A ruling in U.S. District Court yesterday effectively thwarts an effort by Jack Thorpe to have the body of his father, Jim Thorpe the athlete, disinterred and transported to Oklahoma.
Attorney William Schwab of Lehighton, who is representing Jim Thorpe the town in district court pro bono, said yesterday's ruling is a major victory for the community.
Judge A. Richard Caputo ruled that:
Jack Thorpe cannot receive any monetary award; not even attorney's fees in the lawsuit.
To continue the suit Jack Thorpe would have to have family members as well as the Sac & Fox Tribe enjoin him as plaintiffs.
While the judge's ruling doesn't totally dismiss the lawsuit, it assures that Jack Thorpe isn't fighting for the move of his father's body to Oklahoma for personal financial gain.
Some family members of the late athlete have already said they prefer having the body remain at the Mausoleum along Route 903 in the town named after him.
Jack Thorpe has 21 days to enjoin his father's lineal family and the Native American tribe as co-plaintiffs.
"While it was not a complete dismissal, Judge Caputo's opinion ensures that this case will not be about money as he struck the civil rights portion of the complaint," Schwab said. "This precludes Mr. (Jack) Thorpe from getting the punitive damages and attorneys' fees that he sought.
"The case will move forward under Native Americans Graves Protection and Repatriation Act (NAGPRA) where the judge has required all family members and the tribes involved be joined in the case so that ultimately we would not be in a position where from one generation to the next Jim Thorpe's body would wander and not rest in peace.
"It no longer will be solely a case of one man seeking to reverse a decades old family decision to his financial benefit. It will be about community and familysomething that all Americans can relate to," Schwab added.
Jack Thorpe, 72, of Shawnee, Okla., filed a federal lawsuit on June 24, claiming the borough had violated the Native American Graves Protection and Repatriation Act of 1990 by refusing to return his father's remains.
Jack Thorpe was seeking in the suit to have the body of his father sent to Oklahoma.
About 20 years ago, Schwab said a ceremony was held at the Jim Thorpe monument to consecrate the land where the remains of the Olympic athlete is laid to rest. He added that Jack Thorpe "never contacted the borough to even discuss this."
Jack Thorpe had sought a declaratory judgement from Jim Thorpe borough for conpensatory and punitive damages, as well as costs associated with the repatriation, any subsequent disinterment, and transportation costs be borne by the borough.
The filing of the suit attained national publicity with such prestigious publications as The Wall Street Journal and Sports Illustrated magazine doing feature-length articles on it.
The writer in Sports Illustrated never cited the monetary damages being sought in the suit and sided with Jack Thorpe, concluding, "Maybe it's time for Jim Thorpe, Pa. to pass him on – the body, not the spirit. The soul of the town will remain."
Thorpe's three daughters, Grace, Gale, and Charlotte, endorsed the arrangement. Grace, a Native American activist paid several visits to her father's grave.
Grace Thorpe, in a 1987 interview, expressed her opposition to efforts to have her father's body moved.
"I don't feel good about doing that because I know the people in Jim Thorpe and I know they're good people and I know they're acting in good faith," she stated. "I know the people of Pennsylvania have honored Dad in many ways."
She agreed the children of Jim Thorpe didn't have a say in locating the body in the town at the time it occurred in the mid 1950s, but after visiting here she was pleased with the manner in which he is being honored.
Grace, who died in 2008, also commented in that interview.
"The Indians have a belief that the spirit wanders unless they have an Indian ceremony to put the spirit to rest," she stated. "Let's bear in mind that Dad was a Catholic. And his mother was a Catholic. I believe so that his spirit is at rest. We're all baptized Catholics. Not Jack."
Judge Caputo ruled that the case can proceed only under the requirements of NAGPRA. Thus, Jack Thorpe will be required to have the Sac & Fox Tribe, of which his father belonged, enjoin in the suit, and all known lineal descendants of Jim Thorpe become part of the legal action.
The above won't be a requisite if Jack Thorpe can "submit evidence and briefing showing that joinder is not feasible, and that the action can proceed under the equitable considerations" detailed in the lawsuit.