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.