Skip to main content
PRINT EDITION

Examining Comity and the Exhaustion Doctrine in Tribal Court Civil Jurisdiction: The Cherokee Nation’s Opioid Litigation

By December 1, 2022January 17th, 2023No Comments

Abstract: The opioid epidemic has devastated communities throughout the United States over the last two decades. Native American and Alaska Native tribes faced disproportionate impacts and suffered the long-lasting consequences that opioid addiction causes families and communities. In response, states and municipalities across the United States sued the distributors and pharmacies responsible for illegally diverting opioids. In April of 2017, the Attorney General for the Cherokee Nation, Todd Hembree, initiated a civil suit against opioid pharmaceutical distributors and retailers: CVS, Walgreens, Wal-Mart (pharmacies), and McKesson, Cardinal Health, and AmerisourceBergen (distributors). Although other tribes in the United States also brought claims against the distributors and pharmacies, the Cherokee Nation took a unique approach: it brought a civil suit in tribal, rather than federal, court. In response, the distributors and pharmacies sought to enjoin the suit, asking the Federal District Court for the Northern District of Oklahoma to assert its jurisdiction over the pending case and halt proceedings. The court granted the distributors and pharmacies injunctive relief and stopped the case from proceeding in tribal court.

As Felix Cohen, the author of the Handbook of Federal Indian Law, remarked, one of “the most basic principle[s] of all Indian law” is that a tribe’s powers are “inherent powers of a limited sovereignty which [have] never been extinguished,” and “what is not expressly limited [by Congress] remains within the domain of tribal sovereignty.” Congress has not expressly authorized the removal of cases from tribal court to federal court. Instead, the policy and decisional law of the United States requires federal courts to wait to assert jurisdiction over civil cases pending in tribal court until plaintiffs have exhausted tribal remedies. Known as the exhaustion doctrine, this requirement is based on the principle of comity, which has its roots in international law. Comity is a principle of restraint that encourages nations to acknowledge and enforce the fair and equitable decisions of foreign sovereigns in their jurisdiction.

This Comment argues that by failing to apply the exhaustion doctrine, the Federal District Court for the Northern District of Oklahoma violated the principles of comity. The court erred in its decision to grant the distributors’ and pharmacies’ preliminary injunction against the Cherokee Nation’s opioid litigation. In doing so, the court ignored well-established federal decisional law and policy developed to support tribal self-determination. Ultimately, to promote the federal interest in supporting the self-determination of tribes, federal courts must follow the exhaustion doctrine and principles of comity in matters regarding tribal court civil jurisdiction over non-members.

Download the Full Article

Other Articles from WLR Print Edition

December 1, 2024 in PRINT EDITION

How Detrimental is Transunion v. Ramirez, Really? Understanding the Impact on Environmental Law

Abstract: In 2021, the United States Supreme Court issued a controversial opinion with the potential to constrict the standing doctrine. TransUnion v. Ramirez appeared to alter standing’s “concrete harm” requirement, which would…
Read More
December 1, 2024 in PRINT EDITION

Abdication of Power: Arizona v. Navajo Nation and Judicial Refusal to Enforce the Federal Trust Relationship

Abstract: Over 150 years ago, the federal government signed a treaty promising the Navajo people a permanent home within the bounds of their ancestral homeland. To this day, that promise…
Read More
December 1, 2024 in PRINT EDITION

Adverse Elements: How Requiring an Adverse Employment Action Element in ADA Failure-to-Accommodate Claims Hinders Disability Rights

Abstract: Individuals with disabilities are continuously marginalized by a world tailored to the able-bodied. One of the most visible areas where this marginalization manifests is employment. The Americans with Disabilities…
Read More