Judge: CN courts can’t hear opioids case

BY WILL CHAVEZ
Assistant Editor – @cp_wchavez
01/11/2018 08:00 AM
TULSA – U.S. District Judge Terence Kern on Jan. 9 ruled that the Cherokee Nation’s lawsuit against pharmaceutical companies and distributors cannot be heard in the tribe’s District Court.

The CN filed the suit in April alleging that six companies are failing to prevent the flow of illegally prescribed opioids to CN citizens within the tribe’s jurisdiction in northeast Oklahoma.

The tribe accused the McKesson Corp., Cardinal Health Inc., AmerisourceBergen, CVS Health, Walgreens Boots Alliance Inc. and Wal-Mart Stores Inc. of “perpetuating” a prescription opioid abuse epidemic within the counties that comprise the CN.

Lawyers for the companies in June filed a motion in the U.S. District Court for the Northern District of Oklahoma to determine whether the tribe’s courts have jurisdiction in the case.

The companies’ motion states that CN courts have no jurisdiction over the businesses and asks the federal court to dismiss the case.

“None of plaintiffs here are tribal members or tribal corporations. Moreover, none of plaintiffs’ conduct at issue occurred in Indian Country,” the motion states. “As domestic dependent quasi-sovereign nations, the jurisdiction of Indian tribes over non-Indians is strictly limited.”

On Jan. 9, Kern ruled for the companies by stating the tribe’s courts do not have jurisdiction.

“This proceeding concerns a lawsuit by the Cherokee Nation against a number of opioid distributors and pharmacies. However, the question before the Court is not the merits of the Cherokee Nation’s lawsuit but rather the boundaries of tribal court jurisdiction,” states Kern’s ruling. “The Attorney General of the Cherokee Nation has filed suit not in state court but in the tribal district court of the Cherokee Nation. Do the tribal courts of the Cherokee Nation have jurisdiction over this particular action? The Court finds they do not.”

Following the ruling, Hembree said the CN would keep fighting in state court to hold the companies accountable.

“We continue to believe in our case, and we are prepared to fight to hold these companies accountable in state court. The opioid crisis in the Cherokee Nation was fueled by the defendants’ decision to prioritize profits over the well-being of Cherokee citizens,” he said. “In 2015 and 2016 alone, distributors shipped and pharmacies dispensed 184 million opioid pain pills in the 14 counties in northeast Oklahoma that comprise the Cherokee Nation – or 153 doses for every man, woman and child. The defendants knowingly turned a blind eye to the harm they caused and have not changed their conduct, but this cycle ends now. We are confident in the case we’ve prepared and look forward to quickly re-filing our lawsuit.”

In his ruling, Kern wrote that it’s “undisputed” the country is in an opioid crisis.

“Drug overdose deaths and opioid-involved deaths continue to increase in the United States, and the President of the United States has declared the opioid epidemic a national public health emergency,” he states. “The latest figures from the Centers for Disease Control and Prevention show that from 2000 to 2016, more than half a million people died from drug overdoses. The majority of these drug overdose deaths (more than six out of 10) involved an opioid and 40 percent of all U.S. opioid overdose deaths involve a prescription opioid. Ninety-one Americans die every day from an opioid overdose.”

However, his ruling states because the tribal court “clearly lacks jurisdiction” further proceedings there “would serve no purpose other than delay” and would “impose a substantial burden on the six companies.

“Accordingly, plaintiffs (six companies) have met their burden to show irreparable injury to justify a preliminary injunction,” states the ruling.

In April, AmerisourceBergen released a statement claiming it stops the shipment of (drug) orders it believes are suspicious. “The issue of opioid abuse is a complex one that spans the full health care spectrum, including manufacturers, wholesalers, insurers, prescribers, pharmacists and regulatory and enforcement agencies.”

Cardinal Health said in a statement that it will defend itself against the allegations and believes the lawsuit does not advance “the hard work needed to solve the opioid abuse crisis – an epidemic driven by addiction, demand and the diversion of medications for illegitimate use.”

CVS Health said it has stringent policies and procedures to determine whether a controlled substance prescription was issued for a legitimate medical purpose before a pharmacist fills it. Walgreens said it does not comment on pending litigation, and Wal-Mart did not comment.
About the Author
Will lives in Tahlequah, Okla., but calls Marble City, Okla., his hometown. He is Cherokee and San Felipe Pueblo and grew up learning the Cherokee language, traditions and culture from his Cherokee mother and family. He also appreciates his father’s Pueblo culture and when possible attends annual traditional dances held on the San Felipe Reservation near Albuquerque, N.M.

He e ...
WILL-CHAVEZ@cherokee.org • 918-207-3961
Will lives in Tahlequah, Okla., but calls Marble City, Okla., his hometown. He is Cherokee and San Felipe Pueblo and grew up learning the Cherokee language, traditions and culture from his Cherokee mother and family. He also appreciates his father’s Pueblo culture and when possible attends annual traditional dances held on the San Felipe Reservation near Albuquerque, N.M. He e ...

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