What is a museum? According to the OED, it is “a building or institution in which objects of historical, scientific, artistic, or cultural interest are preserved and exhibited.” I think this jives with what most of us would consider a museum—someplace boring with dusty artifacts (and even dustier tour guides) that is only frequented by history buffs and unsuspecting schoolchildren.
But would you consider your state department of transportation to be a museum? What about the county water and sewerage authority? According to the Native American Graves Protection and Repatriation Act (NAGPRA), those institutions could be considered museums. This post uses an interesting case about the remains of a legendary Native American athlete to show how broadly construed “museum” can be under NAGPRA.
Enacted in 1990, the Native American Graves Protection and Repatriation Act requires museums to return cultural items (including human remains) affiliated with a present day Indian tribe or Native Hawaiian organization to its respective tribe. Contrary to vernacular use of the term, NAGPRA defines museum 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). Essentially, a NAGPRA museum is any organization that receives federal funds and has control over Native American cultural items. Organization + Federal Funds + Control = Museum.
But what if federal funds pass through several intermediaries? Are all recipients considered museums or does this definition only apply to direct recipients of federal funds? Where do we draw the line?
Greatest Athlete of the 20th Century
Before Babe Ruth, Hank Aaron, Muhammad Ali, and Michael Jordan, there was Jim Thorpe. Known as the greatest athlete of the 20th century, Jim Thorpe was an extraordinarily talented and versatile athlete—he was an Olympic pentathlon and decathlon gold medalist, and a professional football, baseball, and basketball player. He died in 1953 at the age of 64; unfortunately for Jim, he could not rest in peace.
Less than two months after his passing, Jim’s widow, Patricia, entered into an agreement to transfer his remains to a local government in Pennsylvania—a place that had no connection whatsoever to Jim or his family. Two towns with the unfortunate names of Mauch Chunk and East Mauch Chunk agreed to consolidate into one municipality, called the “Borough of Jim Thorpe.” The new Borough also agreed to inter Jim’s remains “on Borough-owned land in a mausoleum maintained by the Borough.” Thorpe v. Borough of Thorpe, 3:CV-10-1317, 2013 WL 1703572 (M.D. Pa. Apr. 19, 2013). According to author Bess Lovejoy:
Other family members had wanted to bury him in Oklahoma, but Patricia didn’t think the state was making enough of a fuss. At one point, she even showed up at a traditional Native American funeral for Thorpe with a police escort and took the body away. Later she offered it to two struggling Pennsylvanian towns, Mauch Chunk and East Mauch Chunk, whose plight she had heard about on TV. The two towns had been thinking about forming into one, and she said they could rename the new town ‘Jim Thorpe’ if they buried his body. The towns agreed, because they thought Thorpe’s burial site would bring a lot of foot traffic, although it didn’t.
When Jim Thorpe’s body was moved to Pennsylvania, his sons considered pursuing litigation, but they could not come to an agreement with their half sisters. Plus, the law was not on their side. However, now that Congress, via NAGPRA, has strengthened protections for Native American cultural items, the Thorpe brothers have a fighting chance.
Thorpe v. Borough of Jim Thorpe
Since there was no dispute that the Borough of Jim Thorpe was a local government and that it had control over Jim Thorpe’s remains (considered a cultural item under NAGPRA), the fight over the applicability of NAGPRA came down to whether the Borough of Jim Thorpe received federal funds.
The Thorpe brothers argued that the Borough of Jim Thorpe received federal funds, albeit indirectly, when it accepted grants from the commonwealth of Pennsylvania and Carbon County that had been given directly to those entities by the federal government. The Borough, on the other hand, contended that these funds were not “federal” because they were given by agencies of the commonwealth or Carbon County, not the federal government—the Borough was only a third party beneficiary.
The Thorpe brothers relied upon the regulatory explanation of “receiving federal funds” to make their case:
Federal funds provided for any purpose that are received by a larger entity of which the museum is a part are considered Federal funds for the purposes of these regulations. For example, if a museum is a part of a State or local government or a private university and the State or local government or private university receives Federal funds for any purpose, the museum is considered to receive Federal funds for the purpose of these regulations.
If the brothers relied on this regulation alone, it would have been easy to poke holes in their case. For example, an argument could be made that the Borough of Jim Thorpe is not “a part” of the commonwealth of Pennsylvania or Carbon County. Rather, the Borough is a separate legal entity with its own laws and government.
But, the Thorpe brothers did not put all their eggs in one basket—they pointed to case law precedent to bolster their argument. The brothers argued that since the interpretation of similar language from an unrelated statute (“under any education program or activity receiving Federal financial assistance”) found that it did not make any distinction between direct and indirect federal funding, then NAGPRA should receive the same interpretation. The court smiled upon the brothers’ analogy and agreed that “there is nothing in the statute to support the Borough’s claim that only ‘museums’ receiving funds directly from the Federal Government are subject to regulation….The Borough’s contention that the NAGPRA applies only to direct recipients of federal funding is without merit.”
In sum, the Borough of Jim Thorpe is a NAGPRA museum. As such, the Borough has a duty to repatriate the remains of Jim Thorpe by returning them to the Sak and Fox Indian Nation in Oklahoma.
Do you agree with this ruling? Did the district court judge go too far? Since this case has yet to be heard on appeal, the fate of this interpretation is uncertain. I will keep you updated on the outcome of this controversy.
Clint Tankersley is a Georgia attorney specializing in cultural heritage law. Read my bio here.