Plaintiffs’ lawyers, now used to soliciting litigation from municipal governments, labor union health and welfare funds, and Medicare assistance plans, have been trying the same thing with Indian tribes (note: we don’t care much for “Indian” as it reflects Columbus’ 500-year-old navigational error, so we opt for the more accurate Canadian term – “First Nations”). Representing First Nation plaintiffs also comes with interesting aspects, such as possible jurisdiction in tribal courts.
First Nations hold a unique constitutional status in our judicial system, being separate from, and independent of the states. For one thing, “[s]tates have no authority to reduce federal reservations lying within their borders.” McGirt v. Oklahoma, 140 S. Ct. 2452, 2462 (2020). That means that states don’t get to prosecute violations that occur on tribal reservations. Id. at 2478. In civil litigation, First Nations have their own courts, but as we have discussed before, the jurisdiction of those courts does not extend to non-members of the relevant tribe. “[A] generalized threat of injury to the tribe or to its members for tortious conduct is not enough to confer tribal jurisdiction.” McKesson Corp. v. Hembree, 2018 WL 340042, at *8 (N.D. Okla. Jan. 9, 2018).
A recent decision in the Federal Court of Claims, however, puts the kibosh on P-side maneuvers to use tribal government representation to aggregate claims. Cheyenne & Arapaho Tribes v. United States, ___ Fed. Cl. ___, 2020 WL 7251080 (Fed. Cl. Dec. 9, 2020), dealt with a typical fact pattern in First Nations litigation – a de facto class action asserting that First Nations tribes can sue a prescription medical product manufacturer on a representative basis, over off-reservation product marketing that allegedly caused on-reservation injury to tribal members. Id. at *2. The plaintiff tribes went 0 for 2 as the Court of Claims, in what appears to be a matter of first impression in drug/device litigation, held that the tribes could not: (1) engage in representative litigation; nor (2) sue over off-reservation marketing and sales activity. To do otherwise,
the Court would have to totally ignore the history and language of these treaties, as well as long settled judicial precedent, in order to find that plaintiff has a legal basis for its claims.
The “treaties” that Cheyenne & Arapaho referenced were executed in the 1800s. Many such treaties contained so-called “bad men” provisions. The treaties in question were written in 1867 and 1868, and provided:
If bad men among the whites, . . . shall commit any wrong upon...
