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 last 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. 

Read more about Carlisle and the tribe's efforts to bring Samuel and Edward home: https://flatwaterfreepress.org/samuel-and-edward-two-boys-buried-under-misspelled-headstones-at-center-of-fight-with-u-s-army/

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.”

This story was originally published by Flatwater Free Press, an independent, nonprofit newsroom focused on investigations and feature stories in Nebraska that matter. Read the article at: https://flatwaterfreepress.org/appeals-court-sides-with-winnebago-tribe-of-nebraska-in-repatriation-fight-with-us-army/