WASHINGTON -- Emboldened by the $206 billion tobacco lawsuit settlement that has enriched the coffers of 46 states, Native American tribes across the nation are following suit and bringing legal action themselves.
In the most recent case, a coalition of 22 tribes from five states filed a federal lawsuit in California on June 3 claiming that the tribes should have gotten a share of the tobacco settlement. The tribes' lawsuit claims their civil rights were violated when their sovereign governments were excluded from the negotiations that resulted in a windfall settlement for the states last November.
The tribes are asking for a separate $2 billion award, plus another $250 million over 10 years for an anti-smoking foundation and $50 million over the same period to establish an anti-smoking enforcement fund for Native American youths.
The June 4 filing is expected to be the first of many such lawsuits, with a group of 35 Indian nations led by controversial former Navajo Nation President Albert Hale expected to file suit in late June or early July in either state or tribal courts.
In another proposed case, 15 tribes have signed contracts with a New Mexico attorney to file suit against tobacco companies for the cost of treating tobacco-related illnesses among native people.
Attorney Turner Branch declined to name the tribes but said they come from Montana, Minnesota, Oklahoma, South Dakota, North Dakota, Wisconsin and New Mexico. The suit will be filed in state court in New Mexico.
"Native Americans have been targeted as tobacco consumers, and Native American youth, adults and women of reproductive age have the highest rates of smoking," said Bill Audet of San Jose, an attorney for the tribes who filed suit in California. "There was simply no legal, political or moral justification for failing to include the tribes in the settlement process."
Defendants named in the California case are Phillip Morris Cos., R.J. Reynolds Tobacco, Brown & Williamson Tobacco, American Tobacco Co. Inc., B.A.T. Industries and Lorillard Tobacco.
The joint filing signals a new strategy for the nation's Native American tribes, who have in the past pursued individual suits in tribal courts.
In Oklahoma, for example, the Kiowa, Comanche, Apache and Ponca tribes joined in the June lawsuit after observing the difficulties encountered by the Muscogee Nation of Oklahoma. The Muscogee Nation filed suit in tribal court, alleging negligence, fraud and deceit on the part of the tobacco companies, which have supplied $18 million in tobacco products to tribe-licensed tobacco stores.
Lawyers for the tobacco companies fought to have the Muskogee suit dismissed, but a tribal judge upheld the lawsuit. Muscogee Nation officials report that they are currently in negotiations with the companies for an out-of-court settlement. Tribal leaders acknowledge that their bargaining position would be stronger in a unified suit with other tribes.
William Maledon, an Arizona attorney who represents Philip Morris, labeled the tribes' new efforts as an attempt "to fashion a lawsuit out of nothing."
"I'm quite sure there won't be much of a case," Maledon said. "But I'll wait and see what their theories are. I can't imagine there's going to be much merit to this."
Maledon estimates that five to ten tribes have already sued tobacco companies. Some cases have been dropped, and the others remained entangled in jurisdictional issues.
While the national tobacco settlement does not specifically cede money to any Native American nations, neither does it forbid them from pursuing their own claims. The legal arguments used by the tribes, however, will have to be different than those used by the states.
The crux of the state lawsuits against the tobacco companies was the recovery of Medicare and Medicaid costs caused by tobacco use. Unlike in the states, the federal government pays for health care costs on Indian reservations.
The St. Louis Post-Dispatch reported last week that lawyers representing Philip Morris and other tobacco companies are traveling the country to promote their claim that states stand to lose millions from their tobacco settlements if the federal government sues the tobacco industry.
It quoted Missouri Attorney General Jay Nixon as saying he doesn't buy their argument.
"It's obvious to me that they've (the tobacco industry) gone from 'voodoo science' to 'voodoo economics,'" Nixon told the newspaper.
Steve Berman, a Washington attorney who represented Arizona and twelve other states in tobacco lawsuits, said the tribes must come up with another legal theory on which to base their suits.
"I do think the Native Americans have a claim," Berman said. He said he has been interviewed by at least one tribe to represent it in a lawsuit, but declined to name that tribe. His contacts with that tribe, and others, lead him to believe that several more joint lawsuits will be filed.
Supporters of the tribes accuse tobacco companies of targeting Native Americans and other minority communities as potential customers, and of specifically targeting Indian youth through reservation marketing campaigns.
Outsiders agree that,while the tribes have every right to pursue litigation, the tribes themselves should consider adopting tougher anti-smoking laws and discontinue the practice of selling discount and tax-free cigarettes on reservations.
"If they want the tobacco companies to change their ways, then the tribes should also not be a convenient outlet for discount selling," former Arizona Attorney General Grant Woods said. "The tobacco companies should address this proactively to see if they can't come to some sort of resolution with all of the tribes in the country. If not, I think they will be subjected to lawsuits."
Former Navajo Nation President Albert Hale says 35 Indian nations have signed onto his proposed lawsuit, but declined to name any of them. Hale says that tobacco companies have targeted Native Americans with marketing and advertising campaigns centered around traditional activities.
Hale pointed to a United States Surgeon General's report that noted an increase in marketing of tobacco products to Native Americans, especially through sponsorship of powwows, tribal conferences and rodeo exhibitions.
Hale says his lawsuit could seek as much as $1 billion in damages.
"I've been travelling extensively through Indian Country since January, meeting with Indian councils and giving them information. Hopefully we'll be able to get something for Indian nations. Certainly, they deserve it," he said.
Hale's presence as a major figure in the lawsuits marks a return to prominence in Native American issues after his having been forced from the leadership of the Navajo Nation under a cloud of scandal in 1998.
When elected to lead the 165,000 member Navajo Nation in November 1994, Hale promised bold reforms and radical restructuring of the traditional tribal government. He hoped to revitalize the struggling reservation by allowing for more local empowerment within the nation, and became a polarizing figure in the growing debate over the future of Native American nations.
Hale's reform plans were tabled by the Navajo Tribal Council, and his political setbacks were compounded by personal and financial scandal. He resigned the presidency of the Navajo Nation in February 1998 to avoid being indicted for misusing tribal funds. While he denied any wrongdoing, Hale made a deal with special tribal prosecutors to step down and thus avoid indictment.