By Julie Burger

In a remote section of the Grand Canyon about 450 members of the Havasupai Tribe live on tribal lands where they have lived for hundreds of years.  Another 200 members of the Tribe live away from Supai, the village area.  In March of 1990, researchers from Arizona State University (“ASU”) (Drs. Theresa Markow and John Martin) presented the Havasupai Tribal Council with a proposed diabetes study, saying that they would like to collect and use tribe members’ blood for diabetes studies.  The researchers met several times with the Tribal Council, but according to allegations, never revealed they intended to perform research other than diabetes research.  With the Council’s approval, blood samples were collected from members of the Tribe, including children and vulnerable people.  Researchers additionally took handprints from members.  English is not the tribal members’ primary language and many members do not even speak English as a second language.

The researchers did not stop at diabetes research.  They also performed additional research on the samples for schizophrenia, inbreeding, and population migration, and shared the samples with researchers at other institutions.  After discovering the additional research, the Havasupai filed state court complaints on behalf of individual Tribal members and on behalf of the Tribe against ASU and the researchers in 2004.  The Havasupai maintain that the schizophrenia and inbreeding research was stigmatizing and that they would not have consented to the migration research because it conflicts with their religious origin theory.  A member of the Tribe points out that “[the researchers] challenged our identity and our origins with our own blood and without telling us what they were doing.”

The defendants removed the case to federal court, where the judge dismissed claims by the individuals for breach of fiduciary duty and lack of informed consent, leaving claims for infliction of emotional distress and negligence.  Then the cases were remanded back to state court and then transferred to a Maricopa County Superior Court in August of 2005.  After another round of motions to dismiss (a way of eliminating claims before the case moves forward), the Havasupai Tribe retained its claims for breach of fiduciary duty, fraudulent nondisclosure/concealment, negligence and trespass.  However, in 2007 the state court judge also said that the Tribe and the individual members had not complied with an Arizona law that requires plaintiffs to give specific notice to state defendants (such as the University and its employees).  This meant that the Tribe and its members could not move forward with all their remaining claims against all the defendants.

The cases were appealed.  The arguments in extensive briefs on appeal centered around the meaning of the Arizona law and to what degree of specificity did a notice of claim have to state.  Because the decision would affect other cases and future cases against Arizona, attorneys’ groups were allowed to file briefs in the case.

The briefing of the cases continued on into 2008.  Finally, at the end of November, the appellate court reversed the lower court’s decision.  But the case is not yet over.  The defendants filed motions for reconsideration, and then filed a petition seeking the review of the Arizona Supreme Court.  The Court granted the petition with respect to two of the defendants in April 2009.  Briefing is ongoing and oral argument will be held after the briefing is over.

So the Havasupai wait.  And the researchers wait.  And the substantive matters regarding the misuse of collected DNA specimens are lost in a sea of procedural issues.