originally made it when we filed our motion to dismiss and that the court at that point indicated that it wasn't proper i don't have the motion of front of me  but if in the event your honor you would believe that it was waived the third circuit has previously ruled and with matters of public interest such as this that a court has the ability to hear it and determine it implicitly well in this case the contract was written before the statute was ever adopted we have a situation here where the savings clause not proper actually says that it was not to in any way it made that right raised in the state and you reason your brief for one of the images i suppose that i guess taken to its extreme any native american passes on could not pick or choose where they would be buried for fear that later future generations the big zoomed in and put elsewhere i believe that's was in the amicus of the first family yes your honor it's a situation where state courts have traditionally delved into it they've handled family disputes we don't believe nacro was intended to be a sword in a family dispute such really that's what we see this as being this was ongoing there was a first family with three daughters who were opposed to any removal of the the father they were the plaintiffs waited until she she died to bring the action even though they were aware of it for over one case twenty years and the other fifty years just because they didn't want to get involved in the family dispute everyone was never at the table in this litigation state court would allow everyone to be there all the family the sons from the second family that were opposed to it took no action it was acquiescence by non action right they had knowledge there is no question there is knowledge in this case right what have if it's in the record what happened during the initial tribal indigenous women to prove there was an indigenous or money bruce or money that started and that was interrupted is that in the record now it's not your arm don't go away i mean there's a lot that was brief that is not in the record nothing has been documented to that there were three facts that the police have said are important that jim thorpe was a native american he was and rolled expertise really of that committee this up under this direction but we don't i'm out of time your answer but we're not in the situation you're on where we have laws to apply when there's no reason for them to apply we don't believe that because of the contract with the wife there is a right of possession there's no reason to go through a whole procedure the expense and everything else when you have state court that could just as easily do it they could have brought a state court action where then wheeler i represent john thorpe and michael coulter who are the grandsons of jim thorpe from his person are they filed an amicus brief in this case in support of the borrow they want their grandfather's they were he is site where he's been lawfully buried by his family or anyone else with the authority to bury him and that's because that's what that's not what nagpur it was intended to reduce we're in this that is you just the language that you're relying upon the language that i'm rely upon a proper request and that collections word was written out by the district court this is a court in ruling just look at the museum definition which says anyone with possession of native american remains and the court said that's enough but that's not enough if you read further down in statute it says only museums with possession of holdings or collections of native american remains and and i'm not this is i'm not imposing this  everywhere in the in the statute in the regs in the senate report in the house report collection collection collection it comes out that's what congress is trying to reach if we're trying to reach into graves and pull bodies out of them that is exactly the opposite  provisions dealing with protecting a native american gravesite that's what the statute designed to do protect native american graves that is precisely the opposite of what is allowed now in this case under the definitions section though doesn't somewhere in a glass case in a dire hour yes then then we have a different issue not resting in a grave site or you can go through the legislative history you can go through the analysis reports there's not a hint anywhere in there that this statute could apply to a justing of your point was the issue of how how broad this ruling is and if hopefully nobody left when i say this but please consider the case of elvis presley who is a man of partial native american ancestry just like a factual issue the receipt of federal funds and we don't argue that ok with that that's a different issue than i do i guess there's no problem in terms of the receipt of federal funds indirectly here that's not contested i was sorry as a legal question under subsection eight in terms of the way museum is defined as to whether or not he broke this within that definition because of our broad definition it's any institution or government in possession of native or government work there they're going after real museums with collections glass cases drawers full of bonds i mean the legislative history and was testimony about this issue of this horrible treatment of native american remains for centuries in this country that's the harm they were trying to nation of oklahoma i want to begin by were characterizing the case a little bit i think the burros a lot of the boroughs arguments term both negra and the issues in this case on their head first of all we're not here after a repatriation proceeding as occurred we're here on the issue of whether nec applies in the situation we're here on but secondly a statutory construction problem of whether nagpur either  identifiers and help with that process but once the notifications have been provided then comes the opportunity for other lineal errors perhaps even another tribe to make a completely a competing claim for repa on those issues can be decided in one of two ways there is an informal nagpur or review committee which may is available to help address these issues or the federal lot of issues on its head the elvis presley example and others this case involves a really specific set of circumstances and i think that once everyone's notified most  facts but when you get from us and from every court is the sitting acme klein other places so you know it's something that we're going to be real careful about how do you how do you address the argument that hate anybody with any native american blood repatriations as such it was narrowed to a certain extent to be limited to native americans institutions and state municipal governments but it's a broadly written human rights civil rights an ownership right for hundreds of years common law has never recognize an ownership rights in remains there is actually an obligation most states have burial statues decide these issues and there's a very clear first of all not pro recognizes that a person has the right to dispose of their own body the regulations specifically provide that nec per doesn't override a choice a written choice to leave a body for medical research and i think in a according native american person goes to the trouble to buy a cemetery lot and a local cemetery leaves a well expressing a desire to be buried in a particular location those there are strong legal principles that would well yeah they can move repeat ration but that doesn't mean they're necessary to get the body doing but nadia would still applying this iteration next for what i'm trying to find out why wouldn't there would be the extra there would be essentially gives a native american person or a tribe the ability to initiate the repatriation process but in order to get to the end result in order to accomplish  it review committee endora court ultimately would have to be convinced and it's very difficult for me to understand how a court would ever get there or the right neck to review committee where a person had  certainly one of the facts that we presented and we're responding about the context of this and this is exactly the kind of situation and i for was addressed through what was intended to address well how many understand the definition of the museum thank you for themselves section eight museum means any institution we state or local government agency doesn't say state or  government entity doesn't say end or state or local government agency or entity that says a state or local government agency can a borough be a local government agency the entire borough agency or entity you want to insert that parent that we're after agency so that we're not looking for an institution one agency but we're looking at an institution and agency or an entity what if this was not the borough the times of the here in that case the state of pennsylvania would be a museum under your definition we see no distinction between an agency and i think that language was probably intended to capture washington which most most in most of the situations the land or the institution more often than not like probably is operated by an arm of the state removal of these remains has long been considered an injustice not only by members of impulsion indian family but also by members of the second box notion and we respectfully believe this is exactly the situation another you know an equitable sample or something so that apply here well the answer in two ways i mean the same argument could be made by any institution or government when the museum which has maintained you the artifacts remains  in this one the family agreed at least the person who could agree did agree everybody stood by it for fifty five years then you know it was then and once once you know that enough people passed on they took a new position is that the kind of thing a  be countenancing yes i think so i think the same situation arises under this in terms of statutes that every state has i mean in those statutes again emphasize that there is no permanen remaining trial and even in the general law context can certainly make a decision that all would have preferred to have my parents buried in the old family cemetery in the country as opposed to here it's not frequent but it does happen and it's not frequent and i also think but the concerns about negra having too broad reach and resulting in unusual situations really is not founded because of the cost that very often comes to court either because these issues don't come up that often but essentially once the initial burial decision is made the the body is owned by the law you can't  and we find nothing in california law which would apply to a situation like this where this is a family dispute and i don't agree that it isn't a this that would allow one family member to countermand the decision application of nine hundred eighty three nine hundred three leaf depends on whether a statue has an express relief or not nag by its clear language found in section thirty thirteen in title force mint provides a clear private remedy by stating that the district courts will have jurisdiction over any action brought by any person alleging a violation of this act and shall have the authority to issue such orders as may be necessary to enforce the provisions of this act your eyes i submit that this is an explicit private remedy with no congressional mention textual or otherwise of authorizing additional relief as found in section one hundred eighty three i submit that justice scalia in the rancho palos verdes school decision clearly stated that statutes providing their own private r damages i agree your honor and i think we get stuck on the cross appellants of the word elaborate what what those elaborate me to me it's code for money damages and attorneys fees that it's found the one hundred eighty three and that would be a very important question i simply could not answer what would there garrett you speak how would you quantify that in the issues that have been discussed before my part of this case i think would be impossible and i also think that demonstrates why hundred eighty three application is so unavailable in this case and is completely supplanted by the the private remedy i also would would point out respectfully your honor that for all the arguments that have come before me from references to knots just what we want to follow that means we're going to have to do an inventory under section five to do an inventory after we've lost fifty years of history the wife the says what's in the coffin the daughters to say what's in the coffin you know the borough fathers who are long gone after fifty years we will probably may have to do an actual mission to do the inventory to comply with the to get to the  know it sounds absurd but if we have we can't pick and choose what we want under naca and that's something that's troubling maybe can be done by x right i don't know i'm not i'm a country's general practitioner so this is beyond and thirty six of our brief pennsylvania is a bit unique when it comes to exhumations we do have a statute but we have a long case law history is pettigrew case it goes back to nineteen zero four and gives standards of what a court has looked like with all lineal errors involved those were the two items that i did want to address i don't know if there are other questions court might have or not i did want to ask time those words are used does that impact your ability to rely on it with the force of law as opposed to just a definition i don't i see the definition as a part of the statute that that word it says everywhere in the statute the right