On the first day of its fall term, the U.S. Supreme Court rejected an appeal from the Sac and Fox Nation and Jim Thorpe’s sons to move the athlete’s remains back to Oklahoma.
On Monday, the high court left a ruling in place that ordered Thorpe’s body to remain in the Pennsylvania town named after the Olympic gold medalist. His two surviving sons and the tribe had wanted to move Thorpe back to Native American land in Oklahoma.
Thorpe won the decathlon and pentathlon in the 1912 Olympics in Stockholm. He was also inducted into the Pro Football Hall of Fame, and had a standout baseball career.
After Thorpe died in 1953, his wife reached an agreement with two towns in Pennsylvania to move his body there after the two towns merged and built a memorial.
Thorpe’s surviving sons had sued for the return of Thorpe’s remains under the Native American Graves Protection and Repatriation Act, or NAGPRA.The 1990 law requires “cultural items” such as human remains and sacred objects be returned to descendants and tribes.
Sandra Massey, historic preservationist with the Sac and Fox Nation of Oklahoma, called today's denial "disappointing."
“Is it really justice when you haven’t even looked at something? I really honestly believe if somebody looked at that case, read that case and understood it, that they would heard it,” Massey said.
Thorpe's body is buried in a roadside park in Jim Thorpe, Pennsylvania. Attorney Stephen Ward, who represents the Sac and Fox Nation, said in a written statement that his remains have been used as a commercial attraction that disrespects American Indians' rights and beliefs.
"The Supreme Court's decision not to review the appellate court's ruling appears to end the legal efforts to compel a repatriation process under NAGPRA, at least for now," Ward wrote. "But what occurred at the traditional burial ceremony for Jim Thorpe has never been forgotten in Sac and Fox country, and continues to this day to be remembered across Indian country as a great injustice to Indian people."
University of Oklahoma law professor Lindsay Robertson said even though the high court’s refusal will close the door on this particular version of the case, but he thinks the court of public opinion could still play a role.
"I know that the [Sac and Fox] Nation’s been involved as have all the parties in this case in spreading the word about what happened to the remains of Jim Thorpe," Robertson said. "I think that as more and more people become aware, I think that’s bound to have some sort of impact on the resolution of the case."
The Third Circuit Court of Appeals ruled in 2014 that NAGPRA did not apply to the relocation of Thorpe’s remains because the court viewed the issue as a “family dispute.” The Supreme Court would have granted the application for a writ of certiorari and issued an opinion affirming the Third Circuit’s decision if the justices wished the Third Circuit’s decision to apply across the country, according to Robertson.
“When the court declines to grant a writ of certiorari, it’s a signal that they’re not really read to say anything definite at this point,” Robertson said.
As it stands, the Third Circuit’s decision only applies to their jurisdiction in Pennsylvania, Delaware, New Jersey and the Virgin Islands.
“It has no direct impact on how NAGPRA is interpreted elsewhere,” Robertson said. “It might have a contrary impact in that other circuits are now aware that this is out there. Other circuits that view NAPGRA differently might want to go on record as saying, no, we think the Third Circuit got it wrong.
In an August article for the conservative online magazine American Thinker, Sean Roman Strockyj urged the Supreme Court not to take up the case, arguing Thrope’s sons made a mistake by using NAGPRA as the basis for their lawsuit:
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.
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