The Winnebago Tribe of Nebraska moved a step closer to reclaiming the remains of two boys buried on property owned by the U.S. Army after a federal appellate court overturned an earlier ruling dismissing the tribe’s request.
The U.S. Court of Appeals for the Fourth District ruled on Thursday that protections under the Native American Graves Protection and Repatriation Act (NAGPRA) apply to the tribe’s ongoing lawsuit against the Army over the remains of Samuel Gilbert and Edward Hensley, who died at the Carlisle Indian Industrial School more than 125 years ago.
“This court is effectively saying these kids should be returned,” said Greg Werkheiser, attorney for Cultural Heritage Partners, one of the firms representing Winnebago in the lawsuit.
The Army has previously denied that NAGPRA, which has mainly been used to repatriate remains from museums and universities, applies to the children buried at Carlisle, because the cemetery is not a “holding or collection” of remains.
“All signs indicate that the Tribe’s repatriation request is precisely the kind of remedy of historic wrongs that NAGPRA was designed to facilitate,” Judge Pamela Harris wrote in the opinion.
Winnebago Tribe of Nebraska Chairman Coly Brown said in a statement that the ruling recognized the tribe’s “right to bring home Samuel Gilbert and Edward Hensley for proper burials.”
“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,” Brown said.
The case, which was previously dismissed, now returns to the lower court for further proceedings.
“It’s now back on track,” Werkheiser said, “but the reality is that all the parties, including the Army, would be wise to sit down and figure out how to resolve this matter without wasting further the government’s taxpayers’ resources.”
An Army spokesperson declined to comment on the ruling because the case is still being litigated.
Carlisle operated as an Indian boarding school between 1879 and 1918 in Pennsylvania. Many children died and were buried in its cemetery without their families’ consent. The site is now part of the U.S. Army War College.
There are ongoing efforts from multiple tribes to repatriate those remains. The Army requires tribes to find the decedent’s closest living relative to work through its own repatriation process.
The appeals court’s ruling affirms that federal agencies like the Army must abide by the rules of NAGPRA, Werkheiser said, which was passed by Congress in 1990, to return human remains and cultural items.
“The implications of this across Indian Country are profound,” Werkheiser said. “There are, as we know now, thousands of children buried in places that their families never intended and didn’t consent to after dying from conditions that were abusive. This provides clear direction to those tribes that they should expect federal agencies to abide by NAGPRA.”
Editor’s note: This story has been updated to note that the U.S. Army declined to comment on the ruling.
12 Comments
I appreciate that Flatwater didn’t begin this story with an unnecessary anecdote, as many other stories on this site do. The article sticks mostly to the facts and I can almost believe that the author was unbiased… Almost.
That said, I agree with the Army on this one. NAGPRA clearly was created with the intent to apply to museum collections, not every place on earth where somebody claims something belongs to a tribe.
Now, they could have originally negotiated and allowed the bodies to be relocated, because I can’t see any real harm in doing so. But now that an activist judge has attempted to rewrite the law to suit her own political views, they really have no choice but to fight this one to the death to avoid setting a precedent.
Activist Judge, factual source or proof of statement. Personal Background of an Native American or some other cultural heritage or religion?
Did you actually read the article? The law applies to any institution that receives federal funding and that means the Army falls under that category. The law is clear and the judge is upholding it.
I did read the article. Did you?
Here is what the Army argued:
“The Army has previously denied that NAGPRA, which has mainly been used to repatriate remains from museums and universities, applies to the children buried at Carlisle, because the cemetery is not a “holding or collection” of remains.”
Here was the response from the judge:
“…the Tribe’s repatriation request is precisely the kind of remedy of historic wrongs…”
The Army made their argument based on what NAGPRA actually says, and the objective fact that it applies to museums and universities. The judge made an argument based on her emotional belief that “historic wrongs” need to be righted.
Have you read the statute? It’s not just museums. The US Army must comply because they are a Federal agency, which is a distinct legal category explicitly covered by NAGPRA. This is not an attempt at rewriting the law, it is literally upholding it as it was written.
Did who read the statute? Since you didn’t use the reply button and instead started a new thread, we have no way of knowing who you are talking to. The author of the article maybe? I do suspect that the author of this article didn’t bother to do much research, sure.
Outside of NAGPRA, what right does ANYONE have in moving human remains? Did the Tribe contact any of the boys’ relatives? WHO gave the Winnebago Tribe the right to anyone’s non-familial remains?
“The Army requires tribes to find the decedent’s closest living relative to work through its own repatriation process. ”
Now that makes sense, so why can’t the Tribe abide by it?
In regards to NAGPRA, it’s clear that the Tribe is misusing the statute for its own political purposes. SHAME on them.
J. Gross I’m so sorry someone hurt you and it causes you to lash out like a lunatic on this site. Prayers for you and your continued healing! You don’t have to continue to live your life so angry and ignorant! Blessings
Isn’t it interesting how every attempt to refute the arguments of a particular user on this site never revolve around the argument itself, but are always just shallow and poorly thought out insults directed at the user themselves?
Ad Hominem Press should be the name of this site.
Thoughts and prayers for you little guy! I know it’s hard to not be a bully but we all appreciate you’re trying so hard! Maybe a juice box and a little nap will help. Also maybe it’s not good for your heart to be buddies with J. Gross. You both get really fussy when you play together!
And look at you googling basic Latin!!! Good work little guy! Keep trying so hard and you might actually contribute to society in some meaningful way. You don’t have to be a troll 🙂 you’re not alone, we’re all praying for you for your recovery! Hang in there, bud!
More childish insults merely proves my point, so “good work” yourself.
I actually take my comment back. I was being ignorant and cruel. Maybe I do need a nap lolllol