John Thorpe v. Borough of Jim Thorpe, et al.

Jim Thorpe, multi-sport Olympic gold medalist

("Thorpe”), died in California in 1953 without a will.1 His

estate was assigned to his third wife, Patricia ("Patsy”),2 who

eventually buried him in what is now Jim Thorpe,

Pennsylvania ("the Borough”). Jim Thorpe, Pennsylvania

was a newly-formed borough that had been created from the

merger of the boroughs of Mauch Chunk and East Mauch

Chunk. Thorpe was buried in this new borough over the

objections of several children from his previous marriages.

Thorpe was a Native American of Sauk heritage and a

member of the Sac and Fox Nation of Oklahoma. Over the

years, some of Thorpe's eight children have spoken out in

protest of their father's burial, advocating that he be reburied

on Sac and Fox tribal land in Oklahoma.

In 1990, years after Thorpe's death and burial,

Congress enacted the Native American Graves Protection and

Repatriation Act ("NAGPRA”). NAGPRA was intended to

ameliorate and correct past abuses inflicted upon Native

Americans and their culture and to protect Native American

human remains and cultural artifacts. NAGPRA requires

museums and Federal agencies possessing or controlling

holdings or collections of Native American human remains to

inventory those remains, notify the affected tribe, and, upon

the request of a known lineal descendent of the deceased

Native American or of the tribe, return such remains. 25

U.S.C. §§ 3003, 3005.

In 2010, John Thorpe, the son of Thorpe and his

second wife Freeda, sued the Borough for failing to comply

with NAGPRA.3 The District Court concluded that the

Borough was a "museum” within the meaning of NAGPRA

and provisions of that law required the Borough to disinter

Thorpe's remains and turn them over to the Sac and Fox tribe

as requested by John Thorpe. This appeal followed.

olympic-athlete-jim-thorpe-not-usainbolt/

2012/08/10/f9114872-e33c-11e1-ae7fd2a13e249eb2_

story.html.

2 Patsy Thorpe is deceased. She and Jim Thorpe did not have

children together.

3 John Thorpe was often called Jack Thorpe, both in his life

and in this litigation. For clarity, we will refer to him only as

John Thorpe.

5

We conclude that Congress could not have intended

the kind of patently absurd result that would follow from a

court resolving a family dispute by applying NAGPRA to

Thorpe's burial in the Borough under the circumstances here.

We therefore hold that the District Court erred in overturning

the clearly expressed wishes of Thorpe's wife by ordering his

body to be exhumed and his remains delivered to John

Thorpe.4

II. FACTS AND PROCEDURAL HISTORY

Thorpe died in California in 1953. Thereafter, Patsy,

in cooperation with the Oklahoma legislature, made initial

plans for him to be buried in Oklahoma.5 According to

Plaintiffs, Thorpe had told family members that he wanted to

be buried in Oklahoma. However, the parties agree that Patsy

Thorpe had legal authority over the disposition of Thorpe's

body and his estate. In any event, at some point following

Thorpe's death, a bill was drafted by the Oklahoma

legislature that would have provided funding for a permanent

memorial near the contemplated site for Thorpe's grave.

However, in what was a harbinger of difficulties to come, the

bill was vetoed by the Governor of Oklahoma. This sad and

regrettable posthumous saga took an even more ominous turn

when Patsy, assisted by state law enforcement officers,

intervened in Thorpe's ritual burial ceremony in Oklahoma,

and caused Thorpe's casket to be removed and stored. After

considering various sites for Thorpe's burial,6 Patsy arranged

4 Because we conclude that the Borough is not a "museum”

because NAGPRA does not apply here, we do not consider

the Borough's argument that the doctrine of laches bars this

action.

5 As we explained at the outset, Patsy is Thorpe's third wife.

6 Patsy had also considered burying Thorpe in Carlisle,

Pennsylvania, where Thorpe played football as a teenager

under legendary coach Pop Warner at Carlisle Indian

Industrial School. John Luciew, Town of Jim Thorpe is

Ready to Fight for Identity it Adopted 56 Years Ago,

PENNLIVE, Aug. 2, 2010,

6

to have Thorpe buried at a location in Jim Thorpe,

Pennsylvania. That municipality was to be formed by the

merger of Mauch Chunk and East Mauch Chunk, and the

resulting borough was to be named Jim Thorpe. This

agreement was reached despite the objection of several of

Thorpe's children.7 The agreement provided in part that

Mauch Chunk and East Mauch Chunk would consolidate

under the name "Jim Thorpe” "as a fitting tribute and

memorial to the person and memory of the husband of [Patsy

Thorpe] and that appropriately correlated to such designation

of the name 'Jim Thorpe' the remains of [him] be laid to rest

in the community so bearing his name.” Appendix ("App.”)

486. Patsy Thorpe intended that the Borough would be "the

final and permanent resting place” for her husband. Id.

After the arrangements were made for the burial site in

the Borough, Thorpe was first buried at the Evergreen

Cemetery in the Borough while a mausoleum was being

constructed for his remains. In 1957, he was interred in what

was believed to be his final resting place.8 The agreement

Patsy had reached with the Borough provides that the

Borough is responsible for the maintenance at the burial site.

However, family members have visited the site over the years

and have worked with the Borough to conduct tribal

http://www.pennlive.com/midstate/index.ssf/2010/08/town_of

_jim_thorpe_is_ready_to.html.

7 Thorpe's descendents never reached a unanimous agreement

about where he should be buried. Charlotte Thorpe, Jim

Thorpe's daughter by his first wife Iva, helped Patsy decide

on his final burial site in the newly formed borough of Jim

Thorpe, Pennsylvania. Appendix ("App.”) 413.

8 At least Patsy and the leaders of the Borough thought this

was his final resting place. The Mayor of the Borough

testified that he was aware of newspaper articles and speeches

in which John Thorpe, one of Thorpe's sons from his second

marriage, expressed a desire to move the body, but the

Borough was never formally informed of that desire. App.

361-62.

7

ceremonies. The Jim Thorpe Hall of Fame has also worked to

improve the site.

John Thorpe filed the instant Complaint in 2010,

alleging that the Borough had failed to comply with

NAGPRA.9 The Borough immediately moved to dismiss the

complaint. The District Court dismissed John Thorpe's §

1983 claim but allowed him to proceed under NAGPRA.10

John Thorpe was also ordered to join all necessary parties in

an amended complaint or submit evidence and briefing

showing that joinder of any or all of the necessary parties was

not feasible and that the action could proceed in "equity and

good conscience” under Rule 19(b). App. 171. John Thorpe

died the following year and the proceedings were stayed until

his attorney filed an amended complaint naming as new

plaintiffs John's brothers Richard and William Thorpe, the

sons of Jim Thorpe and his second wife Freeda ("Plaintiffs”).

Thereafter, the District Court granted Plaintiffs'

motion for summary judgment based on its conclusion that

"[t]he Borough of Jim Thorpe is a 'museum' under

[NAGPRA] and subject to the requirements of the Act,

including those provisions governing repatriation requests.”

9 Over fifty years passed between Jim Thorpe's death and this

challenge to his burial. The Plaintiffs waited for their sister,

Grace Thorpe, to die before instituting this action because she

did not agree that Thorpe's remains should be removed from

the Borough. App. 414. In addition, Plaintiffs did not

challenge the disposition of Thorpe's estate in California

immediately after his death. App. 390.

10 42 U.S.C. § 1983 states: "Every person who, under color of

any statute, ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for

redress.”

8

App. 80. The Borough appealed that finding and Plaintiffs

appealed the District Court's dismissal of their §1983 claim.11

III. JURISDICTION AND STANDARD OF REVIEW

The District Court had federal question jurisdiction

pursuant to 28 U.S.C. § 1331, and we have jurisdiction

pursuant to 28 U.S.C. § 1291. NAGPRA's jurisdictional

provision vests federal courts with jurisdiction over "any

action brought by any person alleging a violation of”

NAGPRA. 25 U.S.C. § 3013.12 This Court exercises plenary

review over the District Court's finding of law that NAGPRA

applies to Thorpe's burial. Pell v. E.I. DuPont de Nemours &

Co., 539 F.3d 292, 305 (3d Cir. 2008).

11 Plaintiffs also sued several individual defendants, who are

participating only in the cross-appeal as cross-appellees. Also

participating in this appeal as amici are the National Congress

of the American Indians, who favor moving Thorpe's remains

to Oklahoma, as well as two of Jim Thorpe's grandsons,

Michael Koehler and John Thorpe, who oppose repatriation

because they believe their grandfather should rest in peace

and that their family's burial decision should be respected.

They are also concerned that the burial decisions of every

Native American family will be jeopardized if the District

Court's decision stands. Michael Koehler and John Thorpe

are Charlotte Thorpe's children. Charlotte was the daughter

of Jim and Iva Thorpe, Thorpe's first wife.

12 We must also ensure that we have jurisdiction to hear this

case, because the "jurisdiction conferred by the Judiciary Act

of 1789 . . . did not extend to probate matters.” Markham v.

Allen, 326 U.S. 490, 494 (1946). There are three

circumstances in which the probate exception to jurisdiction

applies: when the court is working to probate or annul a will,

administer a decedent's estate, or assume in rem jurisdiction

over property that is in the custody of the probate court.

Marshall v. Marshall, 547 U.S. 293, 311-12 (2006). "[I]t

does not bar federal courts from adjudicating matters outside

those confines and otherwise within federal jurisdiction.” Id.

at 312. This case involves the status of Thorpe's remains,

not his estate or will, and therefore does not touch upon

anything that could be considered a "probate matter.”

9

IV. HISTORY AND OVERVIEW OF NAGPRA

NAGPRA, 25 U.S.C. §§ 3001-3013, was first enacted

in 1990 "as a way to correct past abuses to, and guarantee

protection for, the human remains and cultural objects of

Native American tribal culture.” 173 A.L.R. Fed. 585. It was

passed with two main objectives: "first, to protect Native

American burial sites and to require excavation of such sites

only by permit, and second, to set up a process by which

federal agencies and museums holding Native American

remains and cultural artifacts will inventory those items and

work with tribes to repatriate them.” Kickapoo Traditional

Tribe of Tex. v. Chacon, 46 F. Supp. 2d 644, 649 (W.D. Tex.

1999)(citing H.R. Rep. No. 101-877 (1990), reprinted in 1990

U.S.C.C.A.N. 4367, 4367-68 ("H.R. Rep.”)); United States v.

Corrow, 119 F.3d 796, 799-800 (10th Cir. 1997).

The Act was an attempt to respond to the looting and

plundering of Native American burial grounds and the theft of

cultural artifacts from Native American tribes that continued

to pour salt into the many wounds that have been inflicted on

Native Americans throughout the history of the United States.

As stated in the House Report:

Digging and removing the contents of

Native American graves for reasons of profit or

curiosity has been common practice. These

activities were at their peak during the last

century and the early part of this century.

In 1868, the Surgeon General issued an

order to all Army field officers to send him

Indian skeletons. This was done so that studies

could be performed to determine whether the

Indian was inferior to the white man due to the

size of the Indian's cranium. This action, along

with an attitude that accepted the desecration of

countless Native American burial sites, resulted

in hundreds of thousands Native American

human remains and funerary objects being sold

or housed in museums and educational

institutions around the county.

10

For many years, Indian tribes have

attempted to have the remains and funerary

objects of their ancestors returned to them. This

effort has touched off an often heated debate on

the rights of the Indian versus the importance to

museums of the retention of their collections

and the scientific value of the items.

H. R. Rep. The scope of the cultural plundering is

breathtaking. "National estimates are that between 100,000

and two million deceased Native people have been dug up

from their graves for storage or display by government

agencies, museums, universities and tourist attractions.” Jack

F. Trope & Walter R. Echo-Hawk, The Native American

Graves Protection and Repatriation Act: Background and

Legislative History, 24 ARIZ. ST. L.J. 35, 39 (1992).

The movement to pass a law protecting Native

American human remains, funerary objects, cultural

patrimony and sacred objects originated in a hearing held by

the Select Committee on Indian Affairs in 1987. That hearing

was for a bill that would provide for the repatriation of Indian

artifacts. S. Rep. No. 101-473 (1990) ("S. Rep.”).

Smithsonian Secretary Robert McCormick Adams testified

that of the 34,000 remains in the Institution's collection,

approximately 42.5% of the specimens were the remains of

North American Indians. "Tribal reaction to Secretary

Adams' testimony was swift, and in the months which

followed, Indian tribes around the country called for the

repatriation of those human remains that could be identified

as associated with a specific tribe or region for their

permanent disposition in accordance with tribal customs and

traditions, and for the proper burial elsewhere of”

nonidentifiable remains. Id. The proposed bill led to

additional hearings, which resulted in establishing a year-long

Panel for a National Dialogue on Museum/Native American

Relations between museum professionals and Native

Americans, designed to develop recommendations to address

the necessity of responding to tribal demands for repatriation.

The National Museum of the American Indian Act, enacted in

1989, was the precursor to NAGPRA and established such a

museum in the Smithsonian. It also included provisions for

the treatment and disposition of human remains and sacred

11

objects, including an inventory process. Pub. L. No. 101-185

(1989).

Legislative efforts to protect Native American remains

continued throughout 1989 and 1990. During a hearing of the

Select Committee on Indian Affairs, tribal representatives

testified that:

in cases where Native Americans have

attempted to regain items that were

inappropriately alienated from their tribes, they

have met with resistance from museums and

have lacked the legal ability of [sic] financial

resources to pursue the return of the items.

Several witnesses testified that in many

instances Indian tribes do not know what types

of remains or objects are in the possession of

museums and have been unsuccessful in their

attempts to obtain access to this information.

S. Rep.

Native American leaders also spoke about the need to

provide additional protections to Native American burial

sites. They testified that:

Indian tribes have had many difficulties in

preventing the illegal excavation of graves on

tribal and Federal lands. Several witnesses

testified that there is a flourishing trade in

funerary and sacred objects that have been

obtained from burials located on tribal and

Federal lands. Additional testimony was

received from witnesses who indicated that

tribal and Federal officials have been unable to

prevent the continued looting of Native

American graves and the sale of these objects

by unscrupulous collectors.

Id.

The repatriation procedure proposed was modeled

after the National Museum of the American Indian Act,

which authorizes the repatriation of human remains and

funerary objects from the collections of the Smithsonian

Institution. S. Rep. New procedural requirements were a

12

response to testimony by tribal witnesses about "vast

numbers of Native American human remains contained in the

Smithsonian collections which, according to tribal religious

practices, must be given appropriate burials.” Id.

The first draft of the Native American Repatriation of

Cultural Patrimony Act —which eventually became

NAGPRA — was modeled after the provisions contained in

the National Museum of the American Indian Act. It

attempted to "extend the inventory, identification and

repatriation provisions [in the National Museum of the

American Indian Act] to all Federal agencies and any

institution which receives Federal funding.” Id. This bill,

along with a bill introduced by Senator McCain, the Native

American Grave and Burial Protection Act, formed the basis

of NAGPRA. NAGPRA extended the Museum of the

American Indian Act to "Federal agencies and museums

receiving Federal funds.” Id. "NAGPRA's reach in

protecting against further desecration of burial sites and

restoring countless ancestral remains and cultural and sacred

items to their tribal homes warrants its aspirational

characterization as 'human rights legislation.'” United States

v. Corrow, 119 F.3d 796, 800 (10th Cir. 1997) (quoting Trope

& Echo-Hawk, supra, at 37).

NAGPRA has two parallel procedures, depending on

whether the item in question is held by a federal agency or

museum or is discovered on federal lands after November 16,

1990, NAGPRA's effective date. Pueblo of San Ildefonso v.

Ridlon, 103 F.3d 936, 938 (10th Cir. 1996). "First, the Act

addresses items excavated on federal lands after November

16, 1990 and enables Native American groups affiliated with

those items to claim ownership. See 43 C.F.R. § 10.1 (1995);

H.R. Rep. No. 101-877. . . . Second, NAGPRA provides for

repatriation of cultural items currently held by federal

agencies, including federally-funded museums.” Id.

The procedure for repatriation of human remains under

NAGPRA is as follows: "Each Federal agency and each

museum which has possession or control over holdings or

collections of Native American human remains . . . shall

compile an inventory [defined as "a simple itemized list”] of

such [holdings or collections of Native American human

13

remains] and, to the extent possible based on information

possessed by such museum or Federal agency, identify the

geographical and cultural affiliation of such item.” 25 U.S.C.

§ 3003(a). These are required to be completed in consultation

with tribal governments no later than five years after

November 16, 1990, and made available to a review

committee established under the statute. 25 U.S.C. §

3003(b)(1).

If the cultural affiliation of Native American human

remains is established, then "the Federal agency or museum,

upon the request of a known lineal descendant of the Native

American or of the tribe or organization,” shall return the

remains. 25 U.S.C. § 3005(a)(1). Where there are multiple

requests for repatriation of any cultural item (which includes

human remains), and the museum cannot clearly determine

which requesting party is the most appropriate claimant, the

museum may retain such item until the requesting parties

agree upon its disposition or the dispute is otherwise resolved

pursuant to the provisions of this chapter or by a court of

competent jurisdiction. 25 U.S.C. § 3005(e). Any "museum”

that fails to comply with these requirements may be assessed

a civil penalty by the Secretary of the Interior. 25 U.S.C. §

3007.

V. THE BOROUGH IS NOT A "MUSEUM” UNDER

NAGPRA13

NAGPRA defines the word "museum” very broadly,

as:

any institution or State or local government

agency (including any institution of higher

learning) that receives Federal funds and has

possession of, or control over, Native American

cultural items.

25 U.S.C. § 3001(8).14 The Borough is a local government

entity that maintains Jim Thorpe's burial site. The parties

13 Because we find that the statute does not apply to the

Borough, we will not consider the Borough's constitutional

arguments regarding NAGPRA.

14

agree that the Borough has "possession of, or control over,”

Jim Thorpe's remains, and that he is of Native American

descent. Thus, the main question before the District Court

was whether the Borough "receives federal funds.” The

District Court found that the Borough was a museum because

the record showed that the Borough received federal funds

after the enactment of NAGPRA. However, for the following

reasons, we find that the Borough is not a "museum” as

intended by NAGPRA. It is therefore not required to comply

with NAGPRA's procedural requirement of providing an

inventory of Thorpe's remains. Similarly, it is not subject to

the statute's requirement that his remains be "returned” to

Thorpe's descendants for "repatriation” at their request.15

Ordinarily, we look to the text of the statute, rather

than the legislative history, to interpret a statute or determine

legislative intent as an aid to interpretation. See Conn. Nat'l

Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("[C]ourts

must presume that a legislature says in a statute what it means

and means in a statute what it says there.”); In re Visteon

Corp., 612 F.3d 210, 220 (3d Cir. 2010) ("It is for Congress,

not the courts, to enact legislation. When courts disregard the

language Congress has used in an unambiguous statute, they

amend or repeal that which Congress enacted into law.”);

First Merchs. Acceptance Corp. v. J.C. Bradford & Co., 198

F.3d 394, 402 (3d Cir. 1999). However, this rule of

statutory construction is not an inviolable commandment that

14 "'[C]ultural items means human remains and [associated

funerary objects, unassociated funerary objects, sacred

objects, and cultural patrimony].” 25 U.S.C. § 3001(3).

"Human remains” is not defined in the statute, but is defined

in the regulations that correspond to the statute to mean "the

physical remains of the body of a person of Native American

ancestry.” 43 C.F.R. § 10.2(d)(1).

15 Despite Plaintiffs' characterization of Thorpe's move from

the Borough to Oklahoma as a "repatriation” or a "return,”

the parties all agree that Thorpe was never actually buried in

Oklahoma. As we have explained, a ritual burial started

there, but was never actually completed. Rather, his wife

interrupted the burial and caused his remains to be transferred

to Pennsylvania for burial in the Borough.

15

we must blindly enforce regardless of surrounding

circumstances or the practical results of rigidly applying the

text to a given situation. Thus, we have made exceptions in

rare cases in which "the literal application of a statute will

produce a result demonstrably at odds with the intentions of

its drafters.” First Merchs., 198 F.3d at 402 (quoting Griffin

v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). "In

such situations, 'those intentions must be controlling.'” Id.

As the Supreme Court has explained, "[s]tatutory

interpretations 'which would produce absurd results are to be

avoided if alternative interpretations consistent with the

legislative purpose are available.” Id. (quoting Griffin, 458

U.S. at 575). "But only absurd results and 'the most

extraordinary showing of contrary intentions' justify a

limitation on the 'plain meaning' of the statutory language.”

Id. (quoting Garcia, 469 U.S. 70, 75 (1984)); see also United

States v. Terlingo, 327 F.3d 216, 221 (3d Cir. 2003) (noting

that courts may look behind a statute only when the plain

meaning produces "a result that is not just unwise but is

clearly absurd”) (internal quotation marks omitted).

Furthermore, "a reviewing court should not confine

itself to examining a particular statutory provision in

isolation. Rather, [t]he meaning—or ambiguity—of certain

words or phrases may only become evident when placed in

context.” Nat'l Ass'n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644, 666 (2007) (internal citation and

quotation marks omitted). "A court must . . . interpret the

statute as a symmetrical and coherent regulatory scheme, and

fit, if possible, all parts into an harmonious whole.” FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133

(2000) (citation and internal quotation marks omitted).

Accordingly, the Supreme Court has concluded that "[a]n

inference drawn from congressional silence certainly cannot

be credited when it is contrary to all other textual and

contextual evidence of congressional intent.” Burns v. United

States, 501 U.S. 129, 136 (1991), abrogated on other grounds

by Booker v. United States, 543 U.S. 220 (2005).

We conclude that we are confronted with the unusual

situation in which literal application of NAGPRA "will

produce a result demonstrably at odds with the intentions of

its drafters.” Griffin, 458 U.S. at 571. We must therefore

16

look beyond the text of NAGPRA to identify the intentions of

the drafters of the statute, and that intent "must . . . control[]

[our analysis.]” Id.

As we have explained, NAGPRA requires

"repatriation” of human remains from "museums,” where

those remains have been collected and studied for

archeological or historical purposes. 25 U.S.C. § 3005. It is

clear from the legislative history we have recounted above

that Congress was also concerned with returning to Native

American tribes the human remains and artifacts that had

been taken for profit, gain, exploitation, or rank curiosity

without regard to the concerns of the Native American tribe

whose legitimate and paramount interest should have been

recognized. However, the definition of "museum” in the text

of NAGPRA sweeps much wider than that. If interpreted

literally, it would include any state or local governmental

entity that "has possession of, or control over, Native

American cultural items[]” regardless of the circumstances

surrounding the possession. This could include any items

given freely by a member of the tribe. Here, it would include

human remains buried in accordance with the wishes of the

decedent's next-of-kin. Literal application would even reach

situations where the remains of a Native American were

disposed of in a manner consistent with the deceased's wishes

as appropriately memorialized in a testamentary instrument or

communicated to his or her family. There is therefore no

limitation that would preserve the final wishes of a given

Native American or exempt determination of his or her final

resting place from the procedural requirements of

NAGPRA.16

16 NAGPRA defines a museum's legitimate right of

possession to include human remains that were freely given

by the decedent's next-of-kin. 25 U.S.C. § 3001(13) ("The

original acquisition of Native American human remains and

associated funerary objects which were excavated, exhumed,

or otherwise obtained with full knowledge and consent of the

next of kin . . . is deemed to give right of possession to those

remains.”).

The statute does not explain the legal effect of this

definition. NAGPRA provides that a museum may keep

certain items requested by a descendent or tribe if the

17

"We have reserved some scope for adopting a

restricted rather than a literal or usual meaning of [a statute's]

words where acceptance of that meaning would thwart the

obvious purpose of the statute.” Griffin, 458 U.S. at 571

(internal quotations, ellipsis and citation omitted). Here, it is

clear that the congressional intent to regulate institutions such

as museums and to remedy the historical atrocities inflicted

on Native Americans, including plundering of their graves, is

not advanced by interpreting "museum” to include a gravesite

that Thorpe's widow intended as Thorpe's final resting place.

As we stated earlier, Plaintiffs do not maintain that Patsy was

without authority to determine where Thorpe was to be

buried. Moreover, as also explained above, the record is clear

that Plaintiffs delayed bringing this suit until certain of

Thorpe's survivors who favored his burial in the Borough

died.

As stated in the House Report, "[t]he purpose of

[NAGPRA] is to protect Native American burial sites and the

removal of human remains.” H. R. Rep. (emphasis added).

NAGPRA was intended as a shield against further injustices

to Native Americans. It was not intended to be wielded as a

sword to settle familial disputes within Native American

families. Yet, that is what we would allow if we were to

enforce NAGPRA's repatriation provisions as written here.

Aside from the unusual arrangements between Patsy

Thorpe and the Borough, and Plaintiffs' understandable

desire to move Thorpe's remains to where they prefer for him

to be buried,17 his burial in the Borough is no different than

museum "prove[s] that it has a right of possession to the

objects.” 25 U.S.C. § 3005(c). However, this section by its

terms does not apply to human remains, and instead only

applies to "unassociated funerary objects, sacred objects or

objects of cultural patrimony[.]” Id. Even if this section was

interpreted to apply to human remains, however, it is not clear

that a museum with a right of possession over those remains

would be exempt from the procedural and inventory

requirements of NAGPRA.

17 Nothing we have said prevents Plaintiffs from seeking

reinterment via an action in Pennsylvania state court.

18

any other burial, except that he is a legendary figure of Native

American descent. If we were to find that NAGPRA applies

to Thorpe's burial, we would also have to conclude that it

applies to any grave located in "any institution or State or

local government agency . . . that receives federal funds and

has possession of, or control over, Native American cultural

items.” This could call into question any "institution” or

"State or local government agency” that controls a cemetery

or grave site where Native Americans are buried, and would

give rights to any lineal descendant or tribe that has a claim to

a person buried in such a cemetery. The Amicus brief on

behalf of Thorpe's grandsons, Michael Koehler and John

Thorpe, makes this clear:

Imagine a scenario where a deceased person is

buried by his widow at the site of her choosing.

But after the widow dies, the next generation –

or even complete strangers in the case of a tribe

– decides to dig up the body with court approval

and move it somewhere else for any reason they

desire. They aren't even required to bury the

remains. This is not a "parade of horribles”

conjured up by the Thorpe grandsons. That is

their reality. If the district court's decision is

allowed to stand, this scenario can repeat for

funerals past and future as long as the deceased

has any Native American ancestry.

Amicus Br. for Koehler and Thorpe, at 5. Accordingly,

"based solely on the language and context of the most

relevant statutory provisions, the court cannot say that

Congress's intent is so clear and unambiguous that it

However, "once a body is interred there is great reluctance in

permitting same to be moved, absent clear and compelling

reasons for such a move.” Novelli v. Carroll, 420 A.2d 469,

476 (Pa. Super. Ct. 1980) (Watkins, J., dissenting) (citing

Stevens v. Ganz, 49 Pa. D. & C.2d 283, 286 (1970)); see also

Pettigrew v. Pettigrew, 56 A. 878, 880 (Pa. 1904) ("With

regard to a reinterment in a different place, the same rules

should apply, but with a presumption against removal

growing stronger with the remoteness of connection with the

decedent, and reserving always the right of the court to

require reasonable cause to be shown for it.”).

19

'foreclose[s] any other interpretation.'” King v. Burwell, 759

F.3d 358, 369 (4th Cir. 2014) (quoting Grapevine Imports,

Ltd. v. United States, 636 F.3d 1367, 1377 (Fed. Cir. 2011)).

There are numerous indications that Congress did not

intend for NAGPRA to apply to this situation. The Senate

Report explains that the statute was designed to "provide

additional protections to Native American burial sites. Indian

tribes have had many difficulties in preventing the illegal

excavation of graves on tribal and Federal lands [, and] tribal

and Federal officials have been unable to prevent the

continued looting of Native American graves and the sale of

these objects by unscrupulous collectors.” S. Rep. The

Amicus brief submitted by the National Congress of the

American Indians in support of Plaintiffs summarized the

Antiquities Act of 1906. That Act defined Native American

remains on federal lands as "archeological resources[.]”

Amicus Br. of Nat'l Cong. of the Am. Indians, at 6. The

collateral consequence was the disinterment of many remains

for preservation in museums. The amici also refer to the

Archaeological Resources Protection Act of 1979. That

statute also deemed Native American remains on federal

lands "archaeological resources” and permitted those remains

to be disinterred. Id. at 6-7. This was in "sharp contrast to the

legal treatment of non-Indian burials and remains, which were

generally protected from looting and disturbance. NAGPRA

was needed to ensure equal treatment of Native American

remains.” Id. (emphasis added). With this objective,

"Congress sought to repatriate human remains and other

objects by ensuring human remains . . . are returned.” Id. at

10.

Our conclusion that Congress did not intend the result

required by a literal application of the text of NAGPRA is

reinforced by examining multiple sections of the statute. For

example, as noted earlier, § 3001(13) defines "right of

possession” to include human remains freely given by the

deceased or the deceased's next of kin. This definition is

further evidence of Congress's intent to exclude situations

such as Thorpe's burial in the Borough. Our conclusion is

also consistent with the inventory requirement. Section 3003

applies to a "museum which has possession or control over

holdings or collections of Native American human

20

remains[.]” This implies that the statute assumes that a

museum is holding or collecting the remains for the purposes

of display or study, as opposed to serving as an original burial

site. Finally, NAGPRA requires that remains be "returned.”

25 U. S. C. § 3005. This assumes that the human remains

were moved from their intended final resting place. Thorpe

was buried in the Borough by his wife, and she had the legal

authority to decide where he would be buried. Thus, there is

nowhere for Thorpe to be "returned” to. As the House Report

explains: "[f]or many years, Indian tribes have attempted to

have the remains and funerary objects of their ancestors

returned to them.” H.R. Rep. (emphasis added).

Thorpe's remains are located at their final resting place

and have not been disturbed. We find that applying

NAGPRA to Thorpe's burial in the Borough is such a clearly

absurd result and so contrary to Congress's intent to protect

Native American burial sites that the Borough cannot be held

to the requirements imposed on a museum under these

circumstances. We reverse the District Court and hold that

the Borough is not a "museum” under NAGPRA for the

purposes of Thorpe's burial.18



* * *



18 In the cross-appeal, the Plaintiffs challenge the District

Court's finding that they cannot obtain relief for a violation of

NAGPRA under 42 U.S.C. § 1983. In light of our finding

that NAGPRA is not applicable to Thorpe's burial in the

Borough, Plaintiffs cannot sustain a claim for a violation of

NAGPRA under either that statute or § 1983. Therefore we

will affirm the District Court's dismissal of Plaintiffs' § 1983

claim.

For the foregoing reasons, we will reverse the

judgment of the District Court as to the applicability of

NAGPRA to the burial of Jim Thorpe in the Borough, and

affirm the District Court’s dismissal of Plaintiffs’ § 1983

claim. We will remand the action for the District Court to

enter judgment in favor of Appellant, the Borough of Jim

Thorpe.