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Benjamin Hochberg


Benjamin Hochberg , Bringing Jim Thorpe Home: Inconsistencies in the Native American Graves and Repatriation Act, 13 Rutgers Race & the Law Review 29 (2012)(150 Footnote) (Student Note)



That order did not come from God. Justice,
That dwells with the gods below, knows no such law.
I did not think your edicts strong enough
To overrule the unwritten unalterable laws
Of God and heaven, you being only a man.”

The body of the greatest Native American athlete was sold in a midnight exchange for the benefit of local tourism. In 1953, several months after his death, Jim Thorpe was removed from a Sac and Fox tribal shrine in his home state of Oklahoma. The two-time Olympic gold medalist was then displaced over one thousand miles to Mauch Chunk and East Mauch Chunk, Pennsylvania. Jim Thorpe had never been to either town during his lifetime. In exchange for a lump sum of cash, Jim Thorpe's third wife Patricia signed over her husband's body.

Mauch Chunk and East Mauch Chunk interred the body, erected a memorial and merged to form what is known today as Jim Thorpe, Pennsylvania. In the course of half a century, the town immersed itself with the identity of Jim Thorpe and his Native American heritage. He is a local icon, ingrained in the local culture and regional identity. Thorpe's presence has provides cultural and material benefits. Jim Thorpe, Pennsylvania has grown from a little known, backwater town to a booming site for transnational tourists. It is a cultural vanguard for art, music and theatre. Jim Thorpe, Pennsylvania has reaped substantial benefits from Jim Thorpe's presence and, until recently, faced no opposition to their postmortem prisoner.

In June of 2010, Jack Thorpe, a surviving son of Jim Thorpe, took the first legal steps to reclaim the body of his father. Jack seeks to have his father's remains returned to Pottawatomie County, Oklahoma and reinterred in Sac and Fox tribal grounds. Jack Thorpe was fifteen when his father died; Now, at seventy-three years old, Jack Thorpe faces an uphill battle to see his father once more. If Jim Thorpe's body is returned to Pottawatomie County, he would join his father, his sister, his brother and “more than a dozen other relatives buried [t] here.” The Native American hero of generations past would return to his Sac and Fox roots, in a town with no street signs. The vastly rural birthplace of Thorpe still shows signs of underdevelopment. While the Jim Thorpe persona does not direct tourism to the state of Oklahoma, he “remains a hero to Americans, native and otherwise - a man whose life story is part of the curriculum at [Oklahoma] schools . . . whose name adorns buildings, highways and hospitals in what used to be Indian Territory.”

Jack Thorpe's complaint was filed in the United States District Court for the Middle District of Pennsylvania. The complaint, which has partially survived a motion to dismiss, seeks relief pursuant to the Native American Graves Protection and Repatriation Act (NAGPRA). NAGPRA is a federal statute designed specifically for the recovery and repatriation of Native American cultural items and human remains. The statute has yet to be applied in such a unique context. The primary distinction between NAGPRA's typical application and the case at hand is that Jim Thorpe is the first Native American body to be reinterred. The town of Jim Thorpe has argued that Jim Thorpe has already been properly interred, and NAGPRA does not provide for disinterment. The distinction raises significant issues in the canon of common law burial rights. The town has successfully asserted common law burial claims involving Thorpe's postmortem interests. These common law claims are integral to an effective NAGPRA application.

Up to this point, NAGPRA has been applied to remains that were obtained in the early 19th Century. The town of Jim Thorpe asserts that Jim Thorpe is a modern Native American, and thus NAGPRA is inapplicable. Jack Thorpe maintains that NAGPRA specifically provides for the repatriation of all displaced Native Americans. The Middle District Court appears to agree with Mr. Thorpe's interpretation. The court has also determined that there are necessary parties which have yet to be joined. The Court concluded that “ [b] oth the tribe and Jim Thorpe's lineal descendants are necessary parties.” In an Order issued February 4, 2011, Judge A. Richard Caputo mandated that Jack Thorpe: “(1) join as defendants in an amended complaint all necessary parties . . . or (2) submit evidence and briefing showing that joinder of any or all of the necessary parties is not feasible, and that action can proceed in ‘equity and good conscience’ under Rule 19(b).”

It will be seen that Judge Caputo's Order was made due to common law principles inherent in the application of NAGRPA. Jack Thorpe's NAGPRA claim contravenes several other common law principles of disinterment and burial.Jack Thorpe's current procedural predicament exhibits a fundamental flaw in the application of NAGPRA. Jim Thorpe's cultural roots will be discussed thoroughly in Part I of this paper. While these roots stem from the Sac and Fox Tribe in Oregon, a judge may defer to artificial connections to the town of Jim Thorpe, Pennsylvania. Over the past fifty years, a rural Pennsylvania community has built itself around the presence of Jim Thorpe. Jim Thorpe is more than an official citizen of Pennsylvania; he is a communal identity and a strand in the fabric of local culture. For Mauch Chunk and East Mauch Chunk, Pennsylvania, Jim Thorpe is a tool of economic sustenance. Part II discusses the towns that became dependant on Thorpe, and their interest in the current litigation. The community's interest plays an implicit role in the adjudication of Jack Thorpe's claim.

As of February 2011, the case qualifies for judicial review. The federal court will be forced to clarify the core function and purpose of NAGPRA despite its limited case law and common law principles. Part III of this paper discusses the emergence of NAGPRA, its basic principles, and analyzes its limited development via case law. In the context of this case, NAGPRA provides very little guidance. This paper will juxtapose NAGPRA with the common law interment rights. The Thorpe case runs contrary to common law burial rights. “American culture and law rightly recognize postmortem interests and even legal rights belonging to the corpse itself.” However, as with all legal rights, social issues and public policy considerations frequently contradict these postmortem interests. Part I will broach postmortem interests of Jim Thorpe. Part II will analyze Jim Thorpe, Pennsylvania's interest in retaining Jim Thorpe. NAGPRA and common law burial rights will be extensively compared in Part III.

The scope of this paper will touch upon possessory interest in the deceased and disparate treatment of deceased under NAGPRA. It will explore the lack of federal authority regarding descendants' rights in a decedent's body. This paper will also serve as a partial response to Mary L. Clark's article Keep Your Hands Off My (Dead) Body: A Critique of the Ways in Which the State Disrupts the Personhood Interests of the Deceased and His or Her Kin in Disposing of the Dead and Assigning Identity in Death. Clark argues that by assuming authority, but by failing to act uniformly, the federal government has complicated the rights of descendants who may have possession interest in their deceased relatives. While Clark views the role of the federal government to be inadequate, undesired, and often unnecessary, this paper suggests that a uniform possessory right to the dead may be the best solution. Clark correctly predicts problems with multi-claimant identity issues (i.e. several tribal and familial claims for the remains of one person) and is correct to point out the government's inability to address the issue.

However, Clark maintains that state governments should be in sole control of body disposition, instead granting a common law, federalist system control in most suits. If that system applied to Thorpe v. Borough of Thorpe, the town would receive preferential treatment from a Federal Court.This paper suggests that while NAGPRA creates inherent possessory conflicts, a uniform, federal guideline for the possessory interests of all decedents is an adequate solution. That is not to say that all decedents should have physical possession of their loved ones' remains. Public safety, health and wellness concerns would advise against a positive right. However, a federally defined decedent priority list and “minimum level of control” regarding body disposal may be beneficial. This is especially true in the NAGPRA context, wherein common law ambiguities inhibit uniform application of the law. Because common law burial rights are often ambiguous or built on balancing interests, their consideration in the NAGPRA suit is paradoxical and counterintuitive. This is clear in the Thorpe. Similarly, NAGRPA cases often involve cross-claims by family members, friends and religious groups. “Dead people have a variety of personal interests that can be affected by posthumous events.” Case law varies from state to state in the level of interest it allocates to each competing party. White the federalist structure seems appropriate due to the wide variety of claimants with varying interests. States that possess large Indian territories may treat NAGPRA claims more efficiently than states without Indian territories. A federal possessory guideline for descendants may expedite claims and prove a more useful tool than diverse, state common law.

The Thorpe case also has significant implications regarding contemporary cultural perceptions of Native Americans and Native American culture. The case will raise issues regarding Thorpe's common law right of publicity, and the continued perpetuation of the “noble savage” stereotype. Common law provides for disinterment when a body has been desecrated. The argument can be made that the town has exploited the celebrity identify of Thorpe, the athlete. Does the exploitation of human identity, vis-à-vis publicizing the possession of said remains, equate to desecration? This issue will be discussed in Part III.

Jack Thorpe's quest is the result of hundreds of years of Native American subjugation by Western culture. Jack Thorpe's story, as well as his father's, mirrors the displacement of the Sac and Fox nation and Native Americans since the Seventeenth century. Although the result is currently unclear, the pending decision marks a step towards correcting a century of disparate treatment. To fully understand the implications of the pending decision, it is essential to understand the tragic legend of Jim Thorpe, “a likable and engaging if feckless man, [who] seems tragically destined to wander forever, the fastest itinerant in the world.”
* * *

John “Jack” Thorpe, the Plaintiff in the current case, passed away on February 22, 2011. Because Jack Thorpe will not see the disposition of the case, his passing adds an ill-timed element to the February Order by the Middle District of Pennsylvania. Richard and William Thorpe, the surviving lineal decedents to Jim Thorpe's remains, may continue the suit. So far, there has been no official comment from the Sac and Fox nation.

In a twist of tragic irony, the sudden passing of Jack Thorpe actually enhances the potential success of his claim. If the case continues, there may be less competition among parties. There is less potential for dissonance among lineal descendants and claimants. The Sac and Fox tribe may pursue this case by itself. In that scenario, the NAGPRA ownership provision will be clearly applicable and no party will be outstanding.NAGPRA was designed to rectify a myriad of abuse to the Native American people but is founded in ambiguous common law principles. Common law, the same system which was previously unavailable and/or indifferent to Native American claims, runs contrary to the tribal structure of Native American beliefs. In the context of burial rights, common law remains antiquated and opposed to tribal customs. The nation that formulated common law burial rights pushed Hiram Thorpe off his homestead. The same nation that indoctrinated Sac and Fox youth with “Christian values” implemented the same values into common law cadaver rights.

Jim Thorpe v. Borough of Jim Thorpe should not be seen as an attempt to impose Native American social, cultural or religious beliefs into common law. Common law burial rights should be updated and standardized for consideration of all contemporary cultures or, conversely, NAGPRA should be revised to eliminate.



J.D. Candidate, Rutgers School of Law-Newark, to be conferred May 2012.