Fourth Circuit orders Army to return children's remains to Nebraska tribe

(CN) — The Fourth Circuit cleared the way on Thursday for the remains of two boys who died at a Native American boarding school more than a century ago to be returned to a Nebraska tribe.

The court determined in a 2-1 decision the U.S. Department of the Army is obligated to return the bodies of Samuel Gilbert and Edward Hensley to the Winnebago Tribe of Nebraska under the Native American Graves Protection and Repatriation Act, or NAGPRA.

Gilbert and Hensley are buried at Carlisle Indian Industrial School, where they died in the 1890s. The Army now controls the land, which is part of the U.S. Army War College.

U.S. Circuit Judge Pamela Harris wrote in the majority’s opinion that the buried remains are part of a “holding or collection” and must be returned under the 1990 law.

The Barack Obama appointee wrote the law’s definition of a “holding or collection” is “exceeding broad, suggesting that Congress’s intention was to repatriate objects beyond museum collections.

“Congress sought, more expansively, to honor and protect Native American burial traditions, and to ensure that Native American remains and related objects could be buried in keeping with those traditions,” she said.

U.S. Circuit Judge Allison Jones Rushing, a Donald Trump appointee, wrote in a dissenting opinion that the court’s decision made Native American graves at federal cemeteries “uniquely vulnerable to disturbance.”

Founded in 1879, Carlisle was the first government-run boarding school in the nation and became a model for hundreds of other schools that sought to assimilate Native Americans. Children were forced to leave their communities and travel hundreds of miles to attend the military-style schools, where they received a formal education while being indoctrinated in U.S. customs and practices.

Students were exposed to foreign diseases, particularly tuberculosis, which killed hundreds of children before the school closed in 1918. The Army established a medical school on the grounds in 1920, before the site eventually became part of the college.

The tribe argues the Army was callous in its handling of the students’ remains. Officials mixed up gravestones while relocating bodies during an expansion in 1927, the tribe claims, while other graves appeared to have been forgotten and now remain beneath a base parking lot.

An attorney for the tribe argued at a hearing in September that by relocating the bodies, the government created a “collection or holding” of human remains that should be returned to the tribes for burial according to their customs and traditions.

The government argued the act was intended to protect Native American graves from disturbances — not to justify digging up a cemetery.

The circuit court disagreed that permitting repatriation of remains would lead to further exhumation and desecration of Native American burial sites.

Harris pointed out that Gilbert and Hensley are not buried where their families intended. They were forcibly separated from their loved ones and died from abuse and neglect at a government school before they were buried alongside other victims without their families’ knowledge or consent.

“It does a disservice to the Congress that enacted NAGPRA to suggest that the act’s purpose would be vindicated by leaving this tragic injustice unremedied,” she said.

Rushing said the majority’s misinterpretation of the 1990 law could cause bodies to be disinterred at Arlington Cemetery.

“Under the majority’s reasoning, then, Native American families — and only Native American families — who consent to have their deceased relatives buried at Arlington or other qualifying cemeteries are giving the federal government the right of possession to their loved ones’ remains,” she wrote.

The court ordered the case sent back to the Eastern District of Virginia for further proceedings.

Senior U.S. Circuit Judge Henry F. Floyd, another Obama appointee, joined the majority opinion.

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