By Geoffrey Strommer and Dawn Winalski
The opioid crisis has shattered communities throughout the United States. And it has had a disproportionate impact in Indian Country. The Centers for Disease Control and Prevention (CDC) reported that American Indians and Alaska Natives had the highest drug overdose death rates in 2015 and the largest percentage increase in the number of deaths over time from 1999-2015 compared to other racial and ethnic groups—an increase greater than 500 percent.
This steep rise can be attributed in large part to opioids: the CDC WONDER database on causes of death reveals that the age-adjusted annual mortality rate for opioid overdose deaths among American Indians and Alaska Natives rose from 2.9 per 100,000 in 1999 to 13.9 per 100,000 in 2016.
This crisis is exacerbated by the shortage of resources and funding not only for opioid abuse treatment, but also for treatment of the root causes of chronic pain that lead to opioid use and related problems. Tribes and tribal organizations have been using their own limited resources and working on tribally driven solutions to address the crisis.
For example, the Swinomish Tribe designed and developed a unique treatment program called Didgwálič that integrates evidence-based chemical dependency treatment with holistic, culturally competent care. This includes a full array of medically-assisted treatment, primary medical care, dental care (currently in development), mental health counseling, treatment of co-occurring disorders, and social worker assistance to deal with domestic violence, legal, housing, employment, parenting and other issues both causing and resulting from OUD. Didgwálič also provides on-site childcare and free transportation to eliminate barriers to treatment.
In addition to treatment, culturally competent prevention programs, tailored to each tribal community, play an important role in stopping and reversing the opioid epidemic. One example is The Healing of the Canoe, a collaborative project between the Suquamish Tribe, the Port Gamble S’Klallam Tribe, and the University of Washington Alcohol and Drug Abuse Institute.
Tribes and tribal organizations also have been facing increased public safety costs, including police, emergency medical and funding for court systems. There also has been an increased need for child welfare programs, employment assistance, housing assistance and elder care.
However, any spending to address the crisis has meant that tribes and tribal organizations have had to divert precious resources from other priorities, including other public health issues and economic development. And in general, tribes’ limited resources have not been enough.
For these reasons, to date, at least 85 tribes and tribal organizations have filed complaints to join the litigation against the manufacturers, distributers and retailers of prescription opiate drugs. Since 2014, more than 1,100 lawsuits have been filed by states, municipalities, hospitals and others. The lawsuits allege that these manufacturers overstated the benefits and downplayed the risks of these medications, while also aggressively marketing opioids to physicians.
The lawsuits also allege that distributors and retailers failed to monitor, investigate, and report suspicious orders, resulting in the illegal diversion of prescription pills. The legal claims include violations of racketeering laws (RICO), violations of state consumer protection laws, and various common law claims such as public nuisance, negligence, fraud, misrepresentation, civil conspiracy and unjust enrichment.
Overall, the plaintiffs are seeking hundreds of billions in damages from defendants for money spent to date to address the crisis, and the funding needed in the future to continue addressing this crisis. Some of the statutes allow plaintiffs to recover treble damages. In addition, some plaintiffs have requested punitive damages for the defendants’ egregious conduct.
All federal court lawsuits have been combined for pretrial purposes as multidistrict litigation (MDL) under the leadership of Federal Judge Dan A. Polster in the U.S. District Court for the Northern District of Ohio. Judge Polster is supervising pretrial discovery of test cases placed within five separate tracks he created for local governments, States, hospitals, third-party payors and Indian Tribes.
For each test case (or bellwether), the defendants have filed motions to dismiss, challenging plaintiffs’ ability to bring these claims for various reasons. In support for the bellwether plaintiffs in the tribal track, 448 federally recognized tribes joined an amicus curiae brief, either directly or through membership in an organization that joined the brief, opposing the defendants’ motions to dismiss. In the brief, the Tribes outlined the history of Indian Country, the impacts of the opioid epidemic on Indian Country and the innovative, tribally driven solutions needed to address the crisis.
The Tribes also stressed the importance of having a seat at the table as the litigation continues and for any possible settlement. The Tribes reminded the court that they were not part of the tobacco settlements, and often had to fight with the States to access funds for necessary programs.
Into the future, the first bellwether trial is set for September 2019. However, Judge Polster has clearly stated that he seeks to facilitate a national settlement of all related claims, which will hopefully include abatement funding for Tribes and Tribal Organizations along with States and local governments.
The cases are currently awaiting the judge’s rulings on a variety of motions, including rulings on these motions to dismiss.
These rulings will shape the continued path forward toward a resolution. ♦
Attorney Geoffrey D. Strommer is managing partner of the Hobbs Straus Dean & Walker office in Portland, Oregon. He works with tribes on a wide range of issues, primarily self-determination and self-governance. He has represented tribal clients as pursuing Contract Support Cost claims against the Indian Health Service and the Bureau of Indian Affairs. His email is firstname.lastname@example.org.
Dawn Winalski is Of Counsel at Hobbs Straus Dean & Walker. She focuses on various issues in Indian Law. Previously, she served as an Assistant Borough Attorney with the North Slope Borough in Utqiagvik (formerly Barrow), Alaska. Living in the Arctic, she provided direct client counseling to the Mayor, Assembly and Departments of a county-level government on a wide variety of topics in municipal law.