In what one lawyer called a “historic” move, 448 Indian tribes filed an amicus brief in a pair of leading opioid cases to describe what they called the “tragic and stunning” impact on their communities.
The tribes filed the brief three days before Columbus Day—what some now call Indigenous Peoples Day—and represent 78 percent of the total number of “federally recognized” tribes. They demand special recognition as sovereign governmental entities for tribal communities, where the surge in opioid abuse has disproportionately affected Native Americans.
Read the full brief here:
“This impact comes on top of two centuries of abuse that, until recent decades, largely sought to annihilate the very existence of the tribes, not just figuratively but literally—to kill them off by war, privation and starvation,” the brief said. “The ongoing legacy of this not-so-distant past makes resolution of the opioid crisis in Indian Country all the more complicated.”
Timothy Purdon, co-chairman of the American Indian law and policy group at Robins Kaplan, said the number of tribes who signed onto the amicus brief was unprecedented.
“It clearly shows that this is an issue, a national epidemic, that is very important to tribes,” said Purdon, the former U.S. attorney in North Dakota whose firm represents about 20 tribes. “We had hoped to have a large participation, but to have 448 recognized tribes sign onto this—it’s historic.”
Purdon is one of more than 60 lawyers who signed the brief, filed in two cases that U.S. District Judge Dan Polster of the Northern District of Ohio selected as bellwethers for Native Americans that he put on a separate discovery track. More than 60 Native American tribes have sued opioid manufacturers and distributors, said Purdon, whose firm is among a half-dozen plaintiffs firms spearheading the Native American track.
Many tribes lost initial fights over whether their cases should be in tribal or federal court, where Polster is overseeing a multidistrict litigation docket that now surpasses 1,200 lawsuits.
The primary discovery track focuses on cities and counties, the vast majority of the opioid lawsuits. On Friday, a magistrate judge issued a report and recommendation rejecting dismissal of most claims in a case brought by Ohio’s Summit County and the city of Akron. Many of the claims in that case, such as racketeering and public nuisance, are the same in the two Native American cases. But the Indian tribes raise separate standing arguments, insisting they are sovereign nations unlike cities and counties.
“We will be carefully reviewing that decision for its relevance to the tribal bellwether cases,” wrote Geoffrey Strommer of Hobbs, Straus, Dean & Walker in Portland, Oregon, the lead attorney behind the amicus brief. “While there are areas of overlap, there are also certain circumstances and arguments that are unique to the tribes as sovereign entities.”
The Blackfeet Tribe of the Blackfeet Indian Reservation in Montana filed one of the cases on June 26, noting that 44 percent of pregnant women on the reservation tested positive for opioid use.
The Muscogee (Creek) Nation of Oklahoma filed the second case on April 3.
Manufacturers of opioids, such as Purdue Pharma and Endo Health Solutions, filed a joint motion to dismiss both cases, and distributors AmerisourceBergen Corp., McKesson Corp., Cardinal Health Inc. and others filed similar motions. Several pharmacies also moved to dismiss the claims. They raise many of the same defenses as in other opioid cases, such as federal pre-emption, a “novel” public nuisance theory and a failure to link the defendants to their alleged harms.
“Although the tribes attempt to shoehorn their claims into a tort suit, it just doesn’t fit,” the manufacturers wrote in their Aug. 31 motion. “Their claims are legally baseless and should be dismissed.”
Here’s the full memorandum of law:
Both tribes opposed the motions to dismiss last month. Polster invited other tribes to weigh in on the arguments, Purdon said, and the amicus brief followed. The brief tells how opioids have ravaged Indian communities, from skyrocketing medical costs to an “existential threat to tribal cultures.” It cites statistics showing that the American Indian and Alaska Native population has a higher rate of mortality due to opioid abuse, more youth substance abuse and a higher volume of opioid prescriptions than do other races.
The brief also highlighted potential solutions that are unique to Indian communities, such as a drug treatment program called didgwálič that integrates “holistic, culturally competent care” and “healing to wellness courts” that “focused on healing rather than punishment.”
The brief points out that the opioid crisis has put an “incredible strain” on Indian communities that already lack sufficient resources to pay for health care, child welfare, housing and law enforcement—something that any potential opioid settlement should recognize. In fact, the brief points out that tribes, whose interests have historically diverged from the states, were “largely cut out” of the funds obtained through the $246 billion settlement with Big Tobacco master settlement with Big Tobacco that went to U.S. states.
Like those cases, the brief said, the opioid litigation “cries out for settlement.”
“In many ways, the opioid epidemic has become yet another painful re-enactment of past harm and abuse inflicted on Indian country, compounding historical trauma from which Tribal Nations have not fully healed,” the brief says. “That history should not be repeated here, and these actions should not be dismissed until a fair settlement is reached.”