America’s opioid crisis is portrayed as an issue faced largely by white folks, but the epidemic disrupts Native American communities at horrific and disproportional rates. With the government’s prevention efforts focused on non-Native communities, Indian Country is fighting in court to make its plight known.
The reality of addiction and its fallout is grave for Native American communities. At a recent hearing for the Senate Committee on Indian Affairs, chief medical officer of the Indian Health Service (IHS) Dr. Michael Toedt reported that, between 1999 and 2015, Native Americans experienced a fivefold increase in deaths by overdose. Center for Disease Control (CDC) statistics also report that one in 10 Native American children will use prescription opioids for nonmedical use — twice the rate of white children — and that pregnant Native people are eight times more likely to be diagnosed with opioid dependence than pregnant white folks. In 2014, Native Americans ranked number one for death by opioid overdose, with white people coming in a close second.
In April 2017, the Cherokee Nation was the first Native nation to file a complaint in tribal court against pharmaceutical distributors and retailers, although a judge ruled that the plaintiffs did not meet the limited conditions allowing them to sue non-members in tribal court. They intend to refile in state court.
Since then, several tribes across the country have filed suits alleging that the pharmaceutical industry engages in misleading practices when they market their product as an effective treatment for chronic pain, and that the industry fails to monitor the amount of opioids shipped to pharmacies. This, according to the suits, amounts to criminal negligence. Tribes who filed suit include the Navajo Nation, the Muscogee (Creek) Nation, the Cherokee Nation, all four of Nebraska’s tribes, the Rosebud Sioux, the Flandreau Sioux, and the Sisseton Wahpeton Oyate.
The opiate crisis has a particular hold on communities in and around Lakota homelands. In 2015 alone, enough opioids were prescribed in South Dakota to medicate every adult around the clock for 19 consecutive days. Similarly, American Indians — while comprising just nine percent of the state’s population — made up almost 30 percent of the patients being treated for opioid use disorder.
“It’s growing to the point of being catastrophic,” Sisseton-Wahpeton Oyate Chairman Dave Flute told the Bismarck Tribune earlier this year. “It’s causing more health conditions, causing social dysfunction, family separations. It’s negatively impacting our social way of life.”
In addition to tribal governments, many states and municipalities are also combating the catastrophe by filing their own lawsuits. The largest of these is a merged federal lawsuit in the U.S. District Court of Northern Ohio, which contains lawsuits from all over the country, including tribal cases, in an effort to streamline the process of the suit. Judge Dan Polster is presiding over the case and is publicly encouraging settlement, rather than litigation, in an effort to implement remedies to the epidemic sooner rather than later.
All of the tribes that filed suits against opioid manufacturers and distributors in Nebraska, though, requested that tribal suits be kept separate from the suit in Ohio. The Northern Arapaho and two other tribes were also plaintiffs in this case, but Judge Polster recently ordered a separate track for all tribal plaintiffs.
Passed in 2016, the 21st Century Cures Act is one current funding mechanism to combat the opioid crisis. It passed with bipartisan support and allocated one billion dollars for a federal grant fund for the fiscal years 2017 and 2018 (lasting from October 2016 to September 2018). The bill prioritizes the states most impacted by the epidemic, but fails to account for the ways in which it has disastrously reached Indian Country.
The five states with the highest rates of overdose deaths in 2016 (of which the CDC says opioids are the main driver) were West Virginia, Ohio, New Hampshire, Pennsylvania, and Kentucky; the states with the highest proportions of Native Americans and Alaska Natives are Alaska with 19.5 percent, Oklahoma with 12.9 percent, and New Mexico with 10.7 percent.
A focus on allocating treatment programs statewide forces tribal governments to drain their own resources on this expensive and multifaceted problem. As more parents are afflicted by addiction, foster care systems are overrun, meaning that the children must be placed in homes outside the tribe. In the long run, this has the potential to curtail tribal membership, break down familial lines, and degrade cultural values.
The current situation leaves sovereign Native American nations to compete with state governments for federal assistance, as opposed to having funding specifically allocated to tribes. In a letter to the Senate Appropriations Committee during budget meetings earlier this year, several senators requested that funding be set aside specifically for tribal use to fight the opioid crisis. A spending bill was passed on March 22, 2018, and it honored the request made in the letter. The IHS received a 10 percent increase in funding, some of which goes to mental health services and alcohol and substance abuse programs. Tribal set-asides of 50 million and five million dollars were made in the Substance Abuse and Mental Health Services Administration’s (SAMHSA) Opioid Response Grant Fund and Medication-Assisted Treatment for Prescription Drug and Opioid Abuse Program, respectively. Senators Tom Udall and Heidi Heitkamp, who were involved in this effort, also joined several others in proposing the Opioid Enhancement Act, which would reauthorize the fund created by the 21st Century Cures Act and allow tribes to participate in upcoming fiscal years.
A 2012 report by the Lakota People’s Law Project found that South Dakota may have cooperated with pharmaceutical companies to increase the frequency with which atypical antipsychotics were given to foster children. While these are psychiatric drugs rather than opioids used to treat pain, overprescription can be harmful either way. Since Native American children make up a disproportionate amount of foster children in the state, South Dakota’s foster care policies have an immense impact on not only them, but on tribal nations as a whole. Between 1999 and 2009, prescriptions for Native foster children increased threefold in South Dakota, and the state spent 11 times more in 2009 than it did in 1999 on prescription drugs for Native American foster kids, while the number of Native children in foster care remained relatively stagnant.
Opioid addiction affects so many white communities that it was declared a public health emergency. As this crisis continues to wreak havoc on America, efforts to help addicts and their families all too often disclude Native American populations. Flooding the Native community with Western medicine — sedating a population rather than seeking to understand its needs and challenges — is not an acceptable means of handling its trauma. The country’s failure to address the opioid crisis in Native communities with urgency, or to adequately assess their mental health, is another reflection of a colonial legacy that originally tried to stupefy indigenous people with alcohol in order to take their land. This time, Native nations are fighting back in court.