Supreme Court should not take the Jim Thorpe case

The petition to move the remains of the greatest athlete this planet ever produced from Pennsylvania to Oklahoma is surely being examined this summer with a special level of intrigue by the justices and their inner circle.  Although I will not be shocked if the Court takes the Jim Thorpe case, this would be wrong. 

In plain terms, Thorpe always had the ability to express his wishes as to how he wished to be buried in a will. However, when he died in 1953, at 64, while having a meal with his third wife, Patricia, he had never written those wishes down. Accounts of Thorpe’s background vary, but he was certainly of Sac and Fox heritage, identified as part Irish, and considered himself a Catholic. This background makes it impossibly challenging to divine exactly where he wanted to be buried or if he would wish to be disinterred. Ultimately, Patricia held the rightful authority to dispose of his remains. 

{mosads}Patricia decided to inter Thorpe in Pennsylvania, the state in which he rose to national prominence while associated with the athletic department of the Carlisle Indian Industrial School under the tutelage of Glenn “Pop” Warner.  Patricia secured an agreement from the towns of Mauch Chaunk and East Mauch Chaunk to combine and rename themselves in honor of Thorpe and build a dignified memorial. 

Yet, over half a century after his death, Jim’s elderly children from his second wife are involved in a lawsuit fighting to move Jim out of his namesake borough against the wishes of Jim’s deceased children from his first marriage.   This split in feelings in not widely understood. 

Jim initially married Iva Miller, who he met in Carlisle and married in 1913.  Iva bore Jim four children, Gale, Charlotte, and Grace, as well as a son who died at age 2.  Each daughter believed that Jim should remain in Pennsylvania.  Grace, very accomplished in her own right as a Congressional liaison and anti-nuclear activist, supported the borough because she felt the body was at rest after she, in conjunction with local chiefs, performed a Native American burial ritual on the plot. Similarly, Charlotte, who was instrumental in having Jim’s Olympic medals returned, was in favor of the borough. Charlottes’ son, Michael Koehlar, a teacher, was this side of the family’s spokesman until he died earlier this year. 

Jim later married Freeda Kirkpatrick in 1926.  Freeda bore Jim four boys, Carl, William, Richard, and John.  The petition to remove the body to Oklahoma, where Jim was born, was initiated by John, a former Chief for the Sac and Fox Tribe, who died at age 73 in 2011.  The plaintiffs now include Richard, William and the Sac and Fox tribe. 

It is significant that John conceded waiting for Grace to die before pursing relief. This unfairly robbed Grace a voice and vibrancy that only life can give.  The fact that Freeda’s children were younger and lived longer than Iva’s has caused many to feel they are supporting Jim’s family’s wishes, when the viewpoints were strongly divided.  Further, the law John chose to proceed under, the Native American Graves Protection and Repatriation Act (NAGPRA), gives the mistaken impression that this is another example of Native Americans being unfairly treated. 

NAGPRA is a well-intentioned and overdue law.  It works to correct a national embarrassment most have little sense of, namely, how the bones of Native Americans were frequently treated as mementos of a conquered people.  Such “trophies” made up private and public collections.  Exploitation was part of government policy, as in 1868 the Surgeon General ordered Native American remains dug up and set on display.  To some extent, the HBO show Deadwood portrayed this phenomena with the notorious Al Swearengen often depicted bearing his soul to a decapitated head he paid a bounty for. 

Such practices primarily went on in the 19th and very early 20th century. Evolving sensibilities eventually led to NAGPRA passing in 1990.   It seeks to identity and return Native American cultural items, which include human remains.    It does not apply to people born so long ago that they can not be affiliated with any contemporary tribe, as illustrated by an unsuccessful attempt to apply the law to a 9,000 year old skeleton found in Washington.   Just as the skeleton was of too early origin to have the law apply, Jim Thorpe died at a time where the exploitation the law targeted was over. 

As the Third Circuit Court of Appeals realized, the pursuit of this case under NAGPRA is  “absurd.” The court correctly found the law was “not intended to be wielded as a sword to settle familial disputes within Native American families.” This is what the Supreme Court should also conclude.

Interestingly, even if the plaintiffs’ prevailed in the Supreme Court, as they did at the trial court level, Jim’s remaining decedents and the Sac & Fox tribe would likely dispute this issue further at the administrative level within the Department of Interior.  This would have been a more viable result if the suit was brought at a time when Grace, Charlotte, Gale, John and Carl were alive to voice their preferences in such a proceeding. 

The most eloquent statement that has come from this family dispute was made by Mr. Koehler when John died in 2011. Koehler stated “[John] may have had an opposing view to most of us regarding the final disposition of his father’s remains, but his feelings and intentions were genuine.  I’m sure we all share compassion for the family and pray that God has a special place for him, perhaps very close to his father.” Koehler joined John earlier this year, and hopefully they have found one another, right along with Jim Thorpe.   As time passes for all involved, including the surviving Thorpe children, it is time for the Supreme Court to make the easy legal call and stop this fight once and for all in this realm, by denying certiorari.

Strockyj is a New York-based attorney and legal commentator.

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