Wisconsin tribe fights back as effects of opioid crisis deepen in Native communities

The opioid crisis across the United States is no secret. According to the Centers for Disease Control and Prevention 42,000 people died of opioid overdoses in 2016.

Many counties around the country, as well as over two-thirds of those in Wisconsin, have taken legal action in an attempt to mediate this issue.

However, issues combating this problem are not isolated to county governments.

The St. Croix Chippewa Indian Tribe in Northwest Wisconsin has felt the impact of the epidemic in many facets of their society. The community joined other local governments across the state and nation in suing drug manufacturers, arguing they have exacerbated the impact of the epidemic.

Tribes are like municipal governments in that they are tasked with handling public services, such as medical treatment, policing, child protective and foster care services.

Last year, in a tribe of around 1,000 people, six died of opioid overdoses. This means a member of the St. Croix tribe is roughly 150 times more likely to die of an opioid overdose than an average American. In 2018, one tribe member has passed away due to overdose. The problem started popping up about 10 years ago, according to Jeff Cormell, general council for the St. Croix tribe.

“This problem has been going on for quite some time,” Cormell added.

Opioids are often prescribed at the hands of a tribal doctor. But Cormell noted these doctors “saw the growing trend” of opioid abuses and were careful to prescribe them.

Once their prescription ends, many patients have already developed a dependency and seek further access to opioids. This opens up a “derivative market,” as Cormell describes, and users get the drugs illegally in the form of heroin.

The tribe receives federal funding from the Indian Health Services to operate their clinics and medical offices. However, the St. Croix tribe does not have pharmacies on its land that would give out the opioids due to health and security reasons.

St. Croix’s central argument against opioid manufacturers and distributors is that the companies knew about the addictive properties of the drugs being manufactured and were aware of the damages they caused, but continued to create and distribute them in order to increase their profit margins.

One of the defendants in the St. Croix case is the McKesson Corporation. Cormell said the distributor began selling these highly potent drugs to people in terminal stage illnesses. He adds the company “knew full well the implications of their actions but chose to profit at the detriment of the St. Croix Tribe and others.”

The Healthcare Distribution Alliance is a national trade association representing McKesson and other distributors. HDA Senior Vice President John Parker said in response to the growing number of suits “those bringing lawsuits would be better served addressing the root causes, rather than trying to redirect blame through litigation.”

A unique element of the St. Croix case is that they are suing both distributors and manufacturers of opioids, like Walgreens and CVS, rather than just manufacturers, like many counties in Wisconsin.

Cormell noted that in the distribution process, it is the pharmacies that are responsible for controlling the amount of opioids put out into the public.

“Part of our complaint is that these are profit-making decision processes,” Cormell said. “Walgreens was looking the other way for profit-driven reasons.”

Mike DeAngelis, the senior director of corporate communications at CVS, said the allegations have “no merit,” and “CVS Health is committed to the highest standards of ethics and business practices, including complying with all federal and state laws governing the dispensing of controlled substance prescriptions.”

Where the trial will be held for the case is another matter of concern for the tribe. Under public law 280, the state of Wisconsin has direct jurisdiction over tribes’ cases rather than tribal courts. That being said, the St. Croix case is being taken to federal court at their discretion due to the number of defendants in the case.

Cormell notes that if their case is lumped with others rather than remaining autonomous, they may have reason to move to state court. He argues the compilation of their case with others in the federal court will give them less of a chance to win. The first of the federal hearings will be held in March of this year.

Richard Monette, a UW-Madison law professor and former chair of the Turtle Mountain Band of the Chippewa/Ojibwe/Anishinaabe Nation, notes the unique position of the St. Croix tribe, stating that “tribes have a tendency, especially the smaller ones, to act on behalf of their people legally.”

Monette also believes the tribe has “real health damages” that, if recognized in court, could mean a possible settlement.

Additionally, Monette also describes the cultural importance of the St. Croix tribe in their efforts, legal or otherwise.

“One of the fundamental elements of the Chippewa tribes is balance, and believe it or not they bring that to a lawsuit,” Monette said. He claims the tribe is not trying to go after big pharma for any other reasons besides those that are genuine.

Monette and Cormell both voiced their concerns about issues linked with poverty, like the opioid crisis’ disproportionate impact on reservations and rural areas.

“Opioids, like anything else, have a tendency to find Indian reservations. People are [selling opioids] to buy bread and milk,” Monette said.

But for many in the tribe, the lawsuit means more than litigation for damages: It’s about justice as well.

“[The crisis] seems to be hitting hardest in Indian country,” Cormell said. “This is the tribe’s one chance to fight back. This is more important than the cash damages. This is a message.”