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Arizona attorney general rebuts Havasupai settlement, despite clients’ wishes

PHOENIX – Members of the Havasupai Tribe had reason to be cautiously optimistic upon learning that regents of the Arizona State University system wanted to settle a long-running legal dispute with the tribe centered on what members believe was misuse of blood they long ago gave to researchers at Arizona State University. But now the tribe has discovered that Arizona Attorney General Terry Goddard, who represents university regents in the case, does not want to settle the litigation, despite his clients’ wishes to do so.

As Indian Country Today recently reported, the Arizona Court of Appeals in late-November overturned an earlier finding that the Havasupai did not meet legal requirements for filing a lawsuit.

The case, which includes both a suit by the tribe against the researchers and one from individual Indians, centers on circumstances that took place in the late 1980s and early 1990s when approximately 200 tribal members provided blood samples to researchers from Arizona State University.

Tribal members have said they agreed to have their blood drawn under the pretense that the researchers would only use the blood to help research diabetes, which had been increasing at an alarming rate.

In ensuing years, however, the tribe learned that the samples were used in research on schizophrenia and inbreeding. The samples were also used by at least one doctoral student in a dissertation to support migration hypotheses of the peopling of North America via the Bering Strait Land Bridge. It was a development that was especially alarming to some members who have a different view based on creation stories passed down from their ancestors.

Tribal members have requested $50 million in damages, in addition to a return of the blood.

Soon after the court handed down its decision that the case could move forward, regents of the university system said they would like to settle with the tribe.

“Regents and the universities remain committed to working with the tribe and its members to settle this case,” they wrote in an unsigned statement. “It is very important to us that we begin rebuilding our relationship with the tribe.”

But, then, the Arizona attorney general asked the state appeals court Dec. 15 to reconsider the recent ruling – despite being a lawyer for the regents. One of the main arguments cited in the motion, signed by Goddard, is that the tribe’s notice of claim was untimely.

Anne Titus Hilby, a spokeswoman for the Arizona attorney general’s office, said she couldn’t comment on the matter due to an attorney-client relationship between the office and the regents. She also could not explain why Goddard would want to pursue the case against his clients’ wishes.

The regents have not taken Goddard’s decision lightly. Fred T. Boice, president of the board of regents, recently sent a letter to Goddard saying that the board “does not support the filing of this petition and instead wants to work with your office and State Management Risk to settle this matter.”

“I understand that your office represents state interests that appear to conflict with the interests of the board. …,” Boice also wrote.

Why Goddard would want to continue with the case, despite his clients wanting to settle is unclear at this point.

Robert A. Rosette, a Chippewa-Cree lawyer for the tribe in this matter, said he had “no idea” why Goddard would want to take the route of continued litigation.

“From the tribe’s perspective, we’re interested in a settlement,” Rosette said, adding that the tribe would be willing to receive in-kind services from the university system on issues like economic development. Individual Indian plaintiffs, however, would likely want financial settlements.

Rosette previously told ICT that this case is not all about receiving a large financial settlement.

Michael J. Rusing, a lawyer for geneticist Therese Markow, who is a co-defendant with the regents in the case and a former Arizona State professor, offered some speculation on the situation.

“Unfortunately, contrary to what Mr. Rosette told you, it’s all about the money,” Rusing wrote via e-mail.

“…The universities have a hiring freeze in place and are having their budgets cut, where do they think this money would come from?” Rusing asked.

Rusing said that he is not aware of any current talks towards settlement.

“If the university [regents] want to settle, they are free to and will presumably settle on behalf of Markow too,” Rusing said – a development that he believes she would be happy with.

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