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Sunday, July 25, 2010

The Strange Quasi-Property Status of Corpses.

I'm working on an article about cemeteries, which has led me down several tangential paths.  One of the most obvious is the law's treatment of human remains.  Pretty interesting stuff.  Although at common law there is no express property right in human remains, the nearest relatives of the deceased have a quasi-property right in the remains which arises from their common law duty to bury the dead. 

See, for example, Leno v. St. Joseph Hospital, 55 Ill. 2d 114, 117 (1973) ("The principle is firmly established that while in the ordinary sense, there is no property right in a dead body, a right of possession of a decedent's remains devolves upon the next of kin in order to make appropriate disposition thereof, whether by burial or otherwise.")

The confusion about what the common law means by "next of kin," "nearest relatives," etc. has led to some high profile wrangling over the remains of famous people, Anna Nicole Smith probably being the most recent example.  Surely there have been countless battles that never reach the newspapers.  As with many other legal issues surrounding the final disposition of human remains, it appears that this is an issue that we have collectively ignored and so rely upon a fairly unhelpful common law rather than a comprehensive set of rules.

This brings me to yesterday's New York Times, which describes the efforts of Jack Thorpe, son of Olympic athlete Jim Thorpe, to relocate his father's remains from Jim Thorpe, Pennsylvania, to his family's cemetery plot in Pottawatomie County, Oklahoma.  When the elder Thorpe died of a heart attack in 1953, his third wife Patricia made a curious deal with the towns of Mauch Chunk and East Mauch Chunk, Pennsylvania.  In exchange for the construction of  a monument, perpetual care of the remains, and a roadside attraction, Patricia granted the towns the right to rename themselves "Jim Thorpe."

The children from Jim's first two marriages were divided over this transaction so Jack and his two remaining brothers waited fifty years, until the deaths of their older sisters and stepmother, to mount this challenge.  Since Jim Thorpe was a Native American, his sons are suing for the relocation of his remains using the Native American Graves Protection and Repatriation Act of 1990 to claim that Jack Thorpe, as his son's lineal descendant, has legal claim to his father's remains.

This case gets to the heart of why I find cemeteries so interesting.  There is apparently no money involved in this dispute.  Instead, fifty years after Jim Thorpe's death, “I want to see him put away properly,” Jack Thorpe said, “I want to put him where he wanted to be.”  

You can read the whole article here

Tanya Marsh

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