In recent autopsy dispute, Minnesota tribes may not have the law on their side

February 24, 2015

Twice in less than a week, Carlton County Medical Examiner Thomas Uncini found himself at odds with Minnesota’s Ojibwe tribes. On February 6, Mushkoob Aubid, a 65-year-old elder with the Mille Lacs Band, died in the hospital after a single-car accident.


Four days later, 24-year-old Autumn Martineau of the Fond du Lac Band, died in a two-vehicle collision.


Both cases were referred to Uncini, who determined that autopsies were necessary due to the circumstances.


Minnesota Statute 390.11 Sub. 1 states, “All sudden or unexpected deaths and all deaths that may be due entirely or in part to any factor other than natural disease processes must be promptly reported to the coroner or medical examiner for evaluation.”


The medical examiner determines both the cause of death (e.g., drowning) and the manner of death (e.g., accident or murder). This includes deaths that occur at home, in the emergency room, within 24 hours of hospital admission, or during motor vehicle accidents.


When someone is killed in a car accident or dies within four hours of such an accident, the state requires the medical examiner to file a detailed report.


The law does not dictate when an autopsy is or isn’t necessary. It is a judgment call on the part of the medical examiner. But when an autopsy is deemed necessary, state law requires it be done “without unnecessary delay.”


The Aubid and Martineau families protested that an autopsy would violate their Midewiwin religious beliefs, which require a body to remain intact for funeral rites.


Uncini declined comment, directing inquiries to Carlton County Attorney Thom Pertler, who did not return multiple calls for comment.


In Minnesota, families do not have the ability to block an autopsy—not even on religious grounds—but medical examiners try to be sensitive to grieving families, according to Kolleen Kennedy, supervising investigator in the St. Louis County Medical Examiner’s Office. “We have to follow Minnesota statutes, but we try to accommodate different customs and religious beliefs while still doing our job, which is to find out cause and manner of death.”


Emily Johnson, a spokesperson for the Mille Lacs Band, is unhappy with how the families were treated. “I don’t feel our religious beliefs and rituals were respected. There was no need for an autopsy.”


Mille Lacs and Fond du Lac sought an injunction from Sixth District Judge Robert Macaulay, ordering Uncini to release the bodies without an autopsy on the basis of tribal sovereignty, First Amendment rights, and the American Indian Religious Freedom Act.


But the law is against the tribes in this situation, according to Richard Collins, a tribal and constitutional law expert at the University of Colorado Law School.


“Tribal sovereignty overrides state law only on tribal lands. These deaths did not occur on tribal lands, so the applicable law is state law, not tribal law.


“The American Indian Religious Freedom Act regulates federal executive action and cannot be the basis of a court order. That is the prevailing ruling.


“The First Amendment rule applies to the state, the coroner and other officials, but the governing rule is that the plaintiffs have to prove that the law was cast for the deliberate purpose of discriminating against their religion. On the merits of the case, [the Bands] are likely to be ruled against. I cannot see much chance to succeed.”


Collins questions whether the injunctions were legally binding. Uncini would only have been bound by the orders if he were properly served—meaning that a lawsuit had been filed, the judge issuing the order had jurisdiction, and the order was physically presented to Uncini.


Attorney Tadd Johnson, head of the American Indian Studies Department at the University of Minnesota Duluth, says that no lawsuit was filed. “We were in a hurry, with no time for a full-blown hearing...The judge did sign an ex parte order to release the body.”


When time is limited, a hearing can be held immediately after the order. Because there was no hearing, Uncini never had a chance to explain to the judge why he felt an autopsy was necessary.


But the Carlton County Attorney negotiated an agreement between Uncini and the Bands to release the bodies without autopsy—an action that would not have occurred in the face of a legally enforceable order punishable by contempt of court.


“It’s possible they found a judge who expressed sympathy with their position,” says Collins. “But if there was no lawsuit filed, there is no legally binding order.”


Collins notes that religious objections are raised all the time, and the tribes are not alone in their objection to autopsies. “I’m sympathetic to them, but in this donnybrook they will lose.”

A member of Investigative Reporters and Editors, Shelly Mategko is an award-winning journalist.

 

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