Tribes lead the battle to combat a national opioid crisisNative communities have been flooded with prescription pain pills.
By Suzette Brewer
High Country News
HCN.org “Female Possible Overdose.” The text message at 4 a.m. was short and to the point. Rory Wheeler sprang from bed and hurriedly pulled on his uniform. It was late October 2016, and Wheeler, an EMS worker for and a member of the Seneca Nation of Indians in New York, rushed to the scene. But it was too late: A young woman on the Cattaraugus Indian Reservation had overdosed and was pronounced dead at the scene. “Her mother was hysterical, screaming over her body,” recalls Wheeler. “No mother should ever have to go through that.” Wheeler’s day, however, was only getting started. Three hours later, his pager went off again. Minutes later, another young woman was pronounced dead on arrival ― again, from an overdose. Both women were Seneca tribal members in their early 20s, and both were mothers of young children. For Wheeler, who had just turned 19, the deaths of two fellow tribal members from his small community in the same day cut close to the bone. “That was the moment that I knew we were in trouble,” says Wheeler. “That was the day that changed my life, when I began to realize that the issue of opiates was serious in our community and that we had to do something.” It was also a moment of reckoning for the Seneca Nation, a tribe of only 8,000. Having survived numerous wars, famine, disease epidemics, the violent breakup of their territories and the consequent legal struggle to achieve sovereignty, the tribe now faced an existential crisis — one that had been brewing in the shadows long before anyone grasped its impact or could organize a response. No longer a discrete series of isolated incidences, opioid addiction had taken on a genuine sense of urgency. In just a few short years, Wheeler has become a weary veteran on the frontlines of the epidemic. “I’ve had to resuscitate cousins, and I’ve had to help other families who lost their relatives to this epidemic,” he said. “We have been under siege.”
‘We are overwhelmed’As the opioid crisis continues to explode across the country it has ravaged tribal communities from Alaska to Maine. Remote and isolated, with limited resources to combat the epidemic’s relentless, creeping sprawl, Native Americans and Alaska Natives have been more severely impacted than any other demographic in the country. According the Centers for Disease Control (CDC), over 600,000 Americans died from overdoses from prescription opioids and heroin between 2000 and 2016 — a number that continues to rise. And while every racial, economic and age group has been impacted, the details hidden within these statistics paint a dark picture for Indian Country. Though Native Americans comprise only 2 percent of the total U.S. population, they have experienced the highest rate of opioid-related fatalities, including both prescription and illegal drugs — dying at almost double the rate of African Americans and Latinos combined. Heroin overdoses alone among Indigenous people increased 236 percent from 2010-2014.
Experts attribute the problem in part to the over-prescription of painkillers at Indian Health Service hospitals and clinics across the country. Many tribes have responded by clamping down or even eliminating opioids from their drug formularies. “This all started back in the ’90s, when doctors started asking, ‘What is your pain level?’ which is almost like coaching people into taking pain medication,” says Aaron Payment, chairman of the Sault Ste. Marie Tribe of Chippewa Indians in Michigan. “We have been socialized to ask for drugs through tactics pushed by the pharmaceutical industry, which makes it easier for doctors to medicate, rather than offer more common-sense solutions to deal with the body’s naturally occurring responses to pain.” Payment says that tribes receiving “direct services” from Indian Health Service have little choice but to accept policies and procedures that, he believes, are under the direct influence of the pharmaceutical industry. Meanwhile, tribes across the country struggle with the basic problem of how to attract and retain physicians and health professionals in remote rural areas. “In regards to the quality of personnel,” he says, “you get what you get.” Kathleen Preuss is the director of social services for the Upper Sioux Community in Granite Falls, Minnesota. With only 583 members, it is among the nation’s smallest tribes. It’s a community that she likens to “one big family,” but that bond has not spared it from addiction and its consequences. “It’s pretty much devastated us. And since we already have such high disparity rates for other health issues, the opioid crisis has impacted us even harder,” says Preuss. “The addiction is so powerful that it clouds and destroys everything in its path — children, home, family, jobs, community. When this crisis began ramping up, after I got to my fifth family within only a few weeks, I thought, ‘We’re in trouble.’ ” For the Upper Sioux, as with tribes across the country, funds intended for basic human services, such as elder programs, housing services and heating assistance, are being redirected to pay for additional law enforcement, social services, overloaded court dockets and a seemingly never-ending turnstile of treatment facilities and programs, few of which seem to be helping those in need. “The money that we’re spending on treatment alone has impacted us to the point that we have exhausted all of our funding,” says Preuss. “We’re doing everything we can, but in the end, it’s the children who suffer the most.” Preuss says that there are 28 children in foster care at Upper Sioux, a high percentage that has created a concurrent crisis in Indian Child Welfare. “We try to place them with family members or with other tribal members in the community, but we just don’t have enough homes. We are spread so thin that our entire staff works 70 to 80 hours a week, with no end in sight.” The crisis, she says, just increases the possibility that the children may be put into permanent placement outside the tribe, something that poses an existential threat to such a small community. “We spend approximately 70 to 80 percent of our time and resources on dealing with problems related to opiates,” says Preuss. “We see what’s happening to our people, and we are overwhelmed.” Preuss largely blames the pharmaceutical industry. It has played a major role in creating and sustaining the opioid crisis, she says, a situation that amounts, she says, to nothing more than legalized drug pushing. “These pharmaceutical companies only see money, they don’t see the wreckage they have created,” she says. “They are killing our people and destroying our communities ― and it’s time they face the consequences of their actions, because this crisis is nothing less than genocide, and they’re making a killing off of Indian people.”
Thank you for participating in National #TakeBackDay!— Indian Affairs (@USIndianAffairs) May 1, 2018
Properly disposing unwanted, unused, & expired pills, particularly Opioids, protects households against the misuse of prescription drugs. Check w/ local authorities for your area’s next scheduled Take Back Day.#OpioidCrisis pic.twitter.com/iobruYEPK3
“We are not backing down”As the attorney general of the Cherokee Nation, which has over 330,000 citizens and is one of the country’s largest tribes, Todd Hembree has seen his fair share of legal battles both large and small. But nothing had prepared him for this new threat, which seemed to emerge out of nowhere. In August 2016, the weekly staff meetings in Hembree’s office were cramped and hot. It was standing room only, with nearly a dozen lawyers, legal assistants and various support staff crammed into the wood-paneled conference room to discuss, assign and prioritize cases. When it came time for updates from the ICWA team, Hembree noticed a sharp increase in foster placements within the tribe’s jurisdiction. Previously, the tribe may have identified one or two ICWA cases a month. Now, over the course of only weeks, nearly two dozen Cherokee kids had been placed in state custody. “Hold on,” he said, interrupting the update. “Tell me what’s going on. Why are we picking up so many kids lately?” “Their parents are hooked on drugs,” came the reply. “And we’re not able to place them with grandparents.” “Why?” he asked. “Because the grandparents are also addicted.” Shocked and bewildered at the sharp spike in ICWA cases, all of which involved interlocking addiction, incarceration, inadequate treatment facilities, overdoses and fatalities, Hembree realized that this was rapidly becoming a major problem for the tribe. There were enormous legal, fiscal, social, cultural and sovereignty consequences at stake. “I couldn’t stop thinking about it,” said Hembree. “At the time, I wasn’t sure why it seemed to happen with such force and so fast, but we had to do something.” Hembree began researching and talking to people within the Cherokee Nation, as well as his tribal counterparts across the country. Every single tribe he contacted reported similar, if not identical, problems, including a nationwide spike in ICWA cases on reservations and in areas with large Indian populations. Over the next several weeks, however, Hembree became aware of another sinister pattern that was clearly not coincidental: Tribal communities across the country, not just the Cherokee Nation, were being flooded with large volumes of prescription pills. For years, he learned, opioid manufacturers, distributors and pharmacies had been operating virtually unchecked, paying relatively small fines for violating laws intended to stop large shipments and suspiciously high-volume prescriptions. (“Parking tickets,” says Hembree.) The industry pulled off a major victory in early 2016, by supporting legislation that made it virtually impossible for the U.S. Drug Enforcement Agency (DEA) to stop large or suspicious shipments of opioid painkillers ― even as the industry was making billions of dollars, according to a report from The Washington Post and 60 Minutes. Passed in April 2016, the “Ensuring Patient Access and Effective Drug Enforcement Act” shields drug companies from any effective oversight or enforcement of laws intended to protect the public from the unchecked flood of highly addictive pills into vulnerable American communities. And Native Americans, whose communities are among the most impoverished in the Western Hemisphere, are the most vulnerable. For centuries, they have suffered from the effects of war, disease, forced relocation, famine, poverty and intergenerational trauma — all of this reflected in the poorest health statistics of any racial group in the United States. As a result, tribal governments, law enforcement, schools and health systems found themselves overwhelmed, ill-equipped and underfunded to deal with the catastrophic effects of this rapidly emerging public health crisis. In the fall of 2016, Hembree convened a task force to find a solution to the problem in one of the country’s largest tribal nations. For the next eight months, Hembree and his staff, working with outside counsel hired by the tribe, rapidly began to gather data and build their case. In April 2017, only a year after the passage of “Ensuring Patient Access,” the Cherokee Nation filed suit in tribal court against manufacturers, distributors and pharmacies, including Wal-Mart, CVS, Cardinal Health Inc., McKesson Corporation and AmerisourceBergen ― the first lawsuit of its kind in U.S. history. In January 2018, U.S. District Court Judge Terence Kern ruled that the Cherokee Nation Tribal Court lacked jurisdiction to try the case in its own court system. Subsequently, the tribe filed the case in Sequoyah County State Court in Oklahoma. In early March, the drug company defendants moved to have the case combined with a federal case in Ohio, but Hembree says that the tribe and its legal team will continue to push to have its case heard in Oklahoma. On March 15, McKesson Corporation and the other defendants asked a federal judge to deny the tribe’s bid to litigate its claims in state court. None of the defendants responded to High Country News’ request for comment. “The Cherokee Nation has spent hundreds of millions trying to stem the damage to our people,” says Hembree. “Our health systems, our courts, our schools, our law enforcement and our communities are buckling under the strain of this crisis. We have a particular story to tell and we are not backing down.”
“The tip of the spear”Since the initial filing last year, hundreds of other tribes, counties, towns and states have followed the Cherokee Nation’s lead and filed their own suits, many of which have been combined into a massive federal multidistrict litigation case (MDL) in the Northern District of Ohio. “The Cherokee Nation was definitely the tip of the spear,” says Tim Purdon, a former U.S. attorney for North Dakota who is now in private practice. “Everyone who practices law in Indian Country watched that case, because they deserve a lot of credit for taking the lead in pushing back against a very pernicious epidemic that the states and the federal government failed to adequately address.” Purdon and his colleague, Brendan Johnson, are representing tribes in the Dakotas, including the Flandreau Santee Sioux, the Rosebud Sioux and the Sisseton-Wahpeton Sioux and the Standing Rock Sioux ― all of whom have filed suit in federal court against major manufacturers and distributors of opioids, alleging deceptive trade practices, negligent conduct and violations of federal racketeering laws.
“Tribes are taking the lead in a way that has never happened before, by using their sovereignty not only to address a man-made public health crisis, but also to send a message that they will actively pursue relief for these claims,” says Purdon. “The defendants ignored the obvious red flags, minimized the problem and continued to operate unchecked for years as Native communities were pushed to the breaking point in trying to clean up the mess.” In January, the Ohio MDL was assigned to Judge Dan Polster, a former federal prosecutor, who said the federal court system was an “illogical place” to address the crisis. He vowed to reach a “quick” global settlement by the end of this year. The civil docket in that case, however, is now well over 100 pages ― and counting. “That’s an admirable goal, but that’s not going to happen,” warns Jeffrey Cormell, general counsel for the St. Croix Chippewa Indians of Wisconsin. “This is a very complex case which hasn’t even gotten close to starting or moving on to the merits, because we haven’t even settled the jurisdiction issue yet.” Cormell says that, owing to their sovereign status, tribes should not be included in the MDL. “Our team is now in the difficult position of trying to decide whether we should take our chances in Wisconsin state court,” he says. The St. Croix have only 1,100 members, and yet they have experienced hundreds of overdoses, according to Cormell. And although the tribe hopes to recover some of the expense incurred in fighting the epidemic, Cormell says cash damages will never fully repair the damage that’s been done to this small, tightly knit community. “Money alone will not make this community whole again,” says Cormell. “But we hope that our suit, and others like it, will force the industry to act more ethically in providing drugs that are less addictive and more suited to the patient need and not focused purely on the profitability.”
.@POTUS has provided strong, decisive and compassionate leadership on the #opioidcrisis. In response, we’ve created a Joint Task Force to crack down on dealers in Indian Country. Our first raid w/ the Pueblo seized $2.5 million in methamphetamine in New Mexico. pic.twitter.com/6tsGHn0QEY— Secretary Ryan Zinke (@SecretaryZinke) April 11, 2018