The Thorpe brothers and the Sac and Fox Nation countered that
the lower court was correct that NAGPRA, as written, directly applies to the Borough in this instance. After detailing the history and impor- tance of NAGPRA, they pointed out that the plain language of NAG- PRA shows that, when an entity receives federal funds and is in pos- session of Native American remains, the entity is required to repatriate those remains upon the request of an affiliated tribe or descendants. The Thorpe brothers and the Sac and Fox Nation observed that it
is undisputed that the Borough receives federal funds and that it is in possession of Native American remains, and that is all that is required for NAGPRA to apply. Further, they emphasized that the Borough failed to comply with its statutory requirements under NAGPRA, such as completing an inventory and notifying heirs and tribes of its posses- sion of Native remains. Finally, with regard to NAGPRA, the Thorpes and the Nation argued that NAGPRA is constitutional and that the Borough has not been subjected to any prejudice by the filing of the lawsuit on the date it was filed. The Native American Rights Fund (NARF), on behalf of the Na-
tional Congress of American Indians (NCAI), filed an amicus curiae (friend of the court) brief in the Third Circuit in support of the lower court’s decision. NARF and NCAI primarily addressed the argument that NAGPRA is a constitutional statute, but also pointed out the great importance of the statute as historic human rights law. NARF and NCAI showed that NAGPRA should apply in this instance; otherwise, NAGPRA’s criminal enforcement provisions could be in jeopardy of being made useless. If NAGPRA were not to apply to modern Natives, the criminal provisions in the statute would be meaningless if someone were to rob a Native grave just weeks or months after they passed away. Oral argument was held before the Third Circuit Court of Appeals
on Feb. 14, 2014, in Philadelphia, Pa. No formal opinion has been is- sued to date, but one should be forthcoming in the next few months. NAGPRA appears to provide the Thorpe brothers and the Sac and Fox Nation with the remedy they seek – bringing Jim Thorpe home for a proper ceremony and burial on Sac and Fox land – but because there has been no agreement between the Borough and the family, the ulti- mate decision now rests with the federal courts.
BRING DAD HOME AND BURY HIM ON INDIAN LAND
H
enrietta Massey, whose Wolf Clan name is Sounding Wolf, has been concerned since she was the 16-year-old in the uncompleted name-return (pre-burial) ceremony that “Jim Thorpe is in limbo.” In the Sauk way, says Massey,
“We have a Big Spirit and a Little Spirit. The Speaker speaks to that Little Spirit and tells it, ‘You can go on.’ When those two men came in, they interrupted the Speaker. You don’t interrupt the ceremony, or the Spirit’s not settled. You’ve got to finish the ceremony.” When asked if anyone tried to stop the people from taking Jim
Thorpe’s body, Massey replies: “The Old Men had never been inter- rupted; there is no rule for that. Everyone always has respect for the cer- emony. People were confused and we asked, ‘Is this real?’ The Speaker was not talking to a well-known figure, but just a man with an Indian name who wanted to go home.” One of the leading Sac and Fox cultural experts, Massey is a grand-
mother, fluent in her Native language and has been a Sac and Fox policymaker and advisor since 1972. Daughter Sandra Massey (Not Sitting Still) has worked for the Nation’s repatriation program since
she was 21 and has been the Sac and Fox historic preservation officer since 2004. “We hear about the great man,” she says, “but I know people for whom this famous person was ‘Dad.’” Sandra Massey takes issue with others’ motives and language. “Jim
Thorpe was a man,” she says, “not a ‘relic’ or ‘collection.’ The Borough wants to celebrate his fame, not the man.” She laughs when remember- ing “their ‘ceremony’ – they gather around his grave once a year and sing, ‘Happy Birthday.’” She is critical of the “stereotypical images” etched into the memo-
rial. “They even got his name wrong,” she says: “‘Bright Path’ is only a small part of his Thunder Clan name, Wa-tha-huk – The Bright Path the Lightning Makes as It Goes Across the Sky.” As with the too- abbreviated name, “There is so much more to the man than depicted in the Borough.” Bill Thorpe was “very disappointed,” when he “first went to Jim
Thorpe, Pa.” He says the “grounds were not well kept.” The second time was “a little better, but not ideal.” He says, “I went there to say ‘Hi’ and to spend a little time with him.” He wishes he “could do that more often.” “Dad believed in the Indian way,” says Bill Thorpe. “All we want is to
bring him home, finish his ceremony and give him a proper burial on Sac and Fox land, so he can rest in peace.” X
John E. Echohawk, Esq. (Pawnee) is the executive director of the Native American Rights Fund, the oldest and largest Native legal organization. He was the first graduate of the University of New Mexico’s special program to train Indian lawyers, and was a founding member of the American Indian Law Students Association while in law school.
Dr. Suzan Shown Harjo (Cheyenne & Hodulgee Muscogee) is president of The Morning Star Institute and an award-winning columnist for Indian Country Today Media Network. A founder of the National Museum of the American Indian, she is guest curator and general editor for the Museum’s 2014 exhibit and book, Nation to Nation: Treaties Between the United States and American Indian Nations.
SMITHSONIAN INSTITUTION 67
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