I. Introduction
The opioid epidemic is quietly ravaging Indian Country.1 As in many other communities throughout the United States, tribal nations are facing growing rates of opioid overdose deaths and increasingly burdensome social and medical costs related to this epidemic.Reference Hoffman2 However, non-tribal governments, as well as society at large, have yet to recognize the extent and unique characteristics of the crisis in Indian Country. Aside from cursory media coverage, little information has been published about opioid overdoses or opioid use disorder in Indian Country. Moreover, non-tribal governments have failed to provide fiscal and policy resources needed to address the epidemic in Indian Country.
In this article, we aim to begin bridging the information gap. We first use opioid overdose death data from the Centers for Disease Control and Prevention to describe, as far as we can, the extent of the epidemic in Indian Country. While there are significant limitations in these data, we find that Native Americans have suffered from a significant increase in opioid overdose deaths over the past seventeen years. This increase appears to at least parallel that seen in the general U.S. population and among non-Hispanic whites. Some regions of Indian Country, such as communities in the Great Lakes and Pacific Northwest regions, appear to experience higher overdose mortality rates than others, perhaps indicating a more severe crisis in those areas. Lastly, Native populations in some urbanized counties report markedly high overdose mortality rates.
Next, we profile innovative medical and legal efforts by tribal communities to combat opioid use disorder. Tribal nations have an array of unique medical tools at their disposal, including providing medication-assisted treatment and culturally cognizant counseling services to combat the rise in opioid overdoses and aid tribal members affected by opioid use disorder. The federal Indian Health Service and tribally-operated health care systems are responding to the epidemic with medical treatment options as well as with more innovative solutions, including integrating treatment with social and cultural support structures. Tribal governments have also asserted their sovereign legal authority in innovative ways in response to the epidemic. Tribes have repurposed an ancient punishment — banishment from tribal lands — into a method for reaching non-Native drug offenders who cannot otherwise be prosecuted by tribal governments. Tribes are also diverting affected individuals from punitive drug prosecutions into rehabilitative programs, many of which connect arrested tribal members to culturally sensitive addiction treatment services. On the civil front, tribal governments have, like their non-tribal counterparts, begun to sue opioid manufacturers, distributors and retailers under a variety of legal theories.
We have compiled these data and profiles in the hope of providing useful information to tribal and non-tribal policymakers who are considering how best to tackle the opioid crisis in Indian Country. Because of the vast diversity of communities and circumstances across Indian Country, we have not condensed this information into a set of standard recommendations to tribes grappling with this crisis. Instead, we believe that policymakers and other interested parties will find within these data and profiles information and ideas that they may then translate into their own unique contexts.
II. Overview of Opioid Overdose Mortality in Indian Country
A. Results
The opioid overdose mortality rate among American Indians and Alaska Natives (“AI/AN”) has generally risen over the last seventeen years. In 1999, the age-adjusted annual mortality rate among AI/AN was 2.9 deaths per 100,000; in 2016, that rate had risen to 13.9. (All mortality rates included here are listed as annual, age-adjusted deaths per 100,000 persons unless otherwise noted.) Figure 1a shows the near-continuous rise in opioid-related overdose mortality rate for AI/AN during this period. Figure 1b demonstrates that AI/AN have also suffered from opioid overdoses at rates similar to non-Hispanic whites during this period.
Age-Adjusted Opioid Overdose Mortality Rates for American Indians/Alaska Natives and non-Hispanic Whites: 1999-2016
AI/AN opioid overdose deaths also appear to vary widely by state. Figure 2 highlights the regional variation in cumulative, age-adjusted AI/AN mortality rates from 1999-2016. (For reasons related to statistical methods, mortality rates for hatched areas were not included here.) Of note, higher mortality rates were seen in states in the Pacific Northwest and the Great Lakes region: CDC data indicated that AI/AN mortality rates were higher than 20 deaths per 100,000 in both Minnesota and Washington over this period. In 2016, the Minnesota AI/AN mortality rate was 47.6, while the non-Hispanic white rate was 7.3. Data from New England states with AI/AN communities also indicated cumulatively high annual overdose mortality rates, with Maine having the highest overall death in this region during this period. In contrast, we observed state-by-state variation in the Southwest, with low mortality rates in Arizona and New Mexico and higher rates in Nevada and Utah. States in the Northern Plains generally experienced low mortality rates and a low total number of opioid overdose deaths. Nebraska and Wyoming each reported fewer than 20 total overdose deaths over this 17-year period, resulting in an inability to calculate age-adjusted mortality rates.
Opioid Overdose Age-Adjusted Mortality Rates by State for AI/AN: 1999-2016
Opioid overdose death data in certain urban tribal communities are also worth mentioning. Data indicate that some urban counties with substantial AI/AN communities have high opioid overdose mortality rates among AI/AN and significant racial disparities in their mortality rates. For example, eighty five AI/AN overdose deaths were reported in Hennepin County, Minnesota, home to Minneapolis, during the period 1999-2016, rendering a death rate of 42.4 per 100,000. Over that same period, the death rate for non-Hispanic whites in Hennepin County was 5.7. Mortality rates of 31.2 for AI/AN and 13.6 for non-Hispanic whites were reported in King County, Washington, which is anchored by Seattle and hosts a number of reservation communities. Figure 3 compares Native American and non-Hispanic white mortality rates in Hennepin and King counties.
Opioid Overdose Mortality rates by Race in Hennepin County, MN, and King County, WA
B. Methods and Limitations
All data presented are from the CDC WONDER Multiple Cause of Death Online Database,3 following the methods outlined by Rudd et al.Reference Rudd, Seth, David and Scholl4 Importantly, previous analysis has shown substantial racial misclassification in AI/AN mortality statistics.Reference Arias, Schauman, Eschbach, Sorlie and Backlund5 Arias et al. found that 41% of AI/AN decedents were identified as white on their death certificates; between 3 and 4% were categorized as black.6 Racial misclassification may be especially common in areas with lower per-capita AI/AN populations. By comparing AI/AN racial classification on death certificates with patient registration data from the Indian Health Service, Jim et al. found that only 54.8% of decedents who were verified as AI/AN through this process were labeled as AI/AN on their death certificates in counties not bordering tribal territories.Reference Jim, Arias, Seneca, Hoopes, Jim, Johnson and Wiggins7
While AI/AN deaths appear to be under-reported, U.S. Census data may also underestimate the prevalence of AI/AN, which may also affect the validity of the CDC data. Census Bureau data on AI/AN, which is used by the CDC, relies on self-reporting. The Census data therefore does not necessarily correlate with tribal membership, which signifies formal affiliation with a tribal nation, although tribal membership laws are complex and may not include all AI/AN.Reference Norris, Vines and Hoeffel8 The Census data may include persons identifying as AI/AN who lack connections to tribal communities, which may contribute to inaccuracies in this data.Reference Doyle and Kao9 The CDC uses data for persons identifying as AI/AN alone and do not include those who identify as AI/AN in combination with another race or ethnicity. These factors may indicate that AI/AN population size data used in the WONDER database are inaccurate.
The CDC WONDER data, a composite of both death certificate and Census data, may either under- or over-represent actual AI/AN mortality rates. However, the evidence showing significant racial misclassification among AI/AN decedents suggests that the WONDER data is more likely to underrepresent actual AI/AN mortality rates. All data presented in this report must therefore be seen as potentially flawed and likely present a lower bound on the extent of the crisis. Linkage studies have recently been used to validate AI/AN death certifications, in an attempt to correct for racial misclassification.10 Linked data corrections are not currently available for AI/AN opioid-related overdose mortality rates. In response, we have limited inter-race comparisons in this manuscript to comparisons with non-Hispanic whites, a racial group with historically little racial misclassification.
C. Discussion
These data show that opioid overdose mortality rates for AI/AN have risen, almost continuously, for the past seventeen years. AI/AN mortality rates are roughly comparable to the mortality rates of non-Hispanic whites. These data lend support to anecdotal reports of a significant and ongoing opioid overdose crisis in Indian Country. We comment here on certain notable findings in these data.
These data show that opioid overdose mortality rates for AI/AN have risen, almost continuously, for the past seventeen years. AI/AN mortality rates are roughly comparable to the mortality rates of non-Hispanic whites. These data lend support to anecdotal reports of a significant and ongoing opioid overdose crisis in Indian Country.
Assuming the data in Figure 2 represent actual state-by-state variation in opioid overdose mortality, the cause for this variation is not yet known. The higher rates for AI/AN in New England, the Great Lakes, and the Pacific Northwest may be related to the generally high mortality rates for all races in those states. For Washington and Minnesota, the higher rates may be associated with the proximity of tribal communities in those states to the large urban areas of Minneapolis and Seattle. As shown above in Figure 3, the counties containing Minneapolis and Seattle, both of which host large AI/AN communities, also report high overdose mortality rates among Native Americans.
The low opioid overdose death totals and age-adjusted mortality rates among AI/AN in some Northern Plains states are striking, given the socioeconomic challenges that tribal communities in this region often struggle with. The entire state of South Dakota reported 66 AI/AN overdose deaths over the period from 1999-2016. North Dakota reported only 39 overdose deaths over the same period. These figures are eclipsed by some individual urban counties with numerically smaller AI/AN communities. Figure 2 shows that age-adjusted mortality rates over this period in the Dakotas were also low.
The reasons behind the small number of overdose deaths among AI/AN in the Northern Plains are unclear. Non-tribal communities in these states also report low overdose mortality rates. We conjecture that the poverty of tribal communities in the Northern Plains may have impacted their access to the prescription opioids that often spark opioid use disorder. Indian Health Service providers in these communities are often overburdened and ineffective.Reference Tupper11 They may have dispensed prescription opioids at lower rates than providers in other parts of the country. The lower availability of more potent opioids in these rural states may also play a role. The Drug Enforcement Administration reported that no seizures of more than 1 kilogram of fentanyl occurred in the Dakotas, Nebraska, Wyoming, or Montana from January of 2016 to June of 201712 and that few law enforcement agencies in the region view heroin as the greatest drug threat in their communities.13 It is possible that heroin and fentanyl traffickers operate less in the Northern Plains.
The prevalence of methamphetamine abuse in some Northern Plains reservation communities may also play a role.14 Rural tribal communities located in states in the Northern Plains that have reported small opioid overdose deaths struggle with methamphetamine abuse.Reference Hilleary15 The easy availability of methamphetamine coupled with the lower availability of potent opioids may contribute to the lower Northern Plains overdose mortality rates seen in these data.
The overdose mortality rates seen in the urban counties surrounding Minneapolis and Seattle are strikingly high. These patterns may be related to the large majority of AI/AN — 71%, according to the 2010 Census — that live in urban areas.16 Other characteristics of the urban environment may also play a role. Tribal communities in urban areas may have easier access to more potent opioids, such as heroin or fentanyl, than do isolated rural reservation communities.
III. Tribal Policy Responses to the Opioid Epidemic
Tribal nations have a number of legal and medical policy options to control the flow of opioids, treat opioid use disorder, and reintegrate affected members into the community. Two broad areas stand out as possible sites where tribes can create innovative responses to opioid use disorder: tribal healthcare and the exercise of tribal law.
A. Tribal Healthcare Responses
In light of the impact of opioids in Indian Country, the federal government, through IHS, the Bureau of Indian Affairs, and the White House Office of National Drug Control Policy, as well as tribal nations, have prioritized substance treatment and prevention. Given the diversity of tribes across the nation, there is no one-size-fits-all approach. Existing medical infrastructure, economic resources, history with prior substance abuse treatment programs, and cultural norms change the ways in which individual tribes approach opioid use disorder treatment.17
In addition to socioeconomic variables, current healthcare infrastructure differs from tribe to tribe. In 1955, Congress established the Indian Health Service (IHS) within the Department of Health, Education, and Welfare (“HEW”) to uphold its trust obligation to provide for the health and welfare of tribal nations. In the 1970s, HEW split into the Department of Health and Human Services (“DHHS”) and Department of Education, with IHS operating within the DHHS. For many tribes, federally-funded and operated IHS clinics and hospitals are the only available source of healthcare. However, tribes may also enter into Tribal Self-Governance Programs under the 1975 Indian Self-Determination and Education Assistance Act (also called Public Law 93-638), which allows tribes with the economic and personnel resources to tailor health care for their communities.18
While IHS has instituted federally funded policies aimed to increase access to naloxone19 and monitor prescribing practices,20 Public Law 638-contracting tribal governments have taken the lead in providing treatment and rehabilitation, operating more than half of all mental health programs and over 90 percent of all substance abuse programs.21 Under P.L. 93-638 contracts, qualifying tribes receive an annual lump-sum health program funding that would otherwise be used by IHS to provide direct care services.22 Amendments to P.L. 93-638 expanded self-determination, allowing tribes to supplement IHS funds with revenues from tribal economic ventures and redesign health programs according to the needs of the community. In addition to managing of health programs and outside referrals, several P.L. 638 tribes renovated or constructed their own hospitals and outpatient clinics, including expanding services to include substance abuse treatment. The type and quality of the programs depend on a number of factors, including the most prevalent type of addiction, existing administrative experience and health infrastructure, where members live, economic resources, and the local political environment.
In this section, we outline the factors tribal governments must weigh when designing health policy to combat opioids and how these responses may be translated across Indian Country. In addition to examining the steps IHS has taken to address the opioid crisis from the federal level, this article also highlights the experiences of two geographically disparate tribes to examine the different ways in which tribal nations might provide treatment to their citizens. It is important to keep in mind that both tribes, the Quapaw of Oklahoma and the Muckleshoot of Washington, as with other Public Law 638 funded tribes, manage their own health clinics and have the administrative and economic resources from successful gaming and business ventures to operate independent health programs.
1. indian health service programming
The federal government is obligated to follow “a humane and self-imposed policy with moral obligations of the highest responsibility and trust”23 towards tribal nations. This trust relationship, informed by many treaties between the United States and tribal nations has been interpreted by courts to create a federal obligation to provide for the welfare of Native Americans in exchange for former tribal lands.24 IHS provides healthcare to tribal members as part of the federal trust responsibility to tribal nations.
With a budget of $4.8 billion to serve 2.2 million patients, IHS operates 117 federally run facilities in 19 states and contracts with tribal care centers in an additional 17 states.Reference Rudd25 In 1976, 21 years after the creation of IHS, Congress passed the Indian Health Care Improvement Act (“IHCIA”), authorizing the Secretary of the Interior “to expend funds…for the purposes of eliminating the deficiencies in health status and resources of all Indian tribes,” including behavioral health and substance treatment services.26 In recent years, IHS has taken steps to address the opioid crisis as part of its trust obligations.
Beginning in 2012, the IHS Chief Medical Officer established the Prescription Drug Abuse Workgroup to focus on physician education, prescription monitoring, medication storage and disposal, and policy development.Reference Brown27 Three years later, the White House Office of National Drug Control Policy partnered with IHS to train and distribute naloxone to law enforcement officials nd first responders associated with direct service tribes where IHS operates a federal pharmacy in Indian Country, as well as training for first responders.28 In 2016, more than 90 clinics distributed naloxone to over 500 BIA officers.29 IHS pharmacies increased co-prescribing of naloxone kits to clients, resulting in a 195 percent increase in naloxone distribution.Reference Duvivier, Gustafson, Greutan, Jangchup, Harden, Reinhard and Warshany30 As of September, 2017 the program has provided $20,000 and an estimated 1,200 doses of naloxone per month to BIA officers, IHS and tribal health care facilities, and tribal pharmacies.31
In July 2016, IHS became the first federal medical agency to require providers to check state Prescription Drug Monitoring Program databases prior to prescribing and dispensing opioids for treatment longer than seven days.Reference Smith32 The agency also requires all prescribers to complete the Essential Training on Pain Addiction course, which IHS developed in collaboration with the University of New Mexico.33 To increase access to medication-assisted therapy, IHS physicians have access to online opioid treatment training modules that certify them with buprenorphine prescribing privileges.34
a) Benefits and Drawbacks of Relying on IHS
First and foremost, partnering with IHS to treat opioid use disorder is an economically efficient choice for tribes. The federal government's trust obligation means tribes can, if they choose, allow IHS to fully fund and operate treatment programs and facilities. The shortcomings of such an arrangement, however, arise from a lack of control over programming and increased dependence on an underfunded system.
A number of IHS clinics have shuttered due to inadequate staffing, out-of-date equipment, and failure to meet Medicare requirements, so the implementation of new programs in already cash-strapped regions may limit quality and effectiveness.Reference Tupper35 Moreover, for tribes that do not participate in self-determination compacts, programming and facility operation decisions come not from tribal leaders, but from IHS officials. While the agency has improved health outcomes of patients, it has also come under fire for inadequate management and corruption.Reference Rhoades and Rhoades36 Lastly, IHS-funded tribes seeking medication-assisted therapy might be limited to those programs IHS offers locally, though tribes may also use Purchased and Referred Care funds to pay for outside referral services, including medication-assisted therapy.
Entering into self-determination compacts with IHS is one possible solution to coordinating the direction of IHS programs. In lieu of federal control, tribes may assume control over IHS medical facilities.37 To do so, tribes must submit a health care administration plan and demonstrate three years of financial stability and management capability after which they may administer individual programs and services using IHS funding.38 Self-determination compacts have become increasingly common across Indian Country. Tribal governments today operate 545 health facilities and administer 60 percent of IHS appropriations, including 80 percent of behavioral health programs.39 However, this option may be limited to tribes capable of meeting planning and stability benchmarks. Furthermore, self-governance tribes must address a potential lack of financial resources and shortages of care providers and experienced administrators.
2. tribally-owned and operated treatment centers
For tribes able to enter into self-determination compacts and generate the resources necessary to supplement IHS funding or assume financial independence, the resources available to address the opioid epidemic will increase. Options include, but are not limited to medication-assisted therapy, needle exchange programs, community-wide naloxone distribution, setting up clinics and health centers, parental and independent counseling, and elder care. In addition, tribally managed funding enhances the integration of culturally specific social services such as drum circles, and other innovative care and compliance measures.
a) Medication-Assisted Treatment Services
Most pre-existing tribal substance treatment centers originally focused on alcohol and methamphetamine.40 Prescription opioid abuse served as the first major sign of a growing problem, followed quickly by an explosion of heroin use after the makers of Oxycontin replaced crushable pills with an extended release gel capsule.41 For tribes facing shifts in the types of substances used by members struggling with drug use disorder, it may be necessary to restructure existing substance treatment programs. Medication-assisted treatment, a type of therapy addressing opioid use disorder using some or all of the medications listed in Figure 4, is especially important in light of the current opioid epidemic.
Table of FDA Approved Medications and Harm Reduction Mechanisms
(1) Quapaw's Methadone Services
Established by the Quapaw in 2006, Quapaw Counseling Services was one of Oklahoma's first medication-assisted treatment centers. While most early patients suffered from methamphetamine and alcohol addiction, the overwhelming majority of current patients are treated for prescription opioid use disorder.42 Notably, all patients, regardless of race or tribal membership, may use Quapaw Counseling Services. Given the racial and tribal diversity of the surrounding rural area, accepting all patients increases the patient base, with a potential concomitant increase in revenue from Medicaid, Medicare, and private insurance, and allows non-Native relatives of tribal members to receive services from a familiar resource. Patients are also not restricted geographically, allowing tribal members from Kansas and Missouri to travel for treatment if they have transportation.43 Patients pay for services using Medicaid, private insurance, or through IHS contracting.44
Since its inception, the Quapaw have only used methadone for medication-assisted therapy due to cost concerns, although the tribe's nearby health center prescribes buprenorphine. While metha-done remains controversial, it has been effective for the Quapaw given the lack of alternative options in Oklahoma. Tribes with fewer economic resources or lacking access to other forms of treatment might find methadone a cost-conscious option, although it may offer less patient oversight. The Quapaw attempt to address this by incentivizing clean urinalysis tests with fewer clinical visit and group therapy requirements. The Quapaw program has been effective: Of the 105 patients currently treated for opioid use disorder, 71 percent have provided enough clean urinalysis tests to increase their number of take-home methadone doses, a retention rate similar to that of other methadone programs across the country. In addition to patients utilizing the methadone program, the clinic also treats approximately 30 patients who only attend counseling services.Reference Woods45
(2)Muckleshoot's Buprenorphine Treatment
In contrast to Quapaw Counseling Services, the Muck-leshoot do not offer methadone. The Muckleshoot Health Division wanted treatments to take place in physicians' offices at the tribe's independent health clinic, which, while more expensive, offered greater oversight and accountability than methadone.46 The Muckleshoot Behavioral Health Program was created ten years ago in response to a sharp increase in prescription opioid use disorder on the Muckleshoot reservation, followed by the proliferation of black tar heroin.Reference Cable47 To craft its program, now one of the most widely recognized in Indian Country, Muckleshoot leaders consulted with addiction experts at the University of Washington to design and implement best-care practices.48 The tribe began prescribing Vivitrol in 2009 and Suboxone in 2011.49 Half of the program's 170 clients are on Suboxone medication-assisted therapy, 31.7 percent use Vivitrol, and 18.3 percent use only counseling services.50
Unlike the Quapaw, the Muckleshoot place limitations on which individuals can be admitted. Anyone who lives on the reservation and is a member of any Native American tribe is eligible.51 Transportation is offered to Muckleshoot members who live off-reservation, but transportation services do not operate frequently enough for clients in the intensive early stages of the program, while the overwhelming majority of members live on-reservation.52
Compliance rates for the Muckleshoot's medication-assisted treatment programs have been high, particularly with respect to Vivitrol compliance.Reference Sullivan, Bisaga, Pavlicova, Choi, Mishlen, Carpenter, Levin, Dakwar, Mariani and Nunes53 To maintain and increase Vivitrol compliance, the tribe implemented an incentive program wherein patients are given $40 and $80 Walmart gift cards during injection cycles after attending all group and individual sessions, having no positive tests, and attending self-help meetings.54 Since implementing the program, the tribe's Vivitrol compliance rate increased from 31 percent to 94 percent.Reference Cable55
State and local politics can also play a role. When the Quapaw installed their treatment program, methadone clinics were in short supply and access to buprenorphine was severely limited. The Quapaw continue to spend resources educating politicians and judges on the importance of allowing patients access to methadone as a treatment option. The University of Washington, on the other hand, worked closely with the Muckleshoot to design a program using the most current addiction science research, highlighting the contrast between the two states' political views on substance treatment.
b) Cultural and Social Support Services
Perhaps the most notable feature of the Muckleshoot program is how closely the tribe integrates clinical and behavioral therapy with cultural support structures. The Muckleshoot clinic fully integrates social and cultural services into treatment. The tribe refers clients to work training programs, the tribal college, and church organizations as a part of the treatment plan. It also organizes music lessons, holds beading classes, hosts a drum at local dances and feasts, and helps clients to volunteer with tribal elders.56 In addition to outpatient services, the tribe operates three sober houses. Two are designated for women and children while the third is for single adult men. The tribe also operates a recovery home for girls under 18 and a youth and family services program.57
Although the Quapaw do not offer specific cultural initiatives directly through the clinic, the tribe's small size and centralized governmental facility allows for interconnected service delivery. Patients in need of family counseling, educational training, housing, or employment assistance are referred directly to the proper agency. The tribe also offers language classes and volunteer programs at the elder housing facility should patients wish to participate.
For patients in treatment, social and cultural support programs can be crucial. Smaller, geographically concentrated tribes might have more success implementing these programs into treatment than larger tribes without a cohesive land base. This environment makes community action programs particularly effective as every member of society is encouraged to take ownership of the opioid crisis and its impact. Patients see the investments their family, friends, and neighbors make in their treatment and recovery, building stronger bonds between community members and patients.
Muckleshoot's programs are especially impactful because patients live on-reservation, work on-reservation, and seek medical care from the tribe's health system. On the other hand, many Quapaw travel from other towns, counties, or states for treatment. However, the Quapaw work in concert to provide comprehensive care to tribal patients.58
c) Harm Reduction Measures
Just as it is important that social and cultural components be ingrained in clinical treatment, community education programming and tribal employment offices must support any health initiative for it to be truly effective. Naloxone distribution is one program all tribes impacted by the opioid crisis can embrace as it is funded by IHS. Tribes should ensure those in the best position to reverse overdoses have easy access to it.
Both the Quapaw and Muckleshoot have their own law enforcement and emergency medical services, so both distribute naloxone to officers and conduct training seminars. In addition, the Muckleshoot provide naloxone kits to any interested party at the clinic, to community feasts and pow-wows, as well as to fitness and nutrition centers. The tribe even operates door-to-door distribution events.59 In addition, tribes in states that allow needle exchanges may operate their own exchange programs. From February 2016 to July 2017, the Muckleshoot served 406 community members and exchanged 20,771 needles through its exchange program.60
Beyond support from emergency services and local law enforcement, successful treatment requires cooperation from employers. Both the Muckleshoot and the Quapaw employ large numbers of their members in tribal businesses and governmental services. Likewise, both employment offices provide group counseling and paid time off for clinic visits. In some communities, tribal employment agencies have taken a hardline approach to drug and alcohol addiction, with immediate dismissal for positive tests or punitive marks in employment files for individuals with previous positive tests. A more understanding approach may help encourage tribal members to enroll in and comply with treatment programs. Tribal members may be more likely to seek treatment if they receive assurances from employers that their treatment plans will be supported and will not result in termination. In this area, coordination between the tribal or IHS clinicians and employers can help to increase the effectiveness of treatment programs.
Interestingly, the Muckleshoot recognized that patients who returned to work too early in the treatment process were more likely to relapse as the increase in financial resources made purchasing opioids easier. As a result, the Muckleshoot adhere to a phase-based treatment process, while the tribe's other social service programs provide for non-monetary resources during the unemployment period. Its pharmacy dispenses Suboxone on a daily, weekly, or monthly basis based on the client's chemical dependency assessment. Clients are given weekly random urinalysis tests. Once the medication has taken effect, clients go through a four-phase system of intensive group sessions, individual sessions, and sober support meetings that gradually taper as the client advances.61 Patients are not barred from returning to work, but are dissuaded from doing so before therapy has completely taken effect.62 Recognizing the impact of outside factors as potential barriers to recovery and correctly understanding the manner in which medication-assisted treatment works is a key aspect of designing proper treatment methods across Indian Country.
B. Tribal Legal Responses
Tribal nations are sovereign. Their governmental bodies — which need not be structured similarly to states or the federal government — can use their significant criminal and civil jurisdiction to craft policy responses to the opioid epidemic. In this section, we examine a few of these possible responses, including modern and traditional punitive criminal sanctions for trafficking opioids as well as rehabilitative methods designed to connect individuals suffering from drug use disorder to treatment in lieu of punishment. We then turn to the civil context and profile tribal lawsuits against opioid manufacturers, distributors, and retailers.
Tribal nations have far more latitude in prosecuting tribal members for drug-related offenses. Tribally operated drug courts, often known as Healing to Wellness courts, have become a key tool for redirecting tribal members with drug use disorders into culturally-appropriate treatment mechanisms. A Wellness court “is not merely a tribal court that handles criminal and civil cases involving alcohol and other drugs.” Rather, a Wellness court is a tool to “promote healing for entire communities, moving ‘the people’ to a tribal vision of health, wellness, and peace.” As of 2014, at least 72 different tribal nations operated Wellness courts.
1. criminal responses
Tribal governments cannot prosecute non-Native Americans except in very limited circumstances outside the drug context.63 This controversial principle of federal Indian law limits the ability of tribal nations to control the influx of drugs imported into tribal territories by non-Natives. The federal government has primary jurisdiction over drug crimes committed by non-Natives on tribal territories.64 However, federal prosecution can be challenging. Many tribal nations are located hundreds of miles from the nearest federal court. Federal prosecutors often have insufficient resources to adequately investigate crimes occurring in remote tribal communities. The rate of violent crime in many tribal communities is high; prosecutors must make difficult resource allocation decisions and may deprioritize drug trafficking offenses.Reference Washburn65 These factors render punitive criminal sanctions a difficult option to combat opioid trafficking into tribal lands.
The problems of federal prosecution can be mitigated in areas where states possess criminal jurisdiction over tribal communities. A federal statute, Public Law 280, transferred criminal jurisdiction over Indian Country crimes to the state in Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin.66 Although Oklahoma is not a so-called PL-280 state, most Indian Country crimes are nevertheless prosecuted by the state because reservations in the state have generally been abolished, leaving tribal nations only able to exercise jurisdiction over small pieces of land owned by the federal government in trust for the tribe or for tribal members. Crimes affecting urban tribal communities are prosecuted in the same manner as all crimes in any given city, except if the crime occurs on a reservation that happens to be located in an urban area.
Punitive criminal responses on tribal lands suffer from this complex jurisdictional scheme. Such responses in urban areas or in PL-280 states will be less hampered, although they will also be outside effective tribal control. Criminal responses may nevertheless help tribal communities control the supply of illicit opioids, such as heroin or fentanyl. Nevertheless, because tribal governments cannot directly prosecute non-Natives, effective tribal responses to the opioid epidemic must include policies that are not traditionally punitive.
a) Tribal Healing to Wellness Courts
Tribal nations have far more latitude in prosecuting tribal members for drug-related offenses. Tribally operated drug courts, often known as Healing to Wellness courts, have become a key tool for redirecting tribal members with drug use disorders into culturally-appropriate treatment mechanisms. A Wellness court “is not merely a tribal court that handles criminal and civil cases involving alcohol and other drugs.” Rather, a Wellness court is a tool to “promote healing for entire communities, moving ‘the people’ to a tribal vision of health, wellness, and peace.”Reference Flies-Away67 As of 2014, at least 72 different tribal nations operated Wellness courts.68
Wellness courts are not a monolith and there is no overarching regulation of tribal court structures. Each tribal nation structures its court system according to its own needs. Most Wellness courts accept participants in numerous ways, typically from other court systems. This may include from other tribal courts, criminal or civil, adult or juvenile. Some Wellness courts specialize in treating juveniles with drug use disorders.69 Some Wellness courts accept referrals from state and federal court systems, a process which heavily depends on good relations and effective collaboration between tribal nations and other sovereigns.70 For example, the Saint Regis Mohawk Tribe in upstate New York operates a Wellness court that exercises jurisdiction over adult tribal citizens arrested in neighboring jurisdictions.71 Saint Regis has also accepted jurisdiction over a federal case dealing with opioids.72
Treatment plans can vary widely, depending on the resources available to any specific Wellness court. Drug counseling, psychiatric, medical services, and other evidence-based services may all be provided. Wellness courts are often distinguished from non-tribal drug courts by their ability to provide culturally-specific treatment services. For example, the Wellness court of the Eastern Band of Cherokee Indians in North Carolina refers participants to traditional tribal healers as a part of its treatment services.73 The Suquamish Indian Tribe in Washington encourages Wellness court participants to build and sail traditional canoes as a method of engaging participants with Suquamish culture.74 The Prairie Band Potawatomi Nation in Kansas connects participants with language classes.75 These cultural programs are designed to connect Wellness court participants with their tribal communities as a healing method.
Wellness courts are innovative exercises of tribal sovereignty that can be retooled to adapt to the opioid epidemic. They provide a method by which tribal governments can connect defendants struggling with opioid use disorder to medical treatment and traditional health services. They also permit tribes to remove opioid defendants from needlessly punitive criminal proceedings that do not address the underlying medical issue. However, there has been little evaluation of Wellness courts. Gottlieb, in a study of the first four federally-funded Wellness courts found that graduates were as likely to re-offend as non-participants.Reference Gottlieb76 Adult graduates took longer to reoffend than non-participants, which Gottlieb concluded was related to the Wellness courts.77 Evidence outside the Wellness court context shows that culturally-specific treatment services are associated with reductions in substance use disorders among Native American populations.Reference Rowan, Poole, Shea, Gone, Mykota, Farag, Hopkins, Hall, Mushquash and Dell78 Wellness courts may provide these positive effects to participants.
Despite the lack of continuous evaluation, tribes continue to implement Wellness courts. While the concept has not been shown to be effective at preventing recidivism, they nevertheless offer tribes the ability to divert their citizens from punitive criminal proceedings. Wellness courts may present an opportunity to create a culturally-based judicial response tailored to the challenges posed by the opioid epidemic.
b) Banishment of Drug Offenders
Tribal nations possess the ability to permanently exclude any person, regardless of tribal membership status, from their territories.79 Banishment is a traditional punishment in many tribal nations. It has become increasingly — and controversially — important both as a tool in intra-tribal disputes and as one of the few methods by which tribal governments can exercise authority over non-Indians.
Tribal nations have used banishment to address growing drug problems in tribal communities. For example, the Saginaw Chippewa Indian Tribe in central Michigan recently banished two women who brought heroin onto the tribe's reservation.Reference Yanick-Jonaitis80 Banishment has been extensively used as a method of combating the growth of methamphetamine abuse on tribal territories. The Spirit Lake Sioux, Cheyenne River Sioux, Standing Rock Sioux, and the Blackfeet Tribe — all located in the Northern Plains — have recently enacted tribal laws governing banishment in response to drug abuse.Reference Luger81
Banishment is not a healing or restorative practice; it does nothing to address the drug use disorder that the banished person or others may be experiencing. Nor can banishment substantially impact the supply of drugs in tribal territories, especially for tribal nations located in less remote regions. It is also a very limited remedy for tribes with small or particularly fractionated land bases from which to exclude an individual.
Enforcement also presents serious challenges. Tribal law enforcement agencies often have limited resources and large service areas. While tribal police have the power to forcibly eject banished non-Natives from tribal lands,82 they may be unable to prevent reentry. Banishments with roots in drug trafficking and violence have proven difficult to enforce for some tribes.Reference Kunesh83 Nevertheless, banishment is one of the few tools available to exercise control over non-Native individuals and should be carefully evaluated by tribal governments as an option.
C. Lawsuits Against Opioid Manufacturers, Distributors And Retailers
At least six tribes, in four separate actions, have now sued opioid companies, following the lead of many nontribal governments. Four of these tribes, the St. Croix Chippewa Indians of Wisconsin, the Flandreau Santee Sioux Tribe, the Rosebud Sioux Tribe and the Sisseton-Wahpeton Oyate, are suing opioid manufacturers, distributors, and retailers under federal law, in two separate actions.84 St. Croix has filed its suit in the Western District of Wisconsin, while the Sioux tribes are litigating in the District of South Dakota. These tribes generally allege that the defendant companies have flooded their territories with opioids and failed to prevent the diversion of these drugs, thus giving rise to legal liability. Both suits also allege violation of state consumer protection laws.85 One tribe, the Coyote Valley Band of Pomo Indians, has sued under state law in California, bringing tort claims.86 The growing number of opioid-related claims by tribal nations has come to the attention of Judge Dan Polster, of the Northern District of Ohio, who is overseeing multidistrict litigation encompassing hundreds of opioid lawsuits. Judge Polster has created a special track within the larger case specifically for participating tribal nations in recognition of the disproportionate impact of the crisis on many tribes.
The Cherokee Nation recently took a riskier and more innovative approach, which has faced obstacles. It attempted to sue opioid distributors and retailers in its own tribal court, accusing them of causing “a crisis that threatens the health, safety and welfare of the citizens of the Cherokee Nation.”87 The tribe alleged that opioid distributors and retailers failed to prevent diversion of opioids within the Cherokee Nation, harming its citizens and government.88 It also alleged a violation of a recently enacted tribal law, the Cherokee Nation Unfair and Deceptive Practices Act (CNDUPA). CNDUPA proscribes violating “any law affecting or impacting on consumer goods … enacted by the United States.” Cherokee Nation claimed that defendants violated the federal Controlled Substances Act through their opioid distribution practices and that each CSA violation also constituted a CNDUPA violation. As a CNDUPA violation is remedied with a $10,000 fine, there was a potentially large financial penalty if the defendants were found liable.
A federal court enjoined the suit, holding the tribal courts did not have jurisdiction over these non-Native corporations. Relying on Montana v. United States,89 in which the Supreme Court held that tribal courts presumptively lack civil jurisdiction over non-Natives, the federal court concluded that the opioid defendants had “not consented to be broadly governed by tribal law and tribal courts.”90 It then found that the harm from the Cherokee opioid crisis, allegedly caused by the defendants, was not sufficiently “catastrophic for tribal self-government” to permit tribal jurisdiction under Montana.91 Cherokee Nation officials have indicated they will not appeal the ruling, but will instead bring a similar action in Oklahoma courts, under Oklahoma law.Reference Hoffman92
Bringing a civil suit against opioid companies may be an expensive and risky proposition. For instance, Cherokee Nation's suit required an overhaul of tribal law before it was even filed, with that effort ultimately wasted. Other tribes may be faced with similar costs, in addition to the opportunity cost of diverting scarce tribal resources towards filing suit. There is no guarantee that such suits will result in a settlement or an award of damages that tribes could then use to mitigate the harms of the epidemic. As discussed elsewhere in this volume, it is also unclear that holding opioid manufacturers and retailers accountable via civil action will lessen the severity of the ongoing crisis.Reference Gluck, Hall and Curfman93
However, success in the courtroom could result in much needed funding for treatment programs. Litigation also could result in behavioral changes on the part of opioid companies that may restrict the supply of illicit opioids. Tribes may also find it valuable to hold opioid companies formally accountable in a court of law; such symbolism may help to relieve tribal citizens experiencing the harms of the crisis.Reference Reid94 The tribal lawsuits filed thus far have also attracted media coverage, which may raise awareness of opioid use disorder in Indian Country. This could conceivably spur non-tribal governments to respond to the opioid epidemic in tribal communities.
IV. Conclusion
CDC data show that the opioid epidemic is a serious and growing problem in Indian Country. The responses of tribal governments to this crisis provide examples that other tribes can consider as they formulate their own policies to help suffering tribal members. On the medical front, tribes should examine their relationships with IHS and the BIA to determine whether their healthcare operations take full advantage of available federal resources to combat the opioid epidemic, such as naloxone provision and training. Controlling substance use disorder treatment through self-government compacting should also factor into tribal health care planning. The Muckleshoot and Quapaw experiences demonstrate that tribal control of treatment services can be an important tool to aid tribal members struggling with opioid use disorder.
Tribes should also consider creating Wellness courts. Despite a lack of evidence showing anti-recidivism effects, Wellness courts serve the important purpose of diverting tribal members suffering from substance use disorders out of criminal proceedings. Implementing cultural components within the Wellness court framework may additionally help tribal members reduce harmful substance use. These potential positive impacts are worth the investment in court services.
Other legal options may be useful in narrower circumstances. Banishment, for example, is most useful when the tribe controls a large, continuous land base and the policing capacity to keep offenders out. Even then, banishment in the drug context removes only the most proximate cause; it cannot significantly disrupt the drug supply, nor can it rehabilitate individuals suffering from substance use disorder. While banishment is the only method tribes can use to remove non-Native offenders from their communities, it is a limited tool at best.
Finally, suing opioid manufactures, retailers, and distributors is a growing trend. These suits offer the promise of desperately needed funds for treatment services as well as the dignitary benefits of fighting back against perceived corporate offenders. However, there is no guarantee that tribes will succeed in these suits. Even if successful, litigation may not even impact the severity of the opioid epidemic. Litigation should not be viewed as a quick fix to opioid use disorder in tribal communities.
The policy options we discuss are not exhaustive. Tribal nations around Indian Country are no doubt formulating other novel responses to this crisis. However, given the limited resources of most tribal nations and the increasingly urgent nature of the opioid epidemic, we believe that tribal policy makers should not need to reinvent the wheel. We hope the data and policy profiles presented here will aid tribes in healing members' suffering from opioid use disorder and protecting communities from further harm.
Acknowledgements
The authors would like to acknowledge Dr. Andrea Garcia, M.D., National Clinician Scholars Program, David Geffen School of Medicine at the University of California at Los Angeles, Los Angeles, CA, USA.
