In Opioid Battle, Cherokee Want Their Day in Tribal Court

TAHLEQUAH, Okla. — Cherokee children were disappearing.

At weekly staff meetings, Todd Hembree, the attorney general of the Cherokee Nation, kept hearing about babies in opioid withdrawal and youngsters with addicted parents, all being removed from families. The crush on the foster care system was so great that the unthinkable had become inevitable: 70 percent of the Cherokee foster children in Oklahoma had to be placed in the homes of non-Indians.

“We have addicted mothers and fathers who don’t give a damn about what their children will carry on,” said Mr. Hembree, a descendant of a revered 19th-century chief. “They can’t care for themselves, much less anything else. We are losing a generation of our continuity.”

Across the country, tens of thousands of people are dying from abuse of prescription opioids. Here in the capital of the Cherokee Nation, the epidemic is exacting an additional, deeply painful price. The tribe’s carefully tended heritage, traditions and memories, handed down through generations, are at risk, with so many families now being ruptured by drugs.

That fear is driving an unusual legal battle. Like authorities in dozens of cities, counties and states, including Ohio, New Jersey and Oklahoma itself, Mr. Hembree has sued big opioid distributors. Attorneys general from 41 states recently joined forces to investigate similar options. But instead of going to state court, Mr. Hembree filed his case in the Cherokee Nation’s tribal court.

The Cherokee suit argues that the pharmacy chains Walmart, Walgreens and CVS Health, as well as the giant drug distributors McKesson, Cardinal Health and AmerisourceBergen, flouted federal drug-monitoring laws and allowed prescription opioids to pour into the Cherokee territory at some of the highest rates in the country. Such neglect, Mr. Hembree claims, amounts to exploitation of a people.

The companies have responded by asking a federal judge to deny the tribe’s authority to bring the case. They argue that a tribe cannot sue them in tribal court, much less enforce federal drug laws. They have questioned whether a Cherokee reservation even legally exists.

“We believe this lawsuit has no merit,” a CVS spokesman said.

Both sides have mobilized battalions of prominent lawyers.

Lindsay G. Robertson, an authority on Native American law at the University of Oklahoma College of Law who is not involved in the lawsuit, believes that the case will indeed go to tribal court. He pointed to a 1985 Supreme Court ruling, which said that, barring extraordinary circumstances, a federal court should not rule on tribal court jurisdictional questions before they have been fully litigated in tribal court.

A ruling is expected soon and, regardless of the outcome, will almost certainly be appealed.

For the Cherokee, the case is fundamentally about defending their identity and survival as a tribe.

“I believe these companies target populations,” said Mr. Hembree, whose office displays include a feathered spear and a dish of bundled sage to burn for traditional blessings. “They know Native Americans have higher rates of addiction. So when they direct their product here, they shouldn’t be surprised to find themselves in a Cherokee court.”

Born Addicted

On a recent morning, a new mother in the maternity ward at the Cherokee Nation’s W.W. Hastings Hospital expected to take her baby home. Instead, in walked Crystal Bogle, a Cherokee Nation investigator.

The newborn had tested positive for numerous opiates, Ms. Bogle told the mother. The Cherokee Nation would be taking the baby into custody, she said, until the mother got clear of drugs.

The mother began sobbing.

Several times a week, Ms. Bogle and her colleagues have similar conversations at hospitals on tribal land. Sometimes, as voices rise, workers must call security guards.

Babies addicted to opioids often have a distinctive, inconsolable shrill cry, nurses at the hospital said. The most severely addicted must be evacuated by ambulance or helicopter to a Tulsa hospital with a neonatal intensive care unit, where, on morphine drips, they slowly withdraw, remaining for up to a month. The costs, which can include years of therapy for developmental delays, are astronomical.

A few months ago, Oklahoma state child welfare workers woke Nathalene Dixon, a non-Indian foster parent, at 1 a.m.: Could she take a Cherokee newborn right away? The 3-day-old, who tested positive for opioids, had been allowed to go home. But when workers got there and saw drugs, they took the baby away. For hours they had been trying, unsuccessfully, to locate an acceptable relative.

By 4 a.m., the infant was handed to Ms. Dixon, a great-grandmother whose mobile home teems with figurines of angels and birds. In two years, she has taken in about a half-dozen Cherokee children.

“I can’t understand how parents can find drugs more important than their kids,” she said.

Pill Country

Some of the Cherokee Nation’s oldest communities crouch along remote switchback roads in the verdant Ozark foothills of Adair County. Families still gather on ceremonial grounds for stomp dancing. Children fling a ball with handmade woven sticks at a wooden fish atop a pole. Many elders speak Cherokee as their first language.

But these communities are also among Oklahoma’s poorest, most sparsely populated and isolated. “There’s not much work in Adair County,” said Shawnna Roach, a tribal marshal who patrols here. “People figured out they could make money selling pills. Sometimes they call the marshals, saying their pills were stolen. Were they really stolen? Or did they sell them? They use our reports as proof to get their prescription refilled.”

In the capital, Tahlequah, a college town with cafes, tribal art shops, a heritage center and street signs written in Cherokee and English, opioids have staggered more affluent Cherokee, too. A senior health administrator takes care of her grandson after her opioid-addicted stepdaughter lost custody. A lawyer’s two daughters were given prescriptions for high school sports injuries — one is now in jail, the other in rehab.

“Several of my family members are on the pills,” said Daryl Legg, who runs an employment program for Cherokee ex-offenders.

His disabled mother wears her clothes to bed to keep pain medication on her, secured from other users in the home. “So one night my brother cut her pants pocket open while she was sleeping,” Mr. Legg said.

Tribal Court on Trial

Mr. Hembree filed his lawsuit in the Cherokee Nation’s district court, a red brick 1869 building with arched windows on Tahlequah’s town square. The courtroom looks like any conventional, if modest, state counterpart. Cherokee lawyers and judges are typically members of the Oklahoma state bar, the Cherokee Nation’s bar and often the federal bar.

The right to bring his case, Mr. Hembree says, was established in 1866.

That is when the Cherokee, who had fought with the Confederacy, signed a post-Civil War treaty with the United States. It recognized the Cherokees’ sovereignty over “the exterior boundaries of the reservation” that included millions of acres spread across what would become 14 counties in northeastern Oklahoma, home now to more than a third of roughly 360,000 Cherokee nationwide.

That treaty was the final official act of Principal Chief John Ross, a lawyer by training who led the tribe on a forced cross-country march in 1839 along “The Trail of Tears” to resettlement in Oklahoma. He is Mr. Hembree’s great-great-great-great grandfather.

On its face, the suit looks like a straightforward neglect case.

Mr. Hembree says that over a five-year period, drug distributors ignored red flags and allowed alarming quantities of prescription opioids — in 2015 and in 2016, 184 million pain pills — to pour into the region within the boundaries delineated by the Treaty of 1866. In doing so, the Cherokee argue, McKesson, Cardinal Health and AmerisourceBergen, three corporations which transport about 90 percent of the country’s prescription opioids, did not comply with federal drug monitoring and reporting requirements.

Pharmacies, which sold the medication directly, also bear responsibility, the suit says. CVS, Walgreens and Walmart have stores in the Cherokee Nation that are among the top 10 Oklahoma pharmacies for opioid sales. Pharmacists sidestepped their duties, Mr. Hembree argues, looking the other way when filling prescriptions that were obviously photocopied, written for suspicious quantities or refilled too soon.

In response, distributors say they are links in a complex chain that includes companies that make government-approved medications and licensed pharmacists.

“We intend to vigorously defend ourselves in this litigation while continuing to work collaboratively to combat drug diversion,” said a spokeswoman for AmerisourceBergen.

The pharmacy chains say their role is to dispense medications prescribed by physicians and that they, too, are making efforts to combat the opioid crisis, such as a recent event at a Walgreens in the Cherokee Nation, touting the company’s collection of unused medications.

Tribal courts generally do not have jurisdiction over people who are not Native Americans. The Cherokee are relying on a 1981 exception created by the Supreme Court: If a non-Indian business has a commercial, consensual relationship with the tribe, the Court said, the tribe may assert authority.

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For now, the pharmacies and distributors have asked a federal court for an injunction to stop the case going forward. In their filings, the companies implied that they would not be treated fairly in a tribal court.

Chrissi Ross Nimmo, the Cherokee’s deputy attorney general, said in response: “Tribes appear before non-Indian courts, judges and juries every day, and we don’t automatically claim unfairness. If the Cherokee Nation has these great courts that we set up and this robust civil code, why not use it?”

The tribe, the companies argue, does not have the authority to enforce federal drug reporting requirements.

As for the Supreme Court’s exception? Neither suppliers nor pharmacists, they say, had an agreement with the Cherokee Nation.

And they say that the distribution and sale of prescription opioids did not occur on land over which the Cherokee have sovereignty. The suppliers’ headquarters are not in Oklahoma. While some pharmacies are within the Nation, others are not.

In fact, they contend, there is no “Cherokee reservation.”

Indeed, much Cherokee land within the 1866 boundaries was sold decades ago. A contemporary map of tribal property would resemble a checkerboard.

But Mr. Hembree contends that the 1866 boundaries still have legal weight; that only Congress can undo the status of a “reservation.” Congress has not done so for the Cherokee.

On Nov. 9, Mr. Hembree’s position that the Cherokee are, legally, on a reservation got fresh support. Ruling in a criminal case involving a member of Oklahoma’s Muscogee Creek tribe, the United States Court of Appeals for the 10th Circuit affirmed decisions upholding the treaty boundaries of that tribe’s reservation.

But Chief Judge Timothy M. Tymkovich seemed uncomfortable with that result, noting that history had outstripped the treaty, signed some 40 years before Oklahoma became a state. The boundaries issue, he wrote, “might benefit from further attention from the Supreme Court.”

For now, the sides await a decision. If the federal judge allows the case to go forward in tribal court, the companies can appeal. But meanwhile, the lawsuit would continue in Cherokee Nation District Court.

The loser of the tribal trial can appeal to the Cherokee Supreme Court. If the five justices rule against the tribe, its case ends. But if the decision goes against the companies, they can return to federal court.

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Infusing Treatment with Tradition

As the legal battle unfolds, the tribe pushes ahead with enforcement and treatment — including drug courts, an overwhelmed Suboxone clinic and youth prevention programs. Such efforts are typical in communities across the country. But here, interventions are often steeped in Cherokee references, in an attempt to anchor tribal identity.

“Do you know where your great-grandmother’s allotment was?” asks Gaye Wheeler, a drug abuse counselor, who tries to engage Suboxone patients about family lore. “Do you know why your family’s last name is Nakedhead?”

At the Jack Brown Adolescent Treatment Center, a residential facility operated by the Cherokee Nation on 22 acres of a former dairy farm, most teens say opioids had been their drug of choice.

They come to the center from Oklahoma’s 38 tribes, and their regimen includes making flutes, bowls and drums, attending a sweat lodge and practicing stomp dancing.

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“It’s important to know who you are and where you come from, to find your resources in your tribe to help you in your recovery,” said the director of the center, Darren Dry.

This year Nikki Baker Limore, the Nation’s executive director of Indian Child Welfare, initiated a tribal cultural program for children in foster care. Accompanied by a golden retriever puppy named Unali (Cherokee for “friend”), children read Cherokee animal fables and learn basket-making and weaving from the National Treasures — Cherokee elders dedicated to preserving the tribe’s traditions.

“We have great-great grandparents who were products of the Trail of Tears,” said Mrs. Baker Limore, her voice shaking as she pointed out the children’s artwork. “They were resilient, but we lost a lot of tribal members along the way.”

“And now,” she continued, “you have an opioid epidemic that is wreaking havoc on families, tearing them apart. I am not sure we’re going to be resilient enough to overcome this one.”