Can a Town Be a Museum?

• Author: Bryan A. Garner
• Pages: 26-27

26 || ABA JOURNAL JULY 2018

Can a Town Be a Museum?

A case may hinge on the precision of defi nitions lawyer lexicographers conjure for the court

By Bryan A. Garner

Last month, we saw that lexicog raphy—the

art of defi ning words for a glossary or dic tion-

ary—is an especia lly challenging task. In dic-

tionary circles , it’s thought to take not only a

special aptitude but also a g reat deal of training.

Yet all legal drafter s are lexicographers in the

sense that they’re expe cted to draft defi nitions

in transact ional documents, rules, regulations

and legislation. Then, of course, judges mus t

interpret these defi nitions in light of how the defi ned

terms are ac tually used in a given legal instr ument.

In patent drafti ng, there’s actual ly a doctrine that

“every patentee may be his own lex icographer.” The

U.S. Court of Appeals for t he Federal Circuit ha s said

so in many cases, w ith slightly varying formulations.

The question I’d like to pose here is whether the

usual meaning of a word being defi ned carr ies into

a legal defi nition. This question arises w ith some

frequency i n litigation.

As a simple example, if we say “dog means cat,” does

that mean that the sequence of lett ers d-o-g refers only

to felines—that the word itself is an empt y vessel to be

fi lled with the defi ning words? Or are we saying that cats

are deemed to be dogs, as well a s all canines themselves

(the ordinary meaning of dog)?

Granted, care ful drafters disti nguish between means

and includes in preparing defi nitions. The latter sim-

ply stipulates that something else i s embraced by the

defi niendum (the term being defi ned) in a ddition to

whatever its ordinar y sense is. So if the idea were to

mean both dogs and cats , a more careful drafter

would write: “Dog includes all cats” rat her than

“Dog means cat.”

On the other hand, you could just say dogs an d

cats when that’s what you’re referring to. An

age-old recommendation in legal d rafting cir-

cles holds that you mustn’t give counterintu i-

tive defi nitions—even with includes. There’s a

perhaps apocry phal story about a government

regulation that once stat ed, “The term milk

includes all citrus f ruits.” That’s bad draft-

ing. It would have been worse, of course, to

say, “The term milk means citrus f ruits.”

Would that mean that milk, as we c om-

monly underst and it, would be excluded?

MUSEUM MAUSOLEUM

Let’s consider an actua l case—one

decided a few years ago by the 3rd

U.S. Circuit Court of A ppeals at

Philadelphia. It involves one of the

most beloved sports heroes of al l

time, Jim Thor pe.

Thorpe (1887–1953) was the Sac and Fox

Nation member who became a renowned ath-

lete as an Olympic track s tar, football player and

baseball player. Shortly aft er he died (intestate),

the members of his tribe gathered i n his native

Oklahoma to hold a traditiona l, two-day funeral

rite. It was abruptly halt ed when Patsy, Thorpe’s

third wife, a rrived with law enforcement o cers

to take Thorpe’s body somewhere else.

After a year of negot iations, Patsy entered into an

agreement with two sma ll towns in Pennsylvania, where

Thorpe had attended college. In e xchange for the famous

athlete’s remains, the two t owns consolidated into a sin-

gle borough under the name “Jim Thorpe.” The borough

owned the land where the mausoleum would be loc ated,

and it would maintain the site . Thorpe had actually

never been to the place chosen as h is fi nal re sting place,

and he had reported ly told family members other than

Patsy that he wanted to be bur ied in Oklahoma. Yet

Patsy was legally author ized to make the fi nal decision,

and Pennsylvania is what she chose ba ck in 1954.

After the f uneral there, many tribal ceremonies took

place at the mausoleum. Family members v isited the site

over the years, and the Jim Thorpe A rea Sports Hall of

Fame worked to improve it.

In 1990, Congress enact ed the Native American

Graves Protection and Repatr iation Act, which gives

tribes the power to reques t repatriation of cultural

items, including human remain s, if they are pos-

sessed or controlled by a federally f unded museum.

Some 57 year s after Thorpe’s death and 20

years after en actment of the graves protection

act, Thorpe’s son John, from his second ma r-

riage, sued to exhume Thor pe’s body and

return it to the Sac a nd Fox Nation. The evi-

dence showed that John had waited so long

because his sister oppos ed moving the body,

and he couldn’t act till af ter she died. The

trial cour t granted John’s request and, on

summary judgment , ordered an exhuma-

tion and repatriation to Okla homa.

The question on appeal came down

to whether t he borough of Jim Thorpe,

Pennsylvania, qua lifi ed a s a museum. That

brings us to the statut ory defi n ition of

museum: “any institution or state or loca l

government age ncy (including any inst itution

of higher learning) that rec eives federal funds

and has possession of, or control over, Native

America n cultural items.”

That’s pretty broad. Let ’s stipulate that the

PHOTOGRAPH BY HERITAGE AUCTIONS COURTESY OF WIKIMEDIA COMMONS

Bryan

Garner

on Words

Jim Thorpe

Practice