The three-year-old lawsuit, the ultimate goal of which was to repatriate the remains of Olympian Jim Thorpe to Oklahoma, has been resolved sort of.
First, it must be recognized that the lawsuit, filed on June 24, 2010 by the late John "Jack" Thorpe, and later joined by his surviving brothers Richard Thorpe, William Thorpe, and the Sac and Fox Nation of Oklahoma, was for the sole purpose of seeking a declaration that the Native American Graves Protection and Repatriation Act applies to the Borough of Jim Thorpe, Pa., and the remains of Jim Thorpe.
On Friday, federal Judge Richard A. Caputo ruled in favor of the plaintiffs by declaring that:
1. The Native American Graves Protection and Repatriation Act trumps the agreement between Jim Thorpe's surviving widow, Patricia Askew Thorpe, and the borough of Jim Thorpe, Pa.;
2. That, as Jim Thorpe, Pa. has accepted federal funds, it is a "museum" for purposes of the NAGPRA statute, and;
3. That, as the borough of Jim Thorpe, Pa. is not requested to change its name, its signs, or remove its mausoleum, it has not demonstrated any potential financial harm from the NAGPRA statute.
Therefore, Judge Caputo issued a summary judgment in favor of the plaintiffs: the Thorpe brothers and the Sac & Fox Nation and denied motions presented by William Schwab, defense counsel for the borough of Jim Thorpe.
"The judge did not order the body back to Oklahoma," Schwab noted. "What the order said was that he found the borough of Jim Thorpe to be a 'museum' and that we have to comply with that decision, which would mean that we have to do an inventory, and then there is an administrative process if anyone wants to do a repatriation. In that case all the family, including the first family and the third family, would now be involved," he explained. "Up to now, they have not been."
Schwab plans to meet with representatives of Jim Thorpe Borough Council to review the judge's decision, and to decide what action, if any, the borough should pursue.
The borough has the option to appeal the decision. One issue concerns the borough being declared a "museum." The NAGPRA statute applies to "repatriating human remains or cultural items in museums or federal collections." Any institution that receives federal money may be declared a "museum" for the purposes of NAGPRA.
The second issue concerns the issue of "latches," which refers to the fact that the plaintiffs waited over 50 years before filing the lawsuit. Although the judge did declare that the delay did occur, he decided that the delay did not harm the borough.
In the event that the borough of Jim Thorpe chooses to appeal, the case would be sent to the Third Circuit Court.
The Jim Thorpe lawsuit must be considered as having two phases. Phase 1 consisted of the determination of whether the NAGPRA statute applies to a potential repatriation of the remains of Jim Thorpe. It has been determined that, short of a reversal upon appeal, the NAGPRA statute applies.
The next step is Phase 2, which has to do with the disposition of the body, and who would have a say in such disposition. For the first time, the courts would recognize all those with a NAGPRA or lineal relationship with Jim Thorpe. These would include: the progeny of his first marriage the three surviving daughters have passed and their side of the family is represented by his grandchildren, whose spokesman is Michael Koehler, and his brother John Thorpe; the two surviving brothers of Jim Thorpe's second marriage; and the agreement signed between his third wife and the borough of Jim Thorpe.
The first wife's family supports allowing Jim Thorpe to rest in peace at his current location in his mausoleum in Jim Thorpe, Pa. Jim Thorpe's daughter, Grace Thorpe, oversaw a sanctification of the land surrounding the mausoleum and declared it a holy place where Jim Thorpe can rest in peace. The family feels that disinterring his remains would be disrespectful.
The second wife's family supports relocating Jim Thorpe's remains to a location in Oklahoma. According to Michael Koehler, his brother John Thorpe spoke with Robert Wheeler, author of 'Jim Thorpe World's Greatest Athlete,' who he was told was acting as spokesman for Richard Thorpe, William Thorpe, and the Sac and Fox Nation of Oklahoma.
Koehler said, "The thing that bothered me most of all was that my brother, John, called Robert Wheeler and asked him, 'What do you plan to do with the remains of my grandfather? Are you going to bury the remains in the cemetery in Shawnee, Oklahoma where Hiram Thorpe (his father) and other members of Jack's family are buried, or are you going to bury him in St. Leo's Cemetery where my grandmother is buried, where all his daughters are buried or his firstborn son, Jim Thorpe Jr., is buried?'
"He said that we are not going to bury him in any of those places," Koehler continued. "My thought was that Jack originally filed the lawsuit in order to reclaim the remains so they could be buried in his family's plot. Now Wheeler is making decisions regarding the disposition of my grandfathers remains. That really angers me."