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Joaqlin Estus

ANCHORAGE, Alaska – Lawsuits making their way through the courts will deliver hundreds of millions of dollars to tribes for treatment and prevention of opiate drug abuse.

Two settlements against the three largest pharmaceutical distributors and a manufacturer will provide about $503 million to tribes and tribal health organizations to lessen the opioid epidemic in Indian Country.

Hundreds of other lawsuits are in progress.

It’s not too late for tribes to join and take part in the settlements from manufacturers and distributors of opioid drugs.

Kevin Washburn, Chickasaw, is one of three trustees responsible for managing and deciding how much settlement money goes to which tribes. Washburn is dean of the University of Iowa College of Law.

“Since 1999, more than 600,000 people have died from opioid abuse in this country and in Canada,” Washburn on Thursday told the general assembly of the National Congress of American Indians at its midyear conference in Alaska.

“The crisis was exacerbated by the COVID pandemic, which was a hard hit on all of us as well. But because of that problem, the opioid crisis is projected to get worse. It could be upwards of nearly 2 million people that ultimately pass because of the opioid crisis. And the data suggests that this crisis is much worse in Indian Country than it is elsewhere,” he said.

Thousands of lawsuits have been filed by states, cities, counties, hospitals, unions and individuals against the manufacturers and distributors of prescription opioid medication, as well as major retail pharmacies, Washburn said, for their roles in causing the nationwide opioid epidemic. Most of the suits were combined into national prescription opiate litigation.

Research papers by the National Congress of American Indians show Native people have suffered some of the worst consequences of the opioid epidemic of any U.S. population. “Indeed, American Indians have suffered the highest per capita rate of opioid overdoses,” said court documents filed by the tribal leadership committee in the national lawsuits.

Kevin Washburn, Chickasaw, at the National Congress of American Indians mid-year conference, Anchorage, AK, June 15, 2022 (Photo by Joaqlin Estus, ICT)

“For this reason, tribal governments across the United States have had to spend considerable tribal funds to cover the costs of the opioid crisis, including increased costs for health care, social services, child welfare, law enforcement, and other governmental services that tribal governments provide to their citizens,” said a motion.

“The burden of paying these increased costs has diverted scarce tribal funds from other needs and has imposed severe financial burdens on the Tribal Plaintiffs, which will continue to bear significant costs related to abatement of the opioid addiction problem in their communities,” said the court documents.

“The legal theory of the plaintiffs in these cases is the profit motive of these companies contributed mightily to the opioid problem, and that the companies profited quite a bit from the tragedy that they created,” Washburn said.

The funds will be paid over a period of years. The trustees will help ensure the tribal governments spend those funds according to proper purposes by court order, he said.

“This is by far the most impactful set of settlements that tribes have been able to participate in,” Washburn said. “We've always looked at the federal government as the target of litigation and the primary wrong juror in Indian country and the federal government's got lots to answer for.

“But frankly, the United States is not the only wrong doer, the only one cause, in our problems. And so it's really nice that tribal attorneys have found litigation strategies to go after the other people that have caused harm in Native communities … it's nice to see there are other sources of abatement and damages,” he said.

(Related: Where do US opioid trials, settlements stand? - Indian Country Today)

(Related: Cherokee Nation proposes building drug treatment facilities using initial opioid settlement funds)

Washburn said attorneys were able to get Indian Country a seat at the table. Now, “Indian Country has to participate if we want to stay at the table and show that we can participate in future settlements. And so if we can make this one successful, it'll help us with the next one down the road too. If the states and the cities are at the table, we need to be at the table too, so that we can get our share and that's what's happening right now.

“Many tribal attorneys have already signed up their tribes, but we're still trying to develop more awareness of these settlements so that all of you will be signed up,” he said.

"Many of the attorneys have been working on this case for four years or more. But it is now really ready for your consideration. We need you to sign up if you haven't already.”

Ron Allen, chairman of the Jamestown S'Klallam Tribe of Washington state, said his tribe’s “been waiting a long time here for this issue.” And “we all know opiate and substance abuse is a huge problem in all of our communities. And my tribe as an example, over the last year and a half has spent $17 million to design and build an opioid and substance abuse clinic for outpatient services to help those who are struggling with this dependency.” He said the clinic is awaiting licenses to open.

Tribal Councilor Larry Townsend, of the Lumbee Tribe of North Carolina, asked if tribes that are not federally recognized but are state recognized will be able to participate in the funding. “Because we are American Indian and we have major, major drug problems in our territory,” he said. Washburn said that depends on the court order and he’ll look into it.

Tribal Court Judge Faye Ewan, Athabascan, said Alaska’s problem is the shortage of treatment facilities compared to the need. “I'm gonna tell the truth about this. Our family is affected by these drugs, and messes with our tribal villages. I lost two family members to fentanyl this year. And I see the epidemic. I see it every day. We never seen things like this in Alaska, in our village, before.”

She said, “This all comes back down to intergenerational trauma. It's continuing. And only way we’re gonna change that is if we put all these funds into mental health. We need this money to get back the tribes, to do their own facility in Copper River (in Eastern Interior Alaska), NANA (in Northwest Alaska), Bethel (in Western Alaska), everywhere. We need our own facilities, where we need professionals. They need to come here and work with our people up here. Right now we have a waiting list of two years to get our people into treatment. By then they're gone.”

Washburn said even if a community can’t prove harm, it may be eligible to take part in the settlement and get funding for prevention programs.

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