Tribal challenge to big tobacco dismissed
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TUESDAY, JULY 17, 2001

Despite having some of the worst rates of tobacco usage in the nation, twenty tribes do not have standing to share in the landmark $200 billion tobacco settlement agreement, a federal appeals court ruled on Monday.

The tribes, located in six states, filed their challenge in 1999, seeking $1 billion of the funds big tobacco companies negotiated with states. They claimed the agreement infringed on tribal sovereignty and sought compensation to address the effects of smoking on tribal members.

But a three-judge panel of the 9th Circuit Court of Appeals said that the tribes failed to provide any evidence they were harmed from being left out of the 1998 Master Settlement Agreement (MSA) with 46 states, five territories, and the District of Columbia. Upholding a lower court ruling which dismissed the case outright, the judges rejected all of the tribes' claims.

The court's action, according to the lead attorney for the tribes, puts Indian Country out in the cold. Tobacco companies have often contested tribal, state and federal jurisdiction, said California attorney William Audet, leaving tribes with no recourse.

"In terms of the segment of the population," Audet said American Indians "have the highest rate of addiction to tobacco. It's a fundamental problem -- one that is not addressed by the Master Settlement Agreement and one that is not being addressed by anybody."

A spokesperson for Brown & Williamson, one of the companies sued, discounted the idea that the industry isn't concerned about tobacco usage among Native Americans. Mark Smith said his company has provided educational, health and other materials to make consumers aware of the dangers of smoking.

"It would be wrong to say that this company and the industry is not understanding of Indian issues," said Smith. Although the company hasn't conducted any studies on Indian tobacco usage, he said "we certainly should consider and would welcome any kind of suggestions on how we might be able to best reach people."

Reaching Indian Country smokers is one of the biggest obstacles, said Cynthia Coachman, the tobacco coordinator for the Creek Nation of Oklahoma. Since a number of tribes use tobacco for ceremonial purposes, education has to be culturally specific.

"Our job in tobacco control is preserving tradition while preventing its abuse," said Coachman. "It's a unique challenge among Native Americans."

Among a number of states, there is little indication they are using their share of tobacco funds to address the issue. "In Oklahoma, we have the highest prevalence but none of that money has been earmarked for any Native American specific education," said Coachman, whose state has the second highest Native population in the nation.

A spokesperson for California Governor Gray Davis (D) said no settlement money is currently directed to tribes there, either. The state received $25.5 billion from the agreement and has the highest number of American Indians and Alaska Natives in the country.

Although Audet said yesterday's ruling said is a "setback," he said tribes could file their own class-action lawsuit against tobacco companies. The Master Settlement Agreement did not relinquish tribal claims against the industry.

The federal government is considering a settlement of its own lawsuit filed against tobacco companies. The Cherokee Nation of Oklahoma wrote Attorney General John Ashcroft this month, seeking to be included in the talks.

American Indian and Alaska Native women are the heaviest female smokers in the nation, according to a Surgeon General report released in March.

The companies involved in the tribes' lawsuit were Philip Morris, RJ Reynolds, American Tobacco., Brown & Williamson Tobacco Corp., BAT Industries, and Lorillard Tobacco., a division of Loews Corp.

Get the Decision:
TABLE BLUFF RESERVATION v. PHILIP MORRIS, INC., No 00-15080 (9th Cir. July 16, 2001)

Related Stories:
Cherokee Nation wants in on tobacco talks (7/6)
Tobacco companies resisting settlement (6/22)
Report: Native women heaviest smokers (3/28)
Smoking in Indian Country (3/28)