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F I S C A L I M P A C T R E P O R T

SPONSOR HJC

DATE TYPED 3-9-05

HB 987/HJCS

SHORT TITLE Deceased Native American Remains Disposition

SB

ANALYST Collard

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

Minimal Recurring General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Department of Indian Affairs (DIA)

Commission on Higher Education – University of New Mexico’s Health Sciences Center - Of-

fice of the Medical Investigator (OMI)

SUMMARY

Synopsis of Bill

The House Judiciary Committee substitute for House Bill 987 amends Section 24-11-6.1 NMSA

1978 to include several provisions:

.

Requiring the state medical investigator to exercise due diligence to avoid performing an au-

topsy of a deceased person determined to be a member of a federally recognized Indian na-

tion, tribe or pueblo unless legally required due to possible criminal acts or omissions, an ob-

scure cause of death, or other reasons, or pursuant to consent given according to the provi-

sions of 24-12-4 NMSA 1978;

.

In the event an autopsy must be conducted, requiring the medical investigator to use the least

invasive procedure possible to satisfy the investigator’s legal duties;

.

Requiring the medical investigator to attempt to provide advance notice of an autopsy to the

surviving spouse or next of kin, or if none can be found, to the Indian nation, tribe or pueblo

before an autopsy is conducted and provide documentation on the autopsy to the contacted

person or entity;

.

Allowing, upon the request of the surviving spouse or next of kin, or if none can be found,

the deceased person’s nation, tribe, or pueblo, a law enforcement representative to be present

House Bill 987/HJCS -- Page 2

during an autopsy, as long as the law enforcement officer does not interfere with the autopsy

procedure and follows the health regulations governing autopsy procedures;

.

Requiring the medical examiner to consult with the surviving spouse or next of kin regarding

the disposition of all of the deceased remains;

.

Requiring the state medical examiner replace all body parts and provide written certification

to the surviving spouse or next of kin of the deceased that the investigator has replaced all

parts; and

.

Requesting each Indian nation, tribe, and pueblo in New Mexico designate an official repre-

sentative that the medical investigator will contact when it is necessary to contact a tribal rep-

resentative.

Significant Issues

DIA indicates the bill, as substituted, relates to the following case: the OMI autopsy of Alicia

Waseta, a deaf 21 year old member of the Pueblo of Laguna, who was struck and killed while

crossing a street near the New Mexico School for the Deaf. Her body was returned to the Wa-

seta family for burial. However the OMI did not inform the Waseta family her heart had been

removed. Two month’s after, Alicia Waseta was laid to rest, OMI called the Waseta family re-

questing to keep Alicia Waseta’s heart for medical research. The Waseta family sued OMI. The

status of the lawsuit is not known at this time.

Besides avoiding, unless legally required, or performing the least invasive autopsy, the bill

would require the state medical investigator to notify surviving spouse or next of kin, or if none

is identified, the Indian Nation, Tribe or Pueblo in advance of an autopsy. The bill will also al-

low a law enforcement officer to be present during an autopsy, and require the state medical in-

vestigator to consult with surviving spouse of the deceased regarding the disposition of all of the

deceased’s remains.

DIA notes, for many Native Americans these requirements are critical as there may be religious

or cultural considerations that prohibit the autopsy, or return of all remains to the deceased’s

body. Additionally, consultation with the family or the tribe or pueblo of the deceased is critical

in conducting religious or cultural activities in the burial of the deceased.

Additionally, due to tribal religious and cultural beliefs, the deceased’s spouse or next of kin, In-

dian Nation, Tribe or Pueblo may not wish to be informed of the details of the autopsy, have a

representative present at the autopsy, or otherwise be associated with the medical procedures in-

volved in the performance of an autopsy.

OMI indicates it is already complying with most of the requirements of the bill. Paragraph E of

the bill was introduced during bill substitution discussions and is advocated by OMI. OMI indi-

cates it would take this action even if passage of the bill did not ultimately take place.

PERFORMANCE IMPLICATIONS

DIA indicates the substituted bill requires the state medical investigator to make reasonable ef-

forts to determine if a deceased person is a member of a federally recognized tribe. As well, the

state medical investigator is to notify, provide documentation, or consult with a surviving spouse

or next of kin, or the Indian nation, tribe or pueblo of the deceased. The substituted bill does not

establish policies on how to carry out these duties.

House Bill 987/HJCS -- Page 3

FISCAL IMPLICATIONS

There is no appropriation for this bill and OMI indicates there is no significant fiscal impact on

OMI as a result of this bill.

DIA indicates there may be additional costs associated with locating, providing documentation,

and consulting with surviving spouse, next of kin, Indian nation, tribe or pueblo where such ac-

tivities may not have been undertaken before.

ADMINISTRATIVE IMPLICATIONS

DIA notes determining the identity and tribal ethnicity of an unidentified Native American de-

ceased may prove challenging for the medical investigator to adhere to the bill’s requirements.

TECHNICAL ISSUES

DIA notes the substituted bill requires the state medical investigator to request and keep current a

list of tribal representatives from each New Mexico Indian tribe that the state medical investiga-

tor must contact regarding an autopsy or the disposition of the remains of a deceased member of

the Indian Nation, Tribe or Pueblo. Because some tribes change their leadership on a yearly ba-

sis the state medical investigator should update the list of designated tribal representatives at a

minimum, every year.

DIA also mentions tribal intermarriages and adoptions of non-tribal member Native Americans

frequently occur within Indian Nation, Tribe or Pueblo. In cases of intermarriage or adoption of

a non-tribal member Native American, should the law enforcement officer of the deceased non-

tribal member Native American’s Indian Nation, Tribe or Pueblo be present. Or, should the law

enforcement officer of the deceased’s spouse or next of kin’s Indian Nation, Tribe or Pueblo be

present. As written, DIA indicates this issue is not clarified. For example, should the Jicarilla

Apache Nation’s law enforcement officer be present at the autopsy of a deceased tribal member

who was married to a tribal member of the Pueblo of San Juan. Or should the law enforcement

officer of the Pueblo of San Juan be present at the autopsy of the deceased member of the Ji-

carilla Apache Nation. The same questions would apply to individuals adopted and would

probably become more complex, especially if they are descendants from out-of-state tribes. Fur-

thermore, the language as stated does not clarify the interstate jurisdictional issues.

DIA also indicates requiring tribal law enforcement officers at autopsies limits the law enforce-

ment capabilities of tribal nations that are already experiencing limited law enforcement re-

sources.

OTHER SUBSTANTIVE ISSUES

DIA notes the bill recognizes the need to inform and consult with the Native American spouse or

next of kin, Indian nation, tribe or pueblo on matters of great importance such as the performance

of an autopsy on a deceased Native American. The medical performance of an autopsy, while

important for determining the cause of death in western culture, is not considered religiously or

culturally appropriate in Native American cultures.

House Bill 987/HJCS -- Page 4

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

DIA states the bill establishes procedures for medical investigators that ensure the body of a de-

ceased Native American is treated according to the spouse or next of kin, Indian nation, tribe or

pueblo’s religious or cultural beliefs. Additionally, the bill’s procedures ensure that OMI takes

the required measures to: 1) respect the religious and cultural beliefs of Native Americans, In-

dian nations, tribes or pueblos; and 2) avoid costly lawsuits associated with conduct not meeting

legal or medical- professional standards.

Under current New Mexico law, the state medical investigator is under no obligation to contact

the Native American deceased’s spouse or next of kin, Indian nation, tribe or pueblo prior to an

autopsy being conduced on the Native American deceased. Only after the autopsy has been con-

ducted is the medical investigator charged with exercising due diligence to consult with the next

of kin. Additionally, under current New Mexico law, the Native American deceased’s Indian

nation, tribe or pueblo is not contacted. Therefore, if not enacted, OMI may in all probability

offend the religious and cultural beliefs of Native Americans, Indian nations, tribes or pueblos.

Furthermore, without the required notification and consultation procedures embodied within this

bill, OMI may further be exposed to time consuming and costly litigation, as is the case in the

Waseta family lawsuit against OMI.

AMENDMENTS

DIA suggests:

.

Add a “Definitions” section to include a definition for “law enforcement officer,” and “rea-

sonable efforts” OR

.

On page 2, Line 25, strike “of the” and replace with “within the” on page 3, Line 1, insert

“jurisdiction of the” before “Indian”.

DIA notes as written, the substitute does not clarify who is considered a tribal law enforcement

officer. For example, some tribal nations are either policed by tribal law enforcement officers or

Bureau of Indian Affairs (BIA) law enforcement officers or a combination of both. This does not

include the role of FBI law enforcement officers, or state law enforcement officers where tribal-

state agreements permit state police officers on Indian reservations.

KBC/njw