And, observers say, the interpretation of the law in the Jim Thorpe case has the potential to influence cases across the country.
Jim Thorpe borough leaders filed a notice on May 17 saying that they would appeal the decision by U.S. District Judge A. Richard Caputo.
Experts say that — as well-meaning as the borough’s residents were when they agreed to build a mausoleum for the two-time Olympic gold medalist and professional football pioneer — the town’s possession of Thorpe’s body is the kind of exploitation the law was intended to prevent.
“I don’t think that just because a person achieves national renown and respect means that his body can be the subject of commercial disputes and treated as a piece of property on his death,” said Walter Echo-Hawk, a Pawnee lawyer who helped draft the 1990 law.
Echo-Hawk said the Repatriation Act is a human rights law intended to correct a double standard in American society that allowed the desecration of Native American graves — acts that would be criminal if they involved nonnative remains — to go unpunished.
“There was an awful lot of bartering and trafficking in human remains that was going on. People selling skulls and pottery and things that were taken out of graves — just the kind of plundering that would shock the consciousness,” Echo-Hawk said.
In addition to criminal penalties for trafficking in Native American remains, funerary objects and cultural items, the law gives Native Americans a right to have remains returned when they are excavated or discovered on federal or tribal lands.
It also gives the right of repatriation, with priority to the closest living descendants, for remains and cultural items that are in museums or controlled by federal agencies.
This provision gave rise to the central controversy in the lawsuit by Thorpe’s sons against the borough of Jim Thorpe.