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Judge sides with sons about Jim Thorpe's remains

HARRISBURG, Pa. (AP) — The two surviving children of sports great Jim Thorpe won a critical ruling Friday in federal court that could clear the way for his remains to be removed from a mausoleum in the Pennsylvania town that bears his name and reinterred on American Indian land in Oklahoma.
U.S. District Judge Richard Caputo ruled in favor of sons Bill and Richard Thorpe and against Jim Thorpe borough in northeastern Pennsylvania, saying the town itself amounts to a museum under the 1990 Native American Graves Protection and Repatriation Act.
The men's lawyer, Stephen R. Ward of Tulsa, Okla., said they will now pursue the legal process to have their father, who won the decathlon and pentathlon in the 1912 Olympics, returned to Sac and Fox land in central Oklahoma.
Messages seeking comment from lawyers for the borough, and top borough officials, were not immediately returned. They could appeal Caputo's decision.
Ward said the brothers were pleased with the decision.
“They and their brothers and other members of the family have wanted this and have worked for this for a long time,'' he said. “They well remember how the wishes of the Indian members of the family were not respected concerning their father's burial.''
After Jim Thorpe died without a will in 1953 at age 64, third wife Patricia Thorpe made a deal with two merging towns in the Poconos, Mauch Chunk and East Mauch Chunk, to have the new town named for him. His remains have been kept for the past six decades in a borough-owned roadside memorial along the Lehigh River.
Caputo wrote that the result 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.''
Ward said Bill Thorpe, who lives in Oklahoma, and Richard, a resident of the Dallas area, have not decided whether to bury their father alongside their paternal grandfather in a cemetery in Shawnee, Okla., or at another spot in the area.
Ward said the brothers are not seeking to have the town change its name, and the judge said any concerns about the borough's identity were misplaced.
Thorpe was born in Oklahoma and became a professional football and baseball player, as well as a Hollywood actor. The town that bears his name — which he likely never visited — has become a popular tourist destination, replete with trendy shops, historic architecture and outdoor activities connected to the mountainous region.
Ward said any tourist benefit that Thorpe's remains may have once provided has long become nonexistent.

Kerr Dam nearing tribal ownership

MISSOULA, Mont. (AP) — Taking over ownership and operations of Kerr Dam will be both a historic and legal triumph for the Flathead Reservation, according to a lawyer who's shepherded the deal through 10 tribal councils.
“The Salish and Kootenai tribes are really at the forefront for asserting their authority over natural resources on their lands,'' Joe Hovenkotter told audience members at the University of Montana School of Law's Public Land Law Conference on Wednesday. Hovenkotter was legal adviser for the Confederated Salish and Kootenai Tribes for 20 years before becoming general counsel to the reservation's energy company in December.
But the ability to reach that point went all the way back to the Hellgate Treaty of 1854 that created the Flathead Reservation, Hovenkotter said. It also demonstrated the tribal community's own maturity as an organization that could operate a major hydropower dam, market its electricity, address its environmental impacts and deal with both governmental and private energy sectors.
“There are other tribes positioning themselves to try something like this,'' said Sarah Bates of UM's Center for Natural Resources and Environmental Policy. “This is the model for the rest of the country. They've had a remarkable vision for restoring what was lost over all those years.''
Kerr Dam sits on the Flathead River, five miles below the foot of Flathead Lake. It possesses many unusual qualities, compared to other hydropower dams. For instance, it doesn't change the historic levels of Flathead Lake like the way Hungry Horse Dam drains and refills its reservoir.
And because Flathead Lake catches most of its sediment and provides a nearly constant level of water pressure year-round, Kerr Dam has the ability to speed up or slow down its electricity generation. That made it extremely profitable because it could sell power at the peaks and valleys of daily electricity usage.
But that variable water flow damaged the habitat of the Flathead River for miles below the dam. In 1987, the tribes won the argument to switch the dam to a base-load format, meaning it produces a constant amount of power each day. That reduced the income it could generate, but also made a huge improvement to the riverside habitat in the reservation.
Anyway, for decades after its construction in 1939 the tribes got little of the money it produced. While they've been lately receiving $19 million a year in rent, the dam has generated between $20 million and $60 million a year, depending on energy prices. It is capable of lighting 95,000 homes with its 1.1 million megawatt-hour turbines.
Hovenkotter said the Hellgate Treaty was important because unlike many other tribal treaties in Montana, this one gave the Flathead Reservation members rights to access and use waterways outside their homeland. That made the CSKT a player in decisions affecting the entire Columbia River system.
The tribes recently used this authority to get a seat at the table on the Streamside Tailings Consent Decree that created a multi-million-dollar account to repair mining damage to the Clark Fork River. The tribes received $18.3 million in that settlement, $13.5 million of which went to recover land and habitat lost when large chunks of the reservation were sold to outsiders in the 1904.
About the same time Kerr Dam was being built, Hovenkotter said the CSKT became the first American Indian tribe to set up its own constitutional government. That gave it the theoretical power to take over the dam, although it took decades of legal wrangling to work that out.
The biggest challenge, he said was setting up a way for the tribes to work with private utility companies in the United States. As a sovereign nation, it didn't want to simply hand over its authority to the U.S. court system. But that also scared away private business partners, who couldn't be sure under whose legal framework any disputes might get decided.
The creation of Energy Keepers LLC has fixed that by presenting a tribally owned business that operates in the U.S. framework. CSKT expects to buy Kerr Dam from its owner, PPL Montana, in 2015. It then wants to get a new 50-year license to operate as a power provider.
There's still the matter of the price of the dam, Hovenkotter said. PPL has valued it at about $51.5 million. But the tribes argue that $34 million of that would pay back investments that PPL's ratepayers have already paid, so the price should be closer to $16 million.
Either way, the tribal council has already capitalized its energy business with enough funds to cover the low and high price. Hovenkotter said it was a demonstration of the reservation's commitment to taking on the dam and all its responsibilities. They expect to close the deal in 2015.
“We've always talked about this date coming,'' said Indian law attorney Daniel Belcourt. “Now it's here.''