Two grandsons of the athlete Jim Thorpe have filed a brief in the U.S. Court of Appeals seeking to join officials of the town of Jim Thorpe in its appeal to retain the body of the late Olympian.

Michael Koehler and John Thorpe, nephews of two plaintiffs who have filed suit against the borough seeking the removal of the athlete's body from the town, submitted a request to the court asking that they help to defend the borough in preventing the body from being moved.

"Like their grandfather, they are of Native American ancestry," the brief states. "They submit this brief in support of the Borough of Jim Thorpe, where their grandfather was buried by his family in 1957."

Koehler and John Thorpe are the grandsons of Jim Thorpe from his first marriage. Jim Thorpe was married three times.

A suit was filed against the borough by John Thorpe, Sac and Fox Nation of Oklahoma, William Thorpe, and Richard Thorpe. Two of the defendants are sons of Jim Thorpe from his second marriage.

Although the Borough of Jim Thorpe lost the first round in its effort to retain oversight of the remains of the athlete Jim Thorpe, that decision by the United States District Court has been appealed to the United States Court of Appeals.

In the first round, on April 19, 2013, United States District Judge Richard Caputo denied motions by the Borough and ruled in favor of plaintiffs Richard Thorpe, William Thorpe, and the Sac and Fox Nation of Oklahoma that the Borough of Jim Thorpe is a "museum" under the Native American Graves Protection and Repatriation Act and is subject to the requirements of the Act, including those provisions governing repatriation requests.

Original suit

In June 2010, John "Jack" Thorpe, a son from Jim Thorpe's second marriage, filed a federal lawsuit against the Borough of Jim Thorpe seeking to have his father's remains returned to Oklahoma, citing the Native American Graves Protection and Repatriation Act.

Early in the case, the Third Circuit Court ruled that under NAGPRA, the plaintiffs were not entitled to monetary compensation. Jack Thorpe died in Shawnee on Feb. 22, 2011. After a delay, his case was continued by his brothers Richard Thorpe and William Thorpe, and the Sac and Fox Nation of Oklahoma.

At one point, there was an attempt at mediation. Members of the family of Jim Thorpe's first wife wanted to participate in the mediation, but because they were in favor of allowing Jim Thorpe's remains to stay, the plaintiffs barred them from participating.

Ultimately, this first round ended in favor of the plaintiffs' argument that the Borough of Jim Thorpe is a museum.

The appeal

Now in round two, on May 20, 2013, the plaintiffs filed a cross-appeal arguing that the judge's initial decision that they were not entitled to monetary damages should be reconsidered. On Sept. 23, 2013, the Borough of Jim Thorpe filed an appeal with the United States Court of Appeals for the Third Circuit.

The borough's brief begins with a quote from Jim Thorpe, "....Throughout his life, Jim Thorpe shrugged off discussions of his ancestry with typical offhand human [sic]. 'My father, Hiram Thorpe, was half Sac and Fox and half Irish. My mother was three-fourths Sac and Fox and one-fourth French,' he explained to an inquisitive reporter. 'That makes me five-eighths Indian, one-fourth Irish, and one-eighth French. Guess you'd call me an American Airedale.'"

The brief continues, "He was also 100% a 'Modern Man' who had two families and three wives during his lifetime, during which he practiced the Catholic faith.

"As a result of the Lower Court's decision, what would normally be a family matter is now a clash between what is traditionally a state court matter (burial of a family member) against giving an unnecessary preference to a single segment of society. This preference is repugnant under our Constitution under which everyone is to be treated equally under the law and under which matters, not expressly allocated to the Federal Government, are reserved to the States."

Issues

Lead attorney William Schwab formulated the Borough of Jim Thorpe's brief. His first argument began, "It was not the intent of Congress to strip the families of Native American ancestry of their constitutional family privacy rights and usurp traditional state jurisdiction over matters of Health and Public Safety. It was not the intent of Congress for NAGPRA to usurp Private Contracts and to label, what is in effect, every municipality as a "museum", where a Modern Person of Native American ancestry has been buried according to the legally authorized family members' decision."

They further argue, "The application of NAGPRA in this matter will also have sweeping implications for municipalities across the Nation who have persons of Native American ancestry buried in their cemeteries within their boundaries. To apply NAGPRA to municipalities which are not in the business of maintaining collections of antiquities and ancient human remains for study and display to the public, but which just happen to be the location of legally buried persons of Native American ancestry, is far beyond the scope of the Congressional intent for NAGPRA. To disturb a properly, legally buried person of Native American ancestry and to repatriate his remains decades after his burial is contrary to the purposes of NAGPRA."

The second point of the brief argues that the Borough of Jim Thorpe is not a museum. It discusses what a museum should be and concludes that it is unreasonable to declare the Borough a museum.

The third point argues that the plaintiffs waited for 60 years, and specifically until the passing of Grace Thorpe, to pursue this lawsuit. Grace Thorpe was a strong voice to maintain Jim Thorpe's remains in Jim Thorpe. "By waiting until the siblings who opposed repatriation to die, the Plaintiffs have severely prejudiced the process of dispute resolution with the NAGPRA Committee."

In their appeal, the Borough concludes by asking the Court of Appeals "to enter an Order holding that the Borough is not subject to NAGPRA."

TN Correspondent Al Zagofsky contributed to this story.