Washington Law Review


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.

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