RICHMOND, Va. — In a major legal victory for the Winnebago Tribe of Nebraska, the U.S. Court of Appeals for the Fourth Circuit ruled that the Native American Graves Protection and Repatriation Act (NAGPRA) applies to the remains of Native children buried at the Carlisle Indian Industrial School cemetery, allowing the Tribe’s lawsuit against the U.S. Army to move forward.
The Tribe, represented by the Native American Rights Fund, Big Fire Law & Policy Group LLP, and Cultural Heritage Partners, seeks the repatriation of the remains of Samuel Gilbert and Edward Hensley, two Winnebago boys who died at the Carlisle Indian Industrial School more than 125 years ago.
The Fourth Circuit vacated a lower court’s dismissal of the case, holding that NAGPRA’s protections extend to Native children buried without tribal or family consent in the Carlisle cemetery. The decision marks the first time the Fourth Circuit has interpreted NAGPRA in this context.
In the opinion, Judge Harris wrote:
“At the end of the day, the U.S. government kept and buried the remains of two Native American schoolchildren, Samuel Gilbert and Edward Hensley, without their families’ or tribe’s consent after forcing them from their homes and after they died in the government’s care. Nearly a century later, Congress passed a statute that, by its terms, entitles their tribe finally to bring their remains home and to bury them according to their tribal and religious traditions. Nothing in the statute’s text or purpose forecloses that outcome. Quite the opposite: All signs indicate that the Tribe’s repatriation request is precisely the kind of remedy of historic wrongs that NAGPRA was designed to facilitate.”
The court rejected the federal government’s argument that NAGPRA does not apply to remains held in the Carlisle boarding school cemetery. Instead, the court concluded the remains constitute a “holding or collection” under the law, reinforcing Congress’ intent to address the historic desecration and retention of Native remains without consent.
Advocates for the Tribe called the ruling a powerful affirmation of Tribal sovereignty and the rights of Tribal Nations to reclaim their children from the federal boarding school system.
“Winnebago’s lawsuit demonstrates its commitment to honor its ancestors and its children; Winnebago continues to advocate for its rights under NAGPRA to bring Samuel and Edward home and provide them with the Tribal burials they were denied over 125 years ago,” said Beth Margaret Wright, senior staff attorney with the Native American Rights Fund. “The Fourth Circuit recognized that Congress enacted NAGPRA as a remedy for this ‘shameful injustice’.”
The ruling also carries broader implications for Tribal Nations nationwide seeking the return of children who died while attending federal Indian boarding schools.
“This is an extraordinarily important decision not only for the Winnebago Tribe, but for Tribal Nations across the country seeking to ensure that federal agencies finally comply with the laws enacted to help address the profound and multigenerational trauma inflicted by the federal Indian boarding school system,” said Greg Werkheiser of Cultural Heritage Partners, co-counsel for the Tribe.
Winnebago Tribe Chairman Brown welcomed the decision, emphasizing the cultural and spiritual importance of bringing the children home.
“The Fourth Circuit’s ruling brings joy to the Tribe,” Chairman Brown said. “As the Court recognized, it would be a disservice to find NAGPRA does not protect the Winnebago’s right to bring home Samuel Gilbert and Edward Hensley for proper burials, according to our traditional practices. NAGPRA is an important statute our relatives fought for and is meant to ‘address the desires of Indians to bury their dead,’ a right ‘for too long ignored.’”
The case now returns to the United States District Court for the Eastern District of Virginia for further proceedings.
