WARNING: This story contains disturbing details about residential and boarding schools. If you are feeling triggered, here is a resource list for trauma responses from the National Native American Boarding School Healing Coalition in the U.S. In Canada, the National Indian Residential School Crisis Hotline can be reached at 1-866-925-4419.
Stewart Huntington
ICT
A federal judge dismissed a lawsuit filed by the Winnebago Tribe of Nebraska, saying the U.S. Army is not required by law to return the remains of two Native boys who died more than a 100 years ago at the Carlisle Indian Industrial School in Pennsylvania.
The Winnebago Tribe filed the lawsuit in January against the Army, demanding the return of the remains of Samuel Gilbert and Edward Hensley.
The suit, filed in federal court in Virginia, came after the tribe received notice in December that the U.S. Office of Army Cemeteries had denied the tribe’s request for the remains to be returned under the federal Native American Graves Protection and Repatriation Act, known as NAGPRA.
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The children are buried at a cemetery on the military installation that once was the site of the Carlisle school, which shut down in 1918. The property remains under the control of the U.S. Department of Defense, with the office overseeing the graves.
On Tuesday, Aug. 22, U.S. District Judge Claude S. Hilton ruled that NAGPRA does not apply to cemeteries.
“The purpose of [NAGPRA] is to protect Native American burial sites and the removal of human remains,” Hilton wrote in a five-page opinion that accompanied the order dismissing the tribe’s lawsuit.
“Accordingly, applying the Act to order disinterment would run contrary to Congress’s intent to protect Native American burial sites.”
The tribe vowed to appeal the ruling, saying it ignores the role of tribal sovereignty in bringing the children’s remains back to their homelands.
“This ruling is a temporary setback, not a defeat,” said Danelle Smith, general counsel for the tribe, said in a statement. “The court’s decisions does not align with the established principles of federal Indian law and policy, which are designed to respect tribal sovereignty.”
The two boys were taken from their Nebraska homes and shipped to the notorious Carlisle school, the flagship institution of the U.S. government’s boarding school era that sought to strip Native children of their lifeways and assimilate them into the dominant society.
The boys arrived together at Carlisle on Sept. 7, 1895, for what were expected to be five-year terms at the school.
Gilbert, who was 19, died about six weeks later, on Oct. 24, 1895, of what school officials said was pneumonia. Hensley, 17, stayed for almost four years, mostly working off-site for local families, known as “patrons,” before he also died of pneumonia on June 29, 1899, according to school archives.
Both boys are buried in marked graves in the school cemetery, records indicate.
When the suit was filed, Winnebago tribal leaders said the case resonates through generations.
“As a mother and grandmother, I stand for Samuel and Edward, knowing that their parents and grandparents were never able to properly bury them and send them on their final journey,” said Sunshine Thomas-Bear, the Winnebago tribal historic preservation officer and the tribe’s NAGPRA representative.
At least 180 other children died and were buried at Carlisle before the U.S. government shut down the school, which was plagued by reports of children’s deaths, physical and emotional abuse, and rampant financial corruption.
An Army spokesperson said that it has “previously returned 32 children to their families from … Carlisle and has the necessary documents to return an additional 30” by 2025.
The Army has long maintained that NAGPRA does not apply to the repatriation processes at Carlisle but in September 2023, it bent a little toward the tribal position when it made concessions long sought by tribes for the disinterment and repatriation of Amos LaFromboise and Edward Upright, two other boys who died at Carlisle.
The one-time agreement struck with the Sisseton Wahpeton Oyate Tribe of South Dakota and the Spirit Lake Tribe in North Dakota allowed the remains of the two boys to be turned over to the care of their tribes and allowed the tribes to “perform any requisite ceremonies.”
But the Army insisted the agreement did not constitute an agreement that NAGPRA – and all of its provisions – applies.
Winnebago officials insist otherwise.
“This case transcends the repatriation of two young boys,” said Gregory Werkheiser, founding partner of Cultural Heritage Partners, which is working with the Native American Rights Funds in handling the lawsuit.
“It strikes at the heart of tribal sovereignty and the sacred duty to honor and ensure Native American ancestors are treated with the dignity and respect they deserve,” he said.
*Updated: This article has been updated to include comments from the Winnebago Tribe of Nebraska and its lawyers on the judge’s ruling.
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