PHILADELPHIA (CN) - The remains of the legendary athlete Jim Thorpe will remain in the Pennsylvania borough named for him after a reversal by the 3rd Circuit.
Thorpe's son, John, sued Jim Thorpe, Pa., in 2010 under the Native American Graves Protection and Repatriation Act (NAGPRA), a 1990 law that let any petitioning Native American family reclaim the remains of their loved ones from museums and federal agencies.
Federally endorsed pillaging had brought about many of these cases, such as an 1868 acquisition by the surgeon general to study the supposed inferiority of Native Americans to Caucasians.
John Thorpe, joined in a 2011 amended complaint by two of his brothers and the Sac and Fox Nation of Oklahoma, blamed his step-mother for whisking his father's casket away from a Native American memorial service in 1953, and having the remains "shopped to several cities."
The boroughs of Mauch Chunk and East Mauch Chunk, which were eventually consolidated and renamed Borough of Jim Thorpe, had no connection to Thorpe when he was alive but hoped acquisition of Thorpe's remains would drive tourism, according to the complaint.
In denying liability under NAGPRA, the tiny eastern Pennsylvania mountain town said it is not a "museum" and that Thorpe's wife had the right to inter her husband's bones in a public shrine there.
Claiming that Thorpe's wife loaned the athlete's bones out, as opposed to selling them, the borough also disputed the notion of "possession" under NAGPRA.
Though U.S. District Judge Richard Caputo in Scranton ruled against the borough, a three-judge panel with the 3rd Circuit reversed Thursday.
Disinterring Thorpe would be a "patently absurd result" of the definition of "museum" under NAGPRA, the ruling states, noting that the act defines "museum" as "any institution or state or local government agency (including any institution of higher learning) that receives federal funds and has possession of, or control over, Native American cultural items." (Parentheses in original.)
An overly literal interpretation of that language would force any locality that receives federal dollars to exhume a Native American family member from their burial site, the court found.
"We conclude that we are confronted with the unusual situation in which literal application of NAGPRA 'will produce a result demonstrably at odds with the intentions of its drafters,'" Chief Judge Theodore McKee wrote for the court, citing the 1982 Supreme Court case Griffin v. Oceanic Contractors Inc.
"Here, it is clear that the congressional intent to regulate institutions such as museums and to remedy the historical atrocities inflicted on Native Americans, including plundering of their graves, is not advanced by interpreting 'museum' to include a gravesite that Thorpe's widow intended as Thorpe's final resting place," McKee added.
Thorpe was born on Sac and Fox territory in Oklahoma and went on to become a two-time All-American football player before playing for the New York Giants and the Arizona Cardinals. He won two gold medals at the 1912 Stockholm Olympics for the penathalon and the decathalon.
It is said that Thorpe's wife Patricia had been angry with Oklahoma for failing to erect a memorial for her husband.
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