Elder's Passing Results in Controversy Over Autopsy


By Toya Stewart Downey, March 2, 2015

Though progress has been made across the state of Minnesota for Native Americans in the past two decades, a recent tragic accident and brush with ignorance — and the abuse of systemic power and privilege — were strangely similar to what happened about 25 years ago. And it involved the same Mille Lacs Band family.

Last month, on Saturday, February 7, Rice Lake Band Elder and Drumkeeper Mushkooub Aubid passed away after being involved in a single-car accident just outside of Cromwell on Highway 210.

Because no other vehicles were involved, state troopers determined an autopsy wasn’t necessary. When the family arrived at Cloquet Memorial Hospital to bring Mushkooub home, his body should have been released to them so they could take him home and prepare him for his journey into the spirit world in accordance with Midewiwin spiritual traditions.

Instead, a battle ensued.

Without talking to the family or examining Mushkooub’s body, the Carlton County medical examiner decided to conduct an autopsy and called police to the hospital to assist with taking custody of Mushkooub’s body. This was done even though the family told hospital staff that an autopsy would violate the spiritual beliefs of Mushkooub and the family.

An autopsy also would have violated the American Indian Religious Freedom Act, which guarantees Native people the rights to practice their cultural traditions without interference.

With the family following close behind, the medical examiner drove Mushkooub’s body to the morgue at the School of Medicine on the UMD Campus. The family arrived to find several police cars waiting for them, and they were threatened with arrest if they tried to enter the building as Mushkooub’s body was being transferred inside. To add insult to injury, throughout the next 24 hours, the family asked the medical examiner several times to allow them to conduct a ceremonial washing of Mushkooub’s body, and each time the medical examiner refused, in clear violation of Minnesota law.

Minnesota Statutes 149(A)01, Subd.3(5)(b), which governs the medical examiner’s handling of human remains, states: “This chapter does not apply to or interfere with the recognized customs or rites of any culture or recognized religion in the ceremonial washing, dressing, casketing, and public transportation of their dead, to the extent that all other provisions of this chapter are complied with.”

Carlton County and St. Louis County both contract medical examiner services to a private company called Lakeland Pathology, based in Hibbing, Minn, which leases space to perform autopsies at the medical school on the Duluth campus.

Because the medical examiner scheduled the autopsy for 3 p.m. Sunday afternoon, the family had no choice but to try to obtain a court order to get the autopsy stopped. While attorneys worked on the court order and because time was running out, the family made the difficult decision, with advice from Band staff, to go public with their ordeal. They granted the Band permission to contact local media on their behalf. The hope was that sharing their story and shining a bright light on the injustice they were dealing with would put public pressure on the medical examiner to respect their religious rights and release Mushkooub’s body. Around 2 p.m. the medical examiner agreed to delay the autopsy, but he still refused to release Mushkooub’s body or allow the family to be with their loved one. Over the following hours the family remained gathered outside the School of Medicine. A spirit fire was lit and food was brought in for the evening feast. In the meantime, Band advisor Tadd Johnson was trying to find a judge to sign a court order that would call for immediate release of Mushkooub’s body to his family.

Hours later, around 11:30 p.m, Tadd and Rick Smith drove to the Cloquet home of Judge Robert MacCauley, who signed the court order. When they returned to UMD with the court order, the family had hopes they would soon be taking Mushkooub home.

Instead, hopes were crushed with the devastating and confusing news that the medical examiner was refusing to abide by the court order and refusing to release Mushkooub’s body. An meeting was scheduled for 7:30 a.m. Monday with the St. Louis and Carlton County attorneys and Band staff, forcing the family to wait outside all night in 17-degree weather. Grand Casino sent a shuttle bus to Duluth so family members could occasionally warm themselves inside together.

After the meeting with the county attorneys Monday morning, the medical examiner relented and agreed to release Mushkooub’s body to his family without an autopsy. Finally, around 9 a.m., the family was able to take him home.

This tragic incident was eerily similar to circumstances about 25 years ago when Mushkooub’s father, George Aubid, passed away in Aitkin County. Mushkooub took his father’s body away from the Aitkin County Hospital, where an autopsy was pending, to bring him home. A police chase involving county and state troopers ensued, as Mushkooub raced down the roadway with his father’s body, at one point even switching cars and using backroads. When asked about why he wanted to press charges against Mushkooub, Aitkin County Deputy Coroner Chuck Brenny said, “They just can’t go to a hospital and take a body from the ER and put it back into the station wagon and drive away…Pretty soon, everybody will be doing it.” This incident became a national news story and an embarrassment to Aitkin County.

“You would think they might have learned something in 25 years,” Tadd said.

Many questions remain to be answered, including why a medical examiner was able to violate a state court order for nine hours.

A mere 24 hours after the incident with Mushkooub and his family, the same medical examiner refused for 15 hours to abide by a second court order for release of Mushkooub’s body of a Fond du Lac woman whose family was opposed to autopsy.

Band officials are working with both counties to address flaws in the contract with the medical examiner’s company, which they say incentivizes the medical examiner to perform autopsies as often as possible regardless of what families want. The contract pays the medical examiner a set fee for each autopsy he conducts.

When the Band learned that the medical examiner’s contract with St. Louis County is due to be renewed for another two years in upcoming weeks, Chief Executive Melanie Benjamin wrote to St. Louis County insisting it terminate its relationship with this medical examiner.

In the February 13th letter she cited a violation of state statutes, “despicable behavior” and “an egregious act of discrimination against the religious rights of a Member of the Mille Lacs Band of Ojibwe Indians and his family.”

Along with Fond du Lac and the Minnesota Chippewa Tribe, the Band is working with both Carlton and St. Louis Counties to ensure that an incident like this is never repeated.

In the long term, Tadd said changes in the state law that allows families to reject autopsies are absolutely critical. Several states already have such language in place, including New York, New Jersey, Rhode Island and California.

Tadd added that both state and county employees must prioritize educating their employees about cultural sensitivity to Native Americans, their culture and beliefs.

Though the story of Mushkooub’s death became public in local media, representatives from the Band said it’s likely that autopsies have been performed on other Band members, in many cases against the wishes of their family members.

Band Elder and Spiritual Advisor Lee “Obizaan” Staples, told representatives of the media that more people need to learn about the Anishinaabe culture, teaching and traditions. He added that he hoped the case would raise awareness of people who hold deep cultural beliefs.

Photo courtesy of Ivy Vainio.