The administration building of the Sisseton-Wahpeton Oyate in Agency Village, South Dakota. Photo: Angela Smith

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Tribes continue battles against drug companies amid a setback in court

Wednesday, January 17, 2018

Note: This post has been updated to include a lawsuit filed by another tribe, the Eastern Band of Cherokee Indians.

The opioid epidemic has hit Indian Country hard and tribes are looking for ways to hold drug companies accountable.

In the past two months alone, six tribes in four different states have filed lawsuits against some of the biggest players in the pharmaceutical industry. The complaints cite numerous impacts to their health, youth, public safety and their ways of life.

“The effect of opioids on South Dakota tribes has been horrific,” said Brendan Johnson, a former federal prosecutor who is representing the Flandreau Santee Sioux Tribe, the Rosebud Sioux Tribe and the Sisseton-Wahpeton Oyate in lawsuit filed in federal court last week.

“This epidemic has overwhelmed our public-health and law-enforcement services, drained resources for addiction therapy, and sent the cost of caring for children of opioid-addicted parents skyrocketing," Johnson added. "This is a crisis that affects virtually every tribal member in the state.”

The lawsuit comes on the heels of two that were filed in December. The St. Croix Chippewa Indians is pursuing prescription drug companies in Wisconsin while the Leech Lake Band of Ojibwe is going after some of the same firms in Minnesota.

"The crisis caused by the proliferation of opiates throughout our communities is the newest threat to our way of life," said Leech Lake Chairman Faron Jackson Sr. "We hope this lawsuit will help to bring further attention to this major issue and ultimately make sure the major opioid manufacturers, who have put their corporate profit margins over the lives of our people, are held accountable for their actions.”

The Eastern Band of Cherokee Indians is also weighing in. A January 4 complaint filed in federal court in North Carolina blames drug manufacturers and distributors for causing harm to the tribe's citizens.

"One hospital on the Qualla Boundary reports that 14 percent of their patients – and 10 percent of enrolled tribe members – received a diagnosis related to substance abuse in 2012," the lawsuit states, using the historic name for the tribe's territory.

But the first tribe that went to court in attempt to hold the industry responsible was dealt a setback last week. The Cherokee Nation can't sue drug companies in its own judiciary system, a federal judge ruled, even as he acknowledged the negative effects of the opioid crisis in Oklahoma.

"Do the tribal courts of the Cherokee Nation have jurisdiction over this particular action? The court finds they do not," Judge Terence Kern wrote in the 25-page decision, a copy of which was posted by Turtle Talk.

The case, however, isn't over yet. Attorney General Todd Hembree, the tribe's top legal official, said the battle will continue in Oklahoma's court system.

“In 2015 and 2016 alone, distributors shipped and pharmacies dispensed 184 million opioid pain pills in the 14 counties in northeast Oklahoma that comprise the Cherokee Nation – or 153 doses for every man, woman and child," Hembree said in a statement after the judge's ruling. "The defendants knowingly turned a blind eye to the harm they caused and have not changed their conduct, but this cycle ends now. We are confident in the case we’ve prepared and look forward to quickly re-filing our lawsuit.”

Tribes aren't alone in the fight either. At least 13 states, including Oklahoma, Alaska, New Mexico and Washington, all home to sizable Native populations, are suing pharmaceutical companies, citing some of the same concerns in Indian Country about the opioid epidemic.

“The state’s case is solid and our team is prepared to hold these companies accountable for their role in the deadliest drug epidemic the state and nation have ever seen,” Oklahoma Attorney General Mike Hunter said last week as he announced a May 2019 trial date in a case against leading opioid manufacturers.

On a national level, President Donald Trump declared a public health emergency in response to high rates of overdoses and deaths. But his October directive did not result in additional funds for the Indian Health Service or for tribes to combat the crisis.

Battling opioids is a top priority at the Department of Justice, which oversees law enforcement and public safety in Indian Country. Yet the new administration continues to rely on prior initiatives, including a grant consolidation program started during the Obama era, instead of announcing new commitments.

"These grants can benefit Oklahoma tribes by helping to address public safety challenges, including violence against women and the opioid crisis," R. Trent Shores, a citizen of the Choctaw Nation who serves as the U.S. Attorney for Northern Oklahoma, said earlier this month.

Late last month, the Bureau of Indian Affairs announced Charles Addington, a citizen of the Cherokee Nation, as the permanent leader of the Office of Justice Services. He has acknowledged that the BIA, as well as tribes, are facing uphill battles when it comes to addressing drug trafficking and drug abuse.

"I've got 27 drug agents for the whole nation," Addington, who has more than 25 years of law enforcement experience, said during a meeting with tribal leaders and advocates last October. "We don't have enough."

The pharmaceutical industry, including pharmacies and drug distributors, has been eagerly defending itself against the legal onslaught from tribes and states. Several firms also say they are taking steps to address abuse.

"We are deeply troubled by the prescription and illicit opioid abuse crisis, and are dedicated to being part of the solution," Purdue Pharma said in a statement in response to the announcement of the trial date in Oklahoma. "We vigorously deny these allegations and look forward to the opportunity to present our defense."

The situation is comparable to the one that big tobacco companies faced during the 1990s, which resulted in a master settlement agreement with 48 states. But Indian Country was left out of that agreement so tribes are intent on being at the table by pursuing their own cases.

Flandreau, Rosebud and Sisseton-Wahpeton, for example, are seeking damages for the impact of opioids in their communities. According to the tribes, 28 percent of patients treated in South Dakota for opioid use disorder were Native in 2015 and 2016. During that same time frame, 17.8 percent of people who died from opioids were Native.

"Defendants engaged in activities and conduct that takes place on or has a direct impact on land that constitutes Indian Country within the tribes," the January 8 complaint reads. "The distribution and diversion of opioids into South Dakota and onto the tribes’ lands and surrounding areas, created the foreseeable opioid crisis and opioid public nuisance for which the tribes here seek relief."

Already, there are signs that tribes will have their concerns treated in a manner similar to states, cities and other local governments. The Leech Lake Band's December 19 complaint in Minnesota is in the process of being transferred to federal court in Ohio, where more than 180 similar lawsuits are being consolidated. An order was issued on Wednesday to move the case.

"Native Americans in Minnesota have been especially vulnerable to the opioid crisis," the tribe's complaint reads. "Minnesota ranks first among all state for overdose deaths of Native persons."

Prior to 2000, opioid deaths were unheard of on the reservation, according to the lawsuit. But in 2015 alone, there were seven deaths in the tribe's four-county area.

The St. Croix Chippewa Indians filed their complaint on December 6. The tribe has opposed a potential move of the case to Ohio

"Sadly, even the St. Croix Tribe's youngest members -- its newborn infants -- bear the consequences of the opioid abuse epidemic," the filing states. "Many St. Croix women have become addicted to prescription opioids and have used these drugs through their pregnancies. As a result, many St. Croix infants are born addicted to prescription opioids and suffer from opioid withdrawal and Neonatal Abstinence Syndrome."

The Cherokee Nation has seen similar impacts in northeastern Oklahoma. Abuse by adults has led to a rise in child welfare cases and has affected "every facet of our society," Chief Bill John Baker said last year.

The tribe was the first in Indian Country to sue drug companies. But the lawsuit, which was initiated in the Cherokee court system, was put on hold while the drug companies addressed the jurisdiction issue in federal court.

Generally, tribes lack jurisdiction over non-Indian entities, according to the U.S. Supreme Court. 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.

The Cherokees attempted to exploit the so-called Montana exception but Judge Kern was not convinced. Though the tribe could appeal, there is no guarantee the higher courts would agree with its position, regardless of the impact of opioids in the community.

The Supreme Court notably failed to resolve a similar jurisdiction issue in a case known as Dollar General Corporation v. Mississippi Band of Choctaw Indians. Following the death of death of Antonin Scalia, the remaining eight justices were deadlocked in a dispute that centered on a Montana exception.

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