Court: Tribe can sue university system over blood use

By Howard Fischer
Capitol Media Services

PHOENIX — A Native American tribe has been given the goahead to sue the state university system over claims that researchers improperly used blood samples of tribal members — including to undermine tribal beliefs.

In a case with religious and commercial overtones, the Arizona Court of Appeals on Friday overturned a trial judge’s conclusion that the Havasupai Tribe did not comply with legal requirements before filing suit. That gives the tribe and some individual members the chance to sue for damages.

That would give them the chance to argue that their blood was taken under false pretenses and that researchers at Arizona State University and the University of Arizona are doing analysis not authorized.

Potentially more significant, it would allow them to ask a court to conclude that the research being done directly undermines their core religious convictions. That includes the belief that tribal members always have lived in the Grand Canyon and their ancestors did not, as the research seeks to show, migrate across the Bering Strait from Asia.

Chandler attorney Robert Rosette, who is representing the tribe, said members agreed in 1989 to provide blood samples based on the promise that they would be used solely to determine if genetics were related to a perceived “epidemic” of diabetes.

That research failed to pan out.

The lawsuit charges, however, the blood taken from more than 200 was used for various other studies ranging from schizophrenia to migratory patterns, all in direct contradiction of not only the promise but basic tribal beliefs.

It was not until years later that tribal members learned of the new research.

As a basic premise, Rosette said the blood was, in essence, stolen, having been taken under false pretenses.

He said blood of Havasupai tribal members is considered extremely rare because they are cut off from the rest of the world. That makes their blood undiluted with intermarriage.

Rosette said that makes it “extremely valuable” for commercial researchers and others involved in genomics research.

“They took advantage of these people by saying they were going to help with a diabetes epidemic,” he said. Instead, Rosette said, the researchers used it “for their own personal gain and profit” for other studies.

“It’s one of the most egregious acts I can think of,” he said, particularly as tribal members did not understand the financial value of their blood. The lawsuit says the only compensation the tribe received is that 15 of their members were allowed to attend summer classes free of charge.

The tribe is seeking $50 million; a separate claim by some individual tribal members seeks another $10 million.

Rosette said, though, the issue goes far beyond money, as researchers are using the blood to try to show that the basic tenet of the tribe’s belief in its roots is erroneous.

“When you challenge the belief system that is their central way of life, and you did it in such a way as to steal their blood and then create the emotional distress that it’s caused, it’s significant,” Rosette said.

“It’s a lifealtering event for each and every one of those tribal members that academic institutions and science is now telling these folks that their religion and their cultural beliefs are wrong,” he continued. “They would have never opened themselves up to this type of scrutiny or challenge to their belief systems, not in a million years would they have done that, had they known that this was the true intent of Arizona State University and others.”

Some of the charges go specifically to research done originally at ASU by Therese Markow who now is at the University of Arizona.

A 2003 report commissioned by ASU said professor John Martin, who had built up a longterm relationship with the tribe, had been asked to look into diabetes. Martin sought the help of Markow based on her genetics expertise.

That report said her name never appeared on the results of that diabetes research. Instead she and others published a paper in 1997 saying the Havasupai genes have more in common with Asian people than South American tribes, countering the tribal belief that human beings originated in the Grand Canyon.

Court records show Markow told Martin early in the process she wanted to expand studies into schizophrenia but Martin told her that would not be acceptable to tribal members.

Despite that, Markow prepared a grant application on the issue and eventually received funding for that study.

Regents’ spokeswoman Andrea Smiley said the board is interested in negotiating a “mutually beneficial conclusion” to the dispute despite the fact it has tried to kill the lawsuit. She said the regents want to “begin rebuilding relationships” with the tribe.

Calls to Markow and other defense attorneys in the case were not immediately returned.

But in a statement released through her attorney in 2005, Markow said she was only trying to understand “the biological underpinnings of the health issues of the Havasupai.” She also called the tribe’s allegations “hysterical.”