CN responds to opioid defendants’ federal court filing
TAHLEQUAH, Okla. – Attorney General Todd Hembree said the six defendants in the Cherokee Nation’s case against opioid distributors and retailers attacked the tribe’s sovereignty on June 8 by asking a federal court to keep the CN from suing them in tribal court.
“The defendants’ filing today is not just the usual attempt to delay and avoid justice, it’s an attack on the very sovereignty of our Nation and our ability to protect our families from the illegal activities of these companies that are causing extraordinary harm and suffering to our people,” Hembree said.
Attorneys for McKesson Corp., Cardinal Health Inc., AmerisourceBergen, CVS Health, Walgreens Boots Alliance Inc. and Wal-Mart Stores Inc. filed a motion in U.S. District Court in Tulsa to declare that the CN court has no jurisdiction over the companies and to dismiss the case that alleges they are creating “an epidemic of prescription opioid drug abuse.”
“None of plaintiffs here are tribal members or tribal corporations,” the companies state. “Moreover, none of plaintiffs’ conduct at issue occurred in Indian Country.”
In April, the CN sued the pharmacies and opioid distributors in its District Court, charging them with failing to prevent the flow of illegally prescribed opioids to people in the CN.
“The defendants have dumped massive quantities of lethal opioids on the Cherokee Nation, putting profits over people. We will not be deterred in our quest for justice for the children and families that have been devastated by their actions,” Hembree said. “The defendants have a legal responsibility to make sure these powerful, highly addictive drugs get into the hands of only the people who need them.”
Pharmacies and opioid distributers, under federal law, have a responsibility to alert regulators of suspicious orders and illegitimate prescriptions. Suspicious activities would include when a distributor fills a single pharmacy’s orders that are suddenly thousands of pills above the average or are disproportionate to the size of the area’s population, patterns of employee theft and pharmacy customers seeking opioids for nonmedical purposes.
When suspicious orders are filled, dangerous controlled substances are diverted into the hands of unauthorized users and the illegal black market, fueling the opioid epidemic, the lawsuit alleges.
It also alleges the companies regularly turn a “blind eye” to opioid prescriptions that would require further investigation before pills are dispensed. The lawsuit further alleges the companies have pursued profits instead of trying to reduce opioid-related addiction that has taken the lives of hundreds of CN citizens and cost the tribe hundreds of millions of dollars in health care costs.
Based on Drug Enforcement Administration records, more than 2.75 billion milligrams of opioids were distributed in Oklahoma in 2015. An estimated 845 million milligrams were distributed in the tribe’s jurisdiction. That averages to between 360 and 720 pills per year for every prescription opioid user in the CN.
Based on CDC reports, deaths from opioid-related overdoses more than doubled within the CN between 2003 and 2014. For adults within the CN, overdose deaths now outnumber deaths due to car accidents.
Hembree and special counsel Richard Fields of Fields PLLC and Boies Schiller Flexner partners Steve Zack and William Ohlemeyer represent the tribe in the case.
The CN’s lawsuit argues that the case belongs in tribal court because federal and Cherokee law gives tribal judges jurisdiction over non-Indians when they are threatening the “political integrity, economic security or health and welfare” of the tribe.
However, the drug distributors went to federal court stating that tribal courts “are not courts of general jurisdiction.”
“As domestic dependent quasi-sovereign nations, the jurisdiction of Indian tribes over non-Indians is strictly limited,” the companies state.
OKLAHOMA CITY – Officials with the Oklahoma Senior Games said registration for the 2018 competition is open and will feature 20 events, including new ones such as a power walk, softball, corn hole and washer pitch.
Local Senior Games events were held this spring in Yukon and will be held this fall in Ardmore from Sept. 7-14. Fall events will also be held in the Oklahoma City and Tulsa areas.
All athletes must be 50 years old by Dec. 31, except for those who compete in badminton, cycling, tennis and table tennis. Those events are open to athletes who are 40 and older by Dec. 31.
Participants will compete in one of the following age categories for both individual and/or doubles sports: 50-54, 55-59,60-64, 65-69, 70-74, 75-79, 80-84, 85-89,90-94,95-99 and 100 and older.
Team sports are divided into the following brackets: 50-plus, 55-plus, 60-plus, 65-plus, 70-plus, 75-plus, 80-plus and 85-plus.
Partner and team age groups will be determined by the age of the youngest partner/team member. Athletes may enter as many events as their schedule allows.
Participants finishing in the top places in their age category in each event qualify for National Senior Games set for June 14-25, 2019, in Albuquerque, New Mexico.
Early bird registration is $50 before 11:59 p.m. on Aug. 1. After Aug. 1, registration is $60 until two weeks before each event’s entry deadline. Fee includes up to 6 events. Additional events will be $5 each. A $10 fee will be added for paper registrations.
For more information, visit <a href="http://okseniorgames.com/" target="_blank">http://okseniorgames.com/</a>.
TAHLEQUAH – The Cherokee Nation’s Supreme Court on May 16 dismissed a case by eight CN citizens asking the court to compel Attorney General Todd Hembree to appeal a federal ruling that gave Cherokee Freedmen tribal citizenship rights.
“The (eight) movants are individual Cherokee citizens who disagree with the outcome of the federal case and disagree with the way the Nation and the attorney general’s office handled the case,” the ruling states. “The ruling of the federal court has no effect on the citizenship of the movants. They have failed to demonstrate any concrete injury in fact sufficient to establish standing to bring this suit.”
On Aug. 30, in the case of Cherokee Nation v. Nash and Vann v. Zinke, Senior U.S. District Judge Thomas Hogan ruled the CN could define itself as it sees fit but must do so equally and evenhandedly with respect to native Cherokees and Freedmen descendants.
“In accordance with Article 9 of the 1866 Treaty, the Cherokee Freedmen have a present right to citizenship in the Cherokee Nation that is coextensive with the rights of Native Cherokees,” Hogan states.
The following day, Hembree stated he would not appeal Hogan’s decision. On Sept. 1, the Supreme Court ordered the CN government and its offices, including Registration, to begin processing CN citizenship applications of eligible Freedmen descendants.
In its May 16 ruling, the Supreme Court wrote that Hembree petitioned “this court to enter a preliminary order declaring that the memorandum opinion issued by the District Court for the District of Columbia…on August 30, 2017, to be valid and binding against the Cherokee Nation, its governmental branches, and its offices, including the Cherokee Nation Registrar until further order of the court.”
Prior to Hembree’s petition, on March 16, 2009, the Tribal Council passed a resolution ratifying the litigation in Cherokee Nation v. Nash and acknowledged that it was “desired” that the federal court determine rights of the Freedmen and that the Cherokee Nation “would be bound by the decision of the federal court.”
“Cherokee Nation voluntarily entered this litigation and agreed to be bound by the decision, therefore, this court granted the request of Attorney General and entered a preliminary order granted declaratory action and petition for write of mandamus,” the May 16 ruling states.
A writ of mandamus is an order from a higher court to a lower court or to a government official, office or corporation commanding that a specified thing be done.
On Dec. 11, the eight movants filed a motion to intervene and asked the Supreme Court to withdraw the order and direct Hembree to appeal Hogan’s ruling. On Dec. 29, the CN and Hembree filed a special limited entry of appearance and objection to the Dec. 11 motion to intervene. The Supreme Court heard oral arguments on April 19.
The eight movants were represented by Broken Arrow attorney Stephen Gray who called Hembree’s decision not to appeal an “attack on the Nation’s sovereignty.”
“Citizens’ motions and petition have become necessary because Hembree argues that he has the sole authority to appeal or not appeal the D.C. case in his position as attorney general, without consultation with the council and is protected by sovereign immunity from citizens. His argument puts him not only above the law, but now he is the law,” states Gray’s court petition.
In his petition Gray also argued that Hembree, without Tribal Council consent, “is negotiating away the Nation’s sovereignty and obligating the Nation to tens of millions of dollars in liability.”
Some of that liability, Gray’s petition asserts, would be in the form of tribal services that would be provided to Freedmen, who are descendants of slaves once held by CN citizens.
Assistant Attorney General Chrissi Nimmo responded that the Tribal Council doesn’t have a right to question Hembree’s decisions.
Two legislators, Harley Buzzard and David Walkingstick, were among the eight movants. In court, Nimmo said Buzzard and Walkingstick filed the case against the CN and Hembree as citizens but then changed their standing to their official capacity as legislators.
She said Tribal Councilors don’t have the right to sue Hembree and force him to appeal the Freedmen decision. Also, Nimmo reminded the court that on Dec. 11, the Tribal Council indefinitely tabled Walkingstick’s legislation to appeal the federal court ruling on Freedmen receiving tribal citizenship. Nimmo said that vote “killed” the issue of appealing Hogan’s decision.
Gray argued that the Tribal Council has a right to be involved in all “settlements” involving the CN. However, Nimmo disagreed with calling the federal ruling a settlement.
“This is an order of the court after years of litigation that the AG chose not to appeal,” she said. “The Council is not a client of the AG. The Cherokee Nation is his client.”
RANCHO PALOS VERDES, Calif. – A video by a 20-year-old Cherokee Nation citizen has gone viral after a security guard took his tribal identification card on May 6 at Marymount California University.
Nicolas Rojas, an El Camino Community College student, said he went to MCU to study with a friend who attends the university when a security guard checking IDs took his CN photo ID card and became “hostile.”
“He then told me I had to leave, yelled at me and threatened to have me arrested. He became very hostile with me, started harassing me and put his hands inside my car, during which I started to record him,” Rojas said. “He told me I had to leave, but he had taken my ID with him and refused to give it back until I left and parked at a different school nearby. The whole interrogation took over a half an hour and I had a project due that Monday. I just wanted to study with my friend, but instead was threatened to be arrested several times without reasoning.”
The ID card the security guard took is a CN photo ID card that contains a tribal citizen’s photo and citizenship information one side and Cherokee blood quantum on the other. According to CN Communications, the cards are federally recognized. And TSA.gov states the cards are Transportation Security Administration-approved for domestic travel.
Rojas said he’s used his CN ID card to apply for jobs, board domestic flights and at banks to withdraw money.
He added that the security guard spoke unprofessionally to him and refused to give back the ID.
“I want this…to bring awareness about the issues indigenous people of North America face and the constant humiliation we have to endure by just existing,” Rojas said. “Campuses should be places of sanctuary for all attempting to further themselves through education. I don’t understand why he held onto my ID considering that he already at that point had told me that I would not be allowed to enter the campus. He took my ID with him as he was threatening to have me arrested.”
Rojas said he eventually got his ID back from the security guard after his friend, who is a resident advisor at MCU, showed and asked the guard for the ID back.
“I find it pitiful that I have to have a communicator within a place of power just to get my ID back,” he said.
Rojas said he contacted university officials about the incident who told him they needed to fully investigate the incident from both perspectives. He said officials said if they found the guard liable then they would retrain him.
“Ideally I would want campus-wide diversity talks, and all guards to have a day of retraining. I personally feel that many institutions are not a welcoming places for minorities, and this demonstrates the hostility many of us face just trying to even enter a campus,” Rojas said.
According to the AJ+ video of the incident, MCU President Brian Marcotte said he watched the video and was “confident there was no discrimination” and that “it didn’t seem threatening.”
According to the video, the school said it would train security on different IDs.
To view the video, visit <a href="https://www.facebook.com/ajplusenglish/videos/1197973477010824/" target="_blank">https://www.facebook.com/ajplusenglish/videos/1197973477010824/</a>.
WASHINGTON – U.S. Health and Human Services officials want states to settle the question of whether citizens of Native American tribes should get jobs to keep their health care after the Donald Trump administration said in April that tribes are a race rather than separate governments.
The administration contends that by classifying Natives as a race rather than organized tribal governments, they would not be exempt from Medicaid work rules. This new challenge to tribal sovereignty has sparked by an unusual split between the HHS’ politically appointed administrators and legal counsel, according to an article by Politico.com.
This issue has also raised concerns in Congress and alarmed tribes that say it reverses centuries of protections enshrined in the Constitution and upheld by the Supreme Court.
“This decision by the U.S. Department of Health and Human Services is troubling and undermines longstanding policy and law that recognize tribes as sovereign governments, not racial classifications,” Cherokee Nation Secretary of State Chuck Hoskin Jr. said. “This understanding is the very basis of the laws that apply uniquely to tribes and that have been upheld by the courts time and time again. HHS is demonstrating a breathtaking lack of understanding of this fundamental and bedrock concept in Indian law. I intend to object directly to agency officials at the next HHS tribal advisory committee meeting in May.
HHS Secretary Alex Azar, the agency’s former general counsel, has told tribal leaders that state Medicaid administrators will be able to work with tribal governments on designing any employment requirements. Tribes had requested to be exempted from new Medicaid work rules being introduced in several states, citing sovereign status. But the Trump administration rejected the request, saying in January it amounted to an illegal racial preference.
Eastern Band of Cherokee Indians Principal Chief Richard Sneed said his tribe’s citizenship differentiates tribal people and tribal governments from other racial minorities.
“As principal chief of the Eastern Band of Cherokee Indians, I am a leader and a citizen of a sovereign tribal nation,” he said. “The Eastern Band – like other Indian tribes – sets its own laws that define the standards for being an Eastern Band Cherokee. This citizenship – we also say membership or enrollment in a tribal sovereign – separates tribal people and tribal governments from others who may be racial minorities.”
Sneed added that the U. S. Supreme Court affirmed this status in 1974 in Morton v. Mancari, a case about the constitutionality under the Fifth Amendment of hiring preferences given to Indians within the Bureau of Indian Affairs. The Supreme Court held that the hiring preferences established by the U.S. Congress “were not violative” of the Due Process Clause of the Fifth Amendment.
“Indians” under federal law are citizens of Indian tribes, not persons of a racial minority as recognized in the U.S. Constitution,” Sneed said.
CN citizen Mary Smith, who was acting head of the Indian Health Service during the Obama administration, said the United States has a legal responsibility to provide health care to Native Americans.
“It’s the largest prepaid health system in the world,” she said. “They’ve paid through land and massacres, and now you’re going to take away health care and add a work requirement?”
Native Americans’ unemployment rate of 12 percent in 2016 was nearly three times the U.S. average, partly because jobs are scarce on reservations. Low federal spending on the IHS has also left tribes dependent on Medicaid to fill coverage gaps.
“Work requirements will be devastating,” Smith said. “I don’t know how you would implement it. There are not jobs to be had on the reservation.”
Republican Congressman Tom Cole, who is a Chickasaw Nation citizen and the chairman of the House Appropriations Subcommittee that holds the purse strings for HHS and the Centers for Medicare & Medicaid Services, has warned the HHS to reverse course.
“I am concerned that both HHS and CMS are unwittingly about to kick off what may be decades of expensive and needless litigation with tribes and other parties,” Cole wrote as part of a legal memo prepared by the Chickasaw Nation.
“There’s no way I’m ever going to support something that describes tribes as racial groups and not sovereign governments," Cole said to Politico. “If Republicans (with tribal expertise) don’t push back hard…I think HHS will stumble into a big fight that they don’t need.”
WASHINGTON (AP) – The U.S. Supreme Court will hear Oklahoma’s plea to reinstate the murder conviction and death sentence of an American Indian.
The justices on May 21 said they would review an appellate ruling that overturned the conviction and sentence of Patrick Dwayne Murphy. He claimed he should have been tried in federal, not state, court because he is a citizen of the Muscogee (Creek) Nation and the crime occurred in Indian territory.
The federal appeals court in Denver determined that the victim’s body was found within the tribe’s historical boundaries that take in several Oklahoma counties, and include much of the city of Tulsa. The court said the MCN reservation existed before Oklahoma achieved statehood and was never formally deprived of its official status, or disestablished, by Congress.
The Trump administration, in a rare uninvited Supreme Court filing, said in support of Oklahoma’s appeal that the issue has “wide-ranging and serious implications for law enforcement.” In Tulsa, with a population of 950,000 people, and eight counties in eastern Oklahoma, most crimes by or against Indians would have to be prosecuted in federal courts if the appellate ruling is upheld, the administration said.
The vast majority of crimes are handled by local and state authorities.
In 2017, federal prosecutors in the region brought just three indictments for serious crimes because they involved Indian Country, the administration said. That number could increase to more than 500 indictments a year, the administration estimated.
A jury in McIntosh County, about 80 miles southeast of Tulsa, found Murphy guilty of the 1999 murder of George Jacobs and a judge sentenced him to death. Prosecutors said he had confessed to killing Jacobs when he was arrested.
Lawyers for Murphy had urged the justices to leave the appellate ruling undisturbed. They argued that the appeals court correctly applied Supreme Court precedents dealing with the disestablishment of Indian reservations. They also said the claims of mass disruption of the criminal justice system were overstated.
The case, Royal v. Murphy, 17-1107, will be argued in the fall. Justice Neil Gorsuch is not taking part in the court’s review because he dealt with the case while a member of the appeals court.
STILWELL – The 71st annual Stilwell Strawberry Festival was held May 11-12, and a strong Cherokee presence could be seen in one of the longest running festivals in Oklahoma.
Attractions included a parade, carnival, 5K and fun run, car show, vendor booths, live music, food and strawberries.
One of the two Cherokee strawberry growers, Dylan Collyge, attended the festival even though he was unable to sell his berries or enter them in the competition this year.
“My berries got hit by a late frost in April and set me back about a month,” he said.
Other strawberry farmers did well with their berries and sold them from booths or from their vehicles. Visitors could be seen carrying purchased flats of strawberries around town.
The Cherokee Phoenix was at the festival and produced the following video of highlights.