October 23, 2014 / 3:38 PM / 3 years ago

Olympian Jim Thorpe's remains should not be moved: U.S. court

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The Jim Thorpe Memorial in Jim Thorpe, Pennsylvania on April 24, 2013.Joe McDonald

(Reuters) - Jim Thorpe's remains will stay in the Pennsylvania hamlet named for the legendary Native American athlete and Olympics champion, after a federal appeals court on Thursday rejected an effort by two sons to move them to tribal lands in his native Oklahoma.

Addressing an unusual dispute between two generations of descendants, the 3rd U.S. Circuit Court of Appeals in Philadelphia said a lower court judge was wrong to order that Thorpe's remains be turned over to the Sac and Fox Nation.

Chief Judge Theodore McKee said it would be "patently absurd" to disinter Thorpe and ignore the wishes of his third wife Patricia, by blindly enforcing the Native American Graves Protection and Repatriation Act. The 1990 federal law was meant to stop the plundering of burial grounds.

"NAGPRA was intended as a shield against further injustices to Native Americans," McKee wrote for a three-judge 3rd Circuit panel. "It was not intended to be wielded as a sword to settle familial disputes within Native American families."

One of the 20th century's greatest athletes, Thorpe won gold medals in the decathlon and pentathlon in the 1912 Summer Olympics in Stockholm, and later played professional baseball.

Following Thorpe's death at age 64 in 1953, Patricia Thorpe arranged for his burial in what became the Borough of Jim Thorpe after learning that the struggling towns Mauch Chunk and East Mauch Chunk wanted to merge under a new name. Jim Thorpe was interred there in 1957.

Jack Thorpe, one of Jim's sons, sued in 2010 to reclaim his father's remains. He died the next year, and his brothers Richard and William became plaintiffs. Two grandsons, Mike Koehler and John Thorpe, wanted Jim Thorpe's remains left alone.

In April 2013, U.S. District Judge A. Richard Caputo in Scranton, Pennsylvania, found that the Borough of Jim Thorpe was a "museum" under NAGPRA. As such, it was required to return Thorpe's remains if a lineal descendant asked for them.

McKee, however, said Congress' intent in adopting the law "is not advanced by interpreting 'museum' to include a gravesite that Thorpe's widow intended as Thorpe's final resting place."

Stephen Ward, a lawyer for the Thorpe sons, did not immediately respond to requests for comment. The sons could not immediately be reached.

Koehler, 76, said in a phone interview: "To think that the tribe could disinter the remains against the wishes of the family is ridiculous. The important thing is that my grandfather, according to Indian custom, was returned to mother earth. We're very happy."

William Schwab, a lawyer for the borough, said in a phone interview: "It is my hope that Jim Thorpe's two families can move together in peace, and put this unusual chapter to rest."

Reporting by Jonathan Stempel in New York; Editing by David Gregorio

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