RICHMOND (Virginia, United States): A federal court recently ruled that the United States (US) Army is not exempt from the Native American Graves Protection and Repatriation Act (NAGPRA), rejecting the Army’s argument that a separate law governing military property shielded it from the requirements of the federal repatriation statute.
The US Court of Appeals for the Fourth Circuit said that federal agencies remain bound by Congress’s intent to protect Native American burial sites, ancestral remains and cultural heritage. The decision is expected to have implications beyond the immediate dispute, potentially influencing how other federal entities interpret their responsibilities under NAGPRA and reinforcing the law’s role as a cornerstone of Native American repatriation policy. The court rejected the argument that NAGPRA does not apply to native children buried without consent in the Carlisle boarding school cemetery. It held that NAGPRA’s repatriation protections can apply there. The court recognized that these remains are part of a “holding or collection” under NAGPRA and made clear that the tribe’s request is exactly the kind of remedy Congress intended when it enacted the law to address the long history of Native burial desecration and the retention of Native remains without consent. Earlier, the US District Court for the Eastern District of Virginia at Alexandria had rejected the tribe’s complaint.
The ruling allows the Winnebago Tribe of Nebraska to proceed with its lawsuit against the U.S. Army seeking repatriation of the remains of Samuel Gilbert and Edward Hensley, two Winnebago boys who died at the Carlisle Indian Industrial School more than 125 years ago.
The case centered on whether the Army could avoid complying with NAGPRA, a law enacted in 1990 that requires federal agencies and federally funded institutions to identify, inventory and, where appropriate, return Native American human remains, funerary objects, sacred objects and items of cultural patrimony to lineal descendants, tribes and Native Hawaiian organizations.
The Army had argued that provisions of another federal law gave it authority over certain collections and, therefore, placed it outside the jurisdiction of NAGPRA. The court disagreed, finding that Congress had clearly included federal agencies within NAGPRA’s scope and that nothing in the Army’s cited authority exempted it from the law’s requirements.
The case had been filed by Winnebago Nation against the US Army for failing to comply with NAGPRA in returning the remains of two children buried in the Carlisle Indian School (Carlisle, Pennsylvania) cemetery, which is located on US Army property.
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