A costly decision
RON GOWER/TIMES NEWS Discussing a federal judge's decision of the status for the body of the athlete Jim Thorpe during a special meeting of Jim Thorpe Borough Council last night are, from left, Mayor Michael Sofranko, who labeled it "a very passionate and emotional issue for everybody;" Don Wild Eagle, who presented the blessing and said he has "smudged" the grave of Thorpe for the past 20 years; and attorney William Schwab, who has been acting pro bono as legal representation on behalf of the borough in the case.
Whether Jim Thorpe Borough Council appeals a decision by a federal judge on potentially turning over the body of its namesake the athlete Jim Thorpe to family members or a Native American tribe, or abides by the ruling, it could get expensive.
That's what the council was informed last night during a special meeting held at Jim Thorpe Memorial Hall.
About 125 people attended the gathering, including Jim Thorpe Area High School students and the Olympian's school mascot, "Herc."
The main speaker was attorney William Schwab of Lehighton, who has been acting pro bono on behalf of the borough in defending a lawsuit filed by Thorpe's sons, Richard Thorpe, William Thorpe and the late John Thorpe, as well as the Sac and Fox Nation of Oklahoma. All three sons are from the second marriage of Thorpe.
Attorney Schwab said Thorpe had been married three times, but the families from the first and third marriages have been excluded from the suit.
It was Thorpe's third wife, Patricia, who in 1954 executed a contract with the boroughs of Mauch Chunk and East Mauch Chunk to merge and change their name to Jim Thorpe in exchange for giving the Olympian a respected burial site.
Attorney Schwab said the ruling by federal Judge Richard Caputo implies that the Native American Graves Protection and Repatriation Act (NAGPRA) supersedes such a contract.
In addition, Judge Caputo ruled the borough is a "museum" by the standards of NAGPRA because it has received government funding over the years in the form of Community Development Block Grants and PennVEST funding.
The council was informed it has until May 20 to decide whether to appeal the judge's decision, but should actually make its decision by May 10 so he has time to work on the matter. If no decision is made by May 21, the borough can be held in contempt of court.
The next meeting of the council is scheduled for 6:30 p.m. on Thursday, May 9 in the borough hall.
Most in the audience seemed to indicate they were in favor of appealing the judge's ruling; thus fighting to retain the namesake's body in the North Street mausoleum.
One woman, Edith Lukasevich, remarked, "I think the people of Jim Thorpe paid enough. I think the borough council of Jim Thorpe is intelligent enough to make the right decision."
Many in the audience made sounds of displeasure regarding her comments.
The options, according to attorney Schwab, as well as the legal ramifications, are:
• If the borough does not appeal the decision, NAGPRA applies. The borough will be required to complete and inventory and identification of all Native American artifacts. Also required would be the exhumation of Jim Thorpe's remains. Such a decision could result in a civil suit from the first family of the athlete for violating the contract initiated by Patricia. The inventory must be done by an archaeologist, not by the borough.
The borough would need representation before a review committee of NAGPRA. Attorney Schwab said it could get expensive to hire expert witnesses, such as an archaeologist, as well as special lawyers to spend several days in Washington D.C. for the review process.
• The borough could appeal the decision to the U.S. Third Circuit Court of Appeals. He said the odds regarding such appeals generally favor the opposite party.
It could cost "tens of thousands" of dollars for an appeal, Schwab said.
Grounds for appeal would be that the application of NAGPRA to a modern Native American burial is contrary to Congressional intent, that the federal statute was intended to apply to ancient artifacts and remains, that the federal statute interferes with traditional family rights of modern humans, that the borough's classification as a "museum" under NAGPRA will have greater reach than congress intended for municipalities, and the overreach of the federal government into traditionally state governed areas of the law.
A group of students from the history club of Jim Thorpe Area High School attended the meeting. Student Jimi Kamieniecki spoke on behalf of the club. He read a letter which opposed disturbing the burial grounds of the athlete.
"His soul has been disturbed enough," said Kamieniecki.
The club also objected to having the town of Jim Thorpe labeled as a "museum."
Other club members in attendance were Kevin Gentile, Dakota Kalavoda, Charles Lilly, Dakota Cwiertniewicz and Stephanie Zemaitaitis.
Some people suggested that fundraising efforts begin to fight the lawsuit filed by Thorpe's sons and the Native American tribes.
One woman said all sorts of festivals are held, capitalizing on the athlete's name.
"I feel the festival of all festivals should be to (raise funds) to keep his body here," she said.
Borough resident Lewis Hall offered to head a fundraising committee to fight the lawsuit.
Schwab said he was informed by Mayor Michael Sofranko that just because a suit was filed against the borough, its liability insurance premiums have been increased by $90,000.
One woman said the body of Jim Thorpe was brought here to unite the community.
"Now it's causing disharmony," she said, and asked, "What's the cheapest way out?"
"If it's taken to appeals court and we win, that's the cheapest," Schwab said.
He told the gathering, "You actually have five lawyers working for you," noting his associates have been instrumental in assisting him with the case. They are Seth Miller of Jim Thorpe, Adam Weaver of Summit Hill, Vince Garvey of Hauto and Elizabeth Kraft of Pottsville.
"So far the borough has gotten about $100,000 of free litigation from my office," Schwab said. The borough has had to pay costs of about $5,000.
Schwab said the local burial site of Jim Thorpe has been sanctified at least three times. One time it was sanctified by the late Grace Thorpe, a daughter of the athlete who also was a judge for the Native American nation. Grace's efforts were voided by the tribe because she is a female, said the lawyer.
Don Wild Eagle of Kunkletown, a Native American member of the Apache and Pima tribes, said he has "smudged" the grave annually. This will be the 21st year he is doing it.
Wild Eagle led the opening prayer for the meeting.
There was some levity.
One man in the audience said museums are exempt from taxes. Therefore, if the town of Jim Thorpe is a "museum," as stated by the judge, "then we should all stop paying our taxes," he said.
"All but the borough's taxes," jokingly remarked one member of council.