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.
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.
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.
“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.”