The Cherokee sued Walmart, Walgreens and CVS Health and the giant drug distributors McKesson, Cardinal Health and AmerisourceBergen, arguing that the companies had brought their products to Cherokee land, harmed the Cherokee people and so should face Cherokee justice.
To shut down the case, defendants sought a preliminary injunction in federal court. They argued that because the tribe did not have the authority to sue them in tribal court, the companies should not have to needlessly endure the time and expense of defending the case.
Judge Kirn agreed. Referring to the 1981 Supreme Court opinion in Montana v. the United States, the judge ruled that the companies’ actions did not meet the limited exceptions under which a tribe can sue nonmembers, including whether the defendants’ actions affect the ability of the tribe to govern itself.
The tribe had said that the companies violated the federal Controlled Substances Act, but Judge Kirn said the act does not provide for a private right to sue. Only the federal government itself can enforce federal drug policy.
In his ruling, the judge did not engage the battle raised by both sides about whether the treaty of 1866, which gave the Cherokee sovereignty over their land, authorized the tribe to pursue the case. That question, which has begun to emerge in other courts, is fraught with complexity and implication. By not touching the issue, the judge in effect preserved it for others to raise again.
And he wrote that the Cherokee Nation “could assert claims to redress any injury in another, nontribal forum.”