In a new twist to the sometimes odd, often macabre, and endlessly controversial Jim Thorpe repatriation lawsuit, the Thorpe sons and their tribe have filed a cross appeal asking for monetary damages.
Three years ago, the plaintiffs, led by the late John Jack Thorpe, filed a lawsuit against the borough of Jim Thorpe seeking repatriation of the remains of Olympian Jim Thorpe and associated monetary damages under 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.
The court's Summary Judgment held the borough of Jim Thorpe to be a museum, and therefore subject to the NAGPRA regulations. The borough of Jim Thorpe is appealing the decision.
On Monday, May 20, at 5:43 p.m., a copy of a cross-appeal was emailed to representatives of the litigants.
William Schwab, pro-bono attorney for the borough of Jim Thorpe, reviewed the filing and determined that the plaintiffs were appealing the court's earlier decision that they were not entitled to monetary compensation under NAGPRA, but were now asking for monetary compensation under the Civil Rights Act of 1983. The Act says that if a state denies a person their civil rights, those who deny such civil rights are liable for monetary damages.
"They keep saying that it is not about money," Schwab said. "But they keep coming back to it."
"Nothing that goes on here would shock me at this time," said Mike Sofranko, mayor of the Borough of Jim Thorpe. "I just think that the Borough Council and residents will continue to pursue the angles that we were advised to pursue."
"Oh good Lord,what is wrong with them?" said Michael Koehler, first family grandson of Jim Thorpe. "It has to be their lawyers that are driving the case and driving the decisions, or it's got to be Bob Wheeler."
Robert Wheeler wrote the first biography of Jim Thorpe, and has acted as an unofficial spokesman for the plaintiffs.
The cross-appeal was filed in the name of plaintiffs: Richard Thorpe, William Thorpe, and the Sac and Fox Nation of Oklahoma. The late John "Jack" Thorpe remains listed as an original plaintiff.
The appeal by the borough of Jim Thorpe raises questions related to the original trial such as: is it reasonable to consider the Borough of Jim Thorpe to be museum; has the borough of Jim Thorpe accepted federal funding; that the case did not place any financial harm against the Borough Jim Thorpe; and did the plaintiffs wait an unreasonable amount of time before filing the lawsuit? In addition, various parties have suggested that the NAGPRA law violates portions of the 1st, 4th and 14th Amendments to the U.S. Constitution.
According to Mayor Sofranko, the claim for monetary damages will be handled through the borough's insurer and will be represented by the Nanovic law firm.
The arguments for passing the law were for treating American Indians as equals under the law, said attorney Schwab. This has gone off in totally the wrong direction.
"Even the National Park Service has essentially said that NAGPRA was never intended to supersede the burial plans of the family," he continued. "It wasn't intended for this type of thing. I have an American Bar Association treatise on this that was written seven years ago that says that this law was not intended for a situation like Jim Thorpe. He even named Jim Thorpe in it."
"The whole thing is getting kind of sleazy," grandson Michael Koehler said. "That's the thing that bothers me."
Koehler Is angry that during the entire three-year phase of the initial lawsuit, no one associated with the court ever asked for an opinion from the family of Jim Thorpe's first wife. The lawsuit was brought by the family of Jim Thorpe's second wife over the decision by Jim Thorpe's third wife to bury him in the Borough of Jim Thorpe.
"I think a lot of the pressure placed on my brothers is coming from Wheeler, and maybe the tribe," Koehler said. "I have a feeling that the tribe wants to bury him on Sac and Fox ground - somewhere near their casinos."
Koehler and his brother John Thorpe are considering their own lawsuit so they would have some say in the matter.