Jim Thorpe and Civil Procedure

Here is an interesting story from yesterday's Washington Post on the ongoing over the remains of Jim Thorpe, the great Native American athlete of the early 20th century. In 1953, Thorpe's third wife gave his body to two neighboring towns in the Pocono Mountains of Pennsylvania--Mauch Chunk and East Mauch Chunk--in exchange for their merging and adopting the name "Jim Thorpe." But in 2010, John "Jack" Thorpe, one of Thorpe's sons, sued in federal court against the Borough of Jim Thorpe, seeking the return of his father's remains under the Native American Graves Protection and Repatriation Act (“NAGPRA"), as well as damages under § 1983.

As always, there is a lot of interesting procedure floating around here. In February 2011, the district court granted in part and denied in part the Borough's 12(b)(6); it held that the damages claims were legally barred, but that the NAGPRA did govern the plaintiff's claim. The court also suggested that Richard and William Thorpe, Jack's brothers, and the Sac and Fox Nation, the Oklahoma-based tribe to which Jim Thorpe belonged, had to be joined as defendants under FRCP 19. Jack Thorpe initially sought an ordering that Jim's remains be turned over to Jack; to the extent William, Richard, or the Sac and Fox might also have a claim to the remains, they needed to be heard in this case. The court left open the question under FRCP 19(b) whether Richard, William, or the Nation would be subject to personal jurisdiction in Pennsylvania and, if not, whether the case could proceed without them.

Shortly after the district court's decision, Jack Thorpe died, triggering application of FRCP 25 for substitution of parties. But then Richard and William and the Sac and Fox Nation joined Jack (now represented by his estate) as plaintiffs, filing an Amended Complaint that now seeks the return of Jim's remains to the tribe. The Amended Complaint recently denied a second 12(b)(6) motion, holding that the new plaintiffs are proper parties and reiterating its view that the NAGPRA claim is not legally defective and can proceed.