By JAN HOFFMAN JAN. 11, 2018
The Cherokee Nation cannot sue opioid distributors and pharmacies in its own tribal court, a federal judge in Oklahoma said late Tuesday, halting the first attempt by a Native American tribe to recover damages for the widespread harm inflicted by prescription drugs.
While the judge said he was sympathetic to the Cherokees’ efforts to stem the deadly proliferation of opioids, his ruling only addressed whether the tribe had jurisdiction to sue. In a 25-page decision, Judge Terence Kirn concluded the lawsuit does not meet narrow Supreme Court exceptions that define when a tribe can sue nonmembers in its own court.
“We absolutely believe that we had jurisdiction in tribal court,” said Chrissi Ross Nimmo, deputy attorney general for the Cherokee. “It’s disappointing that non-Indians can come into a tribal community and decimate it, and not be held to answer in that community’s court system.”
Mrs. Nimmo said that the tribe would most likely not pursue a time-consuming appeal, but instead would swiftly refile the case in state court, where the Cherokee have standing as Oklahoma citizens.
A safe medication disposal box at a Walgreens Pharmacy in Claremore, Okla. The Cherokee had sued Walgreens, Walmart and CVS Health, as well as big drug distributors, saying that because the companies brought harmful products to Cherokee land, they should face Cherokee justice.
The Cherokees’ lawsuit said that in recent years, an extraordinary amount of prescription painkillers threatened to bring the tribe to its knees. Some 70 to 80 percent of crimes for which Cherokee had been convicted were drug-related, it said. So many infants had been born opioid-dependent that the state foster care system was compelled to place Cherokee children with nonnative families. Medical costs for the infants and detox programs for adults were crippling.
The Cherokee sued Walmart, Walgreens and CVS Health and the giant drug distributors McKesson, Cardinal Health and AmerisourceBergen, arguing that the companies had brought their products to Cherokee land, harmed the Cherokee people and so should face Cherokee justice.
To shut down the case, defendants sought a preliminary injunction in federal court. They argued that because the tribe did not have the authority to sue them in tribal court, the companies should not have to needlessly endure the time and expense of defending the case.
Judge Kirn agreed. Referring to the 1981 Supreme Court opinion in Montana v. the United States, the judge ruled that the companies’ actions did not meet the limited exceptions under which a tribe can sue nonmembers, including whether the defendants’ actions affect the ability of the tribe to govern itself.
The tribe had said that the companies violated the federal Controlled Substances Act, but Judge Kirn said the act does not provide for a private right to sue. Only the federal government itself can enforce federal drug policy.
In his ruling, the judge did not engage the battle raised by both sides about whether the treaty of 1866, which gave the Cherokee sovereignty over their land, authorized the tribe to pursue the case. That question, which has begun to emerge in other courts, is fraught with complexity and implication. By not touching the issue, the judge in effect preserved it for others to raise again.
And he wrote that the Cherokee Nation “could assert claims to redress any injury in another, nontribal forum.”