And the award for Most Interesting Probate Story of 2015 goes to … p2

On Behalf of | Jan 6, 2016 | Probate Litigation

This is a continuation of our Dec. 22, 2015, post.

One of the wonderful things about probate law is that it touches so many other areas of the law. In addition to the law of wills and trusts, a good probate lawyer knows family law, tax law, property law, personal injury law — all sorts of issues come up in estate planning and administration, and it is the probate lawyer’s job to handle those issues effectively and efficiently.

Our Most Interesting Probate Story involves a law that may come up less frequently but addresses an important issue: the Native American Graves Protection and Reparation Act of 1990. Jim Thorpe was part-Indian, and two of his sons argue that he wanted to be laid to rest with the Sac and Fox Nation in Oklahoma. In their fight against the town of Thorpe, Pennsylvania, they asserted that the monument that contains Thorpe’s remains is governed by the act.

Before NAGPRA, an American Indian burial ground on federal land was considered an “archeological resource.” Museums around the country collected remains and funerary items from these sites without the permission of the tribe. The law sought to end what many refer to as the plunder of the burial grounds by adding protections to the sites and any cultural objects found at sites. More importantly for the Thorpe case, the law also gave Native Americans of lineal descent or cultural affiliation control over the objects that had already been removed from the burial sites.

The Thorpe brothers argued that the memorial in Thorpe qualified as a museum under NAGPRA. The federal district court agreed with them, but the Third U.S. Circuit Court of Appeals found the interpretation of the term to be absurd and overturned the lower court’s decision.

The appellate court also pointed out that spousal rights have more legal weight than tribal rights. Thorpe may have told his sons he wanted to be buried with the Sac and Fox, but his widow had every right to decide otherwise. Had his wishes been in writing, it would have been a different story — and a little less interesting.

The U.S. Supreme Court denied review of the case, so the appellate decision stands, and Jim Thorpe’s remains will stay where they are … for the time being.

Source: USA Today, “Fight for Jim Thorpe’s remains continues 62 years later,” Erik Brady, Aug. 8, 2015


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