Ancient Indian Burial Grounds and America’s Greatest Athlete

On Tuesday, two of the sons of the legendary athlete Jim Thorpe and the Sac and Fox Nation of Oklahoma asked the Supreme Court to allow them to rebury him on Indian land in Oklahoma, where he was born, the latest development in an outlandish saga that gives credo to the phrase “only in America.”

Jim Thorpe, a gold medal winner and dominant baseball and football player, is considered by many to be the greatest athlete in American history. He died of a heart attack in 1953, and out of anger that the state of Oklahoma wouldn’t erect a memorial in his honor, Thorpe’s estranged third wife, Patricia, actually interrupted his in-progress funeral in Shawnee Oklahoma and spirited away his remains to have them buried in a town in Pennsylvania, since renamed Jim Thorpe, where he’d never stepped foot. (He did go to college in Pennsylvania, albeit over 100 miles away.) The story gets even wilder, however, as it turns out that Patricia, after being rebuffed in her overtures to the Oklahoma government, had heard that the at-the-time two boroughs of Mauch Chunk and East Mauch Chunk were looking to increase tourism, so she cut a deal with them to have Thorpe buried there. The two municipalities then merged, renamed themselves Jim Thorpe, and erected a monument in his honor featuring his tomb and several statues, creating an instant tourist attraction. There are also unsubstantiated rumors of money changing hands in the transaction.

Since 2010, Thorpe’s sons have been attempting to have his remains relocated to his native Oklahoma under the Native American Graves Protection and Repatriation Act of 1990 (the Act), which was passed to allow Native Americans to recover remains plundered by museums, universities and government agents. As for the procedural history, a federal district court ruled in favor of the sons in 2013 (after the death of initial plaintiff Jack Thorpe and the addition of the Sac and Fox Nation of Oklahoma), finding that the municipality amounted to a museum under the law. This ruling was reversed by the U. S. Court of Appeals for the Third Circuit in 2014. The court leaned heavily on the fact that Patricia was Thorpe’s next of kin at the time of his death and had the legal right to determine his final resting place. It decried the application of the Act to this case as “patently absurd.”

Thorpe’s sons and the Sac and Fox Nation contend that the third circuit improperly narrowed the scope of the act in a manner that would create a rather large loophole, which could be used to effectively ignore the repatriation process that’s the Act’s primary function in the first place. This argument is further bolstered by the fact that the jurisdiction of the Third Circuit doesn’t include a single federally recognized Native American tribe, which plaintiffs and their supporters contend limits the circuit’s ability ability to properly adjudicate cases involving the rights Native Americans due to a simple lack of meaningful experience in the (extremely complex) area.

Estate planning-related issues like this one don’t often make it to the Supreme Court. Combine that rarity with a fact pattern tied up in the Byzantine rules regulating the relationship between the U.S. and the various Native American tribes and the star power of a beloved American hero and this is certainly one to keep an eye on. We probably won’t see it’s like again.