What would it mean to forensically investigate the unmarked graves at residential schools?

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Michael Arntfield is a professor and criminologist at Western University, where he heads the Cold Case Society unsolved crimes think tank. He is also a former police officer in Ontario, a director with the Murder Accountability Project in Washington, co-host of the Suspect Zero podcast and the author of the new book How to Solve a Cold Case: And Everything Else You Wanted to Know About Catching Killers.

When the final report from the Missing and Murdered Indigenous Women and Girls inquiry was finally completed nearly three years ago, and the 231 Calls for Justice were compiled, it was both a shock and hardly a surprise. The MMIWG findings reflect a grim reality that is already well-known among the people in Canada who are forced to face this risk every day, and the scholars who study it – a reality that is, despite the staggering numbers, seemingly ignored by everyone else.

Indigenous women and girls are more than three times as likely to be subjected to incidents of criminal violence compared to non-Indigenous women; in some years, they’re up to seven times more likely to be the victims of homicide. This is particularly galling when put in comparison to other ethnic groups, as Indigenous people represent only about 5 per cent of the general Canadian population.

There are, of course, a number of systemic reasons that explain why these tragic patterns persist. But trends we can take away from U.S. data, as well as recent reports of unmarked graves at the sites of former residential schools across Canada, suggest there is reason to believe that these already troubling figures only scratch the surface, particularly when it comes to justice for Indigenous victims, with perpetrators put to the law. They also highlight the stakes around what might happen next, now that those graves have been found: Justice cannot be achieved if an investigation doesn’t happen, and an investigation cannot take root if we don’t know who has died.

Empirical research conducted at the Murder Accountability Project in the United States found that, on average, one in two murders of Indigenous people in the country are generally misclassified and never properly investigated; these cases are erroneously coded by various law-enforcement entities as accidents, suicides or the dreaded “undetermined” label. This is the proverbial purgatory of death investigations: cases that may have been murders but, because they’re too difficult to make a definitive call on, wind up disappearing into the void.

What this all means is that, whether through bad calls or slipshod record-keeping, only half of the murders of Indigenous people in the U.S. – disproportionately women and girls – are ever properly classified and investigated as murders. And only half of that half get solved.

Every death in the U.S. is recorded by the Centers for Disease Control (CDC), which relies on records supplied by medical professionals (often medical examiners or pathologists) and institutions around the country to provide annual public reports on mortality. In each certificate filed with the CDC, a cause of death is listed, along with other key facts, including the individual’s ethnicity.

There is also a second silo of death-related record-keeping, separate from the CDC data. Police departments send reports of criminal homicides in their jurisdiction to the Federal Bureau of Investigation (FBI), which serves as the national documentarian of murder (though it should be said that reports are not always made). These are cases determined by investigators and coroners attending crime scenes to be obvious cases of foul play.

But what if, for instance, someone is found at the bottom of a swimming pool and the death is determined at the time by law enforcement to be an accident (and thus not reported to the FBI), only to later be discovered by a pathologist to have indicators of a homicide and then reported to the CDC as such? Unfortunately, a corresponding record is effectively never filed with the FBI. That murder, which is not reconciled with the CDC report, then goes “missing” and is never investigated.

It is only by comparing CDC annual-report data covering an 18-year period to the number of murders recorded by police and then reported to the FBI as homicides during that same period that we find that consistent shortfall of half of Indigenous homicides being overlooked right out of the gate by law enforcement.

Such failures can have real-world effects. In 2010, 63-year-old Bridget Harrison was found dead in the same Mississauga home where her 64-year-old husband, Bill, had passed away about a year before; errors by police, coroners and pathologists in Ontario led their deaths to be classified as not suspicious, and thus not criminally investigated. Three years after Ms. Harrison died, the person eventually convicted of killing her re-entered that house and murdered the couple’s son, Caleb.

Incredibly, contradictory records regarding the same death event are seldom re-examined, cross-referenced or reconciled. They in turn become what are known as “concealed” or, more commonly, “missing” homicides – murders invisible to statisticians, and by extension the general public.

In fairness, deaths coded by medical professionals as homicides – that is, deaths that one or more people caused – are not necessarily classified as criminal homicides, or acts of murder or manslaughter. But ask yourself what’s worse: half of all Indigenous homicides being lost in the bureaucratic shuffle, or half of all Indigenous homicides being deemed by police at the scene as either accidental or legally justified?

Is this issue prevalent in Canada, by comparison? The truth is that no one knows. Unlike the CDC and FBI, the government agencies zealously guarding this data in Canada refuse to provide them. Why? Because, we’re told, if they were to ever end up as part of some published study – which, by the way, is precisely the point of all this – simply providing the basic anonymous details (ethnicity, year of death, cause of death) might lead some enterprising person to go foraging for further identifying details through public obituaries or news reports. This hypothetical scenario would apparently make the government complicit in violating the “privacy” of the deceased parties – even if they had been dead for decades.

So, we at the Cold Case Society think tank tried a workaround that is usually done in the U.S. when police departments fail to report murders in their jurisdiction to the FBI: painstakingly going from agency to agency and filing freedom of information requests for local data, to cobble together a national picture in piecemeal fashion. To date, however, only one municipal police service in Ontario has co-operated with this law, so the Canadian iteration of this study is now on pause.

The problem with this lack of transparency has been further exposed by the reported discoveries of unmarked graves at the sites of former residential schools across Canada. The largest of these, with 215 unmarked graves (or “clandestine burials,” as they’re known in forensic contexts), was found by the Tk’emlúps te Secwépemc First Nation in May, 2021, near Kamloops – a horrifying discovery that sparked the “Every Child Matters” nationwide campaign.

But quite apart from the necessary conversations about the scandalous legacy of residential schools, as well as the long-overdue interrogations of Canada’s colonial past, are more fundamental and workaday questions about procedure around what comes next. If these are potential crimes, whose jurisdiction would they fall under? Whose job is it to identify and investigate them? Will there be an omnibus criminal investigation into all the reported discoveries across the country?

At the time of this writing, criminal investigations into specific residential-school allegations are under way in several provinces and territories, but the Kamloops site presents particular challenges. Unsurprisingly, when the RCMP attempted to take control of the Kamloops site as a crime scene, it was met with pushback by the Tk’emlúps te Secwépemc and others who have treated the location as a solemn heritage site not to be potentially trampled by cops.

And so, once again, we look south to the U.S. for guidance, as it has more experience with these types of clandestine graves.

In February, 2018, the remains of 95 former African-American slaves were unearthed from an unmarked makeshift cemetery by a construction crew in Sugar Land, Tex. Today, those bodies are known only as the Sugar Land 95. The bodies have never been identified, but were believed to be part of a dubious program that allowed Black prison inmates to be leased out to farm owners and forced into indentured agrarian labour even after the official end of slavery, a practice carried out until at least 1910.

As with the Kamloops site, there were a host of potentially criminal dimensions to the mass grave immediately identified; some of the Texas skeletons exhibited evidence of bullet wounds, for instance. However, with some of the remains possibly dating as far back as 1867, the police ceded control of the scene to archeologists to focus on recovery, identification and dignified re-burial without the expectation that standard crime-scene protocols were necessarily required – or that a criminal investigation would really lead anywhere.

This is an increasingly standard practice, which was codified into law in Florida starting in 1988 through a series of statutes designed to preserve the recovery of historical unmarked graves. The statutes also recognized the discovery of such remains on First Nations territories as being unique, and how the local “tribe” (per the wording by the Florida government) should maintain jurisdiction over all “human remains, funerary objects” and anything else discovered in or near such graves. Unmarked clandestine graves presumed to be over 75 years old are also presumptively deemed to be historically significant and must also be reported to the state archeologist, but not the police, regardless of the apparent circumstances of death.

A federal law, the Native American Graves Protection and Repatriation Act, was later enacted in 1990 and essentially reiterated this procedure for unmarked graves found on any Indigenous territory in the United States.

While no such formal statutes or official protections exist in Canada, there does exist something of a good-faith agreement that is varyingly respected by different government and police jurisdictions. This explains why the Tk’emlúps te Secwépemc maintain jurisdiction and why what we are seeing (or not seeing) in B.C. is not without precedent. The RCMP is reportedly providing investigative support and resources, and rightly so; the service already administers the National Centre for Missing Persons and Unidentified Remains.

But if and when a fuller criminal investigation into the graves is undertaken, the depth and nature of that investigation will ultimately be dictated as it is in the U.S.: by the group with sovereign nation status at the site. Conversely, in Ontario, an investigation into possible deaths at the Mohawk Institute residential school in Brantford, Ont. – where no remains have been recovered – is being led by a multiagency task force, because the school was largely located in the city and not on Six Nations land.

The launch of a full-fledged criminal investigation in the B.C. case, however, hinges largely on the ability to identify the remains. A criminal investigation into even comparatively new unidentified human remains is typically met with major obstacles. And arrests and successful prosecutions in cases involving unidentified Jane Doe (female) and John Doe (male) victims are exceedingly rare, and typically only occur in cases involving serial killers such as John Wayne Gacy, Robert Pickton and Henry Lee Lucas, who are either discovered or who confess to killing unidentified victims while already in custody for other murders. Indeed, one of Mr. Lucas’s victims was known only as “Orange Socks” until genetic testing identified her as Debra Jackson, nearly four decades after he confessed to her murder. (Mr. Lucas later recanted many of his confessions, but his convictions were never overturned.)

It is critical that any remains found in Kamloops are identified in a timely way for historical, genealogical, forensic and reconciliatory purposes. Yet the Catholic Church, which administered the Kamloops school and many others, continues to resist releasing even heavily redacted records on residential schools and their attendees. But this is also why the timing of the discovery is key, and why, like all cold cases and cases of unidentified remains, the Kamloops graves can likely benefit from the power of forensic genealogy, sometimes referred to as familial forensics or, more officially, genomics.

Genomics represent a new technology that is essentially evolving by the day. They have already grown beyond the methods used in 2018 to finally identify that the infamous serial killer and rapist known as the Golden State Killer was Joseph James DeAngelo. Today, the methodology increasingly uses familial DNA to link sometimes decades-old unidentified remains to specific bloodlines and, ideally, specific individuals.

One Texas-based genomics lab, Othram Inc., was used by the Toronto Police Service in 2020 to accuse Calvin Hoover in the 1984 murder of nine-year-old Christine Jessop in what was arguably Canada’s best-known cold case. As recently as last month, Othram used such familial DNA technology to identify three Jane and John Doe remains in a single week. One victim, known simply as “Little Miss Nobody” for more than 60 years after her decomposed remains were discovered in the Arizona desert, was finally identified as a four-year-old girl abducted from her home in New Mexico in the summer of 1960.

But these tools are being used very sparingly by police in Canada to identify offenders in cold cases where conventional or “legacy” DNA technologies have failed. Cases such as the graves in Kamloops may still be well-studied using a mortuary-archeology approach, but they may also be ideally suited for a breakthrough genetic technology that, had the graves been discovered just five years earlier, would have seemed like a moonshot.

If that happens, a technique initially conceived of by a genealogist for use in catching killers who spent decades eluding detection could find its Canadian calling – and launch what would likely be the largest forensic undertaking in the country’s history.

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