One for the statutory-interpretation textbooks

Thorpe v. Borough of Jim Thorpe, No. 13-2446 (3d Cir. Oct. 23, 2014).

Jim Thorpe—the famous athlete—died without a will in 1953. Thorpe was Native American, and his children wanted him to be buried on tribal land in Oklahoma. His third wife, Patsy, had other plans. Without asking anybody’s permission, she took Thorpe’s casket and shipped it to Pennsylvania—and did all this, amazingly enough, with the aid of law enforcement officers. Over the objection of Thorpe’s children, she then had him buried in the newly renamed town of Jim Thorpe, Pennsylvania, with his remains housed in a large marble tomb. 

Fast forward to 2010, when Jim Thorpe’s sons by his second wife sue the Pennsylvania town named after their dad. They sue under the Native American Graves Protection and Repatriation Act, or NAGPRA, which Congress enacted to help tribes whose burial grounds had been looted and then callously put on display. (Native Americans, unfortunately, were not the only ones victimized in this way.) NAGPRA gives tribes and lineal descendants the right to sue for return of Native American remains that are held by a “Federal agency” or a “museum.” 

Here, the Thorpe sons claim that Jim Thorpe, Pennsylvania qualifies as a “museum.” That might seem crazy at first, but take a look at NAGPRA’s definition of “museum”: 

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.

That’s an incredibly broad definition—note the term “local government agency . . . that receives Federal funds,” which would seem to include any municipality that gets money from the federal government and possesses or controls “Native American cultural items.” The town Jim Thorpe certainly possesses Native American cultural items, in the form of the athlete Jim Thorpe’s remains. And the Thorpe sons claim that Jim Thorpe, Pennsylvania gets money from the federal government. 

While the parties dispute whether the town receives federal funds, the Third Circuit says that it doesn’t even have to reach that issue. Even if the literal definition of “museum” encompasses municipalities, the Third Circuit refuses to read the statute literally, because that would produce results “demonstrably at odds with the intentions” of NAGPRA’s drafters. Why? According to the Third Circuit, because it would get the federal courts involved in familial burial disputes. Whenever next-of-kin get into an argument about whether a Native American should have been buried in Tribal Land X instead of Municipality Y, the federal courts would have to sort it out. And, says the Third Circuit, that’s demonstrably not what Congress enacted NAGPRA to do. So the Thorpe sons cannot use NAGPRA to disinter their father and rebury him in Oklahoma.

The Third Circuit seems right about Congress’s intentions. I guess the only question is how clear and strong the extratextual evidence about those intentions has to be in order to justify a departure from the text. Have at it, scholars.