Final Respects

As America increasingly weaned itself off the use of coal as a primary source of fuel in the 1920s and on, many towns that were built around this industry began to suffer severe economic difficulties. Among them were Mauch Chunk and East Mauch Chunk, located in the Pocono Mountains of Pennsylvania. World War II brought life back into the region, but only temporarily. By 1953, the residents of these communities were quite desperate to turn the tide and save their town’s future. They decided to merge and strike a deal with the widow of Jim Thorpe, who had died the previous year in California. Mr. Thorpe was a well-known figure at the time, and under the agreement, his remains would be buried in the area in exchange for the newly united borough to be called Jim Thorpe.

Both sides kept their word, and though the name change didn’t have much of an impact on the local economy, Jim Thorpe’s remains have been kept for the past six decades in a borough-owned roadside memorial along the Lehigh River.

Not all of Thorpe’s children agreed, however, with the decision made by their stepmother. Being that Thorpe was American Indian and an enrolled member of the Sac and Fox Nation, they felt that his remains belonged in Native American burial grounds in his home state of Oklahoma.

In 1990, Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA), which was intended to strengthen federal protection of Native American burial sites and to enable tribes to pursue the recovery of sensitive materials in museum collections.

Twenty years later, Jim Thorpe’s son John filed a lawsuit in federal court saying that under NAGPRA, the local authorities in Pennsylvania were required to hand over his father’s remains. As the matter started making its slow way through the court system, John died in 2011, putting the lawsuit on hold. Some two months later, his brothers Bill and Richard Thorpe joined the lawsuit, allowing it to continue.

Last Friday, a federal judge ruled for the two brothers and against the borough of Jim Thorpe. In his ruling, U.S. District Judge Richard Caputo acknowledged that since there was a binding agreement between the widow and the municipality, his conclusion may seem at odds with notions of commercial or contract law.

“Congress, however, recognized larger and different concerns in such circumstances, namely, the sanctity of the Native American culture’s treatment of the remains of those of Native American ancestry,” the judge said. “It did so against a history of exploitation of Native American artifacts and remains for commercial purposes.”

This ruling is based on a federal law that is limited to Native Americans, and the ruling may still be appealed, so it is unclear whether this particular case will have any practical effects on the religious rights of other minorities.

Nonetheless, it helps shed light on an often overlooked aspect of religious freedom: the right of a community as it relates to the deceased. While much of the debate about the rights of Native Americans revolves around the fact that Indian tribes possess the singular legal status of “sovereign nations,” this case was about the sensitivity towards Indian beliefs and culture and the importance of complying with Native American culture and tradition when dealing with the remains of one of their own.

At a time when our own community faces unprecedented challenges in areas affecting religious rights and freedoms, any efforts to defend these freedoms are of interest to us.

Respecting the sanctity of the remains of a deceased person is a concern that certainly isn’t limited to Native Americans.

Whether it is a dispute among family members over whether to give a Jewish relative a halachic funeral or preventing unnecessary autopsies, upholding the rights of the departed to rest in peace is a serious issue here in the United States.

Abroad — particularly in large parts of Eastern Europe — the scores of Jewish cemeteries have been all but obliterated. In many towns, all that remain are the shattered remnants of a few tombstones. Some cemeteries have become pastures for livestock; in other towns, entire buildings were erected on the graves of our ancestors.

The governments of these countries are certainly no less responsible for the plight of the Jews than the U.S. authorities are for the fate of the American Indians. In many cases, local residents actively joined the Nazis in deporting and massacring the Jews.

Nothing they can do will atone for their treacherous behavior towards the living. But at the very least they can desist from continuing to disrespect the dead.

Private individuals and organizations have taken up the cause of trying to erect gates and prevent further desecration of Jewish cemeteries. Their efforts are to be commended, but far more needs to be done in regard to our responsibilities towards the graves of our ancestors.

This article appeared in print on page 10 of the April 25th, 2013 edition of Hamodia.