John Thorpe v. Borough of Jim Thorpe , 770 F.3d 255 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-2446
_____________
JOHN THORPE;
SAC AND FOX NATION OF OKLAHOMA;
WILLIAM THORPE; RICHARD THORPE
v.
BOROUGH OF JIM THORPE; MICHAEL SOFRANKO;
RONALD CONFER; JOHN MCGUIRE; JOSEPH
MARZEN;
W. TODD MASON; JEREMY MELBER; JUSTIN YAICH;
JOSEPH KREBS; GREG STRUBINGER; KYLE
SHECKLER;
JOANNE KLITSCH
Borough of Jim Thorpe,
Appellant
_____________
No. 13-2451
_____________
JOHN THORPE; SAC AND FOX NATION OF
OKLAHOMA;
WILLIAM THORPE; RICHARD THORPE
v.
BOROUGH OF JIM THORPE; MICHAEL SOFRANKO;
RONALD CONFER; JOHN MCGUIRE; JOSEPH
MARZEN;
W. TODD MASON; JEREMY MELBER; JUSTIN YAICH;
JOSEPH KREBS; GREG STRUBINGER; KYLE
SHECKLER;
JOANNE KLITSCH
Sac and Fox Nation of Oklahoma, William Thorpe,
Richard Thorpe,
Appellants
________________
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA
(D.C. No. 3-10-cv-01317)
District Judge: Honorable A. Richard Caputo
________________
Argued: February 14, 2014
____________
Before: MCKEE, Chief Judge, CHAGARES and
SHWARTZ, Circuit Judges
(Filed: October 23, 2014)
______________
William G. Schwab, Esq. (ARGUED)
Vincent R. Garvey, Esq.
William G. Schwab & Associates
811 Blakeslee Boulevard Drive East
P.O. Box 56
Lehighton, PA 18235
Counsel for Appellants
Christopher G. Fusco, Esq. (ARGUED)
Callahan & Fusco
103 Eisenhower Parkway, Suite 400
Roseland, NJ 07068
Attorney for Cross-Appellees
2
Charles L. Riddle, Esq.
Riddle Patent Law, LLC
434 Lackawanna Avenue, Suite 200
Scranton, PA 18503
Stephen R. Ward, Esq. (ARGUED)
Daniel E. Gomez, Esq.
Conner & Winters, LLP
One Williams Center
Suite 4000
Tulsa, OK 74172
Attorneys for Appellees
Daniel H. Wheeler, Esq. (ARGUED)
610 Montgomery School Lane
Wynnewood, PA 19096
Attorney for Amicus Curiae
Michael Koehler and John Thorpe
Michael Campbell, Esq.
Native American Rights Fund
1506 Broadway
Boulder, CO 80302
Attorney for Amicus Curiae
The National Congress of the American Indians
______________
OPINION
______________
McKEE, Chief Judge
I. INTRODUCTION
Jim Thorpe, multi-sport Olympic gold medalist
(“Thorpe”), died in California in 1953 without a will.1 His
1
Some commentators still regard Thorpe as “the greatest
Olympian of all time.” See Sally Jenkins, Greatest Olympic
athlete? Jim Thorpe, not Usain Bolt, WASHINGTON POST,
Aug. 10, 2012,
http://www.washingtonpost.com/sports/olympics/greatest-
3
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-usain-
bolt/2012/08/10/f9114872-e33c-11e1-ae7f-
d2a13e249eb2_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.
4
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,
5
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.
6
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.”
7
Ohio 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.”
8
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.
9
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
10
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
11
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
12
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.
13
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.
14
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
15
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
16
“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.
17
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.”).
18
‘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
19
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
V. CONCLUSION
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.
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.
20