What tribal sovereignty?

February 2022 Update

Under a separately announced (proposed) agreement, the “big three” distributors agreed to pay tribal governments almost $400 million (in addition to a prior $75 million settlement between the “big three” and the Cherokee Nation), and J&J agreed to pay $150 million by “deduct[ing] from its $5 billion portion of the bigger $26 billion.” All 574 federally recognized Native American tribes are eligible to join this settlement, regardless of whether or not they’ve sued the offerer-companies themselves.

“Judge Dan Aaron Polster, who oversees the thousands of opioid cases that have consolidated in federal court, said Tuesday that it ‘was necessary to have separate parallel negotiations and ultimately separate settlement agreements with the three distributors and J&J with the tribes’ because the tribes are sovereign nations.”

January 2022 Update

“The Cherokee Nation said it was no longer going to pursue its public nuisance theory of liability against major pharmacy chains in a tribal bellwether case in multidistrict opioid litigation” (Law360).

September 2021 Update

The Cherokee Nation has reached a $75 million settlement with the “big three” opioid distributors: McKesson, AmerisourceBergen, and Cardinal Health.

On August 30, 2019, less than two months before our first federal opioid trial was set to begin in Cleveland, Ohio Attorney General (AG) David Yost asked a federal appeals court to halt it in its tracks. “[O]nly a State Attorney General has parens-patriae standing to prosecute claims vindicating generalized harm to a State’s inhabitants,” he writes. “Political subdivisions” — like Summit and Cuyahoga Counties, bellwether plaintiffs in the would-be first federal opioid trial — “do not have parens-patriae standing.”

The Sixth Circuit denied his request, and a widely reported, $260 million settlement reached just a few hours before opening statements punted proceedings to November 2020. But Yost’s arguments were notable for so accurately capturing the tenor of the more vocal state AGs’ arguments against the federal opioid multi-district litigation (MDL), whose plaintiffs are cities, counties, and tribes. For the state AGs who’d prefer the direct, undivided receipt of opioid settlement monies over the local governments they contain, the MDL offends them by “plac[ing those] political subdivisions … on equal footing with the States themselves.” “It is clear that the bellwether counties actually assert parens patriae claims,” he explains in his brief. And the MDL, by allowing Ohio’s counties to litigate “claims [only] Ohio can litigate as parens patriae,” lands a direct blow to state sovereignty broadly — a mortal harm that “ranks above the threats to [localities’] private interests in class-action cases.”

The Ohio AG’s petition to halt the MDL leans heavily on sovereignty-based entitlements to make its case. Fascinatingly, it does so while failing to mention tribes. The Native American tribes — one of three federally recognized sovereign entities — are also entitled to litigate as parens patriae, even though two of them were shuttled into the MDL alongside cities and counties last year.

Yost’s failure to address tribal sovereignty is in theme. A “substantial amount of the adversity and difficulty present throughout the history of Indian law stems from the fact that the tribal sovereign is consistently marginalized, if even discussed, in the context of our constitutional democracy.” But Native American tribes are indeed considered sovereign entities by our federal system of government. Judge Polster refers to them as such in orders issued pertaining to his federal MDL, and our federal code provides that “each Indian tribe shall retain inherent sovereign power.”

However, though “[e]ach Indian tribe” may at least conceptually “begin[] its relationship with the Federal Government as a sovereign power, recognized as such in treaty and legislation,” the gnarly roots of tribal jurisprudence — marled by paternalistic origins of a sinister variety — persist, causing many courts to continue regarding the “relationship between Native American tribes and Congress as “resembling that of a ward to his guardian,” where the former “look[s] to [the federal] government for protection; rel[ies] upon its kindness and its power; appeal[s] to it for relief to their wants; and address[es] the president as their great father.”

Perhaps most persuasive to this point is where the Cherokee Nation — “the first tribe and one of the first government entities … to sue drug companies for their role in the epidemic” — sits in the opioid litigation today. “Despite its best efforts” to “avoid federal court,” the tribe’s case now sits in a federal court after remand by the federal MDL in Cleveland, where it clamors for opioid crisis-related abatement funds alongside non-sovereign cities and counties.

HOW DID THIS HAPPEN?

The story behind McKesson Corporation v. Hembree (2018) is one of two sovereign entities — a state and the federal government — rendering another’s unimportant at a time when they could use as many procedural privileges as they can get. Though Ohio AG David Yost might find the “parallel MDL on behalf of political subdivisions” “offensive” to what is ultimately a desire by states to control global settlement negotiations, the truest offense to sovereignty concerns the tribes.

The Federal Civil Rules of Procedure proscribe that MDLs, like our federal opioid litigation based out of Cleveland, may only lasso cases originating from the federal district courts. The Cherokee Nation’s case was first filed in Cherokee tribal court in early 2017. But when notified of suit, all of the Nation’s named, opioid defendants — distributors McKesson, Cardinal Health, and AmerisourceBergen; and pharmacies CVS, Walgreens, and Wal-Mart — responded by asking an Oklahoma federal judge to declare the Cherokee Nation District Court unable to hear its own case. Defendants requested an injunction to prevent the Cherokee tribal court from acting on the case at all — a move that the Nation’s then-Attorney General Todd Hembree distinguished from “the usual attempt to delay and avoid justice,” and “an attack on the very sovereignty of our nation.”

Judge Terence Kern of the Northern District of Oklahoma granted defendants’ requests. The Court found that the Nation’s tribal court lacked civil jurisdiction to regulate the affairs of big pharma using the Montana rule, which has often been applied to “justify decisions that although perhaps not expressly intentional, ultimately disfavor tribal jurisdiction.”

The late Justice Brennan may “know of nothing — except the Constitution or overriding federal law — that might lead a federal court to superimpose its judgment for that of a State with respect to the substantiality or legitimacy of a State’s assertion of sovereign interest.” But the Montana rule works to defend federal courts’ paternalism over the interests of sovereign tribes “consistent with the[ir] dependent status.” And here, it allowed the Oklahoma federal court to conclude that the Cherokee Nation’s opioid suit merely “concern[ed] actions that threaten[] an individual tribal member but do not threaten the Tribe as a whole.”

As opioids flooded tribal lands across the U.S., overdose deaths skyrocketed (The Washington Post, June 29, 2020) — *As opioids flooded tribal lands across the U.S., overdose deaths skyrocketed* (The Washington Post, June 29, 2020)

This is absurd. Native Americans constitute a disproportionate number of those 400,000 dead from opioid overdoses, and the opioid crisis has boiled tribal subsistence over into a numbers game. Despite constituting less than 2% of the U.S. population, Native Americans absorb its harms disproportionately: the CDC’s doctors testified to Congress that Native American overdose deaths increased by 500% during 1999 through 2015. Native Americans, in fact, suffer “higher rates of overdose deaths from prescription painkillers and illicit opioids than any other racial and ethnic group” and “d[ie] at almost double the rate of African Americans and Latinos combined.” And despite constituting just 3.5% of Oklahoma’s population, the Cherokee Nation received a third of all opioids distributed to the state. In a single year, “nearly 845 million milligrams of opioids were distributed in the 14 counties that make up the Cherokee Nation” — “enough to provide every adult and child with 955 5mg pills.” According to one former justice of the Cherokee Nation Supreme Court, the opioid crisis’ outsized impact on the Cherokee Nation doesn’t just threaten their health, but has “ramifications for their very existence.”

The Cherokee Nation is the sovereign government of the Cherokee people, who in 1838 were forced to relocate to northeastern Oklahoma pursuant to the Indian Removal Act of 1830 during what we now know as the Trail of Tears. Courtesy of the National P… — The Cherokee Nation is the sovereign government of the Cherokee people, who in 1838 were forced to relocate to northeastern Oklahoma pursuant to the Indian Removal Act of 1830 during what we now know as the Trail of Tears. *Courtesy of the National Park Service.*

Bill John Baker, principal chief of the Cherokee Nation, describes it this way:

“[T]ribal nations have survived disease, removal from our homelands, termination and other adversities, and still we prospered. However, I fear the opioid epidemic is emerging as the next great challenge of our modern era.”

This is a scary thing to hear, given that the history of state and federal governments’ violence to Native Americans fills tomes. And it’s scarier to think what tomes will be added due to the opioid crisis, which has functioned as a devastating intersection of accrued disadvantages for Native American communities.

Native Americans are “acutely vulnerable” to public health crises. “[S]uffer[ing] from the effects of war, disease, forced relocation, famine, poverty and intergenerational trauma” over centuries has damaged individual Native American health, which is already “the poorest … of any racial group in the United States,” and their communities, which “are among the most impoverished in the Western Hemisphere.”

“We’ve almost lost a generation of Cherokee children.”

— former Cherokee Attorney General Todd Hembree, to Stateline

And observing the opioid crisis’ effect on Cherokee children, entire generations of whom “are living in chaos,” fills one with a genuine sense of existential doom. A declaration filed by the Cherokee Nation’s then-child welfare director Nikki Baker-Limore points to a “staggering increase” in neonatal abstinence cases. The CDC states that a tenth of Native Americans “aged 12 or older used prescription painkillers for nonmedical reasons in the past year, compared to 1 in 20 whites and 1 in 30 blacks.” And National Institute on Drug Abuse-funded researchers found that prescription opioid and heroin use among Native American high schoolers is two to three times higher than the national average.

In many ways, though, the littlest kids have served as the canaries in the coal mine. The “earliest evidence that the opioid epidemic had seeped into Indian Country came in 2014,” when officials observed “a spike in the number of children taken into tribal custody because their parents were addicted to prescription painkillers.”

For many, “the most troubling part of the opioid crisis” is the harm dealt to tribal subsistence through its youngest generation. “[M]ore than 1,700 Cherokee children are now in state or tribal custody,” with “at least 40% of those cases” driven by opioid use, and with 70% resulting in non-Native home placements — a disturbing reality against the fact that the goal of keeping Native American kids with Native American families is even recognized as a federal priority. “Research since the 1978 federal Indian Child Welfare Act shows that Native children fare better when they remain in a tribal family. The law, which requires child welfare agencies to place foster children in Native families whenever possible, came in reaction to decades of Native American children being removed from tribal families, often against families’ will.”

Given that “half of all children of all ethnic groups who are taken away from their parents never return home,” the Cherokee Nation might also have “los[t] them for good.” And due to the type of serpentine federal precedent that often gives the law a bad name, the Nation also lost the dignity to litigate this existential threat in its own courts, and “before a jury of Cherokee citizens.”

“The court in McKesson v. Hembree relied in part on the idea that the Tribe would indeed have a choice of venue after being denied jurisdiction in tribal court.” However, “[i]n the months after that decision,” the Cherokee Nation endured a pinball machine of jurisdictional rejections by various lower courts, only to be slotted into the federal opioid MDL next to cities and counties, its status “gradually diminished … from that of a state to that of a local government.”

A SOVEREIGN DEPRIVED OF ITS RIGHT TO VINDICATE HARMS TO ITS HEALTH AND WELL BEING

Existential doom to generations of Cherokees seems like a thing that the Nation, vested with its sovereign powers, should be able to do something about.

Tribal sovereigns, like state sovereigns, are entitled to proceed as its residents’ parens patriae in litigation. And in theory, the Cherokee Nation’s sovereign interest in the health and well-being of its residents, combined with the genuine existential threat to its subsistence, should have defeated the Montana rule’s presumption against allowing the Cherokee Nation to hear its own case.

“QUASI-SOVEREIGN INTERESTS”?

If the “quasi” here makes you queasy, it’s just as well. According to one rather nihilistically frustrated law professor: “quasi-sovereign interest” is a “meaningless term absolutely bereft of utility,” “one of those loopy concepts that comes along often enough to remind us that appellate courts sometimes lose their moorings and drift off into the ether.”

Parens patriae standing affords the sovereign federal, state, and tribal governments the privilege of being able protect their populace by suing a bunch on their behalf, provided they possess what’s called a “quasi-sovereign interest” in seeing the litigation through. According to the Supreme Court, this occurs in two scenarios: when the sovereign acts to vindicate its interests in (1) “the health and well-being — both physical and economic — of [a sovereign’s] residents in general,” or (2) “in not being discriminatorily denied its rightful status within the federal system.”

States often use their parens patriae standing to go after corporate defendants who harm their interests too quickly (or too complicatedly, as is the case when an industry “captures” its regulatory agencies) for state legislatures to provide meaningful remedies. When big tobacco’s profiteering began to threaten the nation’s health, 46 state Attorneys General brought parens patriae suits in each of their own, state courts, eventually extracting hundreds of millions of dollars from the wayward industry through their actions in concert.

Tribes, as sovereigns, are also entitled to litigate this way. (Cities and counties, as the state’s “political subdivisions,” are not entitled to parens patriae powers.) Tribal courts, though, can’t always exercise jurisdiction over tribal non-members, as was the case in McKesson v. Hembree (2018). There, the question before the Oklahoma federal court dealt not with the merits of the Cherokee Nation’s case, but “the boundaries of tribal court jurisdiction” — an analysis that’s governed by the Montana rule, which functions as federal courts’ presumption that tribal sovereignty excludes the power of its courts to subject nonmembers to its civil jurisdiction except in “certain circumstances.”

Certain Circumstance 1: “Consensual Relationships”

“McKesson Corp., Cardinal Health, Walgreens, AmerisourceBergen, CVS and Walmart accounted for 76 percent of the oxycodone and hydrocodone pills that were shipped between 2006 and 2014.”

— The Washington Post Investigations, "More than 100 billion pain pills saturated the nation over nine years"

One of these occur when a “tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” The Supreme Court has used this consensual relationships exception to protect a tribal court’s jurisdiction to hear a contract case regarding a retail sale “by a non-Indian to an Indian on the reservation” — something that reveals just how narrowly big pharma dodged jurisdiction in the Cherokee Nation’s case. The Oklahoma federal court is emphatic: though the Nation had to have received a third of Oklahoma’s prescription opioids somehow, all named defendants — McKesson, Cardinal Health, Walgreens, AmerisourceBergen, CVS, and Wal-Mart, the biggest pharmacies and distributors in the nation — did so without establishing a relationship with the tribe that was consensual enough to matter. Distributor defendants avoided contracting directly with the Nation by contracting with the U.S Department of Veterans Affairs, and pharmacy defendants similarly avoided direct entanglements by “provid[ing] prescriptions to members of the Cherokee Nation Health Plan through a contract with an independent third party.” The court thus concludes that pharma defendants “have not specifically sought out tribal members for business relationships,” nor have conducted business “specifically directed at the Cherokee Nation or its members” — an exceedingly narrow reading of the facts that evinces the willingness to minimize harm to wave away pharma’s profit-driven demagoguery as too slippery for a status quo-searching federal court to adjudge as clearly bad.

Certain Circumstance 2: Threats to the “Political Integrity, the Economic Security, or the Health and Welfare of the Tribe”

The same intellectual anemia persists through the court’s discussion of Montana’s second exception, which states that tribes may “exercise civil authority over the conduct of non-Indians … when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” A plain reading of the exception would seem to suggest that the Cherokee Nation’s interest in protecting the health and well-being of its residents in general — one of two “quasi-sovereign interests” justiciable in parens patriae litigation — should necessarily satisfy the similar-sounding threat-to-“health and welfare” language of this jurisdictional rule.

However identical those interests might sound, by framing its analysis as a jurisdictional inquiry, the Oklahoma federal court essentially allowed itself to entirely ignore the merits and gravitas of the Cherokee Nation’s sovereign interests in seeing its opioid litigation through. This is because a tribal court is only able to exercise civil enforcement power over non-members of a tribe when tribal power becomes “necessary to protect tribal self government” and “necessary to avert catastrophic consequences” — glosses that invited the Oklahoma federal court to confine tribal sovereign necessities to things like “managing tribal land, protecting tribal self-government, and controlling internal relations,” and explicitly “center[] [it] on the land held by the tribe and on tribal members within the reservation.” By flattening the breadth of tribal sovereignty to this meeker, land-based conception, the Oklahoma federal court is able to conclude that the Cherokee Nation’s entitlements to jurisdiction over its parens patriae case is not of “the sort that ‘goes hand in hand with the power to exclude’” non-members from tribal land. The Cherokee Nation’s petition — which “purports to protect consumer interests, the health and welfare of tribal members, and economic security,” as a petition that admittedly “read[s] like a parens patriae action” is quite literally required to do — doesn’t concern “tribal land resources or its right to exclude others from tribal land.” For this perceived failure, Montana’s second exception cannot apply.

To describe this more plainly: the Oklahoma court used the Cherokee Nation’s stated sovereign interests in the health and welfare of its residents to help its analysis ultimately bar the Nation from exercising civil jurisdiction over its own opioid case. And by contorting so strenuously to do so, the court “narrowed the window through which a federal court may view tribal jurisdiction,” creating a needle’s eye that “is now so small that [even] a public health crisis[,] which gave cause for a presidential emergency declaration,” fails to satisfy Montana’s second exception.

A SOVEREIGN DISCRIMINATORILY DENIED ITS RIGHTFUL STATUS WITHIN THE FEDERAL SYSTEM

The Oklahoma federal court’s application of the Montana rule “diminished the evidence of the harm caused by the opioid crisis to the Cherokee Nation” to ultimately “protect the interests of a group of some of the world’s largest corporations” — a result tribal law scholars find “emblematic of the larger problem of the federal-tribal relationship.” Insulting though it might be, the federal courts’ paternalism towards tribes has long included the power “to take from Indian tribes control of matters” it deems them unable to “safely … handle.”

While tribal history often casts state governments as the “deadliest enemies” of tribes, “[t]he safety and well-being of tribes and tribal members has always been secondary to the maintenance of the power structure of the federal government.” The Nation’s opioid case — “the consensus pick of the [MDL’s] Indian Tribe leadership committee” for immediate remand — is scheduled for a bellwether trial in fall 2020 (along with Chicago and San Francisco). But their case will be remanded to the same, Oklahoma federal court system that denied them jurisdiction last year, rendering McKesson v. Hembree the “retelling of an old story[:] the Tribe asserted its jurisdiction, but the federal judiciary saw fit to deny that authority, instead asserting its own jurisdiction over the claims in a ‘take it or leave it’ fashion.”

R.I.P. NEGOTIATION CLASS

On September 24, 2020, the opioid litigation world received a bit of juicy news. The Sixth Circuit Court of Appeals issued a ruling decertifying the federal opioid multi-district litigation’s novel negotiation class, which “[a]s envisioned” would have facilitated settlements with big pharma opioid companies by requiring proposed settlement offers to be approved by 75% of the 33,000 cities and counties participating as class members. The novel class was intended to provide localities a voice in global settlement negotiations, which have largely favored the demands of states’ Attorneys General.

“While companies did not need to use the negotiation class to settle cases, many, including the drug distributors McKesson Corp, Cardinal Health Inc.[,] and AmerisourceBergen Corp, objected. Many state attorneys general also argued that Polster’s ruling could complicate settlement talks and interfere with states’ rights over their political subdivisions.”

Without the negotiation class, “it looks likely that the litigation will drag on for years to come,” and “probable that various groups will strike ‘piecemeal’ deals as the litigation progresses.”

The MDL is arguably a great thing for local governments: it operates as a type of all-encompassing, “nationwide dispute resolution regime” that comes complete with a novel “negotiation class” mechanism designed boost the negotiating clout of local government officials who might otherwise be sidelined from global settlement discussions by their legally (and politically) heftier state AGs. (Update: see right.)

Whatever the benefits for localities, the Cherokee Nation’s placement in the MDL constitutes prima facie evidence that a sovereign entity was in fact deprived of its right to litigate as parens patriae — a “benefit” it is owed because it “flow[s]” from the federal system of government in which it participates. And this interest — one fairly described as its “interest in securing observance of the terms under which it participates in the federal system” — is explicitly protected by the second of two interests recognized by the Supreme Court as valid bases for parens patriae action: the sovereign’s interest “in not being discriminatorily denied its rightful status within the federal system.”

Ideally, this exception would protect principles of tribal consent in ways similar to that of the United Nation’s Declaration on the Rights of Indigenous Peoples, Article 19 of which states that “[s]tates shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

While “consent of the governed” paradigms may retain a “hallowed place” in our system of government, a “brief historic survey of federal-state-tribal relations” would show that it has “rarely” been protected for the Native American tribes. The Nation’s current procedural posture in the MDL best illustrates this dynamic. After being prevented from adjudicating its own opioid crisis case, the Cherokee Nation found itself “stuck in a holding pattern” of jurisdictional review by various non-tribal courts. In the meantime, the state of Oklahoma — decidedly unstuck from forced placement in a federal litigation scheme — prevailed against Johnson & Johnson in the first parens patriae, state AG-led opioid suit to proceed to trial. That $465 million judgment — combined with the state’s $270 million settlement with Purdue Pharma in March 2019, $85 million settlement with Teva in May, and $8.75 million settlement with Endo this January — entitles Oklahoma to roughly $829 million in abatement funds. And this sum may very well surpass the $1 billion mark: Oklahoma Attorney General Mike Hunter has brought additional lawsuits against AmerisourceBergen, Cardinal Health, and McKesson — half of the Cherokee Nation’s original defendants — for “deliver[ing] more than 34 billion doses of narcotics” to the state, an untold quantity of which likely pooled in Cherokee communities.

CASE UPDATE

The $26 billion settlement offer described throughout this site was not originally authored to settle lawsuits filed by America’s “574 federally recognized Native American tribes and Alaska Native villages, which experienced higher rates of opioid overdoses compared to other communities” and are technically sovereigns themselves, but are procedurally grouped with political subdivisions in the federal opioid multi-district litigation.

On February 1, 2022, and under a separately proposed settlement agreement, the “big three” distributors agreed to pay tribal government plaintiffs almost $400 million (in addition to a prior $75 million settlement between the “big three” and the Cherokee Nation), and J&J agreed to pay $150 million by “deduct[ing] from its $5 billion portion of the bigger $26 billion.”

According to the Nation’s new Attorney General Sarah Hill, the “Cherokee Nation won’t get any of that money.” Oklahoma’s opioid settlement winnings currently sit in the state’s “opioid lawsuit settlement fund” attached to language that proscribes that it “shall only be for the abatement of the nuisance related to the opioid crisis” — the result of an agreement reached via mediation between the state’s AG and its legislature, the latter of whom initially attempted to funnel those monies directly into its general fund.

A “legacy of many moral and legal wrongs” created by “[o]ne hundred and fifty years of vacillating policies” has inspired judges at times to pursue “a deus ex machina” in tribal law cases “to extract, from the seemingly insoluble difficulties that the prior writing has created, a happy ending.” Here, the truly unhappiest result — the Cherokee Nation winning opioid settlement monies without the sovereign power to control its pursestrings — might be avoided.

The Cherokee Nation’s full, sovereign control over whatever settlement monies it will eventually receive ought to be explicitly protected — by the tribal and state legislatures (with the various constitutional amendments necessary to command legislative appropriations) — as a form of de minimis reparations for the subjugation of its sovereignty at the hands of the federal legal scheme. Doing so will work to ensure that their forced placement alongside political subdivision is neither constitutionalized, nor baked into practice.

And if the federal courts need a little push from precedent, perhaps they might paraphrase the Supreme Court itself:

“Just as we have long recognized that a State’s interests in the health and well-being of its residents extend beyond mere physical interests to economic and commercial interests, we recognize a similar [tribal] interest in securing residents from the harmful effects of discrimination. This Court has had too much experience with the political, social, and moral damage of discrimination not to recognize that [tribes have] a substantial interest in assuring its residents that it will act to protect them from these evils. This interest is peculiarly strong in the case of [the Cherokee Nation] simply because of the unfortunate fact that invidious discrimination frequently occurs along ethnic lines. [The Cherokee Nation’s] situation differs somewhat from the States in this regard — not in theory but in fact — simply because this country has for the most part been spared the evil of invidious discrimination based on [tribal] lines. Were this to come to pass, however, we have no doubt that a [tribe] could seek, in the federal courts, to protect its residents from such discrimination to the extent that it violates federal law. [The Cherokee Nation] claims that it faces this problem now. Regardless of the possibly limited effect of the alleged financial loss at issue here, we agree with the Court of Appeals that ‘[deliberate] efforts to stigmatize the [sovereign tribal nations] as inferior carry a universal sting.”

The Curious Case of the Cherokee Nation

What tribal sovereignty?

October 2023 Update

September 2023 Update

March 2023 Update

February 2023 Update

November 2022 Update