All too rapidly, opioid and heroin abuse has hit crisis levels in communities across the United States and Native American tribes have some of the highest overdose rates per capita. According to Centers for Disease Control (CDC) statistics, between 2000 and 2016, Native American overdose rates, at 8.6 per 100,000 were second only to whites. Now these tribes are joining a lengthening list of groups suing drug manufacturers and distributors over allegations of fraudulent actions connected to the overdose crisis. On Thursday, the Standing Rock Sioux Tribe filed its own suit in North Dakota District Court, adding an additional dimension to a legal action that has already stretched across the country.
“The tribal piece of this suit is unique, because this is not a city or a county suing,” Timothy Purdon, former U.S. Attorney for North Dakota, who is one of the attorneys representing the tribe, tells InsideSources. Under U.S. law, Native American tribes have a unique legal status as sovereign nations with rights and privileges different from those given to states.
The Standing Rock Sioux are continuing a series of lawsuits on behalf of different tribes which began with a suit against six drugmakers by the Cherokee Nation in tribal court last spring. In early January, a federal judge in Oklahoma ruled that the tribal court lacked jurisdiction to handle the case, because the issue did not directly concern tribal self-government. Instead, the case was shifted to federal court. Although the case has not played out as the Cherokee tribe might have hoped for, it introduced the issue to tribes in a different way.
Many different theories as to the meaning and extent of tribal sovereignty exist, with tribes frequently pressuring the federal government for increased control over their territory. Some observers of the Cherokee case had been watching it as a potential signal that tribes had sovereign authority to protect their people in matter of health. The judge in Oklahoma struck down this interpretation.
“The lack of tribal court jurisdiction over this matter is clear, and it would not serve the public interest to require plaintiffs to litigate through the tribal court system before challenging jurisdiction in this court,” U.S. District Judge Terence Kern wrote in the decision.
As a result of the earlier decision, Standing Rock’s lawsuit has been filed in federal court. However, the tribe’s status as Indian tribe means that the results may be different from those in the state lawsuits.
Purdon says that federal Indian law could impact the case in a variety of ways, but that he is hesitant to make any specific predictions.
“The Cherokee lawsuit raised awareness of this in Indian country,” said Purdon. Soon after, more tribes began seeking legal remedies to their overdose problems.
In December, tribes in Minnesota and Wisconsin filed suits, followed by a suit on behalf of several South Dakota tribes in January. The parties in the lawsuit argue that the drug companies hid information about addiction risks from doctors and patients. These cases are being “conditionally transferred” to Ohio, where they will be heard alongside a long string of other cases against the same companies on behalf of states, counties, and towns from around the country.
Like many rural areas, Indian Country has struggled to handle the increases in law enforcement and healthcare costs caused by the opioid crisis. For every opioid overdose death, the Standing Rock tribe has also reported 10 treatment admissions for substance abuse, 32 emergency room visits, and 130 opioid addicts. All these things place stress on an already strained system. Reservations are some of the poorest counties in America and most tribal governments lacked additional funding to address the issue.
“The opioid epidemic has hit Indian County hard and the Standing Rock Sioux Reservation is no exception,” said Purdon.
The lawsuit alleges that drug companies used “false and misleading advertising” to create a “virtually limitless opioid market.” The result was abuse on an almost unimaginably wide scale. A 2012 CDC study found that 1 in 10 American Indian youths between the ages of 12 and older used opioids for non-prescription purposes, double the abuse rate found among white teens.
The tribes are seeking damages and injunctive relief, some of which would likely go towards funding tribal healthcare.