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A state appellate court ruling has given new life to a lawsuit filed by the tiny Havasupai nation over blood samples that the tribe was told would be used for the study of tribal diabetes but instead were used for other research.
Back in 2004, we wrote “Indian Givers,” a chilling yarn about how genetic researchers at Arizona State University had misled many members of the Havasupai, who live on the floor of the western Grand Canyon (see photo), into providing blood samples for what they claimed might help solve the diabetes epidemic plaguing the tribe.
However, then-ASU Professor Therese Ann Markow and others primarily used the blood samples to study tribal schizophrenia, inbreeding, and migration patterns — without getting the proper (or any) permission to do so from the donors.
The studies of migration patterns was particularly galling to tribal members, and raised serious questions about the complex intersection of modern science and the cultures of indigenous peoples.
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For example, aspiring doctoral candidate Daniel Garrigan (now a professor at the University of Rochester) described in a March 2003 oral dissertation defense how the Havasupai blood samples had helped him explain how the tribe had come down to Arizona from Asia across the frozen Bering Straits.
But the Havasupai are raised to believe that the retreat of waters from a global flood had created the Grand Canyon, and that the Canyon itself — their home — is the birthplace of the human race.
Dozens of tribal members filed lawsuits against Markow and the Arizona Board of Regents months after an attorney wrote to Markow, ASU president Michael Crow, and Arizona Attorney General Terry Goddard that “ASU’s actions have invaded the personal privacy of Havasupai tribal members and the cultural and religious privacy of the Havasupai tribe.”
But Maricopa County Superior Court Judge Janet Barton later dismissed the claims.
The judge noted in part that, while the tribe’s pre-lawsuit letter claimed that many tribal members feared seeking medical attention after the blood fiasco came to light, “the letters do not indicate which Plaintiffs are experiencing fear and/or which of the referenced fears they are experiencing.”
However, an Arizona Court of Appeals panel, in a 2-1 decision, recently wrote that Barton was wrong for having tossed out the case.
The appellate court reinstated the tribe’s claim on several legal grounds. As to the alleged lack of specifics in the pre-lawsuit letter, Judge Diane Johnsen wrote, “We do not agree that a notice of claim alleging general damages fails…if it does not describe physical manifestations of emotional distress suffered by the [tribe members].”
And so, this important and profound civil case returns to Superior Court. — Paul Rubin
