On the surface it seems like quite an honor to have a town named after you. Take the case of what is officially known as the Borough of Jim Thorpe, Pennsylvania. It’s a municipality named after the Olympic champion and the American sports legend from the Sac and Fox Nation of Oklahoma. Growing up and reading about arguably the most famous Native American of the 20th Century (Thorpe) I was always puzzled about one part of his biography. Why was he buried in Pennsylvania?
It’s been over 100 years since Jim Thorpe was crowned “World’s Greatest Athlete” by the King of Sweden in the 1912 Stockholm Olympics after winning a Gold Medal in both the decathlon and the pentathlon. Combined they are actually 15 different track and field events. No one else has ever accomplished this feat.
The Washington Post has called Thorpe “the star who almost single-handedly created professional football.” He also played professional baseball. In 2000 he was voted “Athlete of the 20th Century” by ABC’s Wide World of Sports, beating out Babe Ruth and Muhammad Ali. These awards have extra significance to me because I am a citizen of the Sac and Fox Nation of Oklahoma as well. Although not related directly by blood, our families have been very close for generations. My son affectionately calls him “Grandpa Jim.”
Under the surface is where this story gets complicated. You see, come to find out Jim Thorpe never wanted to be buried in Pennsylvania even though he attended the Carlisle Indian School in the Keystone State and made his fame as a college football player there. He wanted to be buried in a traditional burial with his family and Sac and Fox people.
It’s a long story but here’s the short version. After his death in April 1953 his third wife Patricia Askew Thorpe, a non-Indian, burst into Thorpe’s traditional Sac and Fox funeral wake with Oklahoma state troopers at her side. She ordered him to be loaded up and whisked him away in the middle of the night, and had him put in a mausoleum. The ceremony was never completed. She started shopping the legendary athlete’s body to the highest bidder.
Two dying coal mining towns called Mauch Chunk and East Mauch Chunk, tucked away in the Poconos of Pennsylvania, went in together to buy his remains for a reported $25,000 and renamed their two towns jointly – the Borough of Jim Thorpe. It was meant to attract tourists, but it only created a trickle. Maybe the NFL would choose the little town for their Hall of Fame location? It didn’t happen.
According to Steve Ward, an Indian law attorney who represents the tribe and Thorpe’s two remaining sons, Richard and William, grandiose plans were made to use Thorpe’s body to reverse the town’s economic fortunes. Plans called for the commercialization of the Jim Thorpe name, to include a football shrine, a museum, a 500-bed hospital, an Olympic stadium and a sporting goods factory. None of these plans were ever realized, and the Borough of Jim Thorpe continues in decline today. Let’s fast forward.
In June of 2010, Thorpe’s sons filed a lawsuit in U.S. District Court for the Middle District of Pennsylvania, citing the Native American Graves Protection and Repatriation Act, or NAGPRA. The Sac and Fox Nation of Oklahoma also joined the suit in the U.S. District Court of Pennsylvania to bring Thorpe’s remains back to finish his traditional burial. The delay in filing was because of the son’s respect for the wishes of Thorpe’s daughters to leave him in Pennsylvania. When all the daughters passed away, the sons filed the suit. The case is known as John Thorpe, Sac and Fox Nation et al. v. Borough of Jim Thorpe et al.
The final judgment of the district court was filed on April 19, 2013. Judge Richard Caputo ruled that NAGPRA, by its plain language, was applicable to Jim Thorpe’s remains. The tribe and the Thorpe family were all anticipating the homecoming of this Olympic champion and hero sometime this year. Of course, the Borough refused to follow the order and appealed the ruling, saying basically that they had “bought him fair and square” and that his remains should remain their property even though the family and tribe have said the Borough can keep the Thorpe name.
On October 23, 2014, a three-judge panel from the U.S. Court of Appeals for the Third Circuit ruled that NAGPRA cannot be used to compel a repatriation of Thorpe to his homelands. It was a slap in the face to the plaintiffs and others who had supported and fought for his return.
“We’re disappointed and shocked at this outcome,” said Sac and Fox Nation Principal Chief George Thurman, “but we have decided to pursue our options and are focused on moving forward in this case.
“The judges decided that Congress intended for NAGPRA to apply largely to ancient or old burials and not to the modern burial of Jim Thorpe,” wrote the Chief in the Sac and Fox News. “The judges wrote that a repatriation in this instance would be a ‘patently absurd’ application of NAGPRA.”
“In an unwarranted departure from unambiguous statutory commands, the (three-judge panel of the Third Circuit) invoked the so-called ‘absurdity doctrine’ to prevent the very outcome Congress intended and that occurs regularly in American Indian grave repatriations,” wrote Ward in a Statement Concerning a Petition for Panel Rehearing and Rehearing En Banc that was filed on December 8, 2014. “Initial decisions by the U.S. Courts of Appeal are made by three-judge panels. The non-prevailing party in a case can ask for a rehearing en banc, meaning a rehearing before all of the active judges on the court.”
The statement also pointed out that the “Supreme Court long has defined an ‘absurd’ result as one so contrary to social values that Congress could not have intended it – a standard not even remotely met in this case…the panel’s decision lowers the bar. The reasons the panel found a possible repatriation unusual or surprising or ‘absurd’ reflect a fundamental misunderstanding of NAGPRA.
“Instead of focusing on the truly shocking facts surrounding the removal of Jim Thorpe’s body from a traditional Sac and Fox burial rite…and the commercial use of his remains…the panel improperly speculated about theoretical consequences, none of which are possible if NAGPRA is properly interpreted.
“Additionally, the panel incorrectly assumed that the District Court had ordered Thorpe’s body to be exhumed and his remains delivered to his sons, which is incorrect and which reflects its misunderstanding of Congress’ design of the repatriation process.
“In this case, the panel correctly found no ambiguity in NAGPRA’s definition of a museum… and, in fact, found that the municipality (the Borough of Jim Thorpe) in possession of the remains in this case was squarely within a literal application of (NAGPRA’s) language. The application of NAGPRA in this instance…cannot be less than a ‘plausible’ result, and it is not reasonably a result that ‘defies rationality’ or is ‘nonsensical’ or that otherwise could be considered contrary to social values.”
“The injustice was that Jim Thorpe’s casket could have taken away from his traditional funeral without any consideration of the rights of Indian people,” said Ward, who works for Connors & Winters law firm out of Tulsa. “The court of appeals appears to have viewed the injustice as being to the Borough of Jim Thorpe. We believe the focus of this legal analysis should be on the rights of Indian people and tribes.”
Part of a written Statement of the Sac and Fox Nation reads, “Family is one of the most important pillars of the Sac and Fox way of life. The Sac and Fox Nation, along with the Thorpe Family, will ceaselessly pursue this issue until Jim is finally returned to us – his family”
Jack Thorpe, the son who initially led the charge and then subsequently died of cancer, explained to me once on my radio show that “it’s not about Dad wandering around as a lost spirit. The media plays that up, but we know better. We just want for Dad to be buried where he wanted to be buried – with his family here at the old place, here on Moccasin Trail.”
It’s time to bring Grandpa Jim home.
Harlan McKosato is a citizen of the Sac and Fox Nation of Oklahoma. He is the Director of NDN Productions, an independent media production company based in Albuquerque.