Tribe Files Tobacco Suit
Standing Rock action separate from state's
LAUREN DONOVAN, Bismarck Tribune
March 16, 1999
The Standing Rock Sioux tribe is suing cigarette makers in a lawsuit that's separate from the one that brought North Dakota an $866 million settlement.
The tribe's attorney, Ron Hodge, Bismarck, said other tribes in North Dakota are also deciding whether they'll take action to secure money from big tobacco for the reservations.
Earlier this month, a tribal court judge said the case against four primary cigarette makers will remain in Standing Rock tribal court. No dollar amount is yet claimed in the suit.
A Seattle attorney said he anticipates an appeal to get the case moved to state or federal court.
John Phillips represents the largest cigarette company, Philip Morris, and is coordinating the four tobacco cases so far filed by tribes. He promises a battle.
"There will be a vigorous fight against this kind of lawsuit," Phillips said.
Hodge said he is bringing suits for both Standing Rock and the Sisseton-Wahpeton, S.D., Sioux Tribe because states specifically did not waive rights of tribes when they made deals that have tobacco companies repaying states for tobacco-related health-care costs.
"Tribes should be allowed to participate," Hodge said. "There's a clause in the agreement that says settling states do not waive any relief to Indian tribes."
But Phillips said Standing Rock, unlike North Dakota and other states, could not show the court that it has spent money for smoking-related health care.
"All or the vast majority of medical expenses are paid by Indian Health Services, which is a branch of the federal government, not the tribe," Phillips said. "Standing Rock doesn't spend any of its own money."
An affidavit filed by Standing Rock says in the past five years it has received $6.4 million in federal health service dollars, and collected $8 million from third-party payers, including insurance companies and Medicare and Medicaid.
While North Dakota's settlement leaves room for tribes to sue tobacco manufacturers, some conditions already apply.
Laurie Loveland, a Bismarck attorney who helped hammer out the deal and is now working on behalf of other states, said much of the agreement went to the state's boundaries.
"A lot of the health benefits were within the geographical boundaries, which includes Indian country," Loveland said.
"The prohibition against tobacco billboards goes into effect April 22 and they can't have billboards on the reservation, as well as the prohibition against distributing what we call (tobacco) trash and trinkets," said Loveland. Trash and trinkets means things like caps and T-shirts. Those will go off shelves July 1.
What the tribes are after is a financial settlement that helps reservations deal with the effects of the highest nicotine addiction rate in the country, Hodge said.
"It's significant that Native Americans have a forum to collect from just like any state person would do," he said.
"I've seen them pass out Marlboros at powwows and rodeos," Hodge said. He said he doesn't anticipate reservations will receive any secondary settlement from the state, even though health concerns are greater there.
North Dakota settled its tobacco case in December and will receive money over 25 years. It's not certain when the no-strings payments will begin. The Legislature is looking at a bill to use some of the money for water delivery, flood control and schools.
Separate settlements for the state and the tribes raise the question of whether people living on reservations will benefit from two separate pots of money, if Standing Rock's suit is successful.
Loveland said that will depend.
"On the one hand, the agreement does not limit the rights of the tribe. On the other hand, they may benefit if the legislature spends it in ways that benefit all citizens of North Dakota," Loveland said.
Phillips said Standing Rock will have difficulty proving a financial claim against tobacco makers.
"It's fun to jump on the bandwagon on the way to the courthouse," Phillips said. "But if they haven't been spending money, they're not entitled to any money. When you add zero to what the state got, that should be enough."