Investigation or desecration? Tribes press for power to stop autopsies

Mushkoob Aubid's family only wanted to take him home.

The 65-year-old spiritual leader died Feb. 7, a day after his car veered off a northern Minnesota highway and struck a utility pole. The family planned a four-day ritual based on the traditional Ojibwe religion known as Midewiwin that included ceremonial washing and dressing of the body.

But the Carlton County medical examiner had already scheduled an autopsy. State law gives examiners sole power to decide whether to conduct the procedure when a death is not naturally caused.

The family scrambled to get an emergency order from a county judge to have Aubid's body returned without an autopsy.

Now his case and another involving a member of the Fond du Lac Band of Lake Superior Chippewa are prompting tribal leaders to push for change at the Legislature. They want state law to give families a legal process to object to an autopsy.

"We're hoping that if the law is changed (families) would be provided with the opportunity to lodge a formal objection, and possibly get a hearing before a judge in a brief period of time on that matter," said Tadd Johnson, a University of Minnesota Duluth professor and attorney for the Mille Lacs Band.

While it may sound reasonable, skeptics warn that giving families the power to stop an autopsy creates a nest of problems.

"There's a public interest to determine the cause and the manner of death," said St. Louis County Attorney Mark Rubin. "I've tried many homicide cases, and that's what you have to prove to a jury. What was the cause of death, what was the manner of death — if you don't have a forensic pathologist to do that for you, to explain that, you can't prove the case."

For Aubid's family, however, an autopsy would have been desecration. In the Midewiwin ceremony, the four days before burial are crucially important, said Mille Lacs Band Chief Executive Melanie Benjamin.

"During this time, the person's spirit is believed to be visiting every place he went when he was alive," according to the judge's emergency order. "Family members remain with the body during this entire period, during which time they also keep a 'spirit fire' continuously lit."

The family was fortunate, Johnson said. "We had a judge that lived near an Indian reservation and understood these beliefs."

Six other states currently allow for religious objections to autopsies, including New York and California. The band says its proposal will not interfere with necessary autopsies, such as the death of a child, or someone killed by a contagious disease.

What the band sees as common sense, however, strikes others as problematic.

"If we were to say, look, you can't autopsy an individual with a particular religious belief, we are setting ourselves up on a very, very slippery slope," said Michael Sharkey, a Minneapolis attorney who specializes in mortuary law.

Other religious traditions, including Judaism and Islam, have also historically objected to autopsies but have largely come to accept a larger public benefit to conducting them, said Sharkey, who's also a licensed funeral director.

"Nobody wants to have their loved one autopsied, but we accept as a society that this is kind of a necessary evil," he added. "There's going to be a cutting on the deceased, but that cutting is excusable because we can learn something from it, or we can possibly address a potential crime."

Autopsies can also be important in civil lawsuits. And there are public health benefits to conducting them — for example, tracking contagious diseases. And they contribute to mortality statistics used in medical research.

But Aubid's family argues there was no public interest in doing an autopsy. It was a single car accident. And he had a history of heart disease.

Carlton County Medical Examiner Dr. Thomas Uncini contracts with several counties in northeast Minnesota to investigate deaths and perform autopsies. He declined an interview request.

Tribal leaders, county attorneys and others involved in the dispute over Aubid's body all agree that better communication and more compassion were needed.

Family members say the medical examiner's office questioned whether their religious beliefs were "real." Benjamin and other Mille Lacs officials say they haven't encountered similar problems with other medical examiner offices.

"To say that you people are making up this religion, that we don't believe one actually exists because we haven't heard of it, to me, was just very horrible," Benjamin said. "That hit right to the core for me."

"The whole case up there could have been solved with a little bit of communication," said Mille Lacs Band Police Chief Jared Rosati, "and a lot more compassion towards the family."