Kennewick Man Redux?

Medical journals are usually thought of as being dry-as-dust, but read in the right spirit they are often able to provoke that most pleasant, reliable, and durable of emotions, righteous indignation.

For example, the New England Journal of Medicine dated July 15 had an article with the title "The Havasupai Indian Tribe Case -- Lessons for Research Involving Stored Biologic Samples." (It's online, but a subscription is required.) It was by Michelle M. Mello, of the Harvard Department of Health Policy and Management, and Leslie E. Wolf, of the Georgia State College of Law.

It made me cross.

Forty-one Havasupai Indians sued Arizona State University for alleged misuse of blood samples taken from members of the tribe. They claimed $50 million in damages for (inter alia) fraud, breach of fiduciary duty, negligence, and trespass. They settled -- out of court -- for $700,000.

The blood samples were taken for a study on diabetes, but consent was gained for a study of "the causes of behavioral/medical disorders." The plaintiffs objected particularly that the anonymised blood samples were used to study i) inbreeding, ii) genetic correlates or causes of schizophrenia, and iii) population genetics.

Who, if anyone, was harmed by this? Let us take only the third objection as an example. The results of the study of population genetics suggested that the tribe had migrated across the Bering Sea, contrary to its own "origin story."

Was not the claim of harm by the plaintiffs in this respect grossly dishonest? The idea that Amerindians have an Asian origin is an old one by now, with much evidence in its favor. So if the tribe’s origin myth were susceptible to destruction by evidence and rational argument, it would have been so destroyed a long time ago. If, on the other hand, myth and science belong to two different realms of thought, then the myth could not have been affected by the study of population genetics, whatever its outcome. Palaeontology, archaeology, and anthropology can refute only the literalist interpretation of the story of the Fall.

As to whether people have the collective right to enjoy their myths uncontradicted, I leave it to the ayatollahs to decide. Likewise, I leave open the question of whether money can really compensate for the loss of illusion.

It seems to me, however, that in claiming $50 million and settling for $700,000, the Indians were tacitly admitting that they had been engaged upon what was morally, if not legally, an attempted shakedown of Arizona State University, a form of blackmail. I have little doubt that they were encouraged in this by lawyers; but while you can lead a man to an action, you can’t make him a plaintiff.

I know from experience that there is a general problem with Anglo-Saxon tort law as it now is. No one is able to conclude from the grossly exaggerated nature of a claim that the litigant is fundamentally dishonest and therefore, in essence, vexatious. Not only that, but litigants can sue without anything to fear for themselves except loss of time and equanimity. (Litigants can often think of nothing but their case, and become preoccupied with it to the point of obsession.)

This is against natural justice. If courts could and did draw proper inferences from exaggerated claims, such claims would not be made, or at any rate made less often. And no one should be able to sue without fear of personal loss. Such an ability is an open invitation to fraud, the very thing that the university stood accused of by the plaintiffs.

In this case, then, not only should the university have paid nothing, it should now be allowed to recover money from the Havasupai Indians.