Here is a statement about these pleadings:
Motion to dismiss briefing in the Native American Graves Protection and Repatriation Act (NAGPRA) lawsuit brought by the Winnebago Tribe of Nebraska against the Army. Winnebago seeks to repatriate two of its children, Samuel Gilbert and Edward Hensley, from the Carlisle Barracks Post Cemetery. The Army moved to dismiss Winnebago’s lawsuit, contending that the Carlisle Cemetery is like any other cemetery where they “commemorate and honor the dead,” and thus is not a “holding or collection” of Native American human remains for NAGPRA’s repatriation provisions to be applicable.
In response, Winnebago argued that the Army misidentifies the applicable standard for a repatriation request by a Tribal Nation pursuant to 25 U.S.C. 3005(a)(4). That provision does not require Native American human remains to be in a holding or collection, but simply to be “possessed or controlled” by a federal agency or federally-funded museum, particularly where the agency or museum lacks a “right of possession” as defined by NAGPRA. The undisputed facts demonstrate all elements necessary to entitle Winnebago to repatriation under 25 U.S.C. 3005(a)(4). Notwithstanding, the Army has historically treated and in the present day treats the remains at Carlisle Cemetery as a holding or collection. Demonstrations of this include the Army’s unilateral mass removal of the remains in 1927 to make way for an Army base parking lot, and the Army’s present-day use of the remains for research, tourism exhibition, and whatever other purposes it deems fit. In all of these acts, the Army has ignored Tribal Nations and relatives. Winnebago highlighted that NAGPRA was passed in recognition that Tribal Nations are the rightful decisionmakers over the handling and disposition of their relatives’ remains. To this end, NAGPRA was designed to equip Tribal Nations with meaningful legal mechanisms to hold agencies and museums accountable to repatriate remains that were improperly acquired and misappropriated, as is the case with the remains at Carlisle. Winnebago, not the Army, is the one to decide how to honor Samuel and Edward, and is entitled to do so by exercising its NAGPRA rights.
The United South Eastern Tribes Sovereignty Protection Fund and the Catawba Tribe filed an amicus brief in Winnebago’s support. The Amici called out the Army for continuing to belittle the horrific history of abuse and neglect that led to many children’s deaths at Carlisle and federal Indian boarding schools generally, and which was followed up by virtually no accountability. The Catawba Nation highlighted that without NAGPRA, the Army is able to continue to avoid accountability for its gross neglect of the Carlisle remains. Because the Army has refused to follow NAGPRA, the Catawba Nation has been unable to hold the Army accountable to locate the remains of a Catawba child which were not found in the grave designated by his headstone. The Amici further contended that the Army’s refusal to follow NAGPRA perpetuates the Army’s historical mistreatment of Native children as captive militants, and is blatantly at odds with the growing truth and reconciliation efforts to facilitate healing from the Indian boarding school era.
Turtle Talk 