PENNSYLVANIA RECORD

The body of whom many consider the greatest Olympic athlete of all time will remain

buried in the town that bears his name, according to a ruling from the Third Circuit Court of Appeals issued Thursday.

The surviving sons of Jim Thorpe has been lobbying for the transfer of his body from the borough of Jim Thorpe, Pa., to the grounds of the Sac and Fox tribe in Oklahoma, where Thorpe was born. A suit filed by his sons in 2010 claimed Jim Thorpe Borough violated the Native American Graves Protection and Repatriation Act (NAGPRA).

Passed in 1990, NAGPRA requires museums and federal agencies possessing or controlling holdings or collections of Native American human remains to inventory those remains, notify the affected tribe, and, upon the request of a known lineal descendant of the deceased Native American or of the tribe, return such remains. A federal judge granted a summary motion in favor of the plaintiffs, saying that the entire borough of Jim Thorpe functioned as a museum and had to disinter the body and return it to Oklahoma.

Attorneys argued the appeal to the Third District in February, and the three-judge panel agreed that the use of NAGPRA against an entire municipality took the legislation to its extreme.

"We find that applying NAGPRA to Thorpe’s burial in the Borough is such a clearly absurd result and so contrary to Congress’s intent to protect Native American burial sites that the Borough cannot be held to the requirements imposed on a museum under these circumstances," wrote Chief Judge Theodore McKee in the ruling.

According to the court, NAGPRA was an attempt to respond to the looting and plundering of Native American burial grounds and the theft of cultural artifacts from Native American tribes. It provides for repatriation of cultural items currently held by federal agencies, including federally-funded museums. When the bill passed in 1990, museums that had possession or were in control of Native American remains had to inventory them and identify the geographical and cultural affiliation of the items. The original tribes then had the right to acquire the remains and bury them in accordance to their religious practices.

The appeals court objected to the identification of Jim Thorpe Borough as a museum, even though it maintained Thorpe's burial site and accepted federal funding. The opinion argues that accepting such a definition could open the door to situations that fall beyond the intended scope of NAGPRA legislation.

"Here, it would include human remains buried in accordance with the wishes of the decedent’s next-of-kin," the opinion says. "Literal application would even reach situations where the remains of a Native American were disposed of in a manner consistent with the deceased’s wishes."

Thorpe died in 1953 in California without a will. An athlete of Native American and European descent, he won Olympic gold medals in the pentathlon and decathlon and has been considered one of the greatest American athletes during the twentieth century.

His sons wanted to bury his body on tribal grounds in Oklahoma, but his third wife, Patsy, had legal possession of the body and had it moved to Pennsylvania, where it was buried at the newly formed borough of Jim Thorpe in the Poconos.