Winnebago Tribe Sues For Repatriation of Child Remains

By Isaac White

In a landmark legal challenge, the Winnebago Tribe of Nebraska is confronting the U.S. Army over the return of the remains of two tribal children, Samuel Gilbert and Edward Hensley, who tragically died at the Carlisle Indian Industrial School. This federal lawsuit, filed in the U.S. District Court for the Eastern District of Virginia, underscores a significant dispute concerning the interpretation and application of the Native American Graves Protection and Repatriation Act (NAGPRA).

The tribe’s battle centers around their October 2023 request for the repatriation of Gilbert and Hensley’s remains, which the Army denied in December of the same year. The Army’s response, indicating that NAGPRA does not apply in this case and that the tribe must adhere to the internal policies of the Office of Army Cemeteries (OAC), has sparked this legal contest. The OAC’s policy necessitates a request from the closest living relative, a requirement the Winnebago Tribe argues is impractical and insensitive given the historical context.

The legal action by the Winnebago Tribe seeks to have the court recognize the OAC’s refusal as a violation of NAGPRA. They are demanding the repatriation of the remains within 90 days of the court’s ruling, along with compensation for attorney fees and any other relief deemed appropriate by the court.

Gilbert and Hensley’s experiences at the Carlisle school are reflective of the broader, distressing history of the U.S. government’s assimilation policies towards Native American children. The Carlisle Indian Industrial School, operational from the late 19th to the early 20th century, was a key institution in a broader campaign aimed at erasing Indigenous cultures and languages.

The school’s approach to ‘civilizing’ Native American children was emblematic of the systemic efforts to suppress Indigenous identities. Gilbert died a mere 47 days after arriving in 1895, and Hensley succumbed four years later. Their deaths, like many others at the school, were shrouded in secrecy, and their burials were conducted without the consent or knowledge of their families.

The lawsuit is an essential component of a wider movement to address historical injustices meted out through the federal Indian boarding school system. A 2022 Interior Department report threw light on the systemic abuses prevalent in these schools, including extensive physical and sexual abuse, forced labor, and rampant malnourishment. The ultimate goal of these institutions was the forced assimilation of Indigenous children, a policy that resulted in profound and lasting trauma and a loss of cultural heritage.

The repatriation of remains from such schools has been a complex and emotionally charged process. The return of nine Indigenous children’s remains to the Rosebud Sioux tribal lands from the Carlisle school in 2021 marked a significant, albeit small, step in this ongoing effort. However, many more remains, including those of Gilbert and Hensley, still lie in the Carlisle Cemetery, which the Winnebago Tribe alleges is being used as a ‘tourist attraction’ by the Army.

This legal battle is more than a dispute over bureaucratic procedures; it is a fight for dignity, respect, and the right to cultural and spiritual practices. The tribe’s demand for the return of their children’s remains is a poignant reminder of the broader struggle for Indigenous rights and recognition in the face of historical injustices.

As the case proceeds, it serves as a critical test of the effectiveness and enforcement of NAGPRA. The act, passed in 1990, was intended to address the long-standing issue of the desecration and exploitation of Native American burial sites and remains. The Winnebago Tribe’s lawsuit not only challenges the Army’s interpretation of this law but also highlights the ongoing struggle of Indigenous peoples to protect and reclaim their heritage and ancestral rights.

The Army, maintaining its policy of not commenting on pending litigation, leaves the resolution of this deeply emotional and culturally significant issue in the hands of the judicial system. The outcome of this case could have far-reaching implications, potentially influencing how federal agencies handle similar repatriation requests from other tribes. For the Winnebago Tribe and the this lawsuit is a critical step in their enduring journey towards justice and healing.