Guest Opinion
NAGPRA, or the Native American Graves and Repatriation Act, is a law that requires the human remains of Native Americans to be returned to their families and Tribes and criminalizes the trade in Native American human remains. The statute also requires the repatriation of certain sacred objects or objects of cultural patrimony that were collected under specific circumstances. The remains of Native American children who were taken from their families, died while in the custody of the Carlisle Indian School staff, and were buried on the school grounds are at issue in this case.
I wrote in February 2024 about the case filed by the Winnebago Nation against the U.S. Army for failing to comply with NAGPRA in returning the remains of two children buried in the Carlisle Indian School cemetery, which is located on U.S. Army property.
The title, “A Chance to Right Wrongs,” predicted the opportunity the U.S. Army ultimately missed by continuing to refuse to comply with NAGPRA and instead insisting that Tribal Nations follow an Army policy requiring a living descendant to claim the remains. Of course, children who died at the school had no descendants. The cruel irony of that policy apparently raised no moral or ethical red flags for the U.S. Army. Too clever by far.
One has to wonder what the lone dissenting Judge Rushing was thinking when he wrote that the U.S. Army agreed the human remains should be returned and “merely dispute how.” Perhaps he had not fully considered the paradox of “how” the Army believed that should happen.
Who is managing the Carlisle Indian School cemetery?
The U.S. Army has an Office of Cemeteries that manages military cemeteries. Here is its description of the Carlisle Indian School cemetery, which it refers to as the Carlisle Barracks Main Post Cemetery:
The Carlisle Barracks Main Post Cemetery was established in 1880 after the opening of the Carlisle Barracks Indian Industrial School in 1879. According to current historical research, at least 187 Native American and Alaska Native children died while attending the school and were interred at the Carlisle Barracks Main Post Cemetery, not including unknowns. Military members and their families were also interred at the cemetery. The Office of Army Cemeteries oversees the Carlisle Barracks Main Post Cemetery, including administrative support and cemetery operations. The Carlisle Barracks Directorate of Public Works provides daily care and maintenance for the cemetery.
Unlike other military cemeteries, the Carlisle Indian School was not established as a cemetery. It was a school operated by the U.S. Army on military property during a period when the United States had only recently transitioned from being formally at war with Indian Nations. The federal policy of the era was “kill the Indian, save the man,” implemented through cruel assimilation practices that removed children, some as young as three years old, from their families. This historical context makes it all the more troubling that the cemetery remains under the care of the U.S. Army.
How did the court find that NAGPRA applies to the U.S. Army?
The underlying case turned on one of the criteria in NAGPRA that must be satisfied to trigger the statute’s repatriation obligations: whether the Carlisle Indian School cemetery constitutes a “holding or collection.”
To answer that question, the U.S. Army argued that this case was analogous to litigation involving the burial place of Jim Thorpe, which concerned a dispute among family members and Tribal interests following his death. However, the question in that case was whether the municipality qualified as a “museum” under NAGPRA. Although the legal issue was different, the district court relied on its reasoning. The appeals court explained:
Thorpe turned on whether Mr. Thorpe’s gravesite qualified as a “museum” under NAGPRA and thus presented a legal question different from the one we confront. But the district court found its reasoning instructive.
The facts of the Thorpe case also made clear that NAGPRA was never intended to govern family disputes over the burial place of a deceased relative.
The Fourth Circuit held:
The district court dismissed the Tribe’s action for failure to state a claim, concluding that the Act requires repatriation only of previously excavated remains and not of remains buried in cemeteries. We disagree. As alleged in the Tribe’s complaint, the boys’ buried remains are subject to the Act’s repatriation obligation as part of a “holding or collection” under the Army’s control. We therefore vacate the judgment of the district court and remand for further proceedings.
The court further addressed the meaning of “holding” by finding that “a cemetery that serves, in the Army report’s own words, as ‘a repository for the remains of Indian School students’ would seem to qualify as ‘something that holds.’”
The Fourth Circuit therefore concluded that NAGPRA applies to the U.S. Army and to the Carlisle Indian School cemetery.
Final thoughts
The federal government defended the U.S. Army against the application of NAGPRA to the remains of Native American children who were, in most cases, taken from their families against their wishes during a period in which the United States pursued policies that supported the genocide and forced assimilation of Native peoples and had only recently ended declared war against Native Nations.
Only a few years ago, several state governments also challenged the constitutionality of another law intended to remedy historic injustices in Brackeen v. Haaland (2023). That statute, the Indian Child Welfare Act, was enacted to reverse the longstanding practice of removing Native American children from their homes through misguided assimilation policies.
This entire expenditure of taxpayer money to defend the indefensible in both cases suggests that the next time the U.S. Department of Justice hires attorneys, it should seriously consider applicants whose law school transcripts include coursework in Federal Indian Law.
To read more articles by Professor Sutton go to: https://profvictoria.substack.com/
Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
