An Arizona appeals court has reinstated an interesting lawsuit by the Havasupai Indians who alleged that researchers at the Arizona State University and University of Arizona misused blood samples taken from members of the northern Arizona tribe. The tribe insists that it agreed to the use of blood samples to look into genetic links with the high incidence of diabetes among its members. The tribe lives in an isolated village lies deep in a gorge off the Grand Canyon. Among the claims, the tribe alleges that researchers were using the blood samples to establish that their predecessors migrated to the area — which contradicts the tribe’s religious belief that it originated in the Grand Canyon. The tribe and individual members are seeking $60 million in damages.

The tribe maintains a website offering tours and recreational activities. Their website does not discuss the religious or cultural beliefs beyond stating: “We are Havasu ‘Baaja. Currently our tribe is comprised of about 650 enrolled tribal members. Approximately 450 people live here in Supai. Our native language, Havasupai, is our preferred way to communicate. It has been a written language for about 20 years. We are very resourceful people and proud of our beautiful land. . . .Our people have lived in the area for many hundreds of years.”

The Arizona Court of Appeals split 2-1 in overturning a judge 2007 dismissal of the case. The majority held that there was enough evidence to support the case, alleging that researchers used the blood samples for research into schizophrenia, inbreeding and ancient population migration.

Judge Diane Johnsen wrote for the two-judge majority with Judge Ann A. Scott Timmer, holding that
“[the injury that naturally flows from the purported invasion of privacy invasions set for in the tribe’s two notice-of-claim letters is necessarily subjective, deeply personal and may not be quantifiable except by a jury.”

Attorney Robert Rosette, representing the tribe, insisted that researchers cause harm when they show that religious beliefs are invalid without clear consent: “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. It’s a life-altering 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. 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.”

The use of blood samples, bone marrow, and human organs have been the subject of prior lawsuits and legislation. Many concerns researchers making money off of their unique blood or tissue without sharing the profits. For example, John Moore, a 43-year-old Seattle sales manager, sued the University of California for securing a patent and commercially exploiting the unique properties in his blood without his consent. The key claim was one of conversion, based on the doctor’s intentional extraction of blood to advance his research and economic interests. However, the California Supreme Court reversed a lower court http://www.kentlaw.edu/perritt/courses/property/moore-v-regents-excerpts2.htm and rejected the conversion claim. It upheld a claim for violation of required disclosure and consent rules by the doctor.

This case has the added element of liability for disproving a religious belief. On one level, the case presents a straight-forward consent claim. They have the right to restrict the use of such samples. However, the idea that the researchers are liable for displaced invalid religious beliefs could present crippling level of potential liability. This ignores the resistance of people to having religious beliefs proven to be invalid — preferring to live in unchallenged ignorance of the facts related to these claims. Of course, $60 million will go a long way to living in ignorance and splendor.

For a copy of the appellate opinion, click here.
For the full story, click here and here.