Debate on JURIST re: NAGPRA and the Jim Thorpe Case

Here is Walter Olson’s post “NAGPRA, Indian Burials, and the Unquiet Grave.”

Here is Elizabeth C. Varner, Diane Penneys Edelman and Leila Amineddoleh’s “NAGPRA and Congress’s Foresight.”

H/T Pechanga.

The Third Circuit materials are here (en banc petition pending).

Third Circuit Accepts NCAI and Sen. Nighthorse Campbell Amicus Briefs in Jim Thorpe Appeal


ORDER (MCKEE, Chief and Circuit Judge) granting motions of the National Congress of the American Indians and Ben Nighthorse Campbell to file in support of the petition for rehearing. The Clerk is directed to file the briefs on the docket as statements in support of rehearing and circulate them to the full Court. No response by Appellant is required unless the court directs, filed. [13-2446, 13-2451] (TMK)

The en banc petition is here. The amicus briefs are here.

Third Circuit En Banc Petition Materials in Thorpe v. Borough of Jim Thorpe (UPDATED)


Petition for Rehearing (12-8-14)

NCAI Mtn for Leave and Proposed Brief in Support Filed 12-8-14

Senator Ben Nighthorse Campbell amicus brief

Senator Ben Nighthorse Campbell motion for leave to file amicus brief


Borough Opposition to NCAI Amicus Brief

NCAI Reply in Support of Amicus Motion

Third Circuit panel materials here.

Third Circuit Holds NAGPRA Does Not Require Repatriation of Jim Thorpe’s Remains

Here is the opinion in Thorpe v. Borough of Jim Thorpe:

Jim Thorpe Opinion [Update — the clerk has withdrawn this version of the opinion for quality control.]

An excerpt:

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.

Briefs here and here. Oral argument audio here.

Lower court materials here.

Opening Third Circuit Brief in Thorpe v. Borough of Jim Thorpe — Updated with Amicus


Borough Opening Brief 3rd Cir (00020639)

Update — Amicus brief:

Grandsons Amicus Brief

Lower court materials here.

Judge Orders Repatriation of Jim Thorpe’s Remains under NAGPRA

Judge Caputo (Mid. Dist. Penn.) entered an order granting a complete summary judgment in favor of Bill and Richard Thorpe and the Sac and Fox Nation in the litigation to repatriate the remains of Jim Thorpe pursuant to the Native American Graves Protection and Repatriation Act.

The judge concluded that NAGPRA applies to the remains of Jim Thorpe and to the Borough, and he also ruled that the passage of time between the enactment of NAGPRA and the filing of this case did not prevent a repatriation. This is a very significant ruling under NAGPRA, and it should be helpful to tribes in the future because it addresses and rejects some so-called defenses to NAGPRA that could be used to impede repatriation efforts.

Memorandum Decision


Update w/ materials:

Borough Motion for Summary J

Sac and Fox Nation Motion for Summary J

Borough Response

Sac and Fox Nation Response