Ten months ago, in a case before the United States District Court for the Middle District of Pennsylvania in Scranton, Judge A. Richard Caputo made several rulings on the lawsuit by Jack Thorpe to have the body of his father, Jim Thorpe, disinterred and reburied in Oklahoma.
In June 2010, Jack Thorpe filed a federal lawsuit against the Borough of Jim Thorpe, claiming that his father's remains are subject to the Native American Graves Protection and Repatriation Act, a federal law passed in 1990 that requires federal agencies and institutions that receive federal funding to return Native American cultural items and human remains to their respective peoples.
The case was presented to Judge Caputo, and on Feb 4, 2011, he 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 21 days to enjoin his father's lineal family and the Native American tribe as co-plaintiffs.
But he never had a chance to respond to the judge's ruling. On Feb. 22, 2011, at the age of 73, Jack Thorpe died in Shawnee, Oklahoma. Representatives for Jack Thorpe were given additional time to respond to the judge's ruling.
On May 2, 2011 Jim Thorpe's two surviving children, William and Richard, brothers of Jack Thorpe, and the Sac and Fox Tribe, joined the lawsuit. At that time, the plaintiffs changed their attorney.
According to William Schwab, attorney for the borough of Jim Thorpe, three motions are currently pending before Judge Caputo – one motion by the plaintiffs and two motions by Schwab.
The plaintiffs had filed a motion for William and Richard, and the Sac and Fox Tribe to join the lawsuit. The revised complaint included monetary damages.
"We filed a motion to dismiss for that," Schwab explained. "The prior order said they had to join the entire family."
He said that he is in contact with 11 members of Jim Thorpe's family who favor his remains continuing to rest in the borough of Jim Thorpe.
Schwab also noted that there is a rule of the court that allows someone to join a lawsuit within 90 days and intervene.
"They just filed the amended complaint saying it was for their brother but their complaint didn't comply with the judge's prior order," he noted. "I filed a second motion to dismiss because they didn't intervene properly. They did what I said was to 'attempt to hijack their lawsuit' on the deceased.
"A person can't just join a lawsuit because they want to. They have to petition the court and ask to join it, and they didn't do that in the time period.
"They then filed a motion to amend their amended complaint, which I opposed again, saying that, 'How can you amend something when you are not even a proper party? The rules are for everyone.'"
"One of the things they set forth in the original suit was for money damages. That was dismissed. The amended complaint, notwithstanding of the judge saying you can't ask for money damages again."
According to Schwab, Judge Caputo usually issues decisions in 60 to 90 days. As information has been coming into the court through the end of June, it is possible that a decision may soon be expected.