How will the passing of John "Jack" Thorpe, the youngest son of Jim Thorpe, affect the lawsuit that he filed against the Borough of Jim Thorpe for the repatriation of his father's remains?
Attorney William Schwab is representing the Borough of Jim Thorpe. He is a local historian, and because of his interest, he accepted the case pro bono.
"We are always sorry to hear of the passing of a family member," Schwab began. "He had been ill for a while but had been very active in Indian affairs. Regardless that we may have a disagreement, it is a loss to the family and to the Sac and Fox nation."
Jack Thorpe had waged an effort, through federal lawsuit, to disinter his father's remains from his resting place for over half a century in East Jim Thorpe, a borough named after the Olympian. Schwab had never met Thorpe.
In the last action, the U.S. District Court 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; and
Jack Thorpe would have until Feb. 25 to enjoin his father's lineal family and the Native American tribe as co-plaintiffs.
With the passing of Jack Thorpe on Tuesday, his attorney, Travis Willingham of Kansas City, Missouri, filed for a 30-day extension.
"There has been some indication that the Sac and Fox nation may intervene in the case," Schwab said. "Right now it is premature to tell."
When a plaintiff passes away, Schwab explained the options for the court.
"There can be a substitute plaintiff, or the court could dismiss it," he said
Asked how he regarded the plaintiff's application of the Native American Graves Protection and Repatriation Act, Schwab replied, "This is a case where we are talking about a modern burial. I did not believe this was applicable, but by the same token, the courts said at this point it goes forward."
In defending the Borough of Jim Thorpe, Schwab noted three areas where he felt the plaintiff's case was problematic: 1) the inclusion of punitive damages that he looked for attorney's fees, along with the repatriation; 2) they didn't join everyone – all family members should be represented in the case; and 3) Schwab is planning to introduce a major obstacle to disinterring Jim Thorpe: how would Jim Thorpe feel about being disinterred?
"Another issue that hasn't yet been raised, because we couldn't raise it at this stage of the proceeding, is that Jim Thorpe was a practicing Catholic his entire life," Schwab noted. "Disinterment goes against many of the tenants of the Catholic church. We would be looking at the Reparation Act vs. the First Amendment's guarantee of Freedom of Religion."