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The Cherokee Nation is suing top drug distributors and pharmacies — including Wal-Mart — alleging they profited greatly by "flooding" communities in Oklahoma with prescription painkillers, leading to the deaths of hundreds of tribal members.
Todd Hembree, attorney general for the Cherokee Nation, says drug companies didn't do enough to keep painkillers off the black market or to stop the overprescription of these powerful narcotics, which include OxyContin and Vicodin. "They flooded this market," Hembree says. "And they knew — or should've known — that they were doing so."
Walgreens, CVS Health and Wal-Mart are all named in the suit, along with the nation's three largest pharmaceutical distributors: AmerisourceBergen, McKesson and Cardinal Health. They act as middlemen between pharmacies and drugmakers, distributing 85 to 90 percent of the prescription painkillers that some see as fueling a growing opioid epidemic in the U.S.
When reached for comment, one of the defendants, Cardinal Health, sent a statement to NPR saying the suit was a mischaracterization of facts and a misunderstanding of the law. "We believe these lawsuits do not advance the hard work needed to solve the opioid abuse crisis — an epidemic driven by addiction, demand and the diversion of medications for illegitimate use."
But the Cherokee Tribe says these companies regularly filled large, suspicious prescriptions within the Cherokee Nation's 14 counties in northeastern Oklahoma. It also says the companies turned a blind eye to patients who doctor-shopped and presented multiple prescriptions for the same medication. Oklahoma, where 177,000 tribal members live, leads the nation in opioid abuse. Almost a third of the prescription painkillers distributed in that state went to the Cherokee Nation.
"There are safeguards that are supposed to be followed — federal laws — that they turn a blind eye to because their profits are much more important to them," Hembree says. "We were being [overrun] by the amount of opioids being pushed into the Cherokee Nation." A spokesperson for Walgreens told NPR the company declines to comment on pending litigation. CVS Health said in a statement, "We have stringent policies, procedures and tools to ensure that our pharmacists properly exercise their corresponding responsibility to determine whether a controlled substance prescription was issued for a legitimate medical purpose before filling it." The other companies did not immediately respond to requests for comment.
Nowhere has the country's opioid crisis hit harder than in Indian Country. Compared with other racial and ethnic groups in the U.S., American Indians have the highest rate of drug-induced deaths in the country. The use of OxyContin by American Indian high-schoolers is double the national average.
The lawsuit estimates opioid abuse led to over 350 deaths within the Cherokee Nation between 2003 and 2014.
Cherokee babies are often born with an opioid addiction resulting from their mothers' use of prescription painkillers throughout the pregnancy. Some spend their first moments on earth suffering through withdrawals. "They will have shakes, they will cry, and a lot of these children go on to have developmental and cognitive issues," Nikki Baker-Limore, executive director of child welfare for the Cherokee Nation, says. "These children are born and they don't even have a chance the second they come out of the womb."
Several studies suggest that high rates of addiction in Indian Country stem from the violence and cultural destruction brought down upon Natives over the past 200 years. Because both trauma and resilience are remembered in our DNA, the genocide and forced removal of Cherokee and other tribes from their homelands by the U.S. government during the early 19th century has resulted in generational trauma.
Cherokee Nation claims in the suit that drug companies are making money off a vulnerable population and ignoring epidemiological and demographic facts. While this is the first time an Indian Nation has sued top drug distributors and pharmacies, it's not the first case of its kind in the country.
The city of Everett, Wash., recently filed suit against Perdue Pharmaceuticals, the maker of OxyContin, for allowing its drug to saturate the black market. West Virginia, one of the hardest hit places in the nation's opioid epidemic, settled with Cardinal Health for $20 million last year. Soon after, the federal government slapped Cardinal Health and McKesson with multimillion-dollar fines for failing to report suspicious orders of controlled substances to the Drug Enforcement Agency.
"Legal action is one of the only effective measures we have against pharmaceutical companies and distributors," Adriane Fugh-Berman, an associate professor in the Department of Pharmacology and Physiology at Georgetown University, says. Fugh-Berman has served as an expert witness in several cases against pharmaceutical companies. "Companies don't like lawsuits," she says. "It's a great way to get information into the public domain."
But the Cherokee Nation's lawsuit is different from other cases in a fundamental way: It was filed in tribal court. By doing so, lawyers for the Cherokee Nation say they hope to gain quicker access to internal corporate records. However, Hembree says they expect the defendants will file a motion to move the case into federal courts.
"We're ready for that jurisdictional battle and we look forward to trying this case in Tahlequah, Okla.," Hambree says, referring to the Cherokee Nation's headquarters. The suit seeks billions of dollars in damages, and Hambree hopes it will help change the behavior of drug distributors and pharmacies.
"I can't put Cardinal Health and McKesson and Amerisource in jail, but I can make them responsible for the damages they've incurred," he says.
Even if the tribe is successful, Fugh-Berman says a change in behavior isn't going to cure the opioid crisis in Indian Country and the U.S. in general. "It's just one piece in this whole fabric of how to stop the opioid epidemic," she says.
But curing that one piece could really make a big difference in the Cherokee Nation, according to Baker-Limore. She says the tribe has the infrastructure to provide recovery and rehab services. "Somebody needs to stop letting these opioids be so readily available," she says. "We're a small-town community. It's hitting us hard."
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