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Tobacco Settlement: Windfall For Tribes?

By Charles Flowers

ALEXANDRIA, Va. - Former Navajo Nation president Albert Hale dangled a carrot in front of United South and Eastern Tribes (USET) tribal leaders meeting here when he pointed out that Indian tribes are the only major group yet to settle class-action claims against the major U.S. tobacco companies.

Fearful of the costs of multi-million-dollar damage claims for tobacco-related illnesses and deaths, so-called Big Tobacco last year settled out-of-court with 50 states and U.S. territories, for more than $246 billion, to be paid over the next 25 years.

The payments, which began last year, have created budget surpluses in many states, including Florida. Hale, who was ousted as Navajo leader one year ago in February, thinks the tribes could share in the bounty.

"If all Indian Nations come in at the same time, it will make a tremendous impact on the tobacco companies," Hale said while addressing the USET conference, held Feb. 1-5. "It will show to them that we are serious, that we want a comparable settlement (to the states)."

Hale, who holds a law degree from the University of New Mexico said he sought the counsel of the Branch Law firm in Albuquerque. The same firm represented the State of New Mexico in the tobacco litigation and won a $1.16 billion award.

Hale said he thinks the tribes could get the best settlement if they presented a united front.

"Indian nations can file their own litigation as a sovereign governmental entity," Hale said. "Because of what the tobacco companies have done, that is, engaged in deliberate and intentional defrauding of the public, saying for years that cigarettes and the content, the nicotine, is not addictive, even though they knew in their own research that it is, and then manipulating the nicotine content of the cigarettes, to hook people."

After four states, including Florida, successfully sued Big Tobacco for more than $40 billion, 39 more states joined forces to win the so-called "global settlement" of $206 billion. The states alleged the companies conspired to withhold information about the health risks of tobacco.

"The research from the companies showed that they focused on youth," Hale asserted. "And the reason why they did that is because if they were able to get you hooked around the age of 12, you will be a smoker for the rest of your life.

"They also focused on minority people," Hale continued. "Statistics now show that the use of tobacco (by) the general population has leveled off. But it is continuing to increase with Native Americans. And if you apply that to the youth, the studies also show that 60 percent of them are using smokeless or smoking tobacco."

He pointed to a Camel cigarette advertisement which depicts a character in an Indian headdress, and a sign which says "Geronimo Party" as targeting Native Americans.

"Now you have a population that has respiratory diseases, cancer, all related to the use of tobacco," Hale said. That population requires more health services, the states argued. The same theory of law is available to the tribes, who were excluded from the states' settlement with Big Tobacco.

Also, during the USET meeting, it was reported that the federal government, acting on behalf of Veterans' Administration hospitals, is contemplating more tobacco litigation

Seminole General Counsel Shore was circumspect about Hale's proposal to represent the USET tribes for no fee.

"It's the first time I've heard of it," Shore said.

Joyce Dugan, principal chief of the Eastern Band of Cherokee Indians, asked a procedural question about the form-prepared Tribal Council resolution. If Hale's per capita estimates are correct, based on population of about 12,000, the Eastern Band could qualify for a settlement in the range of $10 million.

Hale produced a sheet which showed the settlements awarded to most states and territories by population. By dividing the number of people into the awards, he obtained a per capita figure of $765.

If that formula were applied to the Seminole Tribe of Florida, numbering about 2,500 people, the settlement could be more than $1.9 million.

"There's a lot that could be done with $2 million," said Joel Frank, Director of the Seminole Tribe's Housing Authority. "Our Health Department could make good use of it."

Another Indian leader wondered about the impact of anti-tobacco litigation on tribes that operated smoke shops on the reservation. Hale said the only impact would be another increase in the price of cigarettes, which has already increased to cover the payments to the states.

One year ago, Hale resigned as Navajo president amid a firestorm of controversy after the Navajo Times reported he was having an affair with a Nation employee.

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