Mayhew-Hite Report        From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law

Mary Csarny

In From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, authors Gail T. Kulick, Tadd M. Johnson, Rebecca St. George and Emily Segar-Johnson present a case study of a conflict between Minnesota state officialsand Native Americans in Minnesota.  The authors highlight the historical background of dispute resolution mechanisms that have lead to, or failed to lead to, Native American religious protections.  They point to the conflicts and dialogue in Minnesota as a demonstration of “the dire need for an ongoing, meaningful dialogue between State officials at all levels and Minnesota’s Native American citizens”[1] The authors illustrate how conflict between Native American traditions and state medical examiners gave rise to the  amendment of Minnesota’s autopsy statute.  The amendment expressly allows Minnesota residents to object to autopsies on religious ground and mandates communication between medical examiners and families of the deceased.

The authors examine the deaths of two Native Americans, Mushkooub Aubid and Autumn Martineau and illustrate how  sincerely held religious beliefs, while perhaps previously unknown to outsiders,  prompted “a change in law and policy.”[2]

Mushkooub Aubid was a “fervent believer in the Midewiwin spirituality, the ancient religion of the Anishinabe” who believed “that any cuts or lacerations into a body after death is a desecration that can impede the person’s journey into the spirit world.”[3]  Aubid died after likely experiencing a medical event while driving.  His family’s beliefs required them to remain close to the body, wash the decedent’s body in cedar water within 24 hours, feast and pray close to the decedent’s body every sunset until burial, and to keep a “spirit fire” burning near the body.  Although no autopsy was ordered by the state patrol, the medical examiner insisted upon an autopsy without attempting to speak to Aubid’s family.  His family was denied the opportunity to perform the ceremonial washing or to even speak with the medical examiner.  Just days later, the same medical examiner refused to speak with the family of Autumn Martineau, a member of the Fond du Lac Band of Lake Superior Chippewa, whose family also objected to an autopsy due to Midewiwin beliefs.

In both cases a court order was secured ordering the body be released to the respective families based on the Minnesota Constitution’s free exercise of religion statement.  In both cases the medical examiner initially refused to comply with the court order.  However, the respective bodies were eventually released to the families after mediation and dialogue between the medical examiners, the respective families, and county officials was the catalyst for resolving both cases.

The authors argue the Minnesota’s vague autopsy law was insufficient to address these disputes.   In order to avoid the “ethnocentric monoculturalism”[4] that occurs when individuals assert their own standards to determine whether a family’s religious belief is sincere, the tribal leaders from the Mille Lacs Band of Ojibwe and the Fond du Lac Band of Chippewa called for a legislative change in the autopsy law.  They spoke through an editorial published in Minnesota’s most widely read newspaper seeking a law that would permit “families to object to state-mandated autopsies on the basis of religious freedom beliefs.”[5]

The authors place this dispute in its historical context, describing the historic suppression of Native American Religions and their need to “take their traditional beliefs underground as a matter of survival.”[6]  The secrecy of some Native American religious practices was sparked by U.S. Government suppression, and this secrecy led individuals, such as the medical examiner in the cases described, to question the sincerity of the religious belief.  The authors note that the development of federal laws to protect American Indians has often resulted in toothless legislation, and litigation has paved little progress.

During the legislative process, the authors identify additional moments of communication and collaboration, such as when medical examiners met with tribal representatives to consciously and methodically discuss the circumstances that the medical examiners considered “compelling” enough to mandate an exception to a sincerely-held religious objection.[7]  With support from both the Joint Religious Legislative Coalition and the Catholic Church, the bill was able to continue through negotiations and was signed into law.

The authors emphasize the individual stories of American Indian families to bring light to the importance of legislative reform as a type of dispute resolution.  They remind readers of the gravity and humanity behind each religious dispute.  Minnesota’s legislative response mandating communication between medical examiners and families is a simple measure that the authors call a “simple act of kindness, courtesy, common sense, and ‘Minnesota niceness’”[8] that will provide a venue for communication and resolution in future disputes.  This is an engaging read, particularly for those interested in the intersection of dispute resolution and American Indian groups.

[1]  Gail T. Kulick et al., From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, 42 Mitchell Hamline L. Rev. 1699, 1700 (2016).
[2] Id. at 1701.
[3] Id. at 1703.
[4] Id. at 1708.
[5] Id. at 1713.
[6] Id. at 1710.
[7] Id. at 1718.
[8]Id. at 1721.