Indians to Sue Tobacco Companies
Tribes were left out of settlement reached by attorneys

By Tina Griego
Rocky Mountain News Staff Writer
March 5, 1999

Lawyers representing more than a dozen American Indian tribes said Thursday that they intend to sue tobacco companies for the cost of treating tobacco-related illnesses among native people.

The lawsuit, expected to be filed this month, comes four months after tobacco companies agreed to pay 46 states more than $200 billion to recover Medicaid costs for smoking-related sickness. That agreement excluded American Indian tribes.

A similar settlement with American Indian tribes could cost tobacco companies $2 billion to $3 billion, and perhaps as much as $5 billion, said Albuquerque attorney Turner Branch.

"Native Americans were left out," Branch said. "They got no money. They get no benefits of the settlement. They had no one representing them at the table."

Branch said that was unfair and unjust.

John Phillips, who represents Philip Morris Cos. in tobacco litigation, said that five to 10 tribes have already sued tobacco companies. Some of the cases have been dropped; others are tangled in jurisdictional issues.

Such lawsuits, he said, are riddled with legal problems. Among the biggest: Who paid for the health care in the first place? States, he said, could argue that they should recoup some the costs of treating tobacco-related sickness because they split the cost of the Medicaid program with the federal government.

"The tribes generally don't pay for their health care. The federal government does," he said. "These tribes are not spending their own money. It's the federal government's money. ... It's understandable that everyone is trying to jump on the bandwagon, but there are some serious problems with these cases."

Phillips also disputed the notion that tribes are getting no benefit from the state settlement. Under the settlement, tobacco companies agreed to limit marketing and advertising, including the removal of some billboards.

"All that is being implemented on a statewide basis and that doesn't stop at the reservation border," he said.

Ron Tully, vice president of public relations for Santa Fe Natural Tobacco Co., one of the companies to be named in the lawsuit, had no comment. The company manufactures American Spirit cigarettes, which feature an American Indian in full headdress on each pack.

"It's very difficult to comment on a speculative lawsuit," Tully said.

So far, 15 tribes have signed contracts with the Branch firm, and he is negotiating with another 50, including Colorado's Southern Utes, he said.

Branch declined to name the tribes but said they come from Montana, Minnesota, Oklahoma, South Dakota, North Dakota, Wisconsin, Minnesota and New Mexico.

Malcolm Bowekaty, governor of the 9,200-member Zuni Pueblo in western New Mexico, said his tribe is among those planning to sue. That state is receiving $1.16 billion of the tobacco settlement based upon its population.

"Tribal members were counted, but the state will not give tribal governments any of that money," Bowekaty said. "It will be like pulling hair to get our fair share out of the state legislature, so we must sue the tobacco companies on our own."

Bowekaty said smoking is increasing among Pueblo youth and that cardiovascular disease is prevalent among its elderly.

According to a 1998 U.S. surgeon general's report, smoking rates among American Indians vary from region to region, but American Indians and Alaskan native adults and high school students generally smoke more than blacks, whites, Hispanics or Asians. Last year, representatives of the Indian Health Service Cancer Prevention and Treatment program told the Senate Indian Affairs committee that the agency was spending $200 million a year to treat tobacco-related illness.

The surgeon general's report also said that because tribes are considered sovereign nations and are not subject to laws prohibiting the sale and promotion of tobacco to minors, American Indians and Alaskan natives can get tobacco at young ages.

In fact, since tobacco is not subject to state taxation on reservations, smoke shops have proliferated in Indian country as money-making ventures, which Branch called "a sad irony."

"It's terrible they got put in that position," he said. "But even without the smoke shops, you'd still have Native Americans buying and becoming addicted to tobacco."

The nation's 554 American Indian tribes were included in a $516 billion tobacco bill sponsored last spring by U.S. Sen. John McCain, R-Ariz., but that legislation grew too ponderous and punitive and died. The November settlement was negotiated by a team of state attorneys general. That deal did not include Indian tribes because the state attorneys general do not have the power to represent tribal government.

Besides the Santa Fe Natural Tobacco Co., the lawsuit will name the same four companies involved in the state settlement: Philip Morris Cos., R.J. Reynolds Tobacco, Lorillard Tobacco and Brown & Williamson Tobacco. It is expected to be filed in state court in Santa Fe.