United States District Court, N.D. Oklahoma
MCKESSON CORPORATION; CARDINAL HEALTH, INC.; AMERISOURCEBERGEN DRUG CORPORATION; CVS HEALTH CORPORATION; WALGREENS BOOTS ALLIANCE, INC.; and WAL-MART STORES, INC.,, Plaintiffs,
TODD HEMBREE, ATTORNEY GENERAL OF THE CHEROKEE NATION, in his official capacity; JUDGE CRYSTAL R. JACKSON, in her official capacity; DOE JUDICIAL OFFICERS 1-5; and JUDGE T. LUKE BARTEAUX,, Defendants.
OPINION AND ORDER
Terence Kern, United States District Judge
the Court is Plaintiffs' Motion for Preliminary
Injunction and Brief in Support (“Motion”) (Doc.
undisputed that this nation is in the midst of an opioid
crisis. Drug overdose deaths and opioid-involved deaths
continue to increase in the United States, and the President
of the United States has declared the opioid epidemic a
national public health emergency. The latest figures from the
Centers for Disease Control and Prevention show that from
2000 to 2016, more than half a million people died from drug
overdoses. The majority of these drug overdose deaths (more
than six out of ten) involved an opioid and 40% of all U.S.
opioid overdose deaths involve a prescription opioid.
Ninety-one Americans die every day from an opioid overdose.
Overdose deaths involving prescription opioids were five
times higher in 2016 than in 1999, and sales of these
prescription drugs have quadrupled. Misuse, abuse, and opioid
use disorder (addiction) rates are also skyrocketing. In
2014, almost two million Americans abused or were dependent
on prescription opioids. Every day, more than one thousand
people are treated in emergency departments for misusing
prescription opioids. These statistics suggest an escalating
economic and public health burden with enormous consequences
for our society.
is among the states with the highest number of opioid
prescriptions per one hundred people and has a high overdose
death rate. Tribal communities have been tragically affected,
as have other communities in Oklahoma. Numerous cities,
counties and states throughout the country, including the
state of Oklahoma, have filed lawsuits against various opioid
manufactures, pharmaceutical distributors, and other
businesses allegedly responsible for the proliferation of
opioid drugs. This proceeding concerns a lawsuit by the
Cherokee Nation against a number of opioid distributors and
pharmacies. However, the question before the Court is not the
merits of the Cherokee Nation's lawsuit but rather the
boundaries of tribal court jurisdiction. The Attorney General
of the Cherokee Nation has filed suit not in state court but
in the tribal district court of the Cherokee Nation. Do the
tribal courts of the Cherokee Nation have jurisdiction over
this particular action? The Court finds they do not.
2016, the Cherokee Nation legislatively enacted the Cherokee
Nation Unfair and Deceptive Practices Act, Cherokee Nation
Code Ann. tit. 12, §§ 21-28 (2016)
(“CNUDPA”), which prohibits “deceptive acts
or practices” in the conduct of trade or commerce in
the Cherokee Nation. The CNUDPA is part of the Cherokee
Nation's Comprehensive Access to Justice Act of 2016
(“CAJA”), which amended portions of the Civil
Procedure section of the Cherokee Nation Code. See
Id. at tit. 12, §§ 1 et seq. Among other
things, the CAJA permits the Cherokee Nation to bring civil
actions as parens patriae on behalf of tribal
members for violations of CNUDPA and enables the Cherokee
Nation to recover treble damages in such actions. See
Id. at tit. 12, § 13. The CAJA also eliminates the
statute of limitations when the Cherokee Nation is a party
plaintiff. See Id. at tit. 12, § 11.
April 20, 2017, the Cherokee Nation filed suit in the
District Court for the Cherokee Nation against six
corporations, comprising three pharmacies -CVS, Walgreens,
and Wal-Mart (the “Pharmacies”); and three
pharmaceutical wholesale distributors-McKesson, Cardinal
Health, and AmerisourceBergen (the
“Distributors”). In that proceeding, Cherokee
Nation v. McKesson Corp., et al., Docket No. CV-2017-203
(the “Tribal Court Action”), the Cherokee Nation
asserts claims under CNUDPA and common law claims for
nuisance, negligence, unjust enrichment, and civil conspiracy
against all six defendants. The petition in the Tribal Court
Action (the “Tribal Court Petition”) alleges that
the Pharmacies and Distributors knowingly or negligently
distributed and dispensed prescription opioid drugs within
the Cherokee Nation in a manner that foreseeably injured, and
continues to injure, the Cherokee Nation and its citizens.
All of the claims in the Tribal Court Petition are brought
both “in [the Cherokee Nation's] proprietary
capacity and under its parens patriae authority in
the public interest, ” as provided in the CAJA. (Trib.
Ct. First Am. Pet. ¶ 11.) The Tribal Court Petition
seeks injunctive relief, imposition of civil penalties,
compensatory and punitive damages, restitution, and
disgorgement, among other relief.
Distributors and Pharmacies (collectively,
“Plaintiffs”) filed this action against
Defendants Todd Hembree (“Hembree”), Attorney
General of the Cherokee Nation, in his official capacity;
Judge Crystal R. Jackson (“Judge Jackson”), in
her official capacity; Judge T. Luke Barteaux (“Judge
Barteaux”), in his official capacity; and Doe Judicial
Officers 1-4 (collectively,
“Defendants”). Plaintiffs' Complaint (Doc. 2) seek
a declaratory judgment that Defendants lack jurisdiction to
prosecute and hear the Tribal Court Action, among other
relief. Plaintiffs' Motion seeks a preliminary injunction
pursuant to Federal Rule of Civil Procedure 65 enjoining
Defendants from taking any action in the Tribal Court
Action. Hembree filed a response in opposition to
Plaintiffs' Motion (Doc. 86) in addition to several
supplemental filings ordered or permitted by the Court. Judge
Jackson and Judge Barteaux jointly filed a response opposing
the Motion (Doc. 95).
Standard for Preliminary Injunction
“primary goal of a preliminary injunction is to
preserve the pre-trial status quo” before a trial on
the merits. RoDa Drilling Co. v. Siegal, 552 F.3d
1203, 1210 (10th Cir. 2009). To obtain a preliminary
injunction, the movant has the burden to show that: (1) the
movant is substantially likely to succeed on the merits; (2)
the movant will suffer irreparable injury if the injunction
is denied; (3) the movant's threatened injury outweighs
the injury the opposing party will suffer under the
injunction; and (4) the injunction would not be adverse to
the public interest. New Mexico Dep't of Game &
Fish v. United States Dep't of the Interior, 854
F.3d 1236, 1246 (10th Cir. 2017) (citing Fish v.
Kobach, 840 F.3d 710, 723 (10th Cir. 2016)).
“[B]ecause a preliminary injunction is an extraordinary
remedy, the right to relief must be clear and
unequivocal.” Dominion Video Satellite, Inc. v.
Echostar Satellite Corp., 356 F.3d 1256, 1261 (10th Cir.
2004) (internal quotation marks omitted).
Whether Plaintiffs Are Substantially Likely to Succeed on the
proceeding, Plaintiffs seek a declaration that the Cherokee
Nation lacks jurisdiction in the Tribal Court Action.
Therefore, Plaintiffs' likelihood of success hinges on
their ability to show that the tribal court lacks
jurisdiction. “It is well settled that ‘the scope
of a tribal court's jurisdiction is a federal question
over which federal district courts have
jurisdiction.'” United Planners Fin. Servs. of
Am., L.P. v. Sac and Fox Nation, No. CIV-14-1278-HE,
2015 WL 3756181, at *3 (W.D. Okla. June 16, 2015) (quoting
Kerr-McGee Corp. v. Farley, 115 F.3d 1498, 1201
(10th Cir. 1997)) (internal citation omitted). Plaintiffs
also must show that they should not be required to exhaust
their remedies in the Tribal Court Action before challenging
the tribal court's jurisdiction in federal court. See
Crowe & Dunlevy, 640 F.3d at 1149 (“[A]bsent
exceptional circumstances, federal courts typically
‘should abstain from hearing cases that challenge
tribal court jurisdiction until tribal court remedies,
including tribal appellate review, are
exhausted.'”) (quoting Bank of Okla. v.
Muskogee (Creek) Nation, 972 F.2d 1166, 1170 (10th Cir.
Tribal Court Jurisdiction Generally
recognize Indian tribes as “distinct, independent
political communities, qualified to exercise many of the
powers and prerogatives of self-government.” Plains
Commerce Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 327 (2008) (internal quotation omitted). However,
“the sovereignty that the Indian tribes retain is of a
unique and limited character[, ]” and “centers on
the land held by the tribe and on tribal members within the
reservation.” Id. (internal quotation
omitted). “By virtue of their incorporation into the
United States, [a] tribe's sovereign interests are now
confined to managing tribal land, protecting tribal
self-government, and controlling internal relations.”
Id. at 334 (internal quotations and citations
Montana v. United States, 450 U.S. 544, 565 (1981),
the Supreme Court held that “the inherent sovereign
powers of an Indian tribe do not extend to the activities of
nonmembers of the tribe.” Accordingly, “efforts
by a tribe to regulate nonmembers, especially on non-Indian
fee land, are presumptively invalid.” Plains
Commerce Bank, 554 U.S. at 330 (quotation omitted)
(citing Atkinson Trading Co. v. Shirley, 532 U.S.
656 (2001)). “[A]bsent express authorization by federal
statute or treaty, tribal jurisdiction over the conduct of
nonmembers exists only in limited circumstances.”
Strate v. A-1 Contractors, 520 U.S. 436, 445 (1997).
Montana rule is subject to two exceptions.
Norton v. Ute Indian Tribe of the Uintah and
Ouray Reservation, 862 F.3d 1236, 1243 (10th Cir.
[a] tribe may regulate, through taxation, licensing, or other
means, the activities of nonmembers who enter consensual
relationships with the tribe or its members, through
commercial dealings, contracts, leases, or other
Montana, 450 U.S. at 565 (internal citations
[a] tribe may also retain inherent power to exercise civil
authority over the conduct of non-Indians on fee lands within
its reservation when that conduct threatens or has some
direct effect on the political integrity, the economic
security, or the health or welfare of the tribe.
Id. at 566 (internal citations omitted). The party
seeking to assert tribal court jurisdiction bears the burden
of showing that one of the Montana exceptions
applies. Plains Commerce Bank, 554 U.S. at 330.
Montana exceptions are “limited . . . and
cannot be construed in a manner that would swallow the rule
or severely shrink it.” Id. at 330 (internal
quotation and citations omitted). In particular, the
“exercise of tribal power beyond what is necessary to
protect tribal self-government or to control internal
relations is inconsistent with the dependent status of the
tribes, and so cannot survive without express congressional
delegation.” Montana, 450 U.S. at 564.
Furthermore, a “tribe's adjudicative jurisdiction
does not exceed its legislative jurisdiction, ” and
tribal courts therefore are “not courts of general
jurisdiction.” Crowe & Dunlevy, 640 F.3d
at 1151 (internal quotation omitted).
the “presumption against tribal civil jurisdiction over
non-Indians, ” id. at 1150, Defendants contend
that Plaintiffs are required to exhaust their jurisdictional
challenge in the tribal court before challenging the tribal
court's jurisdiction in federal court. Under the
exhaustion rule, “the federal policy supporting tribal
self-government directs a federal court to stay its hand in
order to give the tribal court a ‘full opportunity to
determine its own jurisdiction.'” Iowa Mut.
Ins. Co. v. LaPlante, 480 U.S. 9, 16 (1987) (quoting
Nat'l Farmers Union Ins. Co. v. Crow Tribe of
Indians, 471 U.S. 845, 855-56 (1985)); see also
Id. at 15-16 (“Promotion of tribal self-government
and self-determination require that the Tribal Court have
the first opportunity to evaluate the factual and legal bases
for the challenge to its jurisdiction.”) (quotation
exhaustion rule is not jurisdictional but is “a
prudential rule based on comity.” Crowe
& Dunlevy, 640 F.3d at 1150. The Tenth Circuit
recognizes several exceptions that may excuse the failure to
exhaust claims in tribal court:
(1) where an assertion of tribal jurisdiction is motivated by
a desire to harass or is conducted in bad faith; (2) where
the action is patently violative of express jurisdictional
prohibitions; . . . (3) where exhaustion would be futile
because of the lack of an adequate opportunity to challenge
the court's jurisdiction; [and] (4) where it is clear
that the tribal ...