The Supreme Court Should Not Take the Jim Thorpe Case

The petition to move the remains of the greatest athlete this planet ever produced is surely being examined this summer with a special level of intrigue by the justices and their inner circle, who clandestinely choose to review roughly 80 cases from 10,000 applications. Even this privileged group is not beyond the vice of celebrity worship, having reached out in the past for the cases of Muhammad Ali and Anna Nicole Smith. Although I will not be shocked if the Court takes the petition seeking to remove Jim Thorpe’s remains from Pennsylvania to Oklahoma, this would be wrong.

In plain terms, Mr. Thorpe always had the ability to express his wishes as to where and how he wished to be buried in a will. However, when he died on March 28, 1953, at the age of 64 while having a meal with his third wife, Patricia, he had never put those wishes down on paper. Accounts of Thorpe’s ancestry and background vary, but he was certainly of Sac and Fox tribal 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 undisputed authority to dispose of Jim Thorpe’s remains.

Patricia decided to inter Mr. 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 Mr. Thorpe and also build a dignified memorial.

Yet, over half a century after his death, Jim’s elderly children from his second wife are involved in a federal lawsuit fighting the wishes of Jim’s deceased children from his first marriage. This split in feelings in not widely understood and speaks to why the petition should not be considered by the Supreme Court.

Jim initially married Iva Miller, whom he met in Carlisle and married in 1913. Iva bore Jim four children, three daughters, Gale, Charlotte, and Grace, as well as a son who died at age 2. Each of the daughters strongly believed that Jim should remain at his present site. Grace, quite accomplished in her own right, being a tribal leader, anti-nuclear activist, and WWII veteran, 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 Pentathlon and Decathlon medals from the 1912 Olympic Games returned to the family, was in favor of keeping Jim in PA. Charlottes’ son, Michael Koehlar, a teacher who authored 16 books, was this side of the family’s spokesman until he died earlier this year at age of 77.

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 of cancer. The lead plaintiffs now include Richard, a former Oklahoma state government worker, and William, who worked for an aircraft company. Both are of advanced age. Carl Thorpe, a career Army officer, died in 1986.

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

NAGPRA is a well-intentioned and overdue law. It works to correct a national embarrassment most Americans have little sense of, namely, how the bones of Native Americans were frequently treated as mementos of a “conquered” people. While bones of all ethnicities were collected, Native American remains were especially sought. Such “trophies” made up private and public collections, including New York’s prestigious Museum of Natural History. Exploitation was part of government policy, as in 1868 the U.S. 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 baring his soul to a decapitated head he paid a bounty for.

This treatment 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.Consequently, NAGPRA targets abuses that went on during a reasonably clear range of time. It does not apply to people born so long ago that they cannot be affiliated with any contemporary tribe, as illustrated by a notable unsuccessful attempt to apply the law to remains found to a 9,000-year-old skeleton found in Washington. Just as the skeleton called “Kennewick Man” 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 in Philadelphia realized, the pursuit of this case under NAGPRA is a stretch to the point of being “absurd.” The appellate court correctly found that NAGRPA was “not intended to be wielded as a sword to settle familial disputes within Native American families.” This is what the justices should also conclude when this matter is being reviewed at the Supreme Court level.

Even If the Supreme Court takes the case, it can decide the matter all sorts of ways in favor of Thorpe remaining at his present site. This includes finding: (1) NAGPRA overbroad as applied to Thorpe; (2) that the memorial is not a “museum” within the meaning of NAGPRA; (3) that there was unreasonably delay in bringing the suit; (4) that plaintiffs lack standing or (5) that the case fails on First Amendment grounds. 

Yet, there would only be one way to find in the plaintiffs’ favor -- to import a result Congress never intended to the petition of Jim Thorpe’s surviving children after Jim’s first three daughters, who expressed a contrary view, expired with the normal passage of time. 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 and 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 two remaining 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.