Thorpe’s Family Appeals Court Ruling; Gains Powerful Supporters

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Former Colorado Senator Ben Nighthorse Campbell and the National Congress of the American Indians (NCAI) joined the sons of Jim Thorpe and his Sac and Fox Nation in petitioning a Philadelphia court to return the remains of the Olympic athlete to Oklahoma.

Their support was made known in separate documents when they each filed a friendly brief (Amicus Curiae) to the United States Court of Appeals for the Third Circuit on December 8, the day Thorpe’s sons asked the same court to rehear the case.

On October 23, the Court threw out an earlier ruling, and said Thorpe should remain in the mausoleum in a Pennsylvania borough named after him. His sons and the Sac and Fox Nation of Oklahoma -- the main parties to the legal suit -- are appealing.

RELATED: Thorpe Family Considering Appeal of Ruling on Jim Thorpe's Remains

The court in October ruled that: “Thorpe’s remains are located at their final resting place and have not been disturbed. We find that applying NAGPRA to Thorpe’s burial in the borough is such a clearly absurd result and so contrary to Congress’ intent to protect Native American burial sites.”

NAGPRA refers to the Native American Graves Protection and Repatriation Act passed by Congress in 1990 to correct past abuses to Native Americans. Its interpretation is a big issue in this protracted legal battle.

Thorpe’s sons from his second marriage, William, Richard and John (deceased), and the Nation, said in their petition that the panel of judges misunderstood 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, subsequent multiple interments, and the commercial use of his remains—the panel improperly speculated about theoretical consequences, none of which, in fact, are possible if NAGPRA is properly interpreted,” their petition said. “Under NAGPRA the determination that an entity is a ‘museum’ is a threshold matter and repatriation requires additional processes, including notice to lineal descendants, and an opportunity for fact development to determine if repatriation is proper under the circumstances.”

Senator Campbell, who was instrumental in the passage and the oversight of NAGPRA and was central to the enactment of the repatriation laws when he served in the House of Representatives, said in the amicus curiae that the court undermined the work in Congress with its decision.

“The definition of ‘museum’ in NAGPRA reflects Congress’s deliberate choice that the law cover all Native remains in the possessions of any entity that receives federal funds, including historical societies, local governments, cultural and visitor centers, archives and other holding repositories, collections and displays,” he said.

The borough’s possession of Jim Thorpe’s remains, he said in the amicus curiae, is a “disruption of a traditional, Native funerary process and returning-the-name ceremony, which is the last step before burial in the territory of the Sac and Fox Nation.” He added, “The use of Jim Thorpe’s remains to attract tourism to the borough perpetuates the concept that what is sacred to the American Indian is appropriate for cultural exploitation by the American public.”

Suzan Shown Harjo, president of the Morning Star Institute and a key player in the creation of NAGPRA and the repatriations laws, said she agrees with the former Senator. “If they receive federal money and hold the remains of our people, then they are subject to NAGPRA,” she told ICTMN.

Harjo said that Jim Thorpe has become a roadside attraction in the borough and that is exactly what Congress is concerned about in the law. There has already been a lot of spiritual damage to the elders and the tribe of Thorpe. He should be buried in a traditional manner. “It is just real common decency. They can still have the name and the mausoleum. The family wants the remains,” she said.

Harjo is also the leading proponent in pushing for NCAI’s involvement in the matter. She sponsored a resolution supporting the sons and Nation’s position. The resolution was followed through with the brief in court.

NCAI, in court documents said, “Without rehearing, this fundamental misunderstanding will have far reaching implications in the future protection and repatriation of Native American cultural items and human remains.”

NCAI said NAGPRA is of exceptional importance to the 566-federally-recognized Indian tribes and the 5.2 million individual Native Americans and Alaska Natives, and the 1.2 million Native Hawaiians across the nation. “Not one of the 566 federally-recognized Indian tribes resides within the boundaries of the Third Circuit,” the organization said in court documents. “Yet, the rights of these tribes and individuals could be severely impacted by a panel opinion that disregards the plain meaning of the provisions of NAGPRA and misconstrues the intent of Congress in enacting this statute.”