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Media Alerts - John Thorpe v. Borough of Jim Thorpe - Third Circuit
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October 27, 2014
  John Thorpe v. Borough of Jim Thorpe - Third Circuit
Headline: Third Circuit Rules that Jim Thorpe's Body Will Stay in Jim Thorpe

Area of Law: Trusts & Estates, Administrative Law

Issues Presented: Does the NAGPRA allow Jim Thorpe's descendants to remove his remains from their current resting place in Jim Thorpe, Pennsylvania to Sac and Fox tribal land in Oklahoma?

Brief Summary: John Thorpe, the son of the legendary American athlete Jim Thorpe, sued the Borough of Jim Thorpe in Pennsylvania for failing to comply with the Native American Grave Protection and Repatriations Act ("NAGPRA"). According to NAGPRA, museums and federal agencies in possession of Native American remains and funerary artifacts must notify the affected tribe, and any known lineal descendant may request the return of the remains or artifacts. The District Court determined that the Borough of Jim Thorpe qualified as a museum under NAGPRA and the remains of Jim Thorpe must be disinterred and returned to his son for burial on Sac and Fox lands. The Third Circuit Court of Appeals, however, held that the Borough should not be considered a museum under NAGPRA, reasoning that although the Borough receives federal money, it was not Congress's intent to extend the meaning of museum beyond the plain meaning of the word. The Circuit Court reversed the previous decision, thereby allowing Jim Thorpe's body to remain in the borough named for him.

Extended Summary: Jim Thorpe was an American athlete, considered by some to be the greatest of all time. He was also a Native American of the Sac and Fox tribe in Oklahoma. Despite his fame in his younger days, he died in poverty and, most importantly for this case, without a will. It was left to his widow, Patsy Thorpe, to determine what should be done with his remains. Although Jim Thorpe himself had expressed a desire to be buried in Oklahoma and some plans were made to do just that, Patsy Thorpe ultimately decided that two small municipalities in Pennsylvania should become his final resting place. As a tribute to her husband, these two communities then combined to become one, using the name of the Borough of Jim Thorpe. Patsy's decision was in direct opposition to the wishes of some of his children from previous marriages. She has since died.

The appellees do not dispute that Patsy Thorpe had the legal authority to decide where to bury Jim Thorpe. However, the appellees filed a complaint in 2010 alleging that the Borough of Jim Thorpe was in violation of the Native American Grave Protection and Repatriations Act ("NAGPRA") and that the body should be disinterred and returned to Oklahoma for burial on Sac and Fox grounds. The District Court ruled in favor of the appellees, reasoning that the Borough of Jim Thorpe fell under the definition of "museum" in NAGPRA because the town receives federal money and is therefore subject to repatriation request.

On appeal, the Third Circuit looked closely at the wording of the statute and legislative history to determine whether the Borough could be considered a museum under NAGPRA. This law was originally made necessary by the rampant looting of Native American burial sites in previous decades, which led to museums having large collections of funerary objects and remains in their collections. Congress understood the need for a repatriation process to begin in order to restore the objects and remains to the tribes to which they rightfully belonged. NAGPRA was modeled on the National Museum of the American Indian Act, which authorized repatriation of funerary objects and remains from the Smithsonian collection back to their respective tribes. NAGPRA extended the Act to include all "Federal agencies and museums receiving Federal funds."

NAGPRA has a broad definition of museum, which includes "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." While the Borough of Jim Thorpe does have control over Jim Thorpe's remains and it does receive federal funds, the Circuit Court was unwilling to extend the definition of museum to the Borough. The Court looked at the plain meaning of the text and reasoned that the Court should use the ordinary meaning of the word "museum" and not interpret it so as to lead to absurd results. The Court found that such an approach was also in accord with the intent of Congress. Finally, the Court determined that if the definition of "museum" were expanded in the manner favored by plaintiffs, it would allow any Native American to disinter remains of his or her tribe members and remove them to tribal lands despite the wishes of the deceased. The Court did not believe that Congress intended this to happen, although it would be an inevitable consequence if the District Court's interpretation were allowed to stand. Accordingly, the Third Circuit reversed the judgment of the District Court and remanded the case for entry of judgment in favor of the Borough of Jim Thorpe.

To read the full opinion, please visit

Panel (if known): McKee, Chief Judge and Chagares and Schwartz, Circuit Judges

Argument Date: February 14, 2014

Date of Issued Opinion: October 23, 2014

Docket Number: No. 13-2446

Decided: Reversed and remanded

Case Alert Author: Shanna Lafferty

Counsel: William J. Schwab, Esq., Vincent R. Garvey, Esq., Counsel for Appellants; Christopher G. Fusco, Attorney for Cross-Appellees; Charles L. Riddle, Esq., Stephen R. Ward, Esq., Daniel E. Gomez, Esq., Attorneys for Appellees; Daniel H. Wheeler, Esq., Attorney for Amicus Curiae Michael Koehler and John Thorpe; Michael Campbell, Esq., Attorney for Amicus Curia The National Congress of the American Indians

Author of Opinion: Judge McKee

Circuit: Third Circuit

Case Alert Supervisor: Prof. Mark Anderson

    Posted By: Susan DeJarnatt @ 10/27/2014 10:52 AM     3rd Circuit  

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