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Brief filed in Thorpe lawsuit

Published October 26. 2013 09:00AM

Michael Koehler and John Thorpe, Jim Thorpe's grandsons from his first marriage, have filed an Amicus Curiae, Friend of the Court brief, supporting the Borough of Jim Thorpe in its appeal of United States District Judge Richard Caputo's ruling that the Borough of Jim Thorpe is a "museum" under the Native American Graves Protection and Repatriation Act.

Caputo's ruling said the borough is subject to the requirements of the Act, including those provisions governing repatriation requests.

On April 19, 2013, Judge Richard Caputo denied motions by the Borough and ruled in favor of plaintiffs Richard Thorpe, William Thorpe, and the Sac and Fox Nation of Oklahoma. The grandsons from Jim Thorpe's first marriage were denied a voice in the proceedings on the grounds that they had no standing, being neither plaintiffs or defendants in the case.

On May 20, 2013, the plaintiffs filed a cross-appeal arguing that the judge's initial decision that they were not entitled to monetary damages should be reconsidered.

On Sept. 23, 2013, the Borough of Jim Thorpe filed an appeal with the United States Court of Appeals for the Third Circuit.

The brief argued that Jim Thorpe was a modern man, and that the NAPRA act was never intended to apply to a modern person. It further argued that it is unreasonable to consider the Borough of Jim Thorpe to be a "museum," and that the plaintiffs waited for 60 years, and specifically until the passing of Grace Thorpe, to pursue this lawsuit.

Michael Koehler and John Thorpe and their families have been strong supporters of the Borough's position, and following the initial decision, retained attorney Dan Wheeler of Wynnewood, PA to represent them and prepare the Amicus brief. Note that Dan Wheeler is not related to Robert and Rob Wheeler, a Jim Thorpe biographer and his son who are vocal supporters of the NAPRA lawsuit.

According to Koehler, the sons and the tribe opposed and tried to block the Amicus brief. "We wanted an opportunity to make our opposition clear," he said. "The brothers and the tribe apparently didn't want that. They filed to attempt to stop it from being filed. One of the curiosities of familiar relationships.

"Dan, John and I focus almost exclusively on the applicability of NAGPRA to this situation," Koehler continued. "We don't think it applies at all.

"I was worried that we wouldn't have the opportunity to counter some of the claims that have been made by my half uncles and the tribe. Now that we have the opportunity to make our position clear, I am very please with that.

"My grandfather received a Catholic burial, and he received a Native American ceremony, one conducted by my aunt Grace. We felt he received a sufficient amount of spiritual blessings from the Native American side and should be allowed to rest in peace."

During the trial, the family of the first wife was asked for affidavits, but these were rejected. They were to enter mediation, but the plaintiffs objected. "We didn't mediate," Koehler noted. "We didn't get an opportunity to say anything about our grandfather."

The Amicus brief is truly brief, only nine pages. It begins, "Michael Koehler and John Thorpe are the grandsons of Jim Thorpe, and thus the nephews of the two individual plaintiffs in this lawsuit. They, like their grandfather, are of Native American ancestry. They submit this brief in support of the Borough of Jim Thorpe, where their grandfather was buried by his family...

"The Thorpe grandsons believe their grandfather should rest at peace and that their family's burial decision should be respected. They are also concerned that if the ruling below stands, their own family burial decisions, and those of every other Native American family, will forever be jeopardized. Stated without exaggeration, the court below held that NAGPRA can require repatriation of the remains of every person of any Native American ancestry, whether buried fifty-six years ago, tomorrow, or any time in the future. A breathtaking result, and one that Congress could never have intended.

"Additionally, the Thorpe grandsons believe it is important for the Court to understand that there is not unanimity-neither in the family nor in the Native American community-concerning the issue of where Jim Thorpe should rest. This can be an emotional issue to many, and no one has a greater right to be emotional than the Thorpe grandsons. Still, they wish this case to be resolved not with emotion, but under the law. And they believe that the district court below misapplied the law."

The Amicus brief argues the following: the NAPRA Act was not intended and does not apply, Jim Thorpe cannot be "repatriated" because he is where he was rightfully interred. The brief also notes that, "NAGPRA does not impose any obligations on the lineal descendants or the tribes after the remains have been repatriated. For example, nothing in NAGPRA requires the repatriated remains to be reburied." There is a concern that the remains of Jim Thorpe, once repatriated, could be placed on exhibit-totally contrary to the intent of the NAGPRA Act.

It further notes that, "The Borough's brief ably details the many rights of the Thorpe family and estate that would be violated by application of NAGPRA, and the Thorpe grandson's concur in that analysis. For example, Pennsylvania law provides the surviving spouse with near absolute authority for make burial decisions for the deceased."

The brief concludes, "After fifty-six years, the Court should end this matter once and for all and let the man rest."

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