It is designed to end the plunder of Indian burial sites
May 28, 2013 4:00 AM
Kristy Birchard/The Morning Call
A monument of Jim Thorpe in his namesake town in Carbon County, Pa.
By Peter Hall The (Allentown) Morning Call
It was a sweat lodge ceremony in Texas where Jim Thorpe reached out to his grandson through a medicine man.
The shaman told John Thorpe his grandfather's spirit was content in the Pennsylvania town where his body has lain for six decades.
"Grandpa made contact with him and told him that he was at peace and wanted no more upset connected to him," John Thorpe said.
That was nearly three years ago -- shortly after Jim Thorpe's son filed a lawsuit against the borough of Jim Thorpe seeking the return of his father's remains to tribal lands in his native Oklahoma.
Since then, the case has forced Jim Thorpe residents to confront the prospect of losing their community's namesake and widened a rift between his descendants, who disagreed on where the legendary American Indian athlete's remains should rest.
"Moving him out of Jim Thorpe, a town that loves and honors and respects him and throws a birthday party for him every year, is just wrong -- plain wrong," said John Thorpe, whose mother, Charlotte, was a daughter of Thorpe's first marriage.
Last month, a federal judge sided with Jim Thorpe's sons William and Richard, who carried on the suit after their brother Jack's death, and the Sac and Fox Nation of Oklahoma, the tribe to which Jim Thorpe belonged.
At the center of the dispute is a federal law designed to end the plunder of Native American burial sites and give American Indians control of their people's remains. Called the Native American Grave Protection and Repatriation Act, the law allowed the return of thousands of bodies and artifacts that were removed and added to museum collections beginning in the 1800s.
And, observers say, the interpretation of the law in the Jim Thorpe case has the potential to influence cases across the country.
Jim Thorpe leaders on May 17 filed a notice they will appeal U.S. District Judge A. Richard Caputo's decision, which would require the borough to begin the process of returning Thorpe's remains if it is upheld. Thorpe's sons and representatives of the Sac and Fox did not respond to requests for interviews through their attorney.
Experts say that as well-meaning as the borough's residents were when they agreed to build a mausoleum for the double Olympic gold medalist and pro football pioneer, the town's possession of Jim Thorpe's body is the kind of exploitation the law was intended to prevent.
"I don't think that just because a person achieves national renown and respect means that his body can be the subject of commercial disputes and treated as a piece of property on his death," said Walter Echo-Hawk, a Pawnee lawyer who helped draft the 1990 law.
Mr. Echo-Hawk said the Repatriation Act is a human rights law intended to correct a double standard in American society that allowed the desecration of American Indian graves -- acts that would be criminal if they involved non-native remains -- to go unpunished.
Controversy over some of the more egregious examples of American Indian burial sites' being exploited prompted discussion and development of the Repatriation Act, Mr. Echo-Hawk said.
"There was an awful lot of bartering and trafficking in human remains that was going on. People selling skulls and pottery and things that were taken out of graves, just the kind of plundering that would shock the consciousness," Mr. Echo-Hawk said.
In addition to criminal penalties for trafficking in Native American remains, funerary objects and cultural items, the law gives Native Americans a right to have remains returned when they are excavated or discovered on federal or tribal lands.
It also gives the right of repatriation, with priority to the closest living descendants, for remains and cultural items that are in museums or controlled by federal agencies.
This provision gave rise to the central controversy in the lawsuit by Thorpe's sons against the borough of Jim Thorpe.
The Repatriation Act defines a museum as any institution or government agency that has received federal funds since the law was passed in 1990.
Lawyers for the borough argued that although Jim Thorpe had benefited from federal grants, it didn't qualify as a museum because it didn't receive the money directly. Rather, the money passed through the state or county government before being doled out for infrastructure improvements in the borough, the lawyers argued.
In his 32-page decision, Judge Caputo examined cases that deal with the question of when receiving federal funding makes an institution or corporation subject to federal laws.
Based on evidence that the borough, in two examples, had received federal money for water meter replacement and flood control projects, it was subject to the Repatriation Act.
Original resting place
One expert, however, questioned whether the Repatriation Act should apply, given the circumstances of Thorpe's burial. Sherry Hutt, the National Park Service's Repatriation Act program manager, said it depends on whether the mausoleum in Jim Thorpe is considered his original resting place.
Thorpe's 1954 burial in Pennsylvania was the product of a deal between civic leaders in the downtrodden Carbon County boroughs of Mauch Chunk and East Mauch Chunk and Thorpe's third wife, Patricia.
Spurred by local journalist Joe Boyle, the communities agreed to unite under the double Olympic gold medalist and pro football pioneer's name and build a fitting tribute after Oklahoma's governor balked at the cost.
Local leaders hoped the memorial would become a tourist attraction and inspire investment in the area, which struggled economically after the decline of the mining industry.
But in Yale, Okla., which calls itself the "Home of Jim Thorpe," residents share the opinion that Thorpe was wrongly taken.
"We feel as though he was stolen from us, and in a way he was," said Virginia Stanford, a curator at the Jim Thorpe museum in Yale. The museum is housed in the gray and white bungalow that was the only home Thorpe ever owned.
Patricia Thorpe, armed with a court order and backed by the highway patrol, interrupted a Sac and Fox funeral for Thorpe in 1953, and, in Ms. Stanford's words, "kept him on ice" while she shopped for a city that would pay to have his remains.
Ms. Hutt, of the National Park Service, said the fact Thorpe was not buried in Oklahoma before he was moved to Pennsylvania means the Repatriation Act should not apply.
The Repatriation Act doesn't come into effect until the remains are removed from their original resting place, Ms. Hutt said.
Bill Billeck, who runs the repatriation program at the Smithsonian Institution's National Museum of Natural History, said the Jim Thorpe case has the potential to have an effect on a wide range of organizations across the country.
For example, a cemetery where a prominent Native American is buried might be subject to the Repatriation Act, he said.
"That's what the debate is about," Mr. Billeck said. "It's [Thorpe's] gravesite, but there's an exhibit quality about the way that his importance is being featured in Pennsylvania."
Ernie Lapoint, a great-grandson of Sitting Bull, said he can relate to John Thorpe, even though Mr. Lapoint is fighting for the right to move a body believed to be his great-grandfather's.
Tribal leaders want to build a visitor center on the Standing Rock Reservation in South Dakota near the Lakota chief's grave.
Much as John Thorpe said he believes his grandfather's spirit is content in Pennsylvania, Mr. Lapoint said, he believes he must move his great-grandfather's body because the spirit is troubled by the tribe's plan.
"If they're natives, they should respect the input from the spirit world," Mr. Lapoint said.
John Thorpe recalled the story of a ceremony in which his aunt blessed Jim Thorpe's burial site and her excitement at seeing red-tailed hawks circling above.
"These are all signs from the spirit world that he's in the right place," John Thorpe said.