLONIAL!BIOPOWER Foucault and Agamben theorised biopower as a present activity that inherits and transforms the deeply historical conditions of Western law. Foucault incited this theory by examining the modern proliferation of procedures to produce the life of the nation in relation to deadly regulation of its others, a process that he argued displaces the power of the sovereign ‘to take life or let live’ with a governmentality that enacts ‘the power to “make” live or “let” die’. 3 Judith Butler emphasises that, for Foucault, governmentality in the modern state or in global regimes acts as an ‘extra-legal sphere’ – ‘an art of managing things and persons, concerned with tactics, not laws’ – that then ‘depends upon “the question of sovereignty” no longer predominating over the field of power’. 4 Hence, governmentality acts in the name of the very sovereignty that it exceeds, producing ‘a lawless sovereignty as part of its own operation of power’. 5 Agamben adapts Foucault’s account of modern biopower as governmentality when he claims that its extra-legal appearance is a recent adaptation of qualities intrinsic to Western law; as he says, ‘it can even be argued that the production of a biopolitical body is the original activity of sovereign power’. 6 Citing the Roman legal origins of Western law, Agamben links sovereignty to a power to designate subjects of the law as homo sacer, the sacred man who may be killed without being sacrificed or made subject to homicide. The placement of homo sacer in a zone of ‘bare life’ establishes Western law precisely by placing it in abeyance in this case. The sacred man enters a ‘state of exception’ to the law that simultaneously reinforces its rule. Agamben notably defines the exception by reference to the camp as ‘in a decisive way the political space itself of modernity’, which by forming a permanent ‘space for (bare) life’ creates a ‘materialization of the state of exception’ as ‘the rule’. 7 Agamben thus reinterprets the biopolitics of the modern state as an effect of Western law’s constitution by the state of exception. In this reading, the function of governmentality to ‘make life’ is compatible with the state of exception remaining intrinsic to law, as consigning certain subjects to a state of bare life (‘let die’) reestablishes a power to produce and defend life among those who remain. Yet significant tensions appear in the work of Foucault and Agamben – and, hence, also in Agamben’s revision of Foucault – in that neither scholar directly theorises colonialism as a context for biopower. Scholars of colonialism respond by arguing that colonialism is intrinsic to processes of biopower in the past and present. Reading Foucault’s account of the modern biopolitical state in relation to colonial situations, Ann Laura Stoler definitively demonstrated that its racial, sexual and national power arise at colonial sites or relationally among colonies and metropoles, not as projections from a European source.8 Following Stoler, modern biopower is the product and process of a colonial world. Achille Mbembe extended such reinterpretations of Foucault in conversation with Agamben by reading the colony as exception, which defines Western law amid the globalisation of European capital and empire.9 Sherene Razack and Sunera Thobani engage all such theories to explain that in contemporary modes of biopower, the colonial returns or never left; and, notably, both centre settler colonialism as a condition of the power they examine.10 Mark Rifkin signally engages Agamben’s theses with settler colonialism by arguing that the ‘geopolitics’ of conquest place Indigenous peoples in a state of exception that simultaneously troubles the territorial and national integrity of settlers as representatives of Western law.11 Together, these scholars respond to colonialism’s elision in theories of biopower by demonstrating that it conditions biopower and critical theory – an intervention deepened by Rifkin’s and my work centreing settler colonialism for study. Addressing these critiques requires adjusting the very advance of Agamben’s argument that biopower is intrinsic to Western law. Michael Dillon identifies a lingering ahistoricity in Agamben’s ‘ontologization’ of Western law that he argues would benefit from a return to Foucault’s genealogical method, which for Katia Genel will result in ‘revisiting and complicating Agamben’s formulations and more complexly applying them’. 12 Theorising biopower from within a genealogy of settler colonialism will trace how deeply historical procedures in Western law confronted the specificities of the era of European settlement and shifted in response. In such a genealogy Agamben remains crucial, given that scholars of settler colonialism may trace biopower to situations that existed prior to the eighteenth and nineteenth century era that Foucault linked to the rise of the modern biopolitical state. Already in the sixteenth century and across the Americas, settler colonialism grew to condition colonialism and biopower in settler and other societies worldwide. The continuity of settler colonialism at these sites up to the present then demonstrates that this periodisation meaningfully explains biopower today. Patrick Wolfe’s theorisation of settler colonialism already incites a genealogy of its biopolitical form. Arguing that ‘settler colonizers come to stay: invasion is a structure, not an event’, Wolfe explains that assertions of sovereignty by settlers ground Western law in ‘a logic of elimination’. 13 Noting that scholars after Raphael Lemkin tend to correlate genocide with extermination, Wolfe argues that settler colonialism performs genocide alongside a variety of practices that converge on a purposed elimination of Indigenous peoples.14 While the erasure and replacement of Indigenous peoples may transpire through deadly violence, Wolfe emphasises that elimination may follow efforts not to destroy but to produce life, as in methods to amalgamate Indigenous peoples, cultures and lands into the body of the settler nation. As Wolfe and Katherine Ellinghaus explain, this amalgamation precisely narrows or erases the possibility of distinctive Indigenous nationalities challenging the prerogative of the settler nation that means to replace them on, now, ‘its own’ lands.15 Wolfe argues that the racialised political economy of ‘franchise colonialism’ intersects settler colonialism, while bearing distinct implications for Indigenous peoples and for racialised peoples brought by settlers to Indigenous lands. In the Americas, for instance, the earliest settlers enslaved Indigenous peoples while producing racialised labour from the transatlantic slave trade and colonised indentured labour, resulting in the formation of franchise colonies that in the sixteenth and seventeenth centuries were among Europe’s most lucrative colonial projects. Yet Wolfe clarifies that these – and their seeming parallel to franchise colonies that appeared across Africa and Asia into the eighteenth and nineteenth centuries – derived from prior and simultaneous settler colonialism. American settler societies formed distinctly when practicing franchise colonialism: often, by removing European migrants to cultivate ‘emptied’ land, while amalgamating Indigenous peoples within societies dutiful to settler productivity; and by creating franchises that require prior and ongoing conquest of Indigenous peoples to exist and sustain. Thus, Wolfe reminds us that even societies defined by the franchise-orientation of European global capitalism – notably, the slave plantation economies of the Caribbean or southern British American colonies, or of colonial Brazil – relied on settler colonialism to function. Wolfe argues that plantation slavery pursued the elimination of Indigenous nations by plying a ‘difference between one group of people who had survived a centuries-long genocidal catastrophe with correspondingly depleted numbers and another group who, as commodities, had been preserved, their reproduction constituting a singularly primitive form of accumulation for their owners’. 16 Of course, slavery also produced a centuries-long genocidal catastrophe by commodifying African people not for survivability but exchangeability. Any seeming ‘preservation’ of Blackness in white settler societies thus was coterminous with the perpetual subjection of Black peoples to spaces of death, while eliding the formation of Black communities precisely through mixture with Indigenous and European peoples. We find here that the biopolitics of settler colonialism arose in the Americas by perpetuating African diasporic subjugation and Indigenous elimination simultaneously. Following Wolfe’s reading, settler colonialism establishes Western law within a white supremacist political economy premised upon the perpetual elimination of Indigenous peoples. As Thobani eloquently affirms, Indigenous elimination then crucially defines the state of exception in the Western law of settler societies.17 While I will examine specific modes of governance placing Indigenous peoples in exception to Western law, I emphasise first that their settler colonisation informs any simultaneous or subsequent appearance of the state of exception in settler societies or other sites of European colonisation. This analytical qualification is necessary to complicate and deepen recent theories of the colony as exception. For instance, Mbembe and Paul Gilroy portray the transatlantic slave trade creating slave societies in the Americas in a state of exception, a claim Gilroy advances by framing them precisely as a camp.18 Yet Wolfe’s reading, which I think affirms theirs, specifies that the transatlantic slave trade formed amid a prior, simultaneous and continuous exception assigned to Indigenous peoples, which conditioned Western sovereignty on the lands where the African diaspora took form. Indeed, the space-outside-law defining Agamben’s reading of the camp defines slave societies only to the extent that the lands placed in exception to terminate Indigenous tenure became available to new biopolitical violences, even as this naturalised the settler violence enabling them. The implications of such an analysis echo within and also shift Mbembe’s account of colonialism and biopower. Mbembe’s reading of ‘necropolitics’ as the logic of the colony as exception references plantation slavery ‘as one of the first instances of biopolitical experimentation’, and then frames relations among African diasporic peoples and white settlers as emblematic of the racialisation of colonialism.19 Mbembe later cites ‘the extermination of vanquished peoples’ assigned the status of ‘savages’ within a list of effects of colonisation worldwide, but without specifically naming Indigenous peoples in settler societies. 20 Following Wolfe, we can read extermination as a biopolitics originary to the settler colonial situations that conditioned enslavement on settled land. While Mbembe is aware that settlement in the Americas appears in his story, it remains oblique, seemingly absorbed within a more general object, ‘colonialism’. This object then appears in his account to be more definitive of populations framed as suffering it in perpetuity, at the expense of bodies that, here, appear erased from its history. In Mbembe’s emphasis on the genocidal colonial violence perpetrated against Africans and peoples of the African diaspora we hear an unintended echo of the logic of elimination defining settler colonialism. As Wolfe argues, that logic places African diasporic peoples under a perpetual subjugation that attempts to naturalise their relational formation to Indigenous elimination and the ‘emptying’ of Indigenous lands. Mbembe further argues that the past of necropolitics informs the present when it recurs in ‘late modern colonial occupation’. 21 Given his prior claims, this temporalisation occludes settler colonisation of Indigenous peoples as significant to the past or present of necropolitics, even as it prevents settler colonialism from being definitive of the present despite never having ended. Indeed, for the United States – a key object of Mbembe’s critique – the visitation of late modern colonial occupation beyond ‘its’ borders transpires only to the extent that the United States simultaneously perpetuates colonisation upon the Indigenous peoples it necessarily occupies. Had Mbembe centred this quality in his account of colonialism, we could ask how late modern colonial occupation acts precisely and continuously as settler colonial, with its global projections being the activity of a settler colonial power that does not cease. Asking this question would resituate our interest in late modern colonial occupation from trying to explain colonialism’s continuation despite its nominal demise, to considering how the failure of decolonisation attends on its failure to be sufficiently extended to settler states and the institutions through which they project settler colonial power in the contemporary world.

China’s rapid expansion is a growing concern to many in the west, yet the history and pattern of its meteoric rise is deeply misunderstood. Surprisingly, its rise may bear many similarities with that of the rise of many western states. This paper will examine a constellation of China’s territorial and cultural expansions. Furthermore, it will examine ongoing and future expansions of the Chinese empire. It will examine Chinese actions in Tibet, the Yunnan province, the Guizhou province, Taiwan, the Belt and Road Initiative, and examine China’s ongoing treatment of Uyghur Muslims. These subjects will also be qualitatively compared to settler colonial theories, as described in a western context, to uncover similarities and points of contention to determine if the rise of the Chinese empire is mostly explained by theories of settler colonialism. Settler colonialism is a unique form of colonization that extends beyond what one normally imagines a colonized area as. It includes the removal of indigenous peoples from their land and the subsequent replacement with the colonizing group. This process includes the removal of not only the people, but also their culture, symbols, and everything that could leave a trace that indigenous people were there. Furthermore, as this process is being completed, deep denial takes place whereby settlers act as if the land was rightfully theirs. This brutal act is called settler colonialism and is generally theorized into four stages: discovery, displacement, destruction, and denial. One should not slip into the easy habit of conceptualizing these stages as events on a linear progression of history, rather these stages attempt to describe an ongoing structure. Each stage occurs simultaneously and folds into one another to create the form of settler colonialism that is largely responsible for the geopolitical landscape of the world today and is typically expressed in terms of race. Discovery is the first step of settler colonialism. While no land that has people already living on it is ever truly “discovered” in the scientific sense, the existence of indigenous land becoming visible to those who will soon become settlers is critical to settler colonialism. Even the grammar associated with a settler’s “discovery” of indigenous lands is itself a form of settler colonialism whereby the perspective of the settler group is already assumed as the starting point for discussions of land – if it is new to the settlers then it must be ontologically new. Furthermore, it is from the starting point of centering discourse around the perspective of the settler that all future acts of settler colonial violence must then be justified. Indigenous cultures and peoples are displaced and destroyed to make room for settler people and cultures that have been valorized as morally superior. This discovery process is most visibly seen in Christopher Columbus’ discovery of the New World. The perspective of the Spanish settler was so emphasized that because he thought he was sailing for India the individuals he met were called Indians, even though they bore no relation to the Indians of the Indo-Pacific. The displacement of indigenous people from their lands is perhaps the most psychologically violent aspect of settler colonial violence. It is not that the land your forefathers is no longer fit to be habitable to life, it is that is no longer so for you in particular. It is, however, perfectly habitable for the settlers. Displacement sometimes involves the removal of people to a particular area or the continual resignation of them to evermore restrictive parcels of land; other times displacement is merely a statement that indigenous people simply must no longer live here. Displacement is seen in many places. Most famously, perhaps, is the Trail of Tears where the Cherokee Nation and four other “civilized tribes” in southern America were relocated to Oklahoma. Trekking countless miles and swamps and crossing frost-crusted mountains, many perished from exhaustion, diseases, and untreated wounds. Destruction under settler colonialism holds many parallels to genocide. Settler colonialism operates through a logic of elimination whereby all remnants of indigeneity must be reduced to nothingness. All instances of settler colonialism share this in common. Often, elimination occurs by breaking down indigenous lands and giving them to settlers, giving citizenship to settlers and later denying it to indigenous peoples, and imposing settler religions and belief systems on indigenous peoples, among other structures erected with the singular purpose of eliminating indigenous people and culture while engraining those of the settlers. One of the most prolific instances of this is found in boarding schools’ attempts to train and civilize indigenous groups. The Carlisle Indian School changed names, religions, languages, haircuts, clothes, and ways of life of ingenious groups in an attempt to assimilate them into Western culture. This amounted to an eradication of indigenous culture, even within individuals. Denial is perhaps the most sinister of all the stages of settler colonialism. It is the active disavowal and refusal to acknowledge that settler colonization ever occurred. In this act of denial lies a silent admission of guilt. The whole process is so horrific that a conscious and honest admission of guilt is too great a burden to bear. So, the process is buried. Erased from history books. Justified by religious creeds. Anything but a naked acknowledgment of the truth. One instance of China’s settler colonial behaviors may be seen through its occupation of Tibet. China first invaded Tibet in 1950 and then later annexed it. In 1951, China signed a treaty, called the Seventeen-Point Agreement, with Tibet to recognize the Tibetan cultural and political sovereignty and independence from China. Soon, Chinese citizens moved to Tibet and became more and more involved and integrated into Tibetan culture. They disseminated Chinese ideas, beliefs, and practices to Tibetan individuals, even sharing with them that clapping was a sign of welcome. Additionally, Chinese officials gave silver coins to everyday people in Tibet to garner trust and good relations. In 1956, China opened a school in the Sakya region of Tibet intended to train a new generation of political leaders. In these schools, it was Chinese culture and beliefs that were taught, not traditional Tibetan culture. Then, the Chinese schools began suggesting that the traditional Tibetan schools be merged with the new Chinese ones, and many complied. In these schools, as it would soon be known, the Chinese began teaching the young how to be early Marxist revolutionaries who would create a peaceful revolution and overthrow the Tibetan government under the guise of spreading modern, industrial ideas. Tibetans were also invited to travel to China to observe their factories and societies. The vast majority of this sharing of culture was directed at the ruling classes of Tibet and the children of all classes. The Chinese government also began the extensive construction of strategic roads and infrastructure in Tibet that would become vital to the conquest of Tibet under the guise of industrial modernization. The indoctrination and persuasion of the Tibetan masses were so deeply ingrained that when the People’s Liberation Army first entered the Tibetan borders, they were assisted by Khampas, despite their strong ties to the Dalai Lama. As regions were successfully “liberated” by the PLA, local and high lamas (religious leaders) were detained and charged with treason against China. High lamas were asked to attend education programs that were soon to be known as Chinese reeducation camps. Ordinary members of the upper class were likewise arrested for treason, save two families. The Chinese soon forced Tibetans to attend re-education programs where religious leaders were routinely beaten and humiliated as well as forcing those same leaders to deface Tibetan religious artifacts. They were taught to despise their religion. Private worship was also strongly discouraged. Private life also became heavily conscripted by governing authorities. Today, it is clear that Tibet was a settler colonial expansion of the Chinese empire. Art, literature, poetry, and songs that are traditionally Tibetan, if shared, risk a state response by the People's Republic of China. The use of the Tibetan language is itself seen as an act of resistance to the settler state’s presence in Tibet. There are, however, forms of resistance that the Tibetan people are performing to stand in opposition to the strong and concerted effort to eliminate all Tibetan culture. Beyond the spread of Tibetan art, literature, and language, the Tibetan people attempted to become unknowable to the PRC. This act of willful opacity is a means by which occupied people can exist in relative freedom from the settler colonial empire. For instance, in Kham, there is a community of nuns who exist in a perpetual state of motion by building structures in a confusing and disorienting manner in resistance to PRC mandates for easily understood building practices that align with their hegemonic demands. They also, along with other Tibetans, attempt to disseminate the history of Tibet to their people in a way that the PRC does not support. This supports teaching Tibetan people’s history as independent rather than dependent on Chinese culture. The images of the Tibetan monk, bandit, and freedom fighter are often used to this end. Furthermore, teaching history with Lhasa (the traditional Tibetan capital) as the focal point rather than Kham (a Tibetan borderland that is often the focus of the Chinese). Despite these everyday acts of resistance, the elimination of Tibetan culture is still a violent reality. China, even today, is expanding boarding schools for children to inculcate them with the ideals of the Chinese Communist Party, much like the indigenous experience with Western boarding schools in the Americas. Students in these schools are strictly forbidden from practicing their native religion. These efforts have been so successful that only a meager 22% of Tibetan children do not live in these boarding schools. The relocation of massive amounts of Han people into Tibet has also been a strategic attempt by the PRC to eliminate Tibetan culture. Chinese settler colonialism is also not a recent trend in Chinese history. Many view China as a relatively homogenous society without internal conflict but this is patently false. In the 1680s, following the anti-Qing rebellion, the emperor announced his intentions to relocate Han farmers from the interior of China to the southwestern portions of China (Yunnan and Guizhou). These farmers were intended to capitalize on vast swathes of unproductive land and cultivate them to support more population growth. Furthermore, these farmers were granted tax incentives from the emperor to perform this labor and once those tax incentives ended, the farmers were given ownership of the land. These Han settlers were primarily sent to regions of the southwest that were most staunchly opposed to the Qing empire. They were also strongly encouraged to extract as much value as possible from the land as possible, even at the expense of future cultivation. This land acquisition of indigenous land is a hallmark feature of settler colonialism. The terrain, however, proved extremely difficult to cultivate due to the rugged landscape and steep slopes of the Himalayan Mountain range. Non-Han, indigenous individuals, called tusi, were hand-selected by the Chinese empire to be “leaders” in the region in an attempt to better solidify the rule of the Qing empire. The acceptance of these titles was seen as an act of submission in the eyes of the Qing leaders. The elevated status of the Tusi was accompanied by preferential treatment by the empire, the promise of military support if an uprising were to occur, and favorable access to Chinese markets. In the following years of the settlement of the Yunnan and Guizhou regions, there were soon instituted conditions for becoming eligible for imperial positions. Individuals had to be educated in Han schools and pass a literacy test. This was a consorted effort to elevate only those members of society who were willing to submit to the hegemonic Qing empire’s customs. This process was not entirely as successful as it was intended to be because many of the Han settlers, once the tax incentives subsided, left the region and farmland to avoid paying taxes. The solution to this was to militarily occupy the southwest. The Qing Empire ordered its military to occupy the region permanently. Furthermore, those in the southwest who were found to be loyal to the revolution were ordered to be killed. Furthermore, many of the tusi were found to be harboring and protecting fugitives who had supported the uprising. This historic instance of land acquisition in Chinese history shares many similarities with traditional theories of settler colonialism. It relocated mass amounts of non-indigenous Han people to the southwestern portions of what is now China and granted those settlers ownership of land. It eliminated many individuals who resisted this process. However, this event in the Qing empire did not make as great of an attempts at exterminating the cultural practices of the Yunnan and Guizhou people. It also did not attempt to relocate them to other areas. The settler colonialism practiced by the Qing Empire did not end once they were usurped by the Chinese Communist Party. Rather, in their dying throws they are engaging today in yet another form of settler colonial expansion in Taiwan. The colonization of Taiwan has been occurring since the seventeenth century by several nations beginning with the Dutch and ending with Qing China in the present day. Chinese nationals have been consistently moving to Taiwan gradually displacing the indigenous populations named shoufan (crooked savages) on the plains of Taiwan and shengfan (raw savages) in the high mountainous regions. There was, however, a brief period of Japanese occupation from 1895 until the end of WWII following China’s defeat in the Sino-Japanese War. Following Japan’s defeat in WWII, the island returned to Chinese hands. Following the Kuomintang (KMT) regime’s defeat by the Chinese Communist Party, they fled to Taiwan as “true Chinese” bent on establishing a true Chinese state. They renamed indigenous populations yet again as shandi tongbao (mountain compatriots). The KMT rewrote and disseminated the rewriting of history to teach indigenous populations that they were fellow Chinese citizens rather than a distinct Taiwanese group. They explained the differences between the KMT and indigenous groups by alleging that the indigenous groups simply fled mainland China long before the KMT arrived “home” in Taiwan. Despite the majority of ethnographical data pointing to the Malay Archipelago as the origin of the indigenous Taiwanese populations, these rewritings of history continue to claim that they were also a product of mainland China. Most of the historical proofs they used to substantiate these claims originated from Qing dynasty texts that were heavily biased like the Fengshan Xianzhi and Taiwan Fuzhi. They cited historical similarities like wooden clappers to call people together, worshipping dogs, chipping teeth intentionally, hanging coffins over cliffs, customarily clean-shaven men, moving houses following a family member's death, the status and value associated with items dyed blue, bows and arrows constructed of bamboo, and the “swallowing mouth” seen in many sculptures. This rescripting of Taiwanese indigenous populations as originating from mainland China served the purpose of justifying the settler colonial practices that the KMT and Qing dynasties enacted. It is not the erasure and belittling of indigenous culture, it is rather reuniting it with its originator. Furthermore, recent scholarly endeavors indicate that there is a high probability that indigenous Taiwanese populations originate from Austronesia and Indochina with a very low probability that they are from mainland China. There are, however, recent developments in the settler colonial experience in Taiwan. There is a growing movement to locate the national identity of the inhabitants of Taiwan with Taiwan itself, rather than with mainland China. This is an effort to push for greater levels of independence from the PRC. In 2000, the first president of Taiwan was elected who was not associated with the KMT. This was followed by expanded rights and recognition of indigenous people in Taiwan. Patrick Wolfe’s statement that settler colonialism is stronger than regime change is particularly relevant in this period of Taiwanese history. Around this period, there became a wave of scientific experiments and studies that claimed that the inhabitants of Taiwan had a distinct DNA sequence that distinguished them from their Chinese counterparts. This definition of indigeneity as explained by blood mirrors the one-drop rule that was used in the colonization of the Americas. It ignores the importance of non-biological foundations of indigeneity like cultural practices. Soon, however, holes were found in these studies. For instance, many Han individuals shared the “indigenous genes” while 15% of Taiwanese indigenous people did not have those genes. Perhaps the most visible expression of China’s settler colonialism can be seen in the mass incarceration of Uyghur Muslims in Xinjiang. Uyghur Muslims are indigenous to the region. Over the rapid settling of the region, the Han population of Xinjiang rose dramatically which resulted in the population of Uyghur falling from 74.7% of the population to 46.1%. The territory is referred to as an “autonomous region” but it is in reality under strict control by the Chinese Communist Party. Much like the Qing practice of appointing tusi, the CCP has appointed local “leaders” in the region to enforce the state's rules. However, the region is largely governed by the Xinjiang Production and Construction Corps which are 90% Han. The dispossession of Uyghur land started in 1949. Before the CCP arrived, land was distributed in the traditional Islamic practice of land tenure where land was held by mosques or nobles. The indigenous populations were largely pastoral. The land was “voluntarily” given up and placed in the hands of Imams who were appointed by the Chinese Islamic Association. Muslim faith leaders were sent to education camps to learn the proper way to practice Islam which included the hanging of portraits of Mao in mosques and preaching about working class solidarity. Poor people, too, were placed in education camps. The Hitlerian conditions of these camps are horrendous and often include forced labor. Cattle herders were also forced to exchange their cattle for more acceptable forms of agriculture. Han people were also forced to relocate to the region. The Han population increased from an original 150,000 in 1954 to almost 1.5 million by 1966. Furthermore, marriages between Han men and Uyghur women are encouraged by the CCP. The offspring of these marriages and be classified as Han or Uyghur, but not both. additionally, once the child reaches 18 years of age, they can decide if they wish to remain whatever their parents classified them as. Overwhelmingly, people choose to be classified as Han which has resulted in a substantial reduction in the Uyghur population in reportings. In response to the brutal settler colonialism, Uyghurs have engaged in peaceful protests, bombings, and knife attacks. However, these momentary acts of resistance have only been used by the CCP as justification for their actions. They are not purging China of all non-Han ethnicities, rather they are tamping down violent religious extremists. This act of justification is strikingly similar to the way that the American Western states justified the violence they committed against indigenous populations by scripting them as “brutal savages.” Despite there being explicit protection of all minorities and their rights to freely practice their religion, the lack of state sincerity means that these provisions are merely parchment barriers that do little to protect the routine violation of the human rights of Uyghur Muslims. There is perhaps a future of Chinese settler colonialism that can be found in their Belt and Road Initiative (BRI). This project is primarily focused on Africa but does influence in South America and other regions. Under the BRI, China seeks to reshape global trade in a more Sinocentric manner with itself becoming increasingly integrated into the rapidly emerging markets of Africa. This project has most notably impacted Kenya, the Maldives, and Kyrgyzstan. The BRI involves the CCP spending substantial resources on infrastructure development in underdeveloped countries. Many countries welcome this investment with open arms but the CCP often stipulates that Chinese workers be the ones who do the construction and that those workers get full citizenship. These Chinese nationals then sway the electorate in a given country to reflect the beliefs and practices of Chinese culture. Furthermore, this infrastructure is built on a loan and if a country cannot repay a loan, then the workers who build the infrastructure become the owners of the land. This is a direct form of displacement. The BRI is very new in its progress and much is still to unfold. One cannot help but note many similarities between the actions China is taking now and the early actions of other settler colonial states and even early experiences of Chinese settler colonialism. Citizenship rights for construction workers seem to be a more subtle means of displacing indigenous populations. The construction of infrastructure mirrors the European settler-colonial model as well as the Chinese experience in Tibet. While there has yet to be a concerted effort at elimination, it is a startlingly real possibility that must be considered in the future. China has a long and wandering history. Over the centuries it has risen to be one of the most powerful players on the international stage. Much of this rise has occurred because of the employment of settler colonial practices whereby a dominant racial group moves into a region inhabited by indigenous groups, dispossesses them of their land, replaces and eliminates the existing culture and peoples, and then acts as if the aforementioned process did not take place. Because no one of these elements is a singular event but rather points to a structure, the actions of China in Tibet, Yunnan, and Guizhou, Taiwan, against the Uyghur Muslims, and most recently with the Belt and Road Initiative, all illustrate strong examples of how China expanded its empire through processes of settler colonialism.

In October of 2023, the New York Times published an article entitled: “Maybe in Your Lifetime, People Will Live on the Moon and then Mars”. NASA landed on the Moon for the first time over half a century ago, and by 2040 they plan to return—this time, to stay. Outer space colonialism is usually believed to belong to the world of science fiction. But there are very real projects currently underway to ensure that both astronauts and civilians can survive for lengthy periods on the Moon, and thus begin the process of settling space. This includes, for instance, developing 3D printers that could construct homes with the capacity to withstand conditions on the Moon—such as temperatures upwards of 600 degrees, a “vicious combination of radiation and micrometeorites”, and Moon dust “so abrasive it can cut like glass . . . [which] swirls in noxious plumes and is toxic when inhaled” (Kamin 2023).

As I detail in my article in the American Political Science Review (Utrata 2023), there are many reasons why one might object to colonies on the Moon. These include the enormous emissions in the midst of the climate catastrophe (Rubenstein 2022; Utrata 2021); the continued dispossession of indigenous lands and displacement of vulnerable communities for rocket launch sites (Sammler and Lynch 2021) and entrenchment of coloniality and colonial relationships (Trevino 2020; Bawaka Country et al. 2020); or the risk of geopolitical conflict and militarization of space (Deudney 2020). However ill-advised colonizing outer space might be, it is often assumed to be fundamentally different from earthly colonialism for one key reason: outer space is actually empty. As Mary-Jane Rubenstein (2022, 158) puts it: Corporate space enthusiasts insist that the game is different this time because the lands they’re aiming for aren’t inhabited… when it comes to space… we can finally feel good about frontierism because we’ve finally got an empty frontier. In this article, I want to draw out one aspect of my critique about outer space colonialism and its claim to have found genuinely “empty space”, both for what it suggests about the ethics of settling space as well as what it reveals about terrestrial colonization. The problem with colonialism—whether in outer space or on Earth—cannot simply be reduced to a matter of whether spaces are or are not “empty”. Calling something empty presupposes a certain conceptualization of relating to that space, and already begins the process of legitimating and imposing certain forms of (territorially-based) political rule. Space colonies, as David Valentine (2017, 187) has noted, are often purported to offer “a libertarian hope that conscious effort and free enterprise in places where—as I have frequently heard said—“there are no natives” will fix things so that humans can do a more equitable job of colonialism this time around”. For its Silicon Valley supporters, outer space is something of a “technological solution” (to borrow Morozov’s 2013 term) to the ethical issues of colonialism. If new technologies can allow humans to reach lunar lands which are genuine terra nullius, or empty spaces—then what’s wrong with colonizing outer space? Imagining outer space as an “empty frontier”, however, is a conceptual invention: it relies on the process of territorialization—or imagining space as geospatial plots of territory which can be claimed as territorial property. Notably, this conceptual transformation also underpinned earthly colonialism and indigenous dispossession. As Robert Nichols (2018, 14) has argued in his phenomenal work Theft is Property!, indigenous dispossession can be understood as “a process in which new proprietary relations are generated but under structural conditions that demand their simultaneous negation”. Many indigenous communities, as Nichols points out, did not and do not think that land can be owned as territorial property; yet they still contest that their lands were stolen, a form of theft that presupposes a property right. Nichols explains that dispossession can be coherently understood as a simultaneous transformation and transfer of property. In other words, earthly colonizers transformed land into geospatial plots of territory at the same time that they claimed it for themselves. We can see this conceptual transformation occurring in real time in the night skies. Currently, for instance, the Moon is often conceptualized as a form of light. As light, no individual is understood to exclusively own it. All communities on Earth make use of the Moon’s light, whether they be astronomical researchers, celestial navigators, animals or any person gazing at the night sky. When satellites or cities obscure this light from the skies, all communities have the right to object to “light pollution” because no one is understood to have a greater or exclusive property claim on natural light. However, in 2022, a report from the Adam Smith Institute called for the establishment of a homesteading system to allocate “plots of Moon land” in an effort to preempt a celestial land rush (Lowe 2022). In this conception of the Moon, the celestial body is no longer understood as light—but as territory. While this may seem an innocuous or indeed even logical suggestion, it in fact relies on a fundamental reconceptualization of outer space which structures and imposes political relationships. As Morris Cohen (1927, 12) noted: “a property right is a relation not between an owner and a thing, but between the owner and other individuals in reference to things… dominion over things is also imperium over our fellow human beings”. Thus, a transformation of how space ought to be conceptualized—as light or as land—implies and imposes a certain understanding of property and political rule. As owners of territorial property, individuals have the right to exclude others from its use. This will almost certainly require or depend on the coercive force of states, corporations, or settlers to enforce. Inventing territory thus has political consequences. It constructs both what rights individuals or communities are understood to have over spaces—and therefore one other—as well as formulating the political authority and structures which uphold and enforce those rights, such as states. Would-be space colonists argue that outer space, unlike indigenous lands, is truly empty. However, space is only empty if we understand it to be a potential site of territory. To call outer space an “empty frontier” is thus to already impose a territorial conceptualization of property onto that space—and to begin the process of colonialism. However, this is not the only way to conceptualize spaces. For instance, many communities also consider the Moon to be a person, a spiritual or divine being, an ancestor or relative (Rubenstein 2022; Bawaka Country et al. 2020). Māori indigenous communities consider natural entities on Earth such as the rainforest Te Urewera, the volcanic mountain Mount Taranaki, and the river Whanganui to be persons, who in effect exercise a form of self-ownership (Nichols 2020). These different conceptualizations change the way human communities relate to these spaces and thus construct different political relationships in determining how to treat them. Currently, for instance, Te Urewera, Mount Taranaki, and Whanganui are cared for by shared guardianship between Māori tribes and the government of New Zealand (ibid). Outer space colonialism is not without its wrongs and will not be without its harms. Violence and coercion are fundamental to how territorial property relations are structured and upheld, whether on Earth, the Moon, or Mars. While the invention of rocket ships and 3D printers that can build houses on the Moon may further solidify and catalyze these settler processes, they are underpinned by conceptual, political, and legal inventions about how we ought to relate to these spaces. The empty frontier must be invented. But it’s possible to imagine something else.

Lost in the cacophony surrounding the debate about high drug prices is the fundamental principle that pharmaceutical innovation will not occur without the prospect of outsized returns enabled through market exclusivity. Biopharmaceutical patents are currently under siege, subject to challenge both in inter partes review (“IPR”) proceedings and in Hatch-Waxman actions. These twin assaults threaten to eliminate the incentives necessary for biotechnological innovation—particularly for discoveries made upstream in the innovation pipeline—thus imperiling the development of new drug therapies. But a fascinating solution has emerged: invoking tribal immunity to shield pharmaceutical patents from IPR before the Patent Trial and Appeal Board (“PTAB”). This serves two critically important objectives: promoting tribal self-sufficiency, and encouraging investment in life-saving and life-improving new drugs. Contractual partnerships between Native American tribes and pharmaceutical companies not only provide the tribes with a steady stream of royalty revenue, but also insulate biopharmaceutical patents from challenge in IPR proceedings through the invocation of longestablished principles of tribal sovereign immunity. This Note is the first piece of scholarship to comprehensively analyze, and advocate for, the right to invoke tribal sovereign immunity in IPR proceedings. Copyright © 2019 Daniel C. Kennedy. † Duke University School of Law, J.D. expected 2019; College of William & Mary, B.A. 2015. I am deeply grateful for the insight of Professor Arti Rai in drafting this Note, Professor Buz Waitzkin for inspiring it, and the Duke Law Journal team for their spot-on suggestions and revisions. I would especially like to thank my mother for lending her expertise and supporting a fellow English major’s attempt to tackle patent law. 1434 DUKE LAW JOURNAL [Vol. 68:1433 INTRODUCTION In June 2017, the St. Regis Mohawk Tribe (“St. Regis Tribe”) adopted a Tribal Council Resolution endorsing the creation of a “‘technology and innovation center for the commercialization of existing and emerging technologies,’ called the Office of Technology, Research, and Patents.”1 Effective September 8, 2017, the St. Regis Tribe entered into a contractual relationship with Allergan Inc. (“Allergan”), a biopharmaceutical company.2 Allergan, pursuant to the parties’ agreement, assigned to the St. Regis Tribe a portfolio of patents related to Restasis (collectively, the “Restasis patents”), a prescription drug for the treatment of dry eye.3 Allergan also agreed to pay the St. Regis Tribe $13.75 million immediately, as well as a royalty of up to $15 million per year until the patents expire in 2024.4 For its part, the St. Regis Tribe granted Allergan “an irrevocable, perpetual, transferable and exclusive license” in the Restasis patents.5 Allergan was thus “granted the first right to sue for infringement with respect to ‘Generic Equivalents,’ while the Tribe [was granted] the first right to sue for infringement unrelated to such Generic Equivalents.”6 At the time that Allergan assigned the Restasis patents to the St. Regis Tribe, the Patent Trial and Appeal Board (“PTAB”) had instituted inter partes review (“IPR”) of those patents, based on petitions filed by Mylan Pharmaceuticals, Inc.7 On September 22, 2017, the St. Regis Tribe asked the PTAB to dismiss the pending IPR proceedings, arguing that tribal sovereign immunity inoculated those patents from challenge before the PTAB.8 1. Mylan Pharm. Inc. v. Saint Regis Mohawk Tribe, Nos. IPR2016-01127, -01128, -01129, - 01130, -01131, -01132, 2018 WL 1100950, at *2 (P.T.A.B. Feb. 23, 2018) (per curiam) (citation omitted). 2. Id. 3. Id.; the patent numbers for these patents are U.S. Patent Nos. 8,685,930, 8,629,111, 8,642,556, 8,633,162, 8,648,048, and 9,248,191. 4. Mylan, 2018 WL 1100950, at *3, *12. 5. Id. at *3 (citation omitted). 6. Id. The license between the St. Regis Tribe and Allergan states that a “Generic Equivalent” is “a drug product that requires [Food and Drug Administration (“FDA”)] approval for sale in the United States, including those products covered by an Abbreviated New Drug Application (ANDA) for which Allergan’s Restasis product is the listed reference drug.” Id. at *8. 7. Id. at *1. 8. Id. 2019] STRANGE BEDFELLOWS 1435 On February 23, 2018, the PTAB instead issued a decision denying the St. Regis Tribe’s motion to terminate proceedings.9 It held that tribal immunity does not apply to IPR proceedings given that such proceedings were created by statute, and because they are “not the type of ‘suit’ to which an Indian tribe would traditionally enjoy immunity under the common law.”10 The PTAB concluded, moreover, that the St. Regis Tribe had not identified any statute or controlling precedent requiring the application of tribal sovereign immunity in IPR proceedings.11 In addition, although the panel recognized that previous PTAB decisions had concluded that state sovereign immunity could be applied to shield patents from IPR review, it held that these decisions were distinguishable—a conclusion this Note argues is erroneous. 12 Following the St. Regis Tribe’s and Allergan’s appeal of the PTAB’s holding, on July 20, 2018, the Federal Circuit issued an opinion incorrectly concluding that tribal sovereign immunity does not apply to IPRs.13 The Federal Circuit panel relied primarily on the Supreme Court’s analysis in Federal Maritime Commission v. South Carolina State Ports Authority (“FMC”),14 in determining that “[g]enerally, [sovereign] immunity does not apply where the federal government acting through an agency engages in an investigative action or pursues an adjudicatory agency action.”15 Yet, the panel conceded that, “IPR is neither clearly a judicial proceeding instituted by a private party nor clearly an enforcement action brought by the federal government.”16 It also acknowledged Supreme Court precedent that sovereign immunity is applicable during administrative adjudications between private parties.17 The panel, however, ultimately determined that “IPR is more like an agency enforcement action than a civil suit brought by a private party,” and thus concluded that “tribal immunity is not implicated” in IPR proceedings.18 9. Id. at *2. 10. Id. at *6. 11. Id. at *3–6. 12. Id. at *3 n.4. 13. Saint Regis Mohawk Tribe v. Mylan Pharm. Inc., 896 F.3d 1322, 1327–29 (Fed. Cir. 2018). 14. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002). 15. Mylan, 896 F.3d at 1325. 16. Id. at 1326. 17. Id. at 1326–27. 18. Id. at 1327. 1436 DUKE LAW JOURNAL [Vol. 68:1433 But, contrary to the Federal Circuit’s rejection of the applicability of sovereign immunity, courts and the PTAB have repeatedly allowed state universities that own and license patents to assert sovereign immunity from IPRs.19 Yet, apparently, Native American tribes have no corresponding right to deploy sovereign immunity to shield their patents from IPR scrutiny.20 By drawing such a distinction, the PTAB and Federal Circuit departed from well-established precedent on the scope of tribal immunity. As the Supreme Court has made clear, Native American tribes possess “inherent sovereign authority.”21 Therefore, “[a]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit, or the tribe has waived its immunity.”22 Although many have criticized the partnership as a “sham,”23 the St. Regis Tribe’s contract with Allergan is a proper exercise of its sovereign authority, serving both to protect the Restasis patents and to provide the tribe with a much-needed revenue stream. Moreover, using tribal sovereign immunity to shield pharmaceutical patents from IPR scrutiny protects and promotes biotechnological innovation; more broadly, strong patents—like the Restasis patents—are critically important in encouraging investment in the development of life-saving and life-enhancing drug therapies.24 The costs associated with biotechnological innovation are high,25 and allowing tribal immunity to be used to protect pharmaceutical patents would help to ensure that 19. See, e.g., Reactive Surfaces Ltd. v. Toyota Motor Corp., No. IPR2016-01914 (P.T.A.B. July 13, 2017) (holding that Regents of the University of Minnesota could not be compelled to join the proceeding); NeoChord, Inc. v. Univ. of Md., No.IPR2016-00208 (P.T.A.B. May 23, 2017) (granting the University of Maryland immunity from the proceeding); Covidien LP v. Univ. of Fla. Research Found. Inc., No. IPR2016-01274, -01276, -01276 (P.T.A.B. Jan. 25, 2017) (determining that the University of Florida Research Foundation was entitled to sovereign immunity as an arm of Florida). 20. Mylan Pharm. Inc. v. Saint Regis Mohawk Tribe, Nos. IPR2016-01127, -01128, -01129, -01130, -01131, -01132, 2018 WL 1100950, at *2 (P.T.A.B. Feb. 23, 2018) (per curiam). 21. Okla. Tax Comm’n v. Citizen Band Potawatomi Tribe of Okla., 498 U.S. 505, 509 (1991). 22. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 754 (1998). 23. See, e.g., Allergan, Inc. v. Teva Pharm. USA, Inc., No. 2:15-cv-1455-WCB, 2017 WL 4619790, at *2–3 (E.D. Tex. Oct. 16, 2017) (noting that Allergen’s transactions with the St. Regis Tribe have circumstances that are “frequently encountered in sham transactions”). 24. See PHRMA, BIOPHARMACEUTICAL RESEARCH & DEVELOPMENT: THE PROCESS BEHIND NEW MEDICINES 6 (2015), http://phrma-docs.phrma.org/sites/default/files/pdf/ rd_brochure.pdf [https://perma.cc/FC2G-WG2T] (noting the importance of intellectual property for pharmaceutical research and development). 25. See id. at 1 (estimating the “average cost to research and develop each successful drug . . . to be $2.6 billion”). 2019] STRANGE BEDFELLOWS 1437 the enormous costs associated with new drug development can be recouped. Part I of this Note sketches the legal background of IPR proceedings. Part II discusses the threats facing biopharmaceutical innovation from IPR proceedings, including IPR petitions brought by hedge funds. Part III argues that both the Federal Circuit and the PTAB incorrectly determined that tribal sovereign immunity could not be used to shield patents owned by the St. Regis Tribe from IPR challenge. Finally, Part III also contends that sovereign immunity can and should be used to protect biopharmaceutical patents and to encourage new investments in drug innovation and development. I. A BRIEF OVERVIEW OF IPR AND SOVEREIGN IMMUNITY This Part provides critical background information on the patent system and the type of post-grant proceeding at issue in this Note: IPR. It then provides a primer on the concept of tribal sovereign immunity, upon which the St. Regis Tribe contends that the Restasis patents are not subject to IPR review. A. IPR Challenges The federal government’s power to issue patents stems from a constitutional provision that authorizes Congress “[t]o promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries.”26 The Patent Act of 1790 granted the Secretary of State, the Secretary of War, and the Attorney General the authority to examine patent applications and issue patents.27 Congress then created the Patent Office in 1836, giving it broad power to “execute, and perform, all such acts and things touching and respecting the granting and issuing of patents for new and useful discoveries, inventions, and improvements.”28 And in 1952, Congress provided the Patent and Trademark Office (“PTO”) with the authority to promulgate rules “for the conduct of proceedings in the Patent Office.”29 26. U.S. CONST. art I, § 8, cl. 8. 27. Patent Act of 1790, ch. 7, § 1, 1 Stat. 109, 109–10. 28. Patent Act of 1836, ch. 357, § 1, 5 Stat. 117, 117–18. 29. Patent Act of 1952, Pub. L. No. 82-593, § 6, 66 Stat. 792, 793. 1438 DUKE LAW JOURNAL [Vol. 68:1433 More recently, the Leahy-Smith America Invents Act30 (“AIA”) was signed into law on September 16, 2011.31 Put simply, it was the most significant overhaul of patent law in more than half a century.32 The AIA gives the PTO expanded authority to reconsider the patentability of claims in issued patents.33 It replaced inter partes reexamination with IPR, an administrative procedure that allows a third-party challenger34 to petition the PTO to reexamine the claims in an issued patent and to cancel any claims the agency finds to be unpatentable in light of the prior art.35 IPRs proceed in two phases.36 In the first phase, the PTO determines whether to institute IPR.37 In the second phase, the PTAB conducts the IPR proceeding and issues a final written decision.38 A party in an IPR proceeding who is “dissatisfied with the final written decision of the [PTAB] may appeal the decision” to the United States Court of Appeals for the Federal Circuit.39 Critically, an IPR can be requested at any point during a patent’s term, beginning nine months after its issuance.40 A petition for IPR will be granted by the PTO if the petitioner can show with “reasonable likelihood” that it will “prevail with respect to at least 1 of the claims challenged in the petition.”41 IPR proceedings—typically heard before three administrative patent judges of the PTAB—are conducted on an expedited basis and are subject to a statutorily imposed requirement that disputes be resolved within twelve to eighteen months.42 30. Pub. L. No. 112-29, 125 Stat. 284 (2011) (codified in scattered sections of 28 and 35 U.S.C.). 31. See 157 CONG. REC. D979 (daily ed. Sept. 16, 2011) (noting the signing of the AIA into law). 32. See Clark D. Asay, Patenting Elasticities, 91 S. CALIF. L. REV. 1, 49 (2017) (noting that “[t]he AIA has been called the most important patent law reform since the 1952 Patent Act”). 33. 35 U.S.C. §§ 311–19 (2012). 34. The AIA provides that “a person who is not the owner of a patent may file with the [PTO] a petition to institute an inter partes review of the patent.” Id. § 311(a). 35. Id. § 311; Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2136 (2016). 36. See St. Jude Med., Cardiology Div., Inc. v. Volcano Corp., 749 F.3d 1373, 1375–76 (Fed. Cir. 2014) (explaining the IPR process mandated by statute). 37. 35 U.S.C. § 314(a). 38. Id. § 318(a). 39. Id. § 319; see, e.g., Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1314–15 (Fed. Cir. 2015) (providing an example of an appealed PTAB decision). 40. 35 U.S.C. § 311(c)(1). 41. Id. § 314(a). 42. Id. § 316(a)(11). 2019] STRANGE BEDFELLOWS 1439 IPR proceedings differ from district court proceedings in important ways, and these differences can dramatically increase the likelihood that a challenger will succeed in invalidating a patent.43 In district court litigation, a patent enjoys a presumption of validity,44 with clear and convincing evidence required to demonstrate invalidity.45 By contrast, a petitioner in an IPR proceeding only carries “the burden of proving a proposition of unpatentability by a preponderance of the evidence.”46 Moreover, the PTAB applies a broader claimconstruction standard than that which is applied in district courts. In district court proceedings, the language of a patent claim is given its “ordinary and customary meaning,” which is “the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention, i.e., as of the effective filing date of the patent application.”47 In IPR proceedings, however, the language of a patent claim is “given its broadest reasonable construction in light of the specification of the patent in which it appears.”48 The impact of this distinction can be profound: a broadly construed claim is far more likely to be invalidated for infringing upon prior art because the more generally a claim is constructed, the more likely it is that its specific novelty will be overlooked. Furthermore, construing identical claims in different ways, solely based upon the forum, is “troubling, especially when claim construction takes place at the same time in parallel district court proceedings and USPTO proceedings.”49 43. See David Hricik, Will Patenting Make As Much Sense in the New Regime of Weakened Patent Rights and Shorter Product Life Cycles?, 20 VAND. J. ENT. & TECH. L. 457, 489–91 (2017) (discussing how IPRs have made it easier to challenge patents because the patents do not have a presumption of validity, claims are given broad interpretations, and litigation can be stayed if an IPR is instituted). 44. 35 U.S.C. § 282(a). 45. Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 97 (2011). 46. 35 U.S.C. § 316(e). 47. Phillips v. AWH Corp., 415 F.3d 1303, 1312–13 (Fed. Cir. 2005) (en banc). 48. 37 C.F.R. § 42.100(b) (2017); see Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142– 46 (2016) (affirming the Patent Office’s authority to use the “broadest reasonable construction” standard in § 42.100(b)). 49. KEVIN GREENLEAF ET AL., INTELL. PROP. OWNERS ASS’N, HOW DIFFERENT ARE THE BROADEST REASONABLE INTERPRETATION AND PHILLIPS CLAIM CONSTRUCTION STANDARDS? 3 (July 2018), https://www.ipo.org//wp-content/uploads/2018/07/BRI-v-PhillipsFinal.pdf [https://perma.cc/N3LE-HY9U]. 1440 DUKE LAW JOURNAL [Vol. 68:1433 The costs of challenging a patent are generally much lower at the PTAB.50 It is estimated that post-grant-review challenges before the PTAB “on average cost from $350,000 to $450,000 through any appeal, whereas patent litigation in federal court is estimated to cost between $1 [million] and $1.5 million through any appeal for matter[s] in which $1 [million] to $10 million are at stake.”51 Where more money is at stake, the costs associated with challenging a patent in federal court are even higher.52 The AIA’s new post-grant proceedings, including IPR, were designed to be “quick and cost effective alternatives to litigation.”53 One of the motivating policy justifications for enacting the AIA was the sense that the PTO had granted too many “bad” patents that were doing little to incentivize innovation, and that were instead being asserted by so-called “trolls” in an extortionist manner.54 IPRs were instead intended to provide “a meaningful opportunity to improve patent quality and restore confidence in the presumption of validity that comes with issued patents in court.”55 IPRs have provided a highly effective avenue for challenging patents.56 In fact, petitioners have been so successful in invalidating patents before the PTAB that Randall Rader, then Chief Judge of the U.S. Court of Appeals for the Federal Circuit, referred to the PTAB as a “death squad[] killing property rights.”57 And the statistics bear this 50. Teague I. Donahey, The Patent Trial and Appeal Board (PTAB) and the Supreme Court: How Oil States Threatens to Reverse Congressional Efforts to Reform Patent Litigation, 60 ADVOCATE 22, 22 (2017). 51. Id. 52. Id. 53. H.R. REP. NO. 112-98, pt. 1, at 48 (2011), as reprinted in 2011 U.S.C.C.A.N. 67, 78 [hereinafter “House Report”]. 54. See Asay, supra note 32, at 3 (“From fueling the business models of so-called patent trolls, to diverting valuable resources into patent ‘wars,’ to otherwise failing to live up to their purported theoretical justifications, the increasing number of patents flooding the U.S. marketplace is of growing concern to scholars and policymakers alike.” (citations omitted)); Michael A. Carrier, Post-Grant Opposition: A Proposal and a Comparison to the America Invents Act, 45 U.C. DAVIS L. REV. 103, 108–09 (2011) (noting that nearly half of all litigated patents that make it through trial were eventually invalidated by the courts). 55. House Report, supra note 53, at 48. 56. See Donahey, supra note 50, at 22 (“Over the past five years, parties have been widely successful at invalidating patents before the PTAB . . . .”). 57. Brian Nolan & Michael Martinez, New Enemy Challenging Biopharma Patents: Investment Firms, 22 No. 8 WESTLAW J. INTELL. PROP. *1, *1 (Aug. 5, 2015); see also Susan Decker, Apple Likes the ‘Patent Death Squad.’ Allergan Pays to Avoid It, BLOOMBERG (Sept. 20, 2017, 4:00 AM), https://www.bloomberg.com/news/articles/2017-09-20/apple-likes-the-patent- 2019] STRANGE BEDFELLOWS 1441 out: between 2012 and 2017, in instances when the PTAB instituted IPR review, it found all claims unpatentable in 65 percent of instances and at least one claim unpatentable in 82 percent of proceedings.58 A recently published study demonstrates that IPRs pose a very real threat to biopharmaceutical innovation. On March 13, 2018, the PTO issued a special report on trial outcomes for pharmaceutical patents.59 The report focuses on the “institution rate” metric of how often a challenged patent gets upheld; it states that “[t]he cumulative institution rate for [pharmaceutical patent] petitions (66%) is essentially the same as the cumulative overall institution rate (68%).”60 Although the PTAB’s institution rate on pharmaceutical patents is similar to its overall institution rate, in cases where the PTAB issued a final written decision related to pharmaceutical patents, it found that none of the challenged claims were patentable in 46 percent of those cases.61 This means that if a challenger can convince the PTAB to review an Orange Book patent, there is a nearly 50 percent chance that all the challenged claims will ultimately be invalidated.62 Although IPRs may be useful in eliminating low-quality patents in certain fields, the system, as it is currently structured, fails to recognize that “[t]echnology is anything but uniform . . . and it displays highly diverse characteristics across different sectors.”63 In the pharmaceutical sector, the IPR system is not only unnecessary, but it also places potentially catastrophic burdens on the future of new drug development. B. A Primer on Sovereign Immunity Sovereign immunity has been a bedrock principle of our federal system since the founding: “Although the Constitution establishes a National Government with broad, often plenary authority over matters death-squad-allergan-pays-to-avoid-it [https://perma.cc/7R7F-WLNS] (noting that the PTAB has been “dubbed a ‘death squad’”). 58. Donahey, supra note 50, at 22. 59. U.S. PAT. & TRADEMARK OFF., CHAT WITH THE CHIEF, NEW PTAB STUDIES IN AIA PROCEEDINGS: EXPANDED PANELS AND TRIAL OUTCOMES FOR ORANGE BOOK-LISTED PATENTS (2018), https://www.uspto.gov/sites/default/files/documents/ chat_with_the_chief_march_2018.pdf [https://perma.cc/548P-N3XM]. 60. Id. at 34. 61. Id. The PTAB found some claims patentable in another 3 percent of cases. Id. 62. Id. 63. Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1575, 1577 (2003). 1442 DUKE LAW JOURNAL [Vol. 68:1433 within its recognized competence, the founding document ‘specifically recognizes the States as sovereign entities.’”64 By its plain terms, the Eleventh Amendment provides state governments with immunity from suits brought in federal court by citizens of other states and citizens or subjects of foreign states.65 In Hans v. Louisiana, however, the Supreme Court extended this immunity to preclude all suits against a state, including those suits brought by citizens of the same state.66 Unlike state sovereign immunity, which is constitutionally guaranteed under the Eleventh Amendment, tribal immunity is grounded in federal common law.67 In 1919, the Supreme Court explicitly embraced the doctrine of tribal sovereign immunity, stating that tribal governments—like local or state governments—cannot be sued “for injuries to persons or property due to mob violence or failure to keep the peace.”68 In the ensuing years, the Supreme Court made clear that as “domestic dependent nations,”69 Indian tribes “exercise inherent sovereign authority over their members and territories.”70 Accordingly, although Congress exercises “plenary control” over them, the tribes maintain their sovereign authority up to the point at which Congress acts. Furthermore, “[a]lthough Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government.”71 At a base level, the Supreme Court has asserted that, “[a]mong the core aspects of sovereignty that tribes possess—subject, again, to congressional action—is the ‘common-law immunity from suit traditionally enjoyed by sovereign powers.’”72 Specifically, this sovereign tribal immunity applies to suits brought by both states and individuals.73 And any 64. Alden v. Maine, 527 U.S. 706, 713 (1999) (quoting Seminole Tribe of Fla. v. Florida, 715 U.S. 44, 71 n.15 (1996)). 65. U.S. CONST. amend. XI (“The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”). 66. Hans v. Louisiana, 134 U.S. 1, 16 (1890) (noting that a state can only be sued with its consent). 67. Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751, 759 (1998). 68. Turner v. United States, 248 U.S. 354, 357–58 (1919). 69. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). 70. Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505, 509 (1991). 71. Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2032 (2014). 72. Id. at 2030 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978)). 73. Id. at 2031. 2019] STRANGE BEDFELLOWS 1443 waiver of sovereign immunity by a tribe must be unequivocally expressed.74 There is no blanket prohibition on asserting sovereign immunity in agency proceedings involving the federal government.75 But there is an exemption from sovereign immunity for suits brought by the United States; however, that exemption only subjects tribes to proceedings that are “commenced and prosecuted” by the United States.76 In general, sovereign immunity applies in agency proceedings when such proceedings “can indeed be characterized as a lawsuit” in that they involve adverse parties, examination and cross examination, deposition discovery, and an impartial federal adjudicator.77 Tribal sovereign immunity has no exception for commercial activity,78 allowing tribes to engage in commerce with corporate partners without waiving the protections this immunity offers. In determining whether a commercial entity enjoys the benefits of tribal immunity, courts look to see whether the entity is an “arm of the tribe.”79 In doing so, they consider whether the entity “is chartered under tribal law, whether its proceeds serve to further the aims of tribal self-governance, and whether the tribe intended to confer its immunity.”80 Casinos and other businesses on reservations routinely receive this protection.81 And significantly, Allergan and the St. Regis Tribe structured their contract in such a way that their partnership has never been challenged under this test. II. IPRS: AN IMPROPER FORUM FOR REVIEW OF PHARMACEUTICAL PATENTS The costs and difficulties associated with drug development, the vital importance of patents to the pharmaceutical industry—especially 74. C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 418 (2001) (“[T]o relinquish its immunity, a tribe’s waiver must be ‘clear.’” (quoting Okla. Tax Comm’n, 498 U.S. at 509)). 75. See Saint Regis Mohawk Tribe v. Mylan Pharm. Inc, 896 F.3d 1322, 1326 (Fed. Cir. 2018) (“There is not, however, a blanket rule that immunity does not apply in federal agency proceedings.” (citing Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 754–56 (2002))). 76. Alden v. Maine, 527 U.S. 706, 755 (1999). 77. Vas-Cath, Inc. v. Curators of Univ. of Mo., 473 F.3d 1376, 1382 (Fed. Cir. 2007). 78. Gregory Ablavsky, Tribal Sovereign Immunity and Patent Law, LEGAL AGGREGATE (Sept. 13, 2017), https://law.stanford.edu/2017/09/13/tribal-sovereign-immunity-and-patent-law [https://perma.cc/UP4U-9Y3A]. 79. Id. 80. Id. 81. Id. 1444 DUKE LAW JOURNAL [Vol. 68:1433 early in the innovation pipeline—and the already successful, but delicate, legislative framework allowing generic entry into the market, all make IPR the improper forum to review pharmaceutical patents. A. The Nature of Drug Development Strong patents have been described as the “lifeblood of the biotechnology industry,”82 and with good reason. The costs associated with innovation in the biotechnology realm are typically far higher than in other fields,83 in part because “of the labyrinthine regulatory process and the detailed study that is required to sell a drug for consumption by humans.”84 In 2014, it cost drug manufacturers an estimated average of $2.6 billion to bring a new drug to market.85 This “is based on an average out-of-pocket cost of $1.4 billion and an estimate of $1.2 billion in returns that investors forego” during the decade the drug is in development.86 Before marketing a new drug to the public, pharmaceutical companies must first obtain approval from the Food and Drug Administration (“FDA”).87 The FDA approval process requires timeconsuming and expensive clinical testing, typically including “three phases of human trials designed to test whether a drug is safe and effective for general public consumption.”88 Furthermore, much of the “low-hanging fruit”—the relatively easy-to-develop molecules for which there is great demand—has already been picked, forcing firms to “focus their R&D [research and development] where the science is difficult and the failure risks are higher.”89 Consequently, the practice of creating new medicines “is growing in difficulty and length” as well as in expense.90 It typically takes at least a decade to bring a potentially 82. Sommer Nicole Louie, The Inadequacy of Bankruptcy Protection for the Biotechnology Industry, 22 EMORY BANKR. DEV. J. 337, 339 (2005) (citation omitted). 83. Burk & Lemley, supra note 63, at 1581–82. 84. Id. 85. Rick Mullin, Cost to Develop New Pharmaceutical Drug Now Exceeds $2.5B, SCI. AM. (Nov. 24, 2014), https://www.scientificamerican.com/article/cost-to-develop-new-pharmaceuticaldrug-now-exceeds-2-5b [https://perma.cc/3BW9-HL56]. 86. Id. 87. 21 U.S.C. § 355(a) (2012). 88. Caitlyn Martin, Questioning the “Right” in State Right to Try Laws: Assessing the Legality and Effectiveness of These Laws, 77 OHIO ST. L.J. 159, 168 (2016). 89. PHRMA, supra note 24, at 1. 90. Id. 2019] STRANGE BEDFELLOWS 1445 therapeutic discovery from its nascent stage to the market, “with clinical trials alone taking six to seven years on average.”91 The apparent purpose of IPRs is to rid the system of useless patents writ large. But even the most suspect component of any drug from a patentability perspective has already had to prove its safety and efficacy to the FDA to a greater extent than the most comprehensive PTO review could require: less than 12 percent of drugs survive clinical testing, and thousands more never advance beyond the in vitro stage of testing. 92 Because FDA-approved pharmaceutical components have all been so thoroughly vetted by that industry, and because the FDA process guarantees that the component is functional, allowing these patents to be retroactively invalidated is particularly unfair. Producing any first-in-class drug, like Restasis, requires “the best scientific minds, highly sophisticated technologies, ever-evolving manufacturing processes, and complex project management.”93 Developing a lucrative drug requires dogged persistence through scores of failures, but in the end, the drug “brings hope and relief to millions of patients.”94 At bottom, it is estimated that new drug discoveries accounted for 40 percent of the increase in American lifespan between 1986 and 2000.95 However, the “best scientific minds” can no longer be certain they will be rewarded for their discoveries, even in a field where discovery has provided more life-saving benefits than almost any other. Presumably, the best and brightest should continue to be encouraged to enter the pharma-innovation field and provide society with breakthrough therapies like penicillin or the polio vaccine. But myriad environmental factors are not providing these pharmaceutical innovators with effective incentives. “[T]he unprecedented combination of reduced R&D output in the form of successfully launched truly innovative” new molecular entities, together with reduced market exclusivity and massive revenue loss from generic competitors, “suggest[s] that we may be moving closer to a pharmaceutical ‘ice age’ and the potential extinction of the industry.”96 91. Id. 92. Id. 93. Id. 94. Id. 95. Steven M. Paul et al., How to Improve R&D Productivity: The Pharmaceutical Industry’s Grand Challenge, 9 NATURE REV. DRUG DISCOVERY 203, 204 (2010). 96. Id. 1446 DUKE LAW JOURNAL [Vol. 68:1433 According to one estimate, for every dollar of profit that branded pharmaceuticals miss out on because of patent expirations, they only recoup twenty-six cents through the sale of new products.97 Thus, in the absence of a massive boost in productivity, branded pharmaceuticals simply “cannot sustain sufficient innovation to replace the loss of revenues due to patent expirations for successful products.”98 B. The Critical Role of Patents in Drug Development Given the enormous amount of money and time it takes to bring a new drug to market, the financial rewards of patent protection are of paramount importance to the pharmaceutical sector. Investment in the biotech space “is predicated on an expected return in the form of patent-protected products or services that ultimately reach the market.”99 Furthermore, “biotech companies often rely on just a handful of highly valuable patents to protect their products and massive investment therein.”100 Even compared to other industries that rely heavily on research and development (“R&D”), biotechnology companies spend a far greater share of their resources on R&D.101 In the chemical industry, for example, “the ratio of R&D expenditure to total revenues is approximately 5%,” but in the biotechnology arena, companies tend to plow between 40 and 50 percent of their revenues back into R&D.102 Moreover, while it is incredibly expensive to bring new drugs to market, it is quite cheap to imitate them.103 Compared to the billions that pharmaceutical companies are forced to spend to develop first-inclass drugs, it typically costs generics only $1 million to $2 million to gain FDA approval, based on a study in the year 2000.104 This is because the present reality in drug development is that “[a]lmost any 97. Id. at 203. 98. Id. 99. The Impact of Abusive Patent Litigation Practices on the American Economy: Hearing Before the S. Comm. on the Judiciary, 114th Cong. 3–4 (2015) (Statement of Hans Sauer, Deputy General Counsel for Intellectual Property, Biotechnology Industry Association) [hereinafter Sauer Testimony]. 100. Id. at 18. 101. Esteban Burrone, Patents at the Core: The Biotech Business, WORLD INTELL. PROP. ORG. (2006), http://www.wipo.int/sme/en/documents/patents_biotech_fulltext.html#P4_83 [https://perma.cc/5YMN-GW42]. 102. Id. 103. Id. 104. Henry Grabowski, Patents and New Product Development in the Pharmaceutical and Biotechnology Industries, 8 GEO. PUB. POL’Y REV. 7, 13 (2003). 2019] STRANGE BEDFELLOWS 1447 technology or compound can rapidly be reverse engineered,”105 making strong intellectual property protection the most significant motivation that companies have to invent new drugs. An important—but often overlooked—factor in the debate surrounding high drug prices is that, for many biotech companies, “intellectual property rights are actually the final product.”106 Because such companies lack the resources to bring their drugs to market, many firms either license out their patents to, or are acquired by, larger companies.107 The profound implications of this are poorly addressed in the popular discourse surrounding big pharma and rising drug costs. Instead, the pharmaceutical industry is broadly criticized for reaping huge profits at the expense of public health, and it “comes only second to the federal government as the public’s least-favored industry.”108 Consequently, attempting to defend the industry, much less expand its protections, is not a popular position to take. However, unbeknownst to most casual observers, the lion’s share of innovation in the pharmaceutical industry does not occur within large companies.109 Smaller companies, often funded by venture capitalist (“VC”) investors, direct nearly 90 percent of their funding in the space into novel drug R&D—research focused on diseases with an unmet medical need.110 This stands in stark contrast to the “low technical risk” investment model prominent at many large 105. Why Patents are the Lifeblood of Biotech Companies, BIOSPACE (Apr. 26, 2016), https://www.biospace.com/article/around-the-web/why-patents-are-the-lifeblood-of-biotechcompanies- [https://perma.cc/83TU-CN3F]. 106. Id. (emphasis added). 107. Id. 108. Ashley E. Petrarca, Note, Allergan’s Battle to Stay in Court: Does Inter Partes Review Violate the Constitution by Circumventing Courtroom Adjudication?, B.C. INTELL. PROP. & TECH. F. 1, 1 (Dec. 20, 2017); Peter Loftus, Drugmakers Raise Prices Despite Criticisms, WALL ST. J. (Jan. 10, 2016, 8:03 PM), http://www.wsj.com/articles/drugmakers-raise-prices-despitecriticisms-1452474210 [https://perma.cc/3CBL-JNMR] (noting that high drug prices mean that certain patients will be denied access to life-saving drugs). 109. Cf. THE BUSINESS OF HEALTHCARE INNOVATION 148 (Lawton Burns ed., 2d ed. 2012) (“While larger firms may (or may not) undertake the bulk of innovative investment, they are not the source of the majority of innovations, or at least the most distinctive innovations in a therapeutic area.”). 110. David Thomas & Chad Wessel, Emerging Therapeutic Company Investment and Deal Trends, BIO INDUSTRY ANALYSIS 9 (June 1, 2017), https://www.bio.org/sites/default/files/ BIO%20Emerging%20Therapeutic%20Company%20Report%202007-2016.pdf [https:// perma.cc/BHH5-SBMC] (“The majority of the venture funding continues to flow into novel drug R&D, reaching a peak of 92% in 2015 and down slightly to 83% in 2016.”). 1448 DUKE LAW JOURNAL [Vol. 68:1433 pharmaceutical firms.111 By and large, VCs are professional investors, not scientists. Accordingly, in this knowledge-intensive industry, “emerging firms that seek external financ[ing] can be difficult to” value.112 Patents provide an important signaling function to VCs, and they are a useful heuristic for these investors in making their valuations. Studies have documented “that patents attract prominent VC[]s, prompt VC[]s to invest faster and generally increase the amounts” they invest.113 In essence, many VCs rely on the PTO in making their investment decisions—particularly in early rounds of funding,114 where the majority of funding “has gone toward early stage assets”115 like drug discovery, among the furthest upstream research in the innovation pipeline. This is significant because “discovery research and early translational medicine” are the most significant factors in producing “highly innovative medicines that result in markedly improved health outcomes.”116 Further, it is in these early rounds that VCs rely most heavily on the PTO’s grant of a patent. Unfortunately, many feel they can no longer do so.117 In 1996, the United States financed 83 percent of the world’s venture capital.118 But by 2015, its market share had been reduced to 54 percent.119 As investment in the space continues to decrease, the “US should be working to improve its innovation ecosystem, providing stable and effective property rights,” especially intellectual property rights, “so that VCs can once again feel confident” in their 111. Bruce Booth, Where Does All That Biotech Venture Capital Go?, LIFESCIVC (Feb. 9, 2015), https://lifescivc.com/2015/02/where-does-all-that-biotech-venture-capital-go [https:// perma.cc/WPY7-QDVS]. 112. Sebastian Hoenen, Christos Kolympiris, Wilfred Schoenmakers & Nicholas Kalaitzandonakes, The Diminishing Signaling Value of Patents Between Early Rounds of Venture Capital Financing, 43 RES. POL’Y 956, 956 (2014). 113. Id. at 957. 114. Eric K. Steffe & Timothy J. Shea, Jr., Protecting Innovation in Biotechnology Startups, NATURE: BIOENTREPRENEUR (June 23, 2003), https://www.nature.com/bioent/2003/030601/full/ bioent741.html [https://perma.cc/YF9Z-VUC3]. 115. Booth, supra note 111. 116. Paul, supra note 95, at 213. 117. See Kevin Madigan, As Investment Moves Overseas, The US Must Restore Its GoldStandard Patent System, CTR. FOR PROTECTION INTELL. PROP. (June 22, 2017), https://cpip.gmu.edu/2017/06/22/as-investment-moves-overseas-the-us-must-restore-its-goldstandard-patent-system [https://perma.cc/86L7-B3TL] (explaining how the weakening of patent rights is a factor causing venture capital investment to decline in the United States and move overseas). 118. Id. 119. Id. 2019] STRANGE BEDFELLOWS 1449 investments.120 However, the American intellectual property regime is “doing just the opposite.”121 For this reason, especially in the researchintensive biotechnology sector where strong patents are “absolutely vital,” investment has been flowing out of American firms and into Chinese ones at an alarming rate. This trend could soon allow China to take the lead “in the development of lifesaving therapeutics and cancer treatment drugs.”122 Research suggests that possessing patents is among the most significant factors in securing early stage venture funding in the life sciences industry.123 This makes sense, as “[v]ery few biotechnology startups actually have products to sell; their primary assets are usually proprietary technologies”—that is, these companies’ value is usually directly tied to their ability to safeguard their innovations through patent protection.124 For this reason, many VCs hire patent consultants to assess the strength of a company’s patent portfolio before making an investment.125 But the IPR “death squad[]” of the PTAB is increasingly undermining the confidence VCs can place in biotech patents.126 This is problematic because VC investing is risky enough to begin with: the majority of venture capital funds do not break even,127 and around 75 percent of the companies they invest in fail outright.128 To turn a profit, VCs need to hit a home run on a small portion of their investments, and in doing so, make up for their high number of strikeouts, which are especially expensive in the pharmaceutical industry. But who would swing for the fences on every pitch, given that the umpire—the PTAB—can far too easily “invalidate” any pharmaceutical home run? Put simply, according to a letter signed by some of the nation’s top VCs, “the injection of this type of [IPR] uncertainty into the patent system puts in doubt [our] future funding of” the life sciences sector 120. Id. 121. Id. 122. Id. 123. See Steffe & Shea, supra note 114 (noting that “a strong patent position is a crucial ingredient for successfully raising venture capital”). 124. Id. 125. Id. 126. Nolan & Martinez, supra note 57, at *1. 127. Diane Mulcahy, Six Myths About Venture Capitalists, HARV. BUS. REV. (May 2013), https://hbr.org/2013/05/six-myths-about-venture-capitalists [https://perma.cc/6HVW-KN92]. 128. Max Nisen, Bill Gates Says the Success Rate on Venture Capital Is “Pathetic” Compared to Development, QUARTZ (Mar. 14, 2014), https://qz.com/187959/bill-gates-says-the-success-rateon-venture-capital-is-pathetic-compared-to-development [https://perma.cc/6SBE-ASXJ]. 1450 DUKE LAW JOURNAL [Vol. 68:1433 because “no matter how groundbreaking an innovation may be, without the guarantee of a strong patent, the risk cannot be justified.”129 It could be argued that the pharmaceutical patents challenged in IPR proceedings are not the same sort of patents that VCs rely on in making their investment decisions. Instead, so the reasoning goes, the challenged patents are the so-called “evergreening” patents, 130 obtained by large pharmaceutical firms after a drug has been launched. Such “secondary” patents pertain to “ancillary aspects of drug innovation,” such as formulations and compositions, as opposed to active ingredients.131 The data on Orange Book-related patents in IPR proceedings has not been broken down into active-ingredient patents and secondary patents, but in district court proceedings, secondary patents are the subject of a greater proportion of preexpiration challenges, where they are invalidated at higher rates than active ingredient patents.132 Even assuming, arguendo, that secondary patents make up the lion’s share of patents in IPR proceedings, and assuming that these secondary patents are obtained after the venture funding stage, it does not necessarily follow that the invalidation of secondary patents will have a de minimis impact on upstream innovation. Importantly, if large pharmaceutical companies are unable to extend the patent-protected life of their blockbuster drugs by relying on secondary patents, they will be less likely to acquire active-ingredient patents from venture-backed companies in the first place. Because of the “current pressures on existing patents and the uncertain[] future of pharmaceutical patent protection . . . an unintended downward 129. Letter from Members of Life Sciences Venture Capital Community to Chuck Grassley, Chairman, Senate Comm. on the Judiciary, Patrick J. Leahy, Ranking Member, Senate Comm. on the Judiciary, Bob Goodlatte, Chairman, House Comm. on the Judiciary, John Conyers, Ranking Member, House Comm. on the Judiciary (Sept. 9, 2015), https://califesciences.org/wpcontent/uploads/2015/09/VC-Letter-on-IPR-Reform-H-R-9_FINAL.pdf [https://perma.cc/ 6PHC-5WA5]. 130. See Cynthia M. Ho, Should All Drugs Be Patentable? A Comparative Perspective, 17 VAND. J. ENT. & TECH. L. 295, 297 (2015): In recent years, companies are increasingly seeking and obtaining a series of patents on different aspects of a drug, with each patent having a later expiration date to effectively result in a longer period of market exclusivity. Critics call this “evergreening,” in that the patent term appears “evergreen,” even if the commercial exclusivity is technically achieved through different patents. 131. C. Scott Hemphill & Bhaven Sampat, Drug Patents at the Supreme Court, 339 SCIENCE 1386, 1386 (2013). 132. See id. at 1386–87 (“Of . . . cases litigated to completion . . . the branded firm nearly always wins a suit asserting an active ingredient patent . . . but usually loses asserting secondary patents . . . .”). 2019] STRANGE BEDFELLOWS 1451 pressure [is being applied] on the incentives to undertake the most risky research,”133 which is typically sponsored by VCs. If VCs conclude that a drug being developed by a small life sciences firm is unlikely to be acquired or that it will be acquired at a lower multiple than the economics of VC firms demand, the incentives for investment are sharply curtailed. An understanding of the dynamics of upstream innovation requires that “patent incentives . . . promise more than reasonable compensation for R&D effort.”134 Instead, financing incredibly risky and potentially life-saving R&D must promise “great rewards for great advancements that will not be retroactively appropriated” by the PTO.135 Oddly enough, and unfortunately, “[t]here’s more money to be made investing in drugs that will extend cancer patients’ lives by a few months than in drugs that would prevent cancer in the first place.”136 Eric Budish, Benjamin Roin, and Heidi Williams effectively show why our patent system may have historically encouraged this problem by demonstrating that a drug’s commercial success is often inversely correlated with the time it takes to develop and its therapeutic value.137 And IPRs stand to make this problem worse. Drug patents are granted by the PTO well before the FDA approves the sale of actual drugs. Before granting approval, the FDA requires years of clinical testing to show that the drugs are safe and effective.138 While all drugs require these trials, drugs that attack diseases in their later stages, such as chemotherapeutics, tend to take proportionately less time to demonstrate safety and efficacy. This is because diseases in later stages tend to progress much more rapidly and aggressively, allowing firms to see any drug-related effects—even if insignificant—in much less time.139 This rapidity of observable results allows late stage drugs to 133. Daniel R. Cahoy, Rethinking Patents for Optimal Health Care Innovation, at 87 (Apr. 2005) (unpublished manuscript), https://www.smeal.psu.edu/fcfe/research/white/patents.pdf [https://perma.cc/M75L-AV2R]. 134. Id. 135. Id. 136. Austin Frakt, Why Preventing Cancer Is Not the Priority in Drug Development, N.Y. TIMES (Dec. 28, 2015), https://www.nytimes.com/2015/12/29/upshot/why-preventing-cancer-isnot-the-priority-in-drug-development.html [https://perma.cc/G2ZA-MN7J]. 137. See generally Eric Budish, Benjamin N. Roin & Heidi Williams, Do Firms Underinvest in Long-Term Research? Evidence from Cancer Clinical Trials, 105 AM. ECON. REV. 2044 (2015) (analyzing how private investment shapes cancer research). 138. See supra notes 87–98 and accompanying text. 139. Frakt, supra note 136. 1452 DUKE LAW JOURNAL [Vol. 68:1433 obtain FDA approval faster and get to market sooner.140 Accordingly, late-stage drugs have reduced commercialization lag—“the length of time between receipt of a patent and F.D.A. approval”—and they are much more lucrative for pharmaceutical companies because they enjoy monopoly status longer.141 On average, accounting for the time it takes to gain FDA approval, the effective patent term of first-in-class drugs is twelve-anda-half years, entitling them to a mere 62.5 percent of their patent term.142 For this reason, many “compounds are never developed [into drugs] because the patent protected production time available to recoup the cost of development is too short.”143 IPRs risk further limiting patents’ average effective term of market exclusivity— particularly if the proceedings target secondary patents that help add extensions to patent terms. Accordingly, pharmaceutical firms expect to have reduced time within which to recoup their investment, leading to fewer promising compounds being developed. A large pharmaceutical company that acquires a drug from a small firm is in a much better position to forecast the effective life of its primary patent than the small firm was when it undertook discovery research. This is because the commercial lag between acquisition and approval is necessarily shorter than the commercial lag between discovery and approval. Also, the VCs that invest in discovery-research companies “may be more impatient than neo-classical models [of profit-maximizing behavior] would predict due to . . . agency problems”144 that are the result of informational asymmetries between management and investors; these asymmetries are at their greatest when a drug’s therapeutic potential is merely theoretical.145 Furthermore, because of the time value of money, small increases in the risk profile of a project exponentially discount the present value of its future cash flows, especially those that are the most remote— those furthest upstream in the innovation pipeline. According to many patent brokers, the sale price of American patents has been reduced by 140. See id. (“To secure F.D.A. approval . . . drug companies race the clock to show that their product is safe and effective.”). 141. Id. 142. Id. 143. Id. (citation omitted) (alteration in original). 144. Budish et al., supra note 137, at 2045. 145. See infra Part II.B. 2019] STRANGE BEDFELLOWS 1453 two-thirds since the establishment of IPR proceedings.146 Even if the future value of VC-funded primary patents has been reduced by a mere fraction of this amount, the present value of such a patent is worth an order of magnitude less when discounted to present value. The risk that IPRs create for pharmaceutical patents, then, may be felt most acutely far upstream. And upstream is exactly where looming risks carry the most catastrophic consequences, as that is where breakthrough therapeutic innovation typically occurs.147 C. If It Ain’t Broke . . . Long before the advent of IPR proceedings, drug patents were already subject to specialized review. More than three decades ago, Congress, through the Hatch-Waxman Act,148 devised an expedited litigation pathway for challenging pharmaceutical patents.149 The Hatch-Waxman Act sought both to incentivize innovation and to facilitate the entry of cheaper generic drugs into the marketplace.150 And by most accounts, it has been successful in doing so.151 Although generic drugs made up only 19 percent of prescriptions in 1984, they made up 88 percent of prescriptions by 2015.152 Furthermore, by 2015, the average cost of a generic drug was less than one-fifth of the price of a patented brand drug.153 146. Richard Baker, Guest Post: America Invents Act Cost the US Economy Over $1 Trillion, PATENTLY-O (June 8, 2015), https://patentlyo.com/patent/2015/06/america-invents-trillion.html [https://perma.cc/TM84-UWP8]. 147. See infra Part II.B. 148. Drug Price Competition and Patent Term Restoration (Hatch-Waxman) Act of 1984, Pub. L. No. 98-417, 98 Stat. 1585 (codified as amended at 21 U.S.C. § 355 (2012)). 149. The Hatch-Waxman Act does not apply to biologics or biosimilars, which are instead covered by the Biologics Price Competition and Innovation Act (“BPCIA”). 42 U.S.C. § 262. 150. See 130 CONG. REC. 24,425 (1984) (statement of Rep. Waxman) (“[T]he bill . . . assures consumers of more low-cost generic drugs when a valid patent expires and the drug industry of sufficient incentive to develop innovative pharmaceutical therapies.”); see also Michael A. Carrier & Carl J. Minniti III, Biologics: The New Antitrust Frontier, 2018 U. ILL. L. REV. 1, 11–14 (discussing the purposes of the Hatch-Waxman Act); Joanna Shepherd, Disrupting the Balance: The Conflict Between Hatch-Waxman and Inter Partes Review, 6 N.Y.U. J. INTELL. PROP. & ENT. L. 14, 16 (2016) (“With Hatch-Waxman, Congress sought to achieve a delicate balance between stimulating innovation from brand companies who hold patents and facilitating market entry from generic companies who challenge the patents.”). 151. See Carrier & Minniti, supra note 150, at 13 (“On the whole, the Hatch-Waxman Act has been successful.”). 152. Id. 153. Id.; see IMS INST. FOR HEALTHCARE INFORMATICS, MEDICINES USE AND SPENDING IN THE U.S.: A REVIEW OF 2015 AND OUTLOOK TO 2020, at 27 (2016), https://morningconsult.com/wp-content/uploads/2016/04/IMS-Institute-US-Drug-Spending- 1454 DUKE LAW JOURNAL [Vol. 68:1433 To encourage investment in new drugs, the Hatch-Waxman Act provides for “a patent-term extension for patents relating to certain products that were subject to lengthy regulatory delays and could not be marketed prior to regulatory approval.”154 It also seeks to encourage generic drug manufacturers to enter the marketplace.155 The HatchWaxman Act introduced the Abbreviated New Drug Application (“ANDA”),156 which allows the manufacturers of bioequivalent generic drugs to rely on the safety and efficacy data submitted by the brand drug manufacturer when it sought FDA approval.157 Importantly, the Hatch-Waxman Act gives generic drug companies a significant incentive to challenge drug patents prior to their expiration. If a generic drug company wishes to market a generic version of a drug before the Orange Book patents covering that drug expire, it must file a certification under 21 U.S.C. § 355(j)(2)(A)(vii)(IV), known as a Paragraph IV certification.158 The Hatch-Waxman Act promotes the early resolution of patent disputes between generic and brand-name pharmaceutical companies by specifying that the mere act of filing a Paragraph IV certification constitutes an act of patent infringement.159 Furthermore, “to incentivize ANDA filers to challenge the validity of listed patents or design around those patents as early as possible, the Hatch-Waxman Act provides that the first ANDA applicant to file a Paragraph IV certification . . . [will] enjoy a 180-day period of generic marketing exclusivity.”160 Significantly, the first Paragraph IV ANDA filer obtains a 180-day, or six-month, exclusivity period regardless of whether it establishes that the brand name manufacturer’s “OrangeBook-listed patents are invalid or not infringed by the drug described 2015.pdf [https://perma.cc/7JTG-J39E] (comparing branded drugs’ average list price with generic drugs’ average list price). 154. Eli Lilly & Co. v. Medtronic, Inc., 496 U.S. 661, 670 (1990). 155. H.R. REP. NO. 98-857, at 14–15 (1984), as reprinted in 1984 U.S.C.C.A.N. 2647, 2647; see Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 396 (Fed. Cir. 1990) (“[T]he Act has two general purposes: (1) to increase the availability of low-cost drugs . . . and (2) to further encourage new drug research . . . .”). 156. 21 U.S.C. § 355(j) (2012). 157. Eli Lilly, 496 U.S. at 676. 158. See id. at 677 (discussing Paragraph IV certification). 159. 35 U.S.C. § 271(e)(2); see Eli Lilly, 496 U.S. at 678 (“[An] act of infringement . . . consists of submitting an ANDA . . . containing the fourth type of certification . . . .”). 160. Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527 F.3d 1278, 1283 (Fed. Cir. 2008) (citing 21 U.S.C. § 355(j)(5)(B)(iv)). 2019] STRANGE BEDFELLOWS 1455 in its ANDA.”161 This six-month period of generic exclusivity can be extremely profitable, allowing Paragraph IV challengers to price their drug at a cost that is only slightly less than that of the branded drug.162 The data demonstrates the strength of this incentive: “81 percent of drugs facing generic entry in 2012” faced Paragraph IV challenges.163 The IPR regime has also created a new and surprising threat: hedge funds. In 2014, a hedge fund manager named Kyle Bass, along with one of his fund’s subsidiaries—the Coalition for Affordable Drugs (“CFAD”)—entered the fray and made IPR challenges even more perilous for pharmaceutical companies.164 Bass developed a scheme to reap enormous financial rewards by shorting stock in a pharmaceutical company and then petitioning to have one of that company’s important drugs invalidated in IPR proceedings.165 On February 10, 2014, Bass filed IPR petitions challenging the validity of Ampyra, a prescription drug that helps multiple sclerosis patients walk.166 The shares of Acorda Therapeutics, Inc., the company that owned these patents, dropped nearly 15 percent in the days that followed,167 allowing Bass’s hedge fund to turn a fast profit by shorting the stock,168 notwithstanding the fact that the PTAB ultimately upheld the patents’ validity.169 In the months that followed, CFAD filed thirty-two more IPR petitions, all of which challenged patents in the biotechnology space.170 Bass has claimed that his repeated IPR petitions were designed to bring down drug prices, asserting that “Medicare and U.S. consumers pay the ultimate price for the evergreening of bad patents by the pharma cabal.”171 Although Bass and his hedge fund appear to have 161. Id. (citing 21 U.S.C. § 355(j)(5)(B)(iv)(II)(bb)). 162. Shepherd, supra note 150, at 24 (noting that the first Paragraph IV ANDA filer “can earn substantial profits by shadow pricing, or pricing slightly under the innovator’s price”). 163. Id. 164. See Nolan & Martinez, supra note 57, at *2 (suggesting that “the mere filing of the petition—and not its underlying merits—caused the [company’s stock price to drop ten percent]”). 165. Id. 166. Jennifer Robichaux Carter, Hedge Funds Should Be Able to Challenge Patent Validity Using Inter Partes Review Despite Mixed Motives, 54 HOUS. L. REV. 1315, 1317–18 (2017). 167. See id. (explaining that the stock price dropped 9.7 percent on February 10 and then 4.8 percent on February 27, for a total 14.5 percent drop from the original price). 168. Id. at 1330. 169. Coalition For Affordable Drugs (ADROCA) LLC v. Acorda Therapeutics, Inc., No. IPR2015-00817 (P.T.A.B. Aug. 24, 2015). 170. Carter, supra note 166, at 1332–33. 171. Susan Decker, Bloomberg, Dallas’ Kyle Bass Blames Big Pharma ‘Cabal’ for Lost Fights Over Drug Prices, DALL. NEWS (Apr. 10, 2017), https://www.dallasnews.com/business/health- 1456 DUKE LAW JOURNAL [Vol. 68:1433 moved away from filing new IPR petitions,172 the threat to pharmaceutical companies still remains. Biotech companies are particularly vulnerable to IPR challenges filed by hedge funds and short sellers “because—in contrast to most high-tech companies— biotech companies often rely on just a handful of highly valuable patents to protect their products and massive investment therein.”173 Hence, the mere filing of an IPR can drastically impact the stock prices of these companies.174 Fighting a war on two fronts is costly and expensive. HatchWaxman and PTAB proceedings can force drug companies to fight validity battles in two ways, potentially eviscerating the financial incentives necessary to ensure robust drug-development efforts. It has been suggested that life science patents should be exempted from IPR challenges since Congress, through the Hatch-Waxman Act, has already established effective mechanisms for challenging such patents.175 Leaders in the biotechnology and pharmaceutical industries have argued that the IPR process threatens to disrupt the careful balance that Congress achieved over 30 years ago, by increasing business uncertainty for innovative biopharmaceutical companies having to defend their patents in multiple venues and under differing standards and procedures, ultimately diverting finite resources away from the research and development of new cures and treatments, to the detriment of patients.176 Given that Congress has so far shown no real interest in exempting life sciences patents from IPR challenges, however, an alternative solution is instead for drug companies and Native American tribes to form partnerships in a manner that can effectively shield care/2017/04/10/dallas-kyle-bass-blames-big-pharma-cabal-lost-fights-drug-prices [https:// perma.cc/BFJ5-54GX]. 172. See id. (noting that “[t]he coalition hasn’t file a new case in 18 months”). 173. Sauer Testimony, supra note 99, at 18. 174. Id. at 1. 175. See Letter from James C. Greenwood, President & CEO of BIO, and John J. Castellani, President & CEO of PhRMA, to Chuck Grassley, Chairman, Senate Judiciary Comm., Patrick Leahy, Ranking Member, Senate Judiciary Comm., Robert Goodlatte, Chairman, House Judiciary Comm., John Conyers, Ranking Member, House Judiciary Comm. (July 15, 2015) [hereinafter Greenwood Letter], http://thehill.com/sites/default/files/ final_joint_phrma_bio_letter_on_ipr_071515.pdf [https://perma.cc/VCV8-LDCA] (arguing that the “Hatch-Waxman Act and the BPCIA already allow for generic and biosimilar companies to effectively challenge patents that are perceived as overly broad or invalid”). 176. Id. 2019] STRANGE BEDFELLOWS 1457 biopharmaceutical patents from IPR review, as seen in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc.177 III. ALLERGAN AND THE ST. REGIS TRIBE SHOULD ENJOY SOVEREIGN IMMUNITY The Federal Circuit and the PTAB erred in determining that tribal sovereign immunity is inapplicable to the St. Regis Tribe’s patents in IPR proceedings. Their decisions mischaracterize the nature of an IPR proceeding as an administrative enforcement action, conflict with Supreme Court precedent, and fail to recognize that a congressional directive to abrogate tribal sovereign immunity must be unequivocal. Moreover, from a public policy point of view, these decisions fail to analyze the agreement from the Tribe’s perspective, and gloss over the significant non-monetary benefits it will bring to the St. Regis community. A. Similarly Flawed Legal Reasoning: The Federal Circuit and the PTAB On July 20, 2018, the Federal Circuit issued an opinion erroneously concluding that tribal sovereign immunity does not apply to IPRs in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals. 178 In doing so, the panel relied primarily on the Supreme Court’s analysis in FMC. 179 The Mylan court determined that “[g]enerally, [sovereign] immunity does not apply where the federal government acting through an agency engages in an investigative action or pursues an adjudicatory agency action.”180 The panel did concede that “IPR is neither clearly a judicial proceeding instituted by a private party nor clearly an enforcement action brought by the federal government.”181 It also acknowledged Supreme Court precedent that sovereign immunity is applicable during administrative adjudications between private parties.182 The panel, however, ultimately determined that “IPR is more like an agency enforcement action than a civil suit brought by a 177. Saint Regis Mohawk Tribe v. Mylan Pharm. Inc., 896 F.3d 1322 (Fed. Cir. 2018). 178. Id. 179. Id. at 1326 (citing Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743 (2002)). 180. Id. at 1325. 181. Id. at 1326. 182. Id. at 1326–27. 1458 DUKE LAW JOURNAL [Vol. 68:1433 private party,” and thus concluded that “tribal immunity is not implicated” in IPR proceedings.183 The panel’s decision is problematic for a number of reasons, providing a strong rationale for the Supreme Court to grant certiorari. First and foremost, the panel erred by failing to give sufficient weight to the many marked similarities between IPR proceedings and ordinary civil litigation. In an IPR proceeding, the private-party petitioner controls the claims challenged and the grounds of the attacks, much like a civil plaintiff who makes particularized allegations.184 Indeed, an IPR cannot commence until the petitioner serves the patent owner with a petition, in line with civil service of process. Moreover, the PTAB has no authority to begin a proceeding without a private party’s petition.185 And neither the PTAB nor the PTO Director is a party to the proceeding.186 To the contrary, the petitioner brings forth the evidence187 and carries the burden of establishing unpatentability.188 Moreover, the PTAB must decide the case based on the “arguments that were advanced by a party.”189 Notwithstanding these, and legion other similarities to civil adversarial proceedings, the panel justified its nonadversarial assignation by relying on the fact that the PTAB can issue a decision even if the petitioner withdraws.190 But even this reasoning is flawed; significantly, the PTAB’s authority to issue a decision after the withdrawal of the petitioner is very narrow. By statute, an IPR proceeding must “be terminated with respect to any petitioner upon the joint request of the petitioner and the patent owner, unless the [PTO] has decided the merits of the proceeding before the request for 183. Id. at 1327. 184. SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018) (“Congress chose to structure a[n IPR] process in which it’s the petitioner, not the [USPTO] Director, who gets to define the contours of the proceeding.”). 185. 35 U.S.C. § 312(a)(5) (2012). 186. See 37 C.F.R. § 42.2 (2018) (defining “Party” as “at least the petitioner and the patent owner and, in a derivation proceeding, any applicant or assignee of the involved application”). 187. 35 U.S.C. § 312(a)(3) (providing that a petition will only be considered if it identifies, inter alia, “the evidence that supports the grounds for the challenge to each claim”). 188. Id. § 316(e) (“In an inter partes review instituted under this chapter, the petitioner shall have the burden of proving a proposition of unpatentability by a preponderance of the evidence.”). 189. In re Magnum Oil Tools Int’l, Ltd., 829 F.3d 1364, 1381 (Fed. Cir. 2016). 190. Saint Regis Mohawk Tribe v. Mylan Pharm. Inc., 896 F.3d 1322, 1328 (Fed. Cir. 2018) (“Once IPR has been initiated, the Board may choose to continue review even if the petitioner chooses not to participate.” (citing 35 U.S.C. § 317(a))). 2019] STRANGE BEDFELLOWS 1459 termination is filed.”191 Thus, the PTAB can issue a decision following the withdrawal of the petitioner only if the PTAB has already reached a determination on the merits of the case. This is far different from an agency adjudicative action that is “commenced and prosecuted” by the United States,192 like an SEC enforcement action for violating federal securities laws.193 A second problem with the Federal Circuit’s holding in Mylan is that it conflicts with SAS Institute v. Iancu, 194 where the Supreme Court specifically stated that an IPR is a “procedure allow[ing] private parties to challenge previously issued patent claims in an adversarial process before the Patent Office that mimics civil litigation.”195 Given that SAS Institute characterized IPRs as “party-directed, adversarial” proceedings196 with “many of the usual trappings of litigation,”197 it is difficult to see how the Federal Circuit felt justified in concluding that “IPR is more like an agency enforcement action than a civil suit brought by a private party.”198 Finally, the panel’s Mylan holding is flatly inconsistent with the Federal Circuit’s previous decision in Vas-Cath, Inc. v. Curators of University of Missouri.199 In Vas-Cath, the court recognized that sovereign immunity can apply to administrative patent proceedings and pointed to a number of elements—such as the presence of “adverse parties, examination and cross-examination by deposition of witnesses,” and “findings by an impartial federal adjudicator”—that determine when an administrative proceeding “can indeed be characterized as a lawsuit.”200 To wit, all of these elements are indisputably present in an IPR proceeding.201 In sum, sovereign immunity should attach in an IPR proceeding because such a 191. 35 U.S.C. § 317(a). 192. Cf. Alden v. Maine, 527 U.S. 706, 755 (1999) (“A suit which is commenced and prosecuted against a State in the name of the United States . . . differs in kind from the suit of an individual . . . .”). 193. See Securities Act, § 20(b), 15 U.S.C. § 77t(b) (2012); 17 C.F.R. § 202.5(b) (2018). 194. SAS Inst. v. Iancu, 138 S. Ct. 1348 (2018). 195. Id. at 1352 (emphasis added). 196. Id. 197. Id. at 1354. 198. Saint Regis Mohawk Tribe v. Mylan Pharm. Inc., 896 F.3d 1322, 1327 (Fed. Cir. 2018). 199. Vas-Cath, Inc. v. Curators of Univ. of Mo., 473 F.3d 1376 (Fed. Cir. 2007). 200. Id. at 1382. 201. See Covidien LP v. Univ. of Fla. Research Found. Inc., Nos. IPR2016-01274, -01275, - 01276, 2017 WL 4015009, at *8 (P.T.A.B. Jan. 25, 2017) (describing arguments between patent owner and petitioner on how inter partes review is similar and dissimilar to civil litigation). 1460 DUKE LAW JOURNAL [Vol. 68:1433 proceeding “walks, talks, and squawks very much like a lawsuit” between private parties.202 Like the Federal Circuit, the PTAB also erred when it concluded that tribal sovereign immunity does not apply to IPR proceedings.203 The Supreme Court has repeatedly made clear that a tribe, like the St. Regis, is entitled to invoke sovereign immunity unless Congress has “unequivocally” expressed its desire to abrogate this immunity.204 Nothing in the AIA or its legislative history even remotely suggests that tribal immunity should not apply in IPR proceedings. With this lack of any congressional directive, and with the Supreme Court’s determination that a tribe’s “baseline” condition is immunity from suit,205 the PTAB had no reasonable justification for refusing to grant the St. Regis Tribe’s motion to terminate IPR proceedings. The power of an administrative agency like the PTAB “is circumscribed by the authority granted” by Congress.206 As several prominent scholars, including Erwin Chemerinsky, have argued, the PTAB “has no expertise or experience that would enable it to secondguess prima facie assertions of tribal sovereign immunity.”207 The PTAB’s “statutory jurisdiction over IPRs is limited to challenges based on prior art and obviousness” whereas tribal-immunity issues “involve sensitive legal questions that are far different from the patent issues that Congress has charged the [PTAB] with resolving.”208 From an institutional-competency perspective, the PTAB is simply not the right body to evaluate the legitimacy of the contract between Allergan and the St. Regis Tribe. According to one commentator, the PTAB’s “sweeping” determination that tribal sovereign immunity does not apply in IPR proceedings is “the latest and possibly most extreme example of agency overreach in the seven-year history of the PTAB under the [AIA].”209 202. Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 757 (2002) (citation omitted). 203. Mylan, 896 F.3d at 1325. 204. Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2030–31 (2014). 205. Id. at 2031. 206. Stark v. Wickard, 321 U.S. 288, 309 (1944). 207. Brief of Amici Scholars in Support of Patent Owner the St. Regis Mohawk Tribe at 12, Saint Regis Mohawk Tribe v. Mylan Pharm. Inc., 896 F.3d 1322 (Fed. Cir. 2018) [hereinafter Brief of Scholars] (including Erwin Chemerinsky, Laurence H. Tribe, Joseph William Singer, and William N. Eskridge in the undersigned scholars). 208. Id. 209. Josh Malone, Controversy Over Restasis Patents is Misplaced, IP WATCHDOG (Mar. 21, 2018), http://www.ipwatchdog.com/2018/03/21/controversy-restasis-patents-misplaced/id=94904 [https://perma.cc/Q32G-TPEM]. 2019] STRANGE BEDFELLOWS 1461 The PTAB’s decision that the St. Regis Tribe had no right to assert immunity was particularly unjustifiable given that it has repeatedly allowed states to use sovereign immunity to protect patents from IPR challenge.210 In NeoChord, Inc. v. University of Maryland, 211 the PTAB dismissed an IPR proceeding against both a state university and the private entity that had licensed the university’s patents.212 The PTAB held that sovereign immunity barred suit against the state university, and that the suit could not proceed without the state university because it was an indispensable party.213 In concluding that the state university was an indispensable party, notwithstanding that it had licensed its patents, the PTAB focused on the fact that the state university had not transferred “substantially all” of its rights to its licensee because, like the St. Regis Tribe, the university retained the right to practice the patent, the right to royalties, and the right to respond to legal action in the event the licensee failed to do so.214 The PTAB should have applied this same analysis to the transaction between Allergan and the St. Regis Tribe. Pursuant to the agreement between the parties, the St. Regis Tribe was given the “first right to sue for infringement unrelated to such Generic Equivalents.”215 Furthermore, although Allergan was given the sole right to use the patents in the production of drugs, the St. Regis Tribe retained the prerogative to use the patents for research, academic use, and in the care of patients, so long as it developed products that did not compete with Allergan’s.216 Most significantly, the Tribe received an initial payment of $13,750,000 and quarterly royalties of $3,750,000 from Allergan.217 Because the Tribe had a very substantial financial interest in the Restasis patents, as well as the right to use and enforce the patents under certain circumstances, it was an indispensable party, and thus the PTAB had no reasonable basis for concluding that the IPR proceedings could proceed without the Tribe’s participation. 210. Examples of such challenges include: Reactive Surfaces Ltd. v. Toyota Motor Corp., No. IPR2016-01914, 2017 WL 2992429 (P.T.A.B. July 13, 2017); NeoChord, Inc. v. University of Maryland, No. IPR2016–00208 (P.T.A.B. May 23, 2017); and Covidien LP v. University of Florida Research Foundation Inc., Nos. IPR2016-01274, -01275, -01276 (P.T.A.B. Jan. 25, 2017). 211. NeoChord, Inc. v. Univ. of Md., No. IPR2016–00208 (P.T.A.B. May 23, 2017). 212. Id. at 2. 213. Id. at 18–19. 214. Id. at 19. 215. Mylan Pharm. Inc. v. Saint Regis Mohawk Tribe, Nos. IPR2016-01127, -01128, -01129, - 01130, -01131, -01132, 2018 WL 1100950, at *3 (P.T.A.B. Feb. 23, 2018) (per curiam). 216. Id. at *10–11 (quoting Exhibit 2087 § 2.1). 217. Id. at *12. 1462 DUKE LAW JOURNAL [Vol. 68:1433 The PTAB determined that there was no controlling precedent requiring the application of tribal immunity in IPR proceedings,218 and that granting states sovereign immunity did not require a similar grant to Native American tribes.219 But considered together, these holdings are insidiously circular and misleading. First of all, IPRs were only created in 2012, so the lack of precedent is unsurprising. But more importantly, the PTAB’s assertion regarding state sovereign immunity fails to mention that in Covidien LP v. University of Florida Research Foundation Inc., 220 the entity granted immunity was a state university’s research foundation that licensed intellectual property to generate revenue—meaning that its purpose was to monetize innovation, much like a pharmaceutical company.221 There is little substantive difference between the university foundation in Covidien and the St. Regis Tribe in the Restasis proceedings; both accepted assignment of patents in order to generate revenue through royalties and licensing agreements. Consequently, to deny the Tribe’s right to assert its sovereign immunity, “would constitute improper unequal treatment and discrimination against the Tribe.”222 Furthermore, even assuming, arguendo, that there was no precedent directly addressing whether tribal sovereign immunity applies in IPR proceedings, the PTAB should have looked to the Supreme Court’s consistent and sympathetic treatment of tribal sovereign immunity for guidance.223 B. Policy Considerations Also Demonstrate Why Sovereign Immunity Should Apply Some commentators have asserted that Allergan’s partnership with the St. Regis Tribe violates the public pledge by Allegan’s CEO, Michael Saunders, to keep drug prices more transparent and affordable to patients.224 This argument is unpersuasive. As Saunders 218. Id. at *3. 219. Id. at *4. 220. Covidien LP v. Univ. of Fla. Research Found. Inc., No. IPR2016-01274, -01275, -01276 (P.T.A.B. Jan. 25, 2017). 221. Id. at *3; University of Florida Research Foundation, OFF. RESEARCH: UNIV. OF FLA., https://research.ufl.edu/ufrf.html [https://perma.cc/H688-YQXH]. 222. Amicus Curiae Brief of the Oglala Sioux Tribe in Support of Corrected Patent Owner’s Motion to Dismiss Based on Tribal Sovereign Immunity at 12, Mylan Pharm. Inc. v. Saint Regis Mohawk Tribe, IPR Nos. 2016-01127, -01128, -01129, -01130, -01131, -01132, 2018 WL 1100950 (P.T.A.B. Feb. 23, 2018). 223. See supra Part I.B and accompanying text. 224. See Sy Mukherjee, Botox Maker Allergan’s CEO Defends Selling Drug Patents to Native American Tribe to Thwart Rivals, FORTUNE (Sept. 9, 2017), 2019] STRANGE BEDFELLOWS 1463 correctly contends, Allergan’s partnership is not at odds with its “social contract,” a core feature of which “is a focus on innovation and research to help patients.”225 He argues that Allergan is not “trying to artificially extend” the Restasis patents, but instead is “just trying to protect [its] property against a system that exposes [it] to double jeopardy.”226 Saunders also points out that there have been many instances of hedge funds demanding cash in exchange for not filing IPR challenges, and that “Allergan has been the target of one of these extortion-like attacks.”227 If our system is to let more entities take cheap(er) shots at branded pharmaceutical companies through IPRs, it is fitting that those companies be allowed to take some additional protections, like the helmet of sovereign immunity. What most commentators fail to analyze is the rationale for the agreement between Allergan and the St. Regis Tribe from the Tribe’s perspective. The St. Regis Tribe’s contract with Allergan is an integral part of its “economic development plan,” not merely some “scheme [designed] to shield patents from review.”228 As a direct consequence of its agreement with Allergan, the St. Regis Tribe, as sovereign, passed a resolution “endorsing the creation of a technology and innovation center for the commercialization of existing and emerging technologies.”229 To flippantly conclude that this arrangement is a mere “sham,” as many commentators have done, is to disregard the Tribe’s very legitimate reasons for entering into this contract.230 And to criticize Allergan for engaging in a “rent-a-tribe” scheme trivializes not only the multimillion-dollar arrangement, but also a sovereign nation’s right to act in its own interests.231 The PTAB’s effective nullification of the contract between Allergan and the Tribe needlessly and illegally http://fortune.com/2017/09/09/allergan-drug-patents-native-american [https://perma.cc/U7K3- 456G] (detailing patient advocates’, generic drug makers’, and biotech investors’ concern with the St. Regis arrangement, particularly in light of the “social contract” Saunders promised to patients for fair and transparent prices). 225. Id. (quoting Saunders). 226. Id. (quoting Saunders). 227. Brent Saunders, Reverse Patent Trolls Are Harming Drug Innovation—and Patients, WALL ST. J. (Oct. 8, 2017, 2:33 PM), https://www.wsj.com/articles/reverse-patent-trolls-areharming-drug-innovationand-patients-1507487600 [https://perma.cc/VX2K-NR8R]. 228. Brief of Scholars, supra note 207, at 12. 229. Id. 230. See id. at 13 (noting petitioner’s argument that the Allergen/Mohawk agreement is a sham). 231. See id. (noting petitioner’s argument that the Allergen/Mohawk agreement is a “rent-atribe” scheme). 1464 DUKE LAW JOURNAL [Vol. 68:1433 injects the PTO into a “politically charged inquiry into tribal motivations and the policy wisdom of tribal economic freedom.”232 Put another way, the assertion here is that St. Regis Tribe’s sovereign immunity can be extricated from its current dalliance with pharmaceutical patents—it cannot, for the two are inextricably intertwined. One of the primary goals of the federal government’s policy toward Native American tribes is “to render Tribes more selfsufficient,” making them better able to finance “sovereign functions, rather than relying on federal funding.”233 To date, however, efforts to promote tribal economic growth have proved inadequate. For more than half of reservations, “some of the highest poverty and unemployment rates in the nation remain the norm.”234 In the words of Justice Sonia Sotomayor, “[i]f Tribes are ever to become more selfsufficient, and fund a more substantial portion of their own governmental functions, commercial enterprises will likely be a central means of achieving that goal.”235 As such, developing innovative “tribal business operations [is] critical to the goals of tribal self-sufficiency because such enterprises . . . ‘may be the only means by which a tribe can raise revenues.’”236 The St. Regis Tribe found a very creative and very lucrative means to generate much-needed revenue when it entered into its partnership with Allergan. Since Congress has not unequivocally expressed its desire to abrogate immunity in this situation,237 both the PTAB and the courts must therefore respect the Tribe’s decision to invoke tribal sovereign immunity and shield the Restasis patents. The PTAB declared that “[e]ven assuming arguendo that the Tribe is entitled to assert immunity,” the IPR could proceed because Allergan is the “effective patent owner.”238 Although this 232. Id. 233. Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2043 (2014) (Sotomayor, J., concurring). 234. Ablavsky, supra note 78. 235. Bay Mills, 134 S. Ct. at 2041 (Sotomayor, J., concurring). 236. Id. at 2043 (Sotomayor, J., concurring) (quoting Catherine T. Struve, Tribal Immunity and Tribal Courts, 36 ARIZ. ST. L.J. 137, 169 (2004)). 237. Id. at 2031; see also C & L Enters., Inc. v. Citizen Band Potawatomi Tribe of Okla., 532 U.S. 411, 418 (2001). 238. Mylan Pharm. Inc. v. Saint Regis Mohawk Tribe, Nos. IPR2016-01127, -01128, -01129, - 01130, -01131, -01132, 2018 WL 1100950, at *7, *13 (P.T.A.B. Feb. 23, 2018) (emphasis added). 2019] STRANGE BEDFELLOWS 1465 pronouncement sounds profound, it “has no legal meaning”239 or statutory validation. The St. Regis Tribe is the sole owner of the patents. To allow the IPR to proceed without the St. Regis Tribe could be a violation of due process: no congressional authorization exists permitting “effective” patent owners to litigate on behalf of actual owners. Moreover, as Allergan points out, no unity of interest exists between the partners: “Allergan can practice the inventions in the patents whether or not they are valid but the Tribe’s property rights and right to payments from Allergan would be extinguished if the Appellees prevail in the IPRs.”240 The Federal Circuit has held that “a patent should not be placed at risk of invalidation by the licensee without the participation of the patentee.”241 The Restasis patents are certainly at risk here, yet the PTAB continues to rely on its self-created “effective owner” designation in order to reach its desired result. However, as Allergen and the St. Regis Tribe detail, no statute authorizes the PTAB to conduct an IPR “against an effective patent owner in the absence of [an] ‘actual owner’” who is immune from suit.242 The AIA is clear that the right to participate as a defendant in an IPR proceeding is held by the patent owner.243 Nowhere is an “effective owner” mentioned in the statute.244 Because “effective” patent owners are not granted standing in the AIA, and standing in administrative proceedings is governed by statute,245 the PTAB’s determination that it “may proceed with an ‘effective’ patent owner exceeds its statutory authority.”246 Allowing PTAB judges this degree of ad hoc rulemaking authority would be contrary to the administrative structure that Congress created. In spite of the legitimacy of the St. Regis Tribe’s contract with Allergan, for which millions of dollars of valuable consideration was exchanged, the PTAB felt it could treat Allergan, rather than the St. 239. Appellants’ Motion for Stay Pending Review at 11, Saint Regis Mohawk Tribe v. Mylan Pharm. Inc., 896 F.3d 1322 (Fed. Cir. 2018) (No. 18-1638). 240. Id. at 11–12. 241. Schwarz Pharm., Inc. v. Paddock Labs, Inc., 504 F.3d 1371, 1374 (Fed. Cir. 2007). 242. Matthew Bultman, Tribe Asks Fed. Circ. To Pause Restasis Patent Reviews, LAW360 (Mar. 19, 2018, 6:42 PM), https://www.law360.com/articles/1023523/tribe-asks-fed-circ-to-pauserestasis-patent-reviews [https://perma.cc/HL54-AYTF]. 243. 35 U.S.C. §§ 313, 314(c), 315(a)(8)–(9) (2012). 244. See text accompanying supra note 243. 245. 5 U.S.C. § 702. 246. Appellants’ Motion for Stay Pending Review, supra note 239, at 13. 1466 DUKE LAW JOURNAL [Vol. 68:1433 Regis Tribe, as the patent owner. However, it was the St. Regis Tribe litigating this case, and it will be the St. Regis Tribe appealing the case going forward. In terms of basic contract law, parole evidence— evidence existing outside of the text of the contract—can only be considered if there are defects in the written instrument.247 No one claims that such defects are present here. It is surprising, then, that the PTAB felt it was within its rights to go “under the hood” of the plain language of the St. Regis–Allergan contract. In so doing, the PTAB effectively invalidated a legitimate contract based on its perception of a sovereign entity’s intent, determining that the presumption of patent ownership created by an assignment was rebutted by extrinsic evidence.248 CONCLUSION The patent system no longer effectively incentivizes investment in new and improved drug therapies. Lost in the cacophony surrounding the debate about high drug prices is the fundamental principle that pharmaceutical innovation will not occur without the prospect of outsized returns enabled through market exclusivity. And while the IPR system may sensibly eliminate low-quality patents in certain industries, it has the potential to derail critical investment in the biotechnology industry. VCs, who enable much of the disruptive innovation in the pharma space, rely most heavily on the signaling value of patents in early rounds of financing where therapeutic potential is greatest.249 IPR proceedings have upended the delicate balance that Congress struck in the Hatch-Waxman Act, and in doing so, they have “increas[ed] business uncertainty for innovative biopharmaceutical companies having to defend their patents in multiple venues and under differing standards and procedures.”250 These proceedings are diverting finite resources away from the research and development of new cures and treatments. The patent system may thus be “applying an unintended downward pressure on the incentives to undertake the most risky [and fruitful] research.”251 247. Parol Evidence Rule, LEGAL INFO. INST., https://www.law.cornell.edu/wex/ parol_evidence_rule [https://perma.cc/3KBY-ASKK]. 248. Mylan Pharm. Inc. v. Saint Regis Mohawk Tribe, Nos. IPR2016-01127, -01128, -01129, - 01130, -01131, -01132, 2018 WL 1100950, at *13 (P.T.A.B. Feb. 23, 2018). 249. See Hoenen et al., supra note 112, at 982 (finding that “patent activity before the first round of financing increases the capital invested in a firm”). 250. Greenwood Letter, supra note 175. 251. Cahoy, supra note 133, at 87. 2019] STRANGE BEDFELLOWS 1467 For a myriad of reasons, the pharmaceutical industry is different, incurring far more in R&D costs than any other industry in order to produce products that are easily copied at a fraction of the price. In a recent Senate Judiciary Committee hearing, Orrin Hatch, for whom the Hatch-Waxman Act is named, questioned whether PTAB proceedings “are impacting [the] Hatch-Waxman [Act] in a disproportionate way.”252 The fact that Allergan felt compelled to “sell” its patents to the St. Regis Tribe provides strong evidence that PTAB proceedings are doing just that. The beleaguered pharmaceutical industry is being squeezed on all sides. It costs drug manufacturers an estimated average of $2.6 billion to bring a new drug to market.253 And these costs are only increasing. Yet, the expected value of a drug’s patent portfolio is decreasing, thanks to the significant likelihood that some or all patent claims will be invalidated by the PTAB. Moreover, branded manufacturers are forced to fight a war against generics on two fronts, concurrently defending their patents in district court and before the PTAB, each under differing evidentiary standards. All the while, such firms must contend with hedge funds exploiting the IPR system, specifically targeting life sciences companies because they are so vulnerable. Such ills are only compounded by a shrinking R&D pipeline and by VCs deciding to move their life sciences capital abroad.254 Is it any wonder that Allergan turned to the St. Regis Tribe for help? Allergan does not contend that its patents are beyond review. Nor is its partnership with the St. Regis Tribe an exploitation of the IPR regime. Rather, this partnership is a response to exploitation. Far from the “sham” or “rent-a-tribe” scheme narrative pushed by the media and commentators,255 Allergan’s alliance with the St. Regis Tribe is a 252. Scott Graham, Skilled in the Art: The Brave New World of Section 101 Guidance, LAW.COM (Apr. 20, 2018, 5:59 PM), https://www.law.com/2018/04/20/skilled-in-the-art-the-bravenew-world-of-section-101-guidance [https://perma.cc/2XGJ-6797] (quoting Andrei Iancu, Director of the United States Patent and Trademark Office, in response to prodding by Senator Orrin Hatch). 253. Mullin, supra note 85. 254. See Madigan, supra note 117 (“[T]he National Venture Capital Association . . . highlight[s] a drop [in the US share of global venture capital] from 83% of global share in 1996 to just 54% in 2015.”). 255. Roy Schestowitz, A Sham and a Scam: How Patent Extremists Continue to Promote a Mohawks and Allergan Ploy Against PTAB, Even After Oil States, TECHRIGHTS (May 14, 2018, 12:31 AM), http://techrights.org/2018/05/14/watchtroll-for-allergan [https://perma.cc/QRX2- 5FHG]; see also, e.g., Robert Pear, Indian Tribe Joins Big Pharma at the Supreme Court, Defending a Lucrative Deal, N.Y. TIMES (Jan. 26, 2019), https://www.nytimes.com/2019/01/26/ 1468 DUKE LAW JOURNAL [Vol. 68:1433 justified effort to obtain reprieve from an IPR regime that is inherently unsuited to pass judgment on dearly acquired patent rights. In that sense, the alliance is an innovative, legitimate, and appropriate use of tribal sovereign immunity.

Much of the world’s land is occupied and used by Indigenous Peoples and communities — about 50 percent of it, involving more than 2.5 billion people. But these groups are increasingly losing their ancestral lands — their primary source of livelihood, income and social identity. Governments, corporations and local elites are eager to acquire land to extract natural resources; grow food, fibers and biofuels; or simply hold it for speculative purposes. Most communities hold land under customary tenure systems and lack formal titles for it. While national laws in many countries recognize customary rights, the legal protections are often weak and poorly enforced making community land especially vulnerable to being taken by more powerful actors. Communities, however, are not standing by idly. They’re increasingly taking action to protect their lands. Here are five ways communities are defending their land rights: 1. Litigation As Indigenous Peoples and communities learn of their rights, more are turning to the courts to help realize them. In 2008, the Kenyan government began a campaign to evict the Ogiek, an indigenous group of hunters and gatherers, from their ancestral home, the Mau Forest in the Rift Valley. The following year, the Ogiek filed a complaint against the government to the African Commission on Human and People’s Rights which referred it to the African Court on Human and People's Rights, a continental court based in neighboring Tanzania. Last month, the Court delivered its judgement, ruling that the government had violated several articles of the African Charter on Human and People's Rights, of which Kenya is a signatory. It recognized the Ogiek's indigenous status and their right to the forest, and awarded reparations for forcible evictions. The ruling from Africa’s highest institutional human rights body sends a powerful message to all African governments of the need to respect indigenous rights. 2. Demonstrations and Protests Community members are marching to state capitals, staging protests and meeting directly with government leaders. In December 2017, following a two-week march by hundreds of indigenous people in Quito, Ecuador, President Lenin Moreno agreed to a moratorium on new auctions of oil and mining concessions without the consent of local communities. When the government then announced a new oil auction and handed out several new mining concessions in February 2018, protestors returned. In March, nearly 100 indigenous women camped out for five days in front of the government palace in Quito’s central plaza. Moreno granted them a meeting, and the women pressed him again to limit oil drilling and mining in their territories, and to combat the violence that often accompanies the industries. Moreno assured them he would heed their demands. The women vowed they would return if the matter is not addressed. 3. Monitoring and Patrolling In the absence of government support, many communities have organized their own patrols to monitor their land and evict intruders. Brazil and other countries have long struggled to contain illegal logging. In the state of Maranhão in northeastern Brazil, only 20 percent of the original forest cover remains. Nearly all of this forest is in indigenous territories and protected nature reserves where commercial exploitation is banned, but loggers linked to criminal syndicates continue to cut trees. In 2014, after repeated calls to government went unheeded, indigenous Guajajara and Ka’apor communities organized their own patrols to rid their land of illegal loggers. They have captured loggers cutting timber or setting fire in their lands, confiscated their chainsaws and seized their trucks. The Maranhão government has praised the work of the indigenous patrols and offered to train and equip them to help enforce environmental regulations. 4. Mapping Land Much community land is not represented on any official government maps and, as such, is essentially invisible. Many communities are therefore preparing precise maps of their land using hand-held Global Positioning Systems (GPS) and other tools. These maps are challenging official government narratives. In Indonesia’s Malinau District, East Kalimantan, loggers and palm oil companies have long sought the customary forests of the indigenous Dayak. When one palm oil company began to log the forest of Setuland village, villagers jumped into action. After threatening to force the company off their land, the company withdrew. The Dayaks realized they needed a map of their land that documented their boundaries, customary forest, homes and longhouses, as well as the damaged forests where the company had illegally cut their trees. With the help of an Indonesian geographer, villagers used drones to map and then monitor their lands. Now, if a logging or palm oil company enters onto their land, Setuland will be armed with their own map to help them confront the challenge. 5. Registering and Titling Land Indigenous Peoples and communities are also registering their customary land rights into a government cadaster and obtaining a formal land titles or certificates. Doing so integrates their customary rights into the legal system, establishes formal land rights and helps communities protect their lands. The Higaonon, an indigenous group in the Mindanao region of the Philippines, holds its land under customary tenure systems. The lack of clear boundaries, however, has led to conflicts with neighbors who have extended their plots onto Higaonon land. In response, the Higaonon applied for a Certificate of Ancestral Domain Title (CADT), a formal land ownership title. Despite a 1997 law requiring the National Commission on Indigenous Peoples facilitate the demarcation and registration of ancestral lands, the agency has only issued 182 CADTs with many more applications waiting to be processed. Moreover, less than 50 CADTs have been formally registered, limiting their effectiveness to protect indigenous land. While no measure can guarantee land security, these actions have helped communities protect their homes. Scaling these measures, however, has proven challenging. Communities need help securing the appropriate technologies like GPS devices or navigating often complex land titling processes. And governments must reform and better implement the laws to better protect indigenous and community land. Being assertive in protecting their lands has also exposed community members to new risks. Clashes between communities and those seeking their land have escalated in recent years. Last year, 197 land and environmental defenders were killed, the bloodiest year since Global Witness began keeping records on this issue. We all need to do a better job of protecting not only community land, but also land defenders.

The struggle against the Dakota Access Pipeline is rooted in this history. Indeed, the pipeline violates the same treaty that underwrote the AIM occupation of Wounded Knee. And just as AIM demanded respect for the treaties and indigenous sovereignty, the Standing Rock Sioux are demanding that the Fort Laramie Treaty be honored and the land and water be protected. The people who have endured centuries of dispossession and attempted elimination — the poorest of the poor, the most likely to be killed by law enforcement, the most easily forgotten — are still here and still fighting. They have built alternatives within and beyond capitalism for hundreds of years. They are the carriers of traditions of indigenous resistance and resurgence simultaneously rooted in Lakota land and history, and global in scope. In recent decades, this struggle has been threatened by neoliberal cooptation. Repelled by a colonizing state, many indigenous groups found themselves in an uneasy alliance with neoliberals who denounced “big government” and jumped at the opportunity to slash the welfare state and restructure tribes as junior corporate partners in the global economy. “Tribal sovereignty” became increasingly conflated with owning and profiting from an Indian casino. Yet despite the absence of a free-market critique in some indigenous circles, Standing Rock and other actions have emerged as exemplary counterweights to this pernicious drift. And elsewhere, indigenous land protectors are also navigating the currents of globalization to great effect. The Unist’ot’en camp in northern British Columbia has, thus far, blocked construction of numerous potential and proposed pipelines through their territory, building a space where indigenous lifeways can persist on lands defined by industry as an “energy corridor.” In Minnesota, the energy company Enbridge recently shelved plans for the Sandpiper pipeline, partially in response to tribal opposition. And the Obama administration nixed the Keystone XL Pipeline, after facing enormous pressure from tribes and their allies. In each of these instances, indigenous peoples are more than cameo extras. They are central protagonists in the fight against the forces of capitalist expansion, who would destroy the land and water, and trample indigenous sovereignty, all for the purposes of resource extraction. At Standing Rock, disparate tribes have set aside differences and come together as one. People from indigenous nations across the continent have travelled thousands of miles to stand with them. Indigenous people are rallying in support from New York City to San Francisco. Together, they are envisioning a future without a Dakota Access Pipeline, and enacting a future where indigenous nations exercise their rights to define a more just, equal, and sustainable path forward, as stewards of land, water, humanity, and each other. At Standing Rock, the audacious vision for an indigenous future, handed down from Wounded Knee and global in force, is alive and well. This is how you Ghost Dance in 2016.

The greatest tools in the self-determination movement's arsenal were American Indian activists groups, the most notorious of which was the American Indian Movement (AIM). The civil rights organization, which initially focused solely on Native Americans in urban communities, eventually expanded and aligned with the entirety of those seeking sovereignty and civil and cultural rights. They sought economic independence, a renewal of traditional culture, the protection of their legal rights, and more importantly sovereignty over tribal properties and the restoration of lands that were historical tribally held territory (Campbell2010:309). Among the biggest offenders violating American Indian rights were museums and how they displayed and represented Native American cultures. Native Activist groups confronted museums with grievances regarding human remains and with appeals that American Indians be allowed to communicate their own histories to the public. In 1971, AIM protested the Southwest Museum in Los Angeles' public display of their ancestors' remains. Leaders denounced ~he desecration of their dead, their beliefs, and their sacred places for science and for public entertainment (Milo 2000:45). The most infamous museum was the Dickson Mounds Museum. The burial site sits on land previously owned by Don Dickson who excavated the mounds. Instead of removing the remains and funerary objects from the graves, he decided to leave them in place, uncovered and open to the public. The Dickson Mounds Museum became a state-owned and sanctioned museum when ownership was transferred to the state of Illinois. In the 1960s, Native American protestors began to gain national attention, citing the desecration of the dead and racism, but they experienced a great deal of opposition from business owners living in the town and from researchers (Dellios 1992). It was not until1991-92 that the Dickson Mound's burials were enclosed and the remains laid to rest. Shortly thereafter, the museum closed for major renovations and in 1994 reopened to the public with new exhibitions in place. New York's Museum of Modem Art (MOMA) attempted to showcase a sacred Zuni figurine. However, after protests by the Zuni, the museum posted a note which stated that MOMA would not be put the figurine on display because of the objections raised by tribal authorities. Instead, the show ended with work from living indigenous artists (Clifford 1984:244-245). In these instances of protest and negotiation, Native Americans demonstrated two important aspects of self-determination: the first is the power of protests, and the second is the growing political influence Native communities wielded. By voicing criticisms in the display of their culture, activists brought national attention to the problem through the use of the media The influence of the media, in turn, shifted public opinion toward deference for the cultural sensitivities of Native peoples and in favor of repatriation efforts by universities and museums (Milo 2000:45). The growing political influence through protests led by Native communities and the subsequent favorable media coverage helped shape federal policy by first placing and then keeping Native American concerns on the national agenda (Kotlowski 2003:204). While Native American activists made strides politically, museum-focused activists, however, struggled to combat a slowly changing museum culture. Remnants of an earlier time period still clung to museum policy despite some instances of renegotiation. There was still a feeling among museum professionals and scholars that they alone had authority over the collections and their histories. Professionals intentionally built a wall between the museum and the layperson to exclude any voice in the exhibitions that was not from a scholarly background. The shifts in public opinion brought by the media was something that museums would have to reckon with, particularly when those same activists included a new tactic in their fight for change: legislation.

Consider, for example, the most cited work in the fields of settler colonial and indigenous studies: “Settler Colonialism and the Elimination of the Native,” a 2006 essay by the late radical Australian anthropologist Patrick Wolfe. In a clever turn of phrase, repeated today like a Feuerbach Thesis for indigenous radicals and scholars, Wolfe described the invasion of indigenous lands as “a structure not an event.” His argument was that settler colonialism — a form of colonialism where colonists come to stay, as in the United States, Canada, Australia, New Zealand, South Africa, Palestine, and some Pacific Islands — requires the elimination of Native people and societies to access and occupy their land. As Wolfe put it, “Settler colonialism destroys to replace.” Wolfe’s theory of settler colonialism emerged out of the ongoing “History Wars” in Australia, a public, battle-hardened, and career-defining debate over whether Australia’s treatment of Aborigines should be considered genocide. For decades, specialists have squabbled over the numbers massacred at places like Tasman and Slaughterhouse Creek. These debates remain passionate and deeply controversial. They are tied to political battles over land rights, reconciliation, constitutional recognition, mass incarceration, racism, and Aboriginal treaties. But while his contemporaries tried to win the History Wars by appealing to documents, figures, and definitions, Wolfe sought to reframe the debate. He shifted the focus from determining the point at which butcheries become genocide to the “logic” of eliminating indigenous people over centuries and around the world. Settler colonialism, he argued, is a structural phenomenon that plays an ongoing and central role in shaping the modern world. Wolfe’s was a brilliant intervention. In the jargon-riddled field of postcolonial studies, he homed in on the empires, colonies, states, and territories of ongoing settlement and indigenous dispossession. His theory traveled well. For indigenous scholars and activists from the United States to Palestine and Canada to New Zealand, “settler colonialism” became the dominant framework for understanding ongoing Fourth World struggles. But Wolfe’s theory ran into a rather significant problem — reality. If settler societies like Australia, Canada, New Zealand, and the United States are structurally dependent upon the elimination of the Native, how do we explain the survival, resilience, and resurgence of that same Native? How do we explain the global emergence of policies of indigenous self-determination, recognition, and land rights in various forms? Are these policies lipstick on the same colonial pig? Are indigenous people permanently cast in cameo roles — their victories small exceptions that prove the rule? How do we explain Standing Rock? Wolfe’s theory, however popular and illuminating, is in a sense, a gussied-up version of the inevitable victory of Cowboys over Indians — a reworking of Victorian ideology as critical theory. The indigenous story unfolding before us demands more. Explaining Standing Rock The Cowboy is supposed to be everything the Indian is not. While the Indian is depicted as a tragic vanquished trope, the Cowboy is a handsome, swaggering, and triumphant trickster. While the Indian retreats into the wild, the Cowboy hunts down his enemies to settle old scores. While the Indian is at best a noble savage and at worst a villain, the Cowboy is a cultural icon and hero. And, while the Indian is a loser, the Cowboy is a winner. At Standing Rock, generations of myth and folk wisdom proved wrong. As Bill McKibben put it in the Guardian, the Standing Rock movement “is a break in that long-running story, a new chapter.” In a moment when the Left is struggling in the face of a globalizing free market and an ascendant right, indigenous victory stands as both a surprising puzzle and an intriguing promise. It begs the rarely considered question: why have indigenous people been able to secure a stunning victory while even the most successful movements of late have faltered? And what can other movements learn from Indians? Various voices have risen to offer answers. Writing in the Nation, Audrea Lim argues that Standing Rock shows a multiracial coalition united against neoliberalism and white supremacy can win in the heartland. McKibben and Naomi Klein tout the power of direct action and praise indigenous organizers for catalyzing nonviolent mass resistance. In the New Yorker, novelist Louise Erdrich suggests that Standing Rock prevailed because it offered the world an emotionally, historically, and environmentally compelling story rooted in faith. “Every time the water protectors showed the fortitude of staying on message and advancing through prayer and ceremony, they gave the rest of the world a template for resistance,” Erdrich concludes. All of these analyses are accurate, but their individual and collective explanations for the Standing Rock victory are insufficient. They fail to ask key questions about the when, where, how, and who. They do not explain what made this movement and moment different. And perhaps most importantly, in their haste to explain a seemingly improbable and episodic victory, these writers miss the remarkable big picture. Outflanking Corporate Globalization Since the 1970s, unions, public goods, social welfare, and other essential building blocks of social democracy have been beaten back by the free market consensus. Yet over these same decades, indigenous rights to land, jurisdiction, and sovereignty have gained ground. At the same time workers lost their unions, the environment was winning a union of its own. That union takes the form of indigenous rights. Credit for these often-overlooked indigenous victories belongs to the indigenous movements that unswervingly pushed for similar goals across decades and even centuries: return of indigenous lands, restoration of indigenous sovereignties, and dignity for indigenous peoples. From the time their lands were seized in the nineteenth century and even before, indigenous people came together, forming tribal, intertribal, regional, and national coalitions and organizations. They pressured states and empires built on lands taken from them to recognize their demands. They stood strong against obstinate and repressive governments determined to claim their remaining territories and assimilate their people into the laboring class. They remained resolute. As the Chiefs of the Syilx, Nlaka’pamux, and Secwepemc nations wrote in a petition to then–Canadian prime minister Wilfrid Laurier in 1910: So long as what we consider justice is withheld from us, so long will dissatisfaction and unrest exist among us, and we will continue to struggle to better ourselves. For the accomplishment of this end we and other Indian tribes of this country are now uniting and we ask the help of yourself and government in this fight for our rights. In moments of global political and economic crisis like the 1880s, 1930s, 1940s, 1970s, and now 2010s, state policies toward indigenous people worldwide often shifted. During the 1880s and 1940s, the United States applied assimilationist pressure on indigenous communities, with disastrous consequences. In the 1880s allotment and privatization policies under the Dawes Act of 1887 splintered indigenous lands and communities and brought poverty and political, social, and cultural erosion. In the 1940s, termination policies designed to eliminate tribes and assimilate Native laborers further devastated indigenous communities. Children were taken from their families and placed in abusive residential schools. Workers were displaced from their homelands and dropped into poverty and homelessness in urban ghettos. Indigenous people, particularly indigenous women, were subjected to sexual violence, sterilization, and medical experimentation. Yet the stubborn dream of indigenous resurgence endured. And crises sometimes ushered in marginal progress. In the 1930s, Franklin Delano Roosevelt’s so-called “Indian New Deal” afforded tribes greater control over their lands and resources and restored a measure of sovereignty and self-determination. The 1960s and 70s saw the rise of the Red Power movement, a momentous breakthrough that pushed the US and Canadian states to adopt policies based on recognition instead of assimilation. The contemporaneous Maori Renaissance in Aotearoa/New Zealand and Aboriginal land rights movement in Australia won similar gains. These movements often found unlikely allies in neoconservatives, neoliberals, and their predecessors who, beginning in the 1970s and especially from the 1980s onwards, saw indigenous self-determination and autonomy as an opportunity to scale back social welfare spending and reduce indigenous dependence on the government. It was Richard Nixon who inaugurated the current era of indigenous self-determination. He outlined his commitment to the policy in a special message to Congress on July 8, 1970: This, then, must be the goal of any new national policy toward the Indian people: to strengthen the Indian’s sense of autonomy without threatening his sense of community. We must assure the Indian that he can assume control of his own life without being separated involuntarily from the tribal group. And we must make it clear that Indians can become independent of Federal control without being cut off from Federal concern and Federal support. At times, support from capital-friendly politicians contained and defanged the revolutionary potential inherent in the restoration of indigenous lands and sovereignties. In some instances, capital interests used self-determination as a facade to restructure tribes as junior corporate partners in the global political economy. This occurred at times with Indian gaming, Alaska Native Corporations, corporate iwi that manage Treaty of Waitangi settlement money in New Zealand, the Indigenous Land Corporation in Australia, and First Nations natural resource corporations in Canada. More often, however, indigenous people have coopted conservative forces as agents of an indigenous agenda. Across the world, while other Left and progressive movements gained little and often lost ground, indigenous people moved debate and policy in directions favorable to their interests. Self-determination is now the established framework for indigenous policy in the United States, Canada, Australia, and Aotearoa/New Zealand. It has been firmly endorsed and furthered through the United Nations Declaration on the Rights of Indigenous Peoples. In states built upon the dispossession, marginalization, and attempted elimination of indigenous people, these are remarkable victories. At Standing Rock and at proposed pipeline sites across the United States and Canada, neoliberals have been forced to confront indigenous rights — a legal precedent and policy partially of their own creation — when in a prior age they would have plowed through these communities without a moment’s hesitation. Politicians like Nixon did not anticipate that indigenous people would, for instance, be able to parlay the minor restoration of self-governance over expanded acreage in the hinterlands into a transformative political, economic, and cultural movement. Indigenous people, according to common sense, could never win. The future that is now our present would never happen. This condescending assumption turned out to be dead wrong. And it opened up pathways to victory for indigenous people precisely because they had been underestimated. Viewed from a decades-long and global view, indigenous people emerge as cunning, courageous, and even heroic political tricksters. They took their struggle out onto their lands and waters and into the courts. They outsmarted and outflanked politicians by simultaneously pressuring and cozying up to them. In so doing, they won important and lasting concessions bit by bit. In the long run, these concessions and relationships have provided indigenous nations with access to government as well as the political, economic, and legal leverage to deliver devastating blows to the networks and infrastructure of carbon-dependent capitalism, which threaten the future of indigenous communities, lands, and waters and all who share these with them. This dynamic revealed itself most vividly under the administration of Barack Obama, who many Indians adopted and embraced. Obama became one of the only sitting presidents to visit an Indian reservation when he journeyed to Standing Rock in 2014. In September 2016, at the Obama administration’s final Tribal Nations Conference, National Congress of American Indians president Brian Cladoosby honored Obama with a song, blanket, and traditional cedar hat. At the same time, Standing Rock marshaled a global indigenous-led coalition, pressuring Obama to halt the Dakota Access Pipeline. “Help us stop this pipeline. Stick true to your words because you said you had our back,” Standing Rock youth Kendrick Eagle pleaded in a moving message to the president in November. “I believed in you then, and I still believe in you now that you can make this happen.” A similar dynamic is unfolding in Canada, where Liberal Prime Minister Justin Trudeau has promised to renew a “nation-to-nation” relationship with First Nations, a position which contradicts his economic agenda and is forcing him to either backpedal or face a Standing Rock North in the forces aligned against a proposed Kinder Morgan pipeline. But indigenous movements used more than cunning and moral suasion. They also identified pressure points and exploited them. The Dakota Access Pipeline, by its very nature, was a vulnerable target. Trenches cannot be dug where people stand. A pipeline cannot be rerouted without incurring immense expense. Bakken shale oil costs more to refine and transport to market than other forms of crude oil. Investors, bankers, and business partners are risk averse. They don’t like delays, and they don’t like bad headlines. OPEC, not American and Canadian oil barons and politicians, controls the largest share of the global oil market. In short, if your objective is to shore up the Bakken as a viable domestic alternative to OPEC, Dakota Access looks like a risky play. Now, indigenous operatives and their supporters are pushing investors to divest. In recent weeks, they’ve posted a conspicuous billboard in Times Square and unfurled a massive banner at an NFL game, even as they maintain their presence in North Dakota. While President-elect Trump has threatened to approve Dakota Access, divestment, environmental review processes, and proposed rerouting could end up delivering more partial victories for Standing Rock in the coming months. Had the Democrats won in November, the movement could have killed Dakota Access like Keystone XL, delivering a crippling blow to the Bakken oil barons. But to assume Trump’s election guarantees the pipeline will be completed is to again underestimate the indigenous movement. Indians Make the Best Cowboys At Standing Rock, Indians settled old scores. They danced inside and outside the lines as lawyers and outlaws. They took on pipelines and bulldozers where the tools and trappings of the oil industry were most vulnerable. As capital and corporate globalization threatened to squelch progress and conscience, the Indians rode to victory. The water protectors emerged as heroes. Their enemies became villains. For today, it’s victory. For generations it will be remembered and honored. For the movements of the Left, it’s a lesson. Beyond well-worn analyses of the power of action, solidarity, and narrative, Standing Rock points to the necessity to act when and where the networks and infrastructures of capital are most vulnerable, at the level of individual projects as well as entire industries and global systems. It shows that movements must remain resolute in their aims — even if their goals take decades to achieve. Politics is a long game. Standing Rock also reminds us that resistance is key, but that effective resistance is strategic. And strategic resistance is even more impactful when paired with subtle and cunning forms of persuasion. This is especially essential for Indians, who comprise less than 2 percent of the population and so must out-strategize and outsmart the powers aligned against them to win. Lastly, it suggests that indigenous rights are potentially revolutionary, and that indigenous sovereignty is an increasingly powerful instrument against the forces of capital. When the Justice Department halted construction of the Dakota Access Pipeline in October, they committed to look into Free Prior Informed Consent legislation. Such a move would greatly strengthen the rights and leverage of indigenous nations. The Left should see these and other indigenous struggles as its own, incorporating an indigenous platform into the next generation of radical coalitions and writing and thinking about indigenous issues alongside more commonly discussed forms of oppression. Dark times lie ahead for the first people of this land and all who share it with us. President-elect Trump, a former Dakota Access investor, has threatened to approve the pipeline and others like it. He is lining up resources to accelerate energy exploitation, devastating the natural world and pushing the global thermometer higher and higher. Trump’s advisors have called for the privatization of oil, gas, and coal-rich Indian reservations, mirroring policies like the Dawes Act of 1887 and the “Termination” policies of the 1940s and 50s, both designed to destroy tribal communities. But the frontier is turning. In an unforeseen and previously unimaginable twist, it is the Indians who shepherd forward progress. In their right hand, they clutch a long history of unrequited struggle for Native Sovereignty. Among its many chapters is the story of Standing Rock and the rallying cry heard around the world, “Water is Life!” With their left hand, they sow the seeds and point the way forward for the forces of conscience against capital. In politics, it turns out that Indians make the best Cowboys.