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Indian Country rallies to return Jim Thorpe back home to Oklahoma

Monday, July 6, 2015

Jim Thorpe. Photo from Wikipedia

Tribes and their advocates are usually looking for ways to keep cases out of the U.S. Supreme Court but they are coming together to seek justice for one of the world's greatest athletes.

Olympic gold medalist Jim Thorpe, a member of the Sac and Fox Nation, died in 1953. As he was about to buried on tribal land in Oklahoma, where he was born, his widow interrupted the traditional ceremony and took the body with the assistance of state troopers.

Over the objections of the surviving children, the remains were taken to Pennsylvania and buried in a newly-created municipality called the Borough of Jim Thorpe. Four years later, in 1957, the body was moved to a mausoleum that serves as a monument and a symbol of pride in a community that otherwise lacks any direct connection to the legendary athlete.

Thorpe's sons, however, never gave up hope for the return of their father. Neither did the Sac and Fox Nation, whose leaders joined John, Richard and William in filing a lawsuit under the Native American Graves Protection and Repatriation Act in June 2010 to bring Jim Thorpe back home to Oklahoma.

But John Thorpe never got to celebrate when a federal judge in April 2013 ordered the municipality to return the remains to the family. John, also known as Jack, passed away in February 2011 before seeing any major action in the case.

Indianz.Com SoundCloud: 3rd Circuit Court of Appeals Oral Arguments in John Thorpe v. Borough of Jim Thorpe

Jack was buried in the cemetery where his father was supposed to have been laid to rest more than 60 years ago. Yet Jim Thorpe never joined his son because the borough took the case to 3rd Circuit Court of Appeals.

A unanimous decision from October 2014 was a total loss for Thorpe's sons. A panel of three judges refused to apply NAGPRA to the municipality, arguing that doing so would lead to "absurd results" in potentially similar situations across the country.

"Literal application would even reach situations where the remains of a Native American were disposed of in a manner consistent with the deceased’s wishes as appropriately memorialized in a testamentary instrument or communicated to his or her family," Judge Theodore McKee wrote for the majority. "There is therefore no limitation that would preserve the final wishes of a given Native American or exempt determination of his or her final resting place from the procedural requirements of NAGPRA."

"NAGPRA was intended as a shield against further injustices to Native Americans," McKee added. "It was not intended to be wielded as a sword to settle familial disputes within Native American families."

Sac and Fox Nation Chief George Thurman speaks at a press conference in June to #BringJimThorpeHome. Photo by Mary Kathryn Nagle / Twitter

Thorpe's surviving sons and the Sac Fox Nation are now asking the Supreme Court to overturn the decision. They filed their petition for certiorari on June 2.

The National Congress of American Indians, the largest inter-tribal organization, is supporting the cause. A friend of the court brief argues that the 3rd Circuit "eviscerated" key provisions of NAGPRA, which became law in 1990 to help descendants and tribes reclaim their ancestors.

"Had the court fully considered these provisions and their application to the present case, it could not have possibly come to the conclusion that applying NAGPRA to the borough is a clearly absurd result and contrary to Congress’ intent," NCAI's July 1 brief, which was developed in conjunction with the Native American Rights Fund, states.

The Jim Thorpe Memorial in Jim Thorpe, Pennsylvania. Photo by Doug Kerr / Flickr

Current and former members of Congress are also supporting Thorpe and the Sac and Fox Nation. Rep. Tom Cole (R-Oklahoma), a member of the Chickasaw Nation, and former Sen. Ben Nighthorse Campbell (R-Colorado), a member of the Northern Cheyenne Tribe, also submitted a brief on July 1.

"NAGPRA is one of the most critical pieces of Native American civil and human rights legislation ever passed by Congress," the brief states. In this instance, the use of a state trooper to interrupt and remove Native remains from a traditional Sac and Fox burial on Sac and Fox soil exemplifies the disrespect for Native religions that Congress intended for NAGPRA to address."

Cole, who is one of only two Native Americans in Congress, sits on the committee with oversight and funding authority over NAGPRA. Campbell -- who, like Thorpe, was an Olympic athlete -- was an original sponsor of NAGPRA when he served in the House.

Former New Mexico governor and former Rep. Bill Richardson (D-New Mexico) also signed onto the brief. He helped steer NAGPRA through Congress when he served as chairman of a key committee.

A view of the U.S. Supreme Court. Photo by Indianz.Com

Support is coming from outside of Indian Country as well. The Becket Fund for Religious Liberty filed a brief on July 2 on behalf of several churches and religious groups.

"Since when does a court get to decide that someone’s religious beliefs are absurd?" Becket Fund attorney Stephanie Barclay said in a press release. "No American’s faith should be mocked by our courts. Jim Thorpe said he wanted to be buried with his family and his tribe, and that should have been the end of it."

The Borough of Jim Thorpe's response to the petition in Sac and Fox Nation v. Borough of Jim Thorpe was due July 2.

3rd Circuit Decision:
John Thorpe v. Borough of Jim Thorpe (October 23, 2014)