Last edited Mon Oct 5, 2015, 10:48 PM - Edit history (3)
http://www2.ca3.uscourts.gov/opinarch/132446p.pdf
Footnote 9 of the opinion tells of one of the problems in this case:
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.
Footnote 11 states other problems:
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.
Now the court ruling was based on Native American Graves Protection and Repatriation Act (“NAGPRA”).
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....
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.
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.
The court then quote from Thrope's Grandson's brief:
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.
Finally the court said:
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
Please note in Footnote 17 of the opinion, the court noted the plaintiff could file an action in Pennsylvania State Court to move the body. Such action is permitted in Pennsylvania where they is a dispute as to such a move, but the burden in on the people who want to move the body to show the family members who are objecting are doing so unreasonably. Given that Jim Thorpe is in a mausoleum and that some of his surviving grandchildren want him to stay there I do not see a Pennsylvania Court permitting such a move UNLESS all of the family members agree.
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