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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.

Id. at *1.

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 the person or property of the Indians, the United States will, upon proof made . . ., proceed at once to . . . reimburse the injured person for the loss sustained.

2020 WL 7251080, at *1 (quoting identical language in both treaties).  This reimbursement provision is why the United States is a defendant, and the case is in the Court of Claims.  The alleged “bad men” were pharmaceutical companies, and their general “marketing and sales” caused their products to be available to tribal members who allegedly suffered injuries that were reimbursable under these provisions.  Id. at *2.  The plaintiff sued “in its proprietary capacity and under its parens patriae authority.”  Id. at *3.

Cheyenne & Arapaho rejected these claims, holding, first that “bad men” treaty provisions did not give First Nations standing to sue on behalf of their allegedly injured members.  The court “agreed” with the defendant that a “‘bad men’ clause created a cause of action for individuals, not tribal governments.”  Id. at *5.  That result flowed from the “unambiguous” terms of the treaties.  Id.

The text of the “bad men” clause states, in relevant part, that “the ‘wrong’ in question must be to ‘person or property,’ and the United States . . . is to ‘reimburse the injured person for the loss sustained.’”

Id. (emphasis original).  The “plain language” allowed reimbursement only of “persons,” and “[h]ad the treaty-parties intended to create a tribal interest, the Treaties’ text would reflect such intention.”  Id.

[T]he obligation and payment both run directly to the individual, the tribe is not to be the channel or conduit through which reimbursement is to flow.  The obligation and the right are each individual and personal.

Id. (quoting Hebah v. United States, 428 F.2d 1334, 1338 (Ct. Cl. 1970)) (emphasis original in Cheyenne & Arapaho).  “[T]he ‘bad men’ clause created a cause of action for individuals, not tribal governments, and, thus, the Tribe improperly brought such a claim in the case at bar.”  2020 WL 7251080, at *6.

Nor could the plaintiff tribe invoke “prudential standing” to overcome the express treaty limitations.  “[B]y the very nature of its claim, the Tribe would be litigating the rights of individual tribe members in violation of third-party standing and prudential standing principles.”  Id. at *6 (citation and quotation marks omitted).  Individual product injury claims were not “a quasi-sovereign interest” of the plaintiff tribe.  Id.  “Implicit in that finding is that the ‘bad men’ clause applies to the interests of a particular ‘wronged’ tribal member, not to the Tribe as a whole.”  Id. at *7.

In addition to lack of standing, Cheyenne & Arapaho held, for different reasons, that the tribe’s complaint failed to state a substantive claim.  The claim failed because the defendant did not commit any act on the plaintiff’s reservation.  Fatally, “the Complaint fails to identify any specific on-reservation activity.”  2020 WL 7251080, at *8 (citing Jones v. United States, 846 F.3d 1343, 1353 (Fed. Cir. 2017)).  All the complaint alleged was off-reservation product marketing activity, with the only First Nation nexus being those activities’ allegedly “designed to impact and damage tribal members.”  Id. (footnote omitted).  Thus, “the Court reject[ed] plaintiff’s argument that . . . off-reservation activity, even that which is within the economic proximity of tribal lands, can constitute an on-reservation harm.”  Id. at *9.  For over a century, the “intended scope” of “bad men” treaty provisions has not encompassed off-reservation activities:

[T]he “bad men” provision[’s] . . . general purpose was to ensure “that the Indians shall be responsible for what Indians do within the white man’s territory and the government shall be responsible for what white men do within Indian’s territory.”

Id. (quoting Janis v. United States, 32 Ct. Cl. 407, 410 (1897)).

Significantly, none of the cases Cheyenne & Arapaho cites involve product liability of any sort.  Thus, it appears that this is the first case definitively deciding that First Nations may not sue under these sorts of treaty provisions, either in a representative capacity (because the provisions confer rights only on “persons”), or for off-reservation product marketing allegedly causing on-reservation product purchases, use, and injury.  Cheyenne & Arapaho is thus a powerful tool to prevent the sort of backdoor aggregations in First Nations cases that plague our clients in suits brought by governments or insurers.