Thorpe v. Borough of Jim Thorpe, 770 F.3d 255 (3d Cir. 2014). Jim Thorpe was one of the greatest athletes of the twentieth century. He won Olympic medals in 1912 and played both professional football and baseball. When he died in 1953, his third wife, Patsy, with the approval of one of Thorpe’s daughters, had him buried in what is now named Jim Thorpe, Pennsylvania, a newly-formed borough that had been created by merging two other boroughs. Some of Thorpe’s children from previous marriages, however, objected to their father being buried in Pennsylvania. Thorpe was a Native American and a member of the Sac and Fox Nation in Oklahoma. The objecting children wanted Thorpe to be buried on tribal land in Oklahoma. At least one other child, and some grandchildren, opposed that, preferring that Thorpe be allowed to rest in peace and that the decision of Patsy, his wife, to bury him in Pennsylvania be respected.
In 1990, Congress passed the Native American Graves Protection and Repatriation Act, 25 U.S.C. §3003 et seq. (“NAGPRA”). That law required museums and federal agencies who had possession or control over Native American remains to return those remains to a known lineal descendant of the deceased upon request. NAGPRA’s definition of “museum” was very broad, covering “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.”
In 2010, John Thorpe, one of Jim Thorpe’s sons, sued the Borough of Jim Thorpe under NAGPRA. Because the Borough had control over Thorpe’s remains and had received federal funds, the District Court determined that the Borough was a museum subject to NAGPRA and granted summsary judgment to John Thorpe. The Borough appealed, and the Third Circuit reversed in an opinion by Chief Judge McKee. Applying plenary review of the legal conclusion that Thorpe’s burial was subject to NAGPRA, the panel held that the District Court’s decision created a “patently absurd result.”
Chief Judge McKee extensively traced the history and purpose of NAGPRA. In short, the goal of NAGPRA was “to respond to the looting and plundering of Native American burial grounds and the theft of cultural artifacts from Native American tribes that contiued to pour salt into the many wounds that have been inflicted on Native Americans throughout the history of the United States.” Still, the statutory definition of “museum” said what it said, and the Borough did have control over Thorpe’s remains and had received federal funds. Chief Judge McKee concluded, however, that obeying statutory language “is not an inviolable commandment that we must blindly enforce regardless of surrounding circumstances or the practical results of rigidly applying the text to a given situation.” A literal application of NAGPRA would “produce a result demonstrably at odds with the intentions of its drafters.” Chief Judge McKee cited numerous cases saying that absurd results in statutory construction are to be avoided.
Literal application could include under NAGPRA “any items given freely by a member of the tribe,” including “human remains buried in accorance with the wishes of the decedent’s next-of-kin,” or “consistent with the deceased’s wishes as appropriately memorialized in a testamentary instrument or communicated to his or her family.” Chief Judge McKee stated 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.”
In a famous dictum, Judge Learned Hand stated that “there is no surer way to misread any document than to read it literally.” Giuseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (concurring opinion). Though Chief Judge McKee did not cite that case among the many others that he did rely upon, this Jim Thorpe decision is a good example of Judge Hand’s principle.