With the passing of John "Jack" Thorpe on Feb. 22, 2011, an already confusing and protracted lawsuit became even further confusing and protracted, with every hint of becoming even further confusing and protracted.
In June 2010, Jack Thorpe, the youngest of Jim Thorpe's children with his second wife Freeda Kirkpatrick, sued the borough of Jim Thorpe in United States District Court, citing the Native American Graves Protection and Repatriation Act of 1990. The suit contended that Jack Thorpe, as a lineal descendant, had a legal claim to his father's remains.
In the original suit, Jack Thorpe asked for financial compensation from the borough of Jim Thorpe. On Feb. 4, 2011, Judge A. Richard Caputo ruled that Jack Thorpe could not receive compensatory damages or lawyer's fees, slicing away part of the suit, but said the case could move forward if Jack Thorpe was joined by his two surviving brothers and the Sac and Fox tribe.
Jack Thorpe died on Feb. 22. His brothers, William and Richard, along with the tribe, joined the lawsuit on May 2, 2011. The passing of Jack Thorpe delayed the lawsuit for about a year according to William Schwab, attorney for the borough of Jim Thorpe.
According to Schwab, a Joint Case Management Plan was developed. The judge appointed a mediator and has allowed for discovery. Schwab plans to individually interview the current plaintiffs William and Richard Thorpe in the presence of a stenographer during the week of July 16.
According to Schwab, the Thorpe brothers allege the following to be true: that the remains of Jim Thorpe can be considered as an Indian artifact, that the borough of Jim Thorpe has received federal funds, and that the borough of Jim Thorpe did not have a right to have his remains.
"They alleged a lot of things that will be in factual dispute," he said.
Another issue concerns whether the Thorpe brothers had previously requested Jim Thorpe's remains.
"They claim that they requested the body back in 1993 or 1994," Schwab said. "The borough has no record of such a request."
An additional question concerns whether the case should be handled in federal court.
"Burial has traditionally been governed by the states. Jim Thorpe was a resident of California," Schwab said. "He died in California. This case should be governed by the California probate code which gave Jim Thorpe's third wife the right to bury him as she saw fit. They are trying to trump state law."
Schwab noted that in the recent Anita Nicole Smith case, the Supreme Court decided that a federal court cannot act as an appeal court over a probate court.
"Throughout his life Jim Thorpe was a practicing Catholic," Schwab continued. "It's frowned upon by church doctrine to disinter someone once they are at rest. He was buried as a Catholic. He had Catholic rights. So, we would be trouncing on his rights as a Catholic."
Schwab also noted that it has taken the Thorpe brothers anywhere from 20 to 50 years to ask for his remains to be relocated.
"You can't sit on your rights" he said.
But by far the overriding question concerns who can speak for the heirs of Jim Thorpe. The plaintiffs represent two members of the family who are asking for his remains to be moved. According to Schwab, 11 members of the family are opposed to the move. They are in the process of hiring an Allentown attorney to represent their interests.
"The judge appointed a mediator to see if we could settle it through mediation," he explained. "There was a desire that there would be a global settlement. You can't have a global settlement without having both sides of the family involved in their grandfather's burial."
Schwab noted that the borough of Jim Thorpe was in no position to agree to the premise of the lawsuit.
"If we agree, and I don't think that's the borough's position, but if they did, then you could have the other 11 heirs suing the borough," he said.
"We asked the Thorpe brothers if the other side of the family could be part of the mediation and they refused," Schwab added. "That is why we filed a motion to be allowed to join the other family members. We cannot settle it without everybody involved."