Thorpe v. Borough of Jim Thorpe
| Citation | 770 F.3d 255 |
| Decision Date | 23 October 2014 |
| Docket Number | Nos. 13–2446,13–2451.,s. 13–2446 |
| Parties | 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. 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. |
| Court | U.S. Court of Appeals — Third Circuit |
OPINION TEXT STARTS HERE
William G. Schwab, Esq., (Argued), Vincent R. Garvey, Esq., William G. Schwab & Associates, Lehighton, PA, for Appellants.
Christopher G. Fusco, Esq., (Argued), Callahan & Fusco, Roseland, NJ, for Cross–Appellees.
Charles L. Riddle, Esq., Riddle Patent Law, LLC, Scranton, PA, Stephen R. Ward, Esq., (Argued), Daniel E. Gomez, Esq., Conner & Winters, LLP, Tulsa, OK, for Appellees.
Daniel H. Wheeler, Esq., (Argued), Wynnewood, PA, for Amicus Curiae, Michael Koehler and John Thorpe.
Matthew Campbell, Esq., Native American Rights Fund, Boulder, CO, for Amicus Curiae, The National Congress of the American Indians.
Before McKEE, Chief Judge, CHAGARES and SHWARTZ, Circuit Judges.
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.
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
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 familymembers 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 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 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.” App. 80. The Borough appealed that finding and Plaintiffs appealed the District Court's dismissal of their § 1983 claim.11
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).
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.
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...
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