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Sons Ask Supreme Court To Resolve Jim Thorpe Burial Case

RENEE MONTAGNE, HOST:

Jim Thorpe has been called the most versatile athlete in the world. He won two Olympic gold medals and played three different professional sports. Now more than 60 years after his death, there is a fight over where he is buried. His sons are asking the Supreme Court to weigh in. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: Jim Thorpe stood out on virtually any field he entered.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED MAN: Jim Thorpe, an outstanding American athlete...

JOHNSON: National Football League executives included Thorpe in their look at standouts in the early years of the sport. Here he is reminiscing about a big game.

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JIM THORPE: It was kicked to me. And I took the ball right back through the Army team for another touchdown. I guess I made that count.

JOHNSON: There's something else about Jim Thorpe. He was Native American, born in Oklahoma on tribal land. And that's where his surviving sons want him to be buried. In 1953, Thorpe's third wife, Patricia, decided to send his remains to a mausoleum in Pennsylvania. That site near the Poconos became a roadside tourist attraction. But his sons say they've found a way to bring him home. They're relying on a 1990 law. It's called The Native American Graves Protection and Repatriation Act. Richard Guest is a lawyer at the Native American Rights Fund.

RICHARD GUEST: It's a statute that for the Native American community, we look at it as a civil and human rights statute to address wrongs done to native people over a long history in their relationship with non-Indians.

JOHNSON: Two years ago, Thorpe's sons convinced a district judge of the merits of their case. But a federal appeals court threw out the lawsuit using something called the absurdity doctrine. William Schwab is a lawyer for the Pennsylvania town now named after Thorpe. He says in an emailed statement that the absurdity doctrine is simply a matter of common sense. The appeals court found that family and spousal rights trump tribal rights. Schwab says he expects the Supreme Court will rule the same way if the justices agree to hear the dispute. Still, Thorpe's sons have attracted some high-level support for their cause. Jeffrey Fisher of Stanford Law School, a frequent litigator before the High Court, agreed to help with the appeal. Fisher says the lower court overstepped its boundaries and blew off the intent of Congress.

JEFFREY FISHER: What's extraordinary about this case is that the court says, no, no, no, we understand what Congress's law means; we just refuse to enforce it that way. And that's this extraordinary judicial muscle being flexed here.

JOHNSON: Advocates for the Native American community say the case could have ramifications beyond Jim Thorpe. That's because the 1990 law has been deployed hundreds of times to repatriate remains and artifacts. Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.