My name is Richard A. Goren. I represent a writer and movie producer in a lawsuit in the federal court in Hartford, Connecticut against the Mashantucket Pequot Indian Tribe, the owner/operator of the Foxwoods Gambling Casino in Ledyard, Connecticut. My client entered into a contract with the tribe to produce a documentary film to be shown to admission paying tourists. When the tribe kicked her off the job and then used her script to produce the movie themselves, she filed suit.

While the film deal had nothing to do with reservation activities and the wrongdoing occurred entirely off its reservation, the tribe insists that it and its agents are protected from suit by tribal immunity.

This tribe is extensively involved in interstate commerce. It solicits people worldwide to its gaming rooms, its theatrical productions and its resort facilities. It hires performers, contractors, professionals and companies from around the country, and utilizes in various commercial activities materials, services and products from the fifty states and beyond.

Fueled by enormous gambling profits this economic powerhouse continues to establish, and directly own and operate other business enterprises, like the one involved in this lawsuit, wholly unrelated to any intramural regulation of reservation affairs.

This is not a suit about a personal injury or death suffered in an accident on reservation property. This about a tribe engaged in commercial activities off its reservation in the interstate marketplace which hawks the notion it is above the law.

When confronted by the alleged victim of their tortious conduct, while the dispute has no geographic nexus to their reservation and bears no relationship to the tribe's power to govern itself or to regulate the use of its land and resources, the Pequots insist my client's cause must be tried in its tribal court.

The plaintiff is Debra Bassett of California, a longstanding member of the Native American Rights Fund. A developer and producer of films, Ms. Bassett performed research and conducted interviews, and then created and refined an original idea for a screenplay about the history of the Mashantucket Pequot Tribe and a massacre of the tribe in 1637. Her intellectual property was reduced to written script outlines which are protect able under the United States Copyright Statute. Beginning in October 1994 Ms. Bassett and the Pequots entered into negotiations for her to produce a film about the tribe's history for display at a museum close by the tribe's fabulously successful Foxwoods Casino.

Ms. Bassett expended substantial time and money in her investigation and research. To protect her intellectual property rights, in November 1994 she required the tribe to enter into a written confidentiality agreement in which the tribe acknowledged and agreed that all of Ms. Bassett's original and evolving work, including her script outlines, which she disclosed to the tribe, remained her property, that the tribe, its officials and agents would take such precautions as would be necessary to maintain Ms. Bassett's work as confidential and to prevent dissemination of her materials to anyone outside of her team and finally that the tribe would return and all materials upon Ms. Bassett's request.

In February 1995, Ms. Bassett and the tribe agreed that she would have the exclusive right to produce the film, and the tribe requested her to begin work on production.

That spring she entered into letter agreements with two persons to act as writers and directors of the film. Each agreed that all property rights to the evolving screenplay, including the copyright, would belong solely to Ms. Bassett. Shortly thereafter, Ms. Bassett flew these two persons to Connecticut for the tribe to meet and approve as co- writers and co-directors of her film. Later that spring with the approval and assurances of the Pequots, Ms. Bassett, with substantial efforts and expense, undertook significant development and pre-production work.

In the summer Ms. Bassett and the tribe entered into a formal preliminary contract pursuant to which, subject only to approval of the final script, Ms. Bassett would have the exclusive right to produce the film. She was to earn no less than ten percent of the budget for the film which was tentatively set at $5 million.

The tribe approved the script but instead of proceeding the tribe and its agents engaged in a series of tortious acts.

After gaining control of Ms. Bassett's script by fraudulent inducement, the tribe fired her and wrongfully induced key members of her creative team to breach their agreements with Ms. Bassett. The tribe then boldly absconded with her work and hired her writers and directors to produce and direct her screenplay. The tribe then went on to produce, entirely off their reservation, a film based on Ms. Bassett's copyrighted work. It plans to show the film for an admission fee as part of an on-reservation interstate tourist attraction beginning this August.

To protect her rights, in November 1995 Bassett filed in the United States Copyright Office a certificate of registration for the copyright to the 1637 Pequot Massacre film rights.

A comparison of the purloined script with the shooting script reveals a clear case of copyright infringement as an unauthorized adaptation of Bassett's original proprietary work.

Ms. Bassett brought suit for breach of contract, for tortious interference with her contractual relationships, for the tortious copyright infringement, and for violation of the Connecticut Deceptive Practices Act. The tribe has moved to dismiss the complaint, asserting that the tribe and its agents are entitled to sovereign immunity and are not subject to suit even though the wrongdoing occurred entirely off its reservation.⁽¹⁾ While federal land has long dictated that copyright infringement cases be adjudicated solely in the federal courts,⁽²⁾ the tribe asserts that the dispute complaining of tortious conduct outside the reservation is within its jurisdiction and that Ms. Bassett must seek redress in tribal court.

The Mashantucket Pequot Tribe, an economic powerhouse conducting commercial activities in the interstate marketplace, implicitly asserts it may misappropriate federally protected intellectual property rights and, like a pirate on the high seas, compete unfettered by laws assuring fair and equal competition. This cannot be the law of the land.⁽³⁾

Our free enterprise system relies on the law's assurance of fair competition and protection of intellectual and other property. The common law supported by various federal and state statutes routinely provide remedies against commercial renegades who would interfere with the legal and contractual rights of other business persons or steal their intellectual property. As directed by the Constitution Congress very early enacted the Copyright Statute which directs federal courts to enjoin continuing infringements of protected intellectual property and to award damages for the theft and unlawful use of an intellectual entrepreneur's property.⁽⁴⁾ No person or group of people may conduct business above the law.

There is no Supreme Court case holding that an Indian tribe's off-reservation commercial activities in interstate commerce are protected by tribal immunity.⁽⁵⁾

Tribal sovereignty "is of such a 'unique and limited' character that it exists only "at the sufferance of Congress."⁽⁶⁾ We respectfully urge Congress to consider and enact legislation, perhaps similar to the laws governing the commercial activities of foreign nations,⁽⁷⁾ abrogating tribal immunity when Indian tribes engage in business activities particularly in the interstate marketplace.

All who engage in commerce have a right to the protection of the law. Without the reciprocity of equal protection other businesses simply will not deal with tribal operated enterprises. The abrogation of tribal immunity for commercial interstate activities is therefore in the best interest of the Indian tribes themselves and the entire nation. Every commercial enterprise must stand responsible for the legal consequences of its actions.⁽⁸⁾

1. The motion to dismiss in Bassett, et al v. Mashantucket Pequot Tribe, et al, Civil Action No. 396CV01947(CFD) remains pending before the Honorable Christopher F. Dronev, United States District Court Judge, for the District of Connecticut at Hartford.

2. 28 U.S.C. 1338(a).

3. See Oklahoma Tax Comm'n v. Citizens Band Potawatomi Indian Tribe, 498 U.S. 505,

515 (1991) (Stevens, J. concurring).

4. "The economic philosophy behind the [Constitution's] clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in 'Science and useful Arts.' Sacrificial days devoted to such creative activities deserve reward commensurate with the services rendered." Mazer v.Stein, 347 U.S. 201, 219 (1954).

Under the Act, the copyright owner of the work of authorship has the exclusive right to reproduce the copyrighted work, to adapt the work, to publish the work and to perform or display then work. 17 U.S.C.§106. Under l7 U.S.C.§501(a)"[a]nyone who violates any of the exclusive rights of the copyright owner. . is an infringer of the copyright. . .." The Copyright law, authorized by Art 1, §8, cl.8 of the Constitution, specifies that it is preemptively the law of the land benefitting and restricting all citizens of the United States including Indians. As such, the Copyright Act is a federal law of general application. See Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996) (generally applicable federal statutes fully apply to the Mashantucket Pequots).

5. In Potawatomi, supra, 498 U.S. at 510, the Supreme Court intimated it would consider modifying tribal immunity when a tribe, such as the Mashantucket Pequot tribe, has attained economic "tribal self-sufficiency." Gleanings from other cases stress the distinction between on- and off-reservation activities of federally recognized tribes. In discussing the dependent status of Indian tribes and their lack of true sovereignty to determine their external relations, the Supreme Court offers: "the areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between Indian Tribes and nonmembers of the Tribe." US. v. Wheeler, 435 U.S. 313, 326 (1978). In considering the complex state of the law regarding taxation by states of on-reservation activities of tribes the Court has noted "tribal activities conducted outside the reservation present different considerations." Mescalero Apache Tribe v. Jones, 411 U.S. 145, 146 (1973).

In Montana v. United States, 450 U.S. 544, 564-65 (1981), in considering tribal sovereignty over the activities of nonmembers, the Supreme Court explained that tribal power is exercisable only to protect tribal self government or to control internal, intramural relations and that as a "general proposition... the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers...... Strate v. A-1 Contractors, 117 S. Ct. 1404, 1413 (1997), holds that the Montana rule and two exceptions for on reservation conduct by nonmembers defines the very outer limits of tribal sovereignty.

The Ninth Circuit holds that tribal immunity does extend to commercial off reservation activities. In re Greene, 980 F.2d 590 (9th Cir. 1992) cert. denied 510 U.S. 1039 (1994). Recognizing that some Supreme Court opinions raise "some question about tribal authority, and perhaps immunity, off the reservation", the Ninth Circuit's holding is explicitly predicated on what that Court perceives to be the Supreme "Court's concern for protecting tribal opportunities for economic development . - .". Id. at 598. But the Supreme Court's concern is to insure that tribes can compete in the establishment marketplace "on a footing of equal competition." See Mescalero Apache Tribe v. Jones, supra, 411 U.S. at 157.

Tribunal immunity is grounded on traditional common law immunity from suit traditionally enjoyed by sovereign powers.... Because that common law sovereign immunity has evolved to be inapplicable to commercial activity by a sovereign and because such an exception is based on the important principle that it is disfavored for a commercial actor to escape the legal consequences of its actions, whether tribal sovereign immunity now extends to commercial activities is an important, complex, and unresolved question.

In re Greene, supra, 980 F.2d at 600 (Rymer, J., concurring).

6. Reich v. Mashantucket Sand & Gravel, 95 F.3d 174, 178 (2d Cir. 1996). "Tribal sovereignty is 'dependent on, and subordinate to,' the Federal Government. " Washington v. Confed. Tribes of Coleville Indian Reservation, 447 U.S. 134, 154 (1980). Tribal sovereignty in the context of copyright law is a much different issue from the application of the copyright law to states. In Chavez v. Arte Publico Press, 59 F.3d 539, 548 (5th Cir. 1995), vacated, remanded sub nom, University of Houston v. Chavez, U. S. , 134 LED. 2d 772, 116 S. Ct. 1667 (1996) the court held that notwithstanding the Eleventh Amendment Congress had the power to abrogate the immunity of states and apply the copyright statute to states. In Seminole Tribe v. Florida, U. 134 L. Ed. 2d 252, 116 S. Ct. 1114, 1122 (1996) the Supreme Court held that Congress acting under the Indian commerce clause of Article I did not have the power to authorize Indian tribes to sue a state without the state's consent and that Congress' power to abrogate state sovereignty is limited to authority under the Fourteenth Amendment. The Fifth Circuit in Chavez is considering on remand whether Congress under the Fourteenth Amendment's due process protection against deprivation of property by a state may make the copyright statute applicable to states. However it remains the general rule "the Indian Commerce Clause confers more extensive power on Congress than does the Interstate Commerce Clause." U.S. v. Lomayaoma, 86 F.3d 142, 145 (9th Cir.) (citing Semiole Tribe, 116 S.Ct. at 1126), cert. denied, - U.S. 117 S. Ct. 272, 136 L. Ed. 2d 196 (1996).

7. 28 U.S.C. §§ 1602-1611. "A foreign state shall not be immune from the jurisdiction of courts of the Unites States or of the States in and case -. . .(2) in which the action is based upon a commercial activity carried on in the United States of the foreign state;. . ." 28 U.S.C. § 1605.

8. Appended as Exhibits A, B and C are copies of the plaintiffs' amended Complaint, Memorandum in Opposition to Defendants' Motion to Dismiss, and Supplemental Brief in Opposition to the Defendants' Motion to Dismiss.