Last fall, the Cherokee Nation filed lawsuits against a group of pharmacies for their role in the opioid epidemic. The Cherokee Nation is actually made up of three federally recognized tribes. The Cherokee Nation has more than 320,000 tribal citizens all together, and approximately 126,000 of those live within the jurisdictional boundaries of the Cherokee Nation, which covers 14 counties in northeastern Oklahoma and is headquartered in Tahlequah, Oklahoma.

The Nation filed their suit against drug distributors and pharmacies, including Walmart, CVS, and Walgreens, claiming that the companies profited enormously by flooding tribal communities in Oklahoma with prescription painkillers, leading to the deaths of hundreds of Cherokee tribal members. The lawsuit estimates that there were over 350 opioid related deaths within the Cherokee Nation between 2003 and 2014. Also included in the suit are the nation’s three largest pharmaceutical distributors: AmerisourceBergen, McKesson, and Cardinal Health, who distribute 85 to 90 percent of the prescription painkillers in the United States.

According to the Cherokee, these companies frequently filled suspiciously large prescriptions for opioids within their jurisdiction. Oklahoma leads the nation in opioid abuse, and almost a third of the prescription painkillers distributed in that state went to the Cherokee Nation. Among all the ethnic and racial groups in the U.S., American Indians have the highest rate of drug related deaths in the country. In the case of Indian tribes, there’s hundreds of years of genocide and being removed from their homelands lingering in their DNA.

The lawsuit was originally filed in tribal court, which lawyers for the Cherokee Nation hoped would give them quicker access to internal corporate records that could show what the companies knew about the distribution of pain pills within the jurisdiction. This is where they hit a snag. The defendants sought a preliminary injunction in federal court, claiming that the tribe did not have the authority to sue them in tribal court. Tribes don’t have much authority over non-Indians on their lands, with two exceptions. According to the Supreme Court case Montana v. United States, tribes can regulate “the activities of nonmembers who enter consensual relationships with the tribe or its members” and “the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe.”

A federal judge agreed that the tribal court lacked jurisdiction over the case. The ruling was somewhat narrow – the Cherokee claimed in part that the defendants violated the Controlled Substances Act, which the judge said only the federal government had a right to enforce. This at least leaves the door open for lawsuits on other grounds.

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