News & Politics

Sen. McCaskill Wants to Strip American Indian Tribes of Sovereign Immunity

Sen. McCaskill Wants to Strip American Indian Tribes of Sovereign Immunity
Sen. Claire McCaskill, D-Mo., announces her findings from an investigation into opioid prescriptions, Wednesday, Sept. 6, 2017, on Capitol Hill in Washington. (AP Photo/Jacquelyn Martin)

Back in 2016, Missouri Democratic Senator Claire McCaskill called Donald Trump’s criticism of Judge Gonzalo Curiel “racist and bigoted.” It must have felt good for her to be able to accuse an opponent of the most deadly political sin in America.

Sadly for her, however, this accusation can now be leveled at her.

As Newsweek (of all places!) reports in an article titled “How Racism Is Fueling A Pharma Scandal Over A Billion-Dollar Patent,” McCaskill is specifically targeting American Indian tribes.

The pharmaceutical company Allergan has created a medicine for people with chronic dry eyes (I’m one of those people, by the way) called Restasis. You may have seen their ads. As anyone with even a mediocre knowledge of this industry knows, developing a drug is extremely expensive. You’re talking about a billion dollars and a period of ten years — on average, that is.

Small wonder, then, that these companies are extremely protective of their patents.

Allergan was facing a legal challenge to their patent for Restasis. So they tried to come up with an innovative way to protect it, and with a little help from their friends an American Indian tribe, they were successful.

American Indian tribes in the U.S. have a protection reserved normally only for official governments: sovereign immunity. This means that they can’t be sued unless they violate the Constitution. As long as that’s not the case, they can do as they please.

So Allergan and the Saint Regis Mohawk Tribe of upstate New York cut a deal with each other: the patent was “sold” to the tribe, which immediately “licensed” it back to the company in exchange for 15 million dollars per year until the patent runs out. It was a win-win situation for all involved: Allergan protected its patent; the Saint Regis Mohawks got some desperately needed money (they’re located near three areas with so much polluted material that it’ll take them years to clean it up); and consumers/patients knew that effective drugs would continue to be developed because the companies creating them could actually earn a profit.

However, there’s one person who wasn’t happy: Senator McCaskill. As Townhall‘s Derek Hunter explains: “She’s introduced a bill to strip tribes’ immunity in patent cases. Curiously, McCaskill’s bill only strips Indian tribes of this protection, not the other beneficiary of sovereign immunity — public universities.”

According to McCaskill’s office, “Congress never imagined tribes would allow themselves to be used by pharmaceutical companies to avoid challenges to patents, and this bill will shut the practice down before others follow suit.”

But wait a minute: this tribe isn’t being “used.” They’re actually making a solid profit.

They didn’t have anything to do with the development of the patent, but they’re getting paid $15 million a year for it anyway. I sure would love to be “used” that way, wouldn’t you?

In other words, McCaskill’s attacks don’t make any sense. Unless, that is, she is being “used” by generic drug producers that would, as Hunter points out, benefit tremendously from challenging this patent.

Or maybe she simply hates American Indians — a nonsense charge that I’m sure, if McCaskill was a Republican, Democrats would scream from the rooftops. We’d hear that her public attacks on the tribe are simply a “dog whistle” for her racist, white-supremacist base, and so on. But because she’s a Democrat, not only is she not accused of bigotry, her party isn’t even criticizing her push to strip American Indian tribes of one of their most fundamental rights.

It goes to show just how hypocritical Democrats like McCaskill truly are, and why no one takes their accusations of racism seriously nowadays.

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