Jim Thorpe's surviving sons asked the U.S. Supreme Court on Tuesday to allow them to pursue reburial of the famed athlete on American Indian land in Oklahoma.
Thorpe was laid to rest in Pennsylvania more than 60 years ago. Bill and Richard Thorpe have been fighting to move the body to Sac and Fox land in the state of Thorpe's birth, saying their father wanted to be buried in Oklahoma.
The sons, along with the Sac and Fox Nation, asked the Supreme Court to decide that the town of Jim Thorpe, which named itself for the athlete in a deal with his third wife, falls under a 1990 law intended to rectify the historic plundering of American Indian burial grounds. Such a ruling would allow them to pursue repatriation.
"This case represents a long struggle by Indian people and tribes to have their religious practices, burial customs, culture and beliefs respected," one of their lawyers, Stephen Ward, said Tuesday.
The town has found support from Jim Thorpe's grandsons, who say it has done right by him. And Jim Thorpe borough's attorney said Tuesday that many of the claims in the sons' Supreme Court petition are "folklore rather than facts," with well-established estate law giving Thorpe's wife the right to decide where he should be buried.
It's far from a certainty the Supreme Court will hear the case. The justices receive thousands of appeals each year and reject the vast majority of them.
Thorpe was a football, baseball and track star who won the decathlon and pentathlon in the 1912 Olympics. He died without a will in 1953 at age 64.
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After Oklahoma's governor balked at the cost of a planned monument to the athlete, third wife Patricia had Thorpe's body seized by police during his Indian funeral service and sent it to northeastern Pennsylvania. She struck a deal with two merging towns — Mauch Chunk and East Mauch Chunk — to build a memorial and name the new town after him.
His remains are kept in a roadside mausoleum surrounded by statues and interpretive signage. Jim Thorpe throws a Jim Thorpe birthday bash every year, celebrating his legacy as one of the 20th century's greatest athletes, and the high school's athletic teams are named the Olympians.
In 2013, a federal judge gave Thorpe's sons a victory in their quest to have Thorpe moved to Oklahoma, ruling the town amounted to a museum under the repatriation law.
But an appeals court in Philadelphia said in October that Thorpe's body should remain in Jim Thorpe, determining that U.S. District Judge Richard Caputo misapplied the Native American Graves Protection and Repatriation Act.
The law requires museums — defined as any institution or state or local government agency that receives federal funds — and federal agencies possessing American Indian remains to return them upon request of the deceased's family or tribe.
Lawyers for the sons warned Tuesday that if the ruling by the 3rd U.S. Circuit Court of Appeals is permitted to stand, other towns and institutions that hold American Indian remains could use it to justify keeping them.
The ruling threatens to "drive a hole" in the repatriation law, said Brian Wolfman of Stanford Law School.
But William G. Schwab, Jim Thorpe's attorney, said that Patricia Thorpe made the decision with three of the athlete's daughters and was well within her rights to do so.
"Their argument simply turns centuries of state family and estate law on its end. The 3rd Circuit simply found family and spousal rights superior to tribal rights. I would expect the Supreme Court will do likewise," Schwab said.
