This building in Tahlequah, Oklahoma, served as the Cherokee Nation Capitol from 1869 to 1970 and now serves as a tribal courthouse. Photo: Jimmy Emerson

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Cherokee Nation seeks to hold drug companies accountable for opioid epidemic

Monday, December 18, 2017

The Cherokee Nation is attempting to hold the pharmaceutical industry accountable for the opioid epidemic in northeastern Oklahoma.

But a historic lawsuit might never get off the ground despite the documented effects of the crisis on the health and well-being of the Cherokee community, The New York Times reports. That's because the defendants, which represent some of the largest drug companies and drug stores in the United States, are disputing the jurisdiction of the tribe's court, where the lawsuit was filed.

“I believe these companies target populations,” Cherokee Nation Attorney General Todd Hembree told The Times. “They know Native Americans have higher rates of addiction. So when they direct their product here, they shouldn’t be surprised to find themselves in a Cherokee court.”

Tribal courts, generally, lack jurisdiction over non-Indian entities, according to the U.S. Supreme Court. But a case known as Montana v. United States outlines an exception in situations where the "political integrity, the economic security, or the health or welfare" of a tribe is threatened.

A second exception applies to situations in which a non-Indian has entered into a "consensual relationship" with a tribe.

Historically, it's been difficult for tribes to meet either exception. A federal judge has yet to determine whether the Cherokee Nation can indeed hold the industry accountable in its own judicial system.

As a result, the case, known as Cherokee Nation v. McKesson Corp, has been placed on an indefinite hold. The parties agreed to wait until Judge Timothy M. Tymkovich, of the federal court for the Northern District of Oklahoma, issues a ruling on the jurisdiction matter in McKesson Corp. v. Hembree.

Appeals are likely regardless of the outcome. Eventually, the dispute could land before the Supreme Court, whose last tribal jurisdiction case was Dollar General Corporation v. Mississippi Band of Choctaw Indians.

The court was unable to reach a decision following the death of Antonin Scalia. The remaining eight justices deadlocked 4-4, thus failing to provide more guidance on tribal court jurisdiction over non-Indians.

Read More on the Story:
In Opioid Battle, Cherokee Want Their Day in Tribal Court (The New York Times December 17, 2017)