NAGPRA

In Victory for Winnebago Tribe of Nebraska v. The Army, the 4th Circuit Confirms NAGPRA Applies to Carlisle

Matthew Campbell

Here is the Fourth Circuit’s decision vacating the lower court’s dismissal and holding that the Native American Graves Protection and Repatriation Act (NAGPRA) applies in Winnebago v. Department of the Army.

Winnebago v. ArmyDownload

The ruling allows the Tribe 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 Winnebago Tribe of Nebraska’s Chairman, Chairman Brown stated, “The Fourth Circuit’s ruling brings joy to the Tribe. As the Court recognized, it would be a disservice to find NAGPRA does not protect the Winnebago’s right to bring home Samuel Gilbert and Edward Hensley for proper burials, according to our traditional practices. NAGPRA is an important statute our relatives fought for and is meant to “address the desires of Indians to bury their dead,” a right “for too long ignored.” 

NARF Senior Staff Attorney Beth Margaret Wright explains, “Winnebago’s lawsuit demonstrates its commitment to honor its ancestors and its children; Winnebago continues to advocate for its rights under NAGPRA to bring Samuel and Edward home and provide them with the Tribal burials they were denied over 125 years ago. The Fourth Circuit recognized that Congress enacted NAGPRA as a remedy for this ‘shameful injustice.’”

“This is an extraordinarily important decision not only for the Winnebago Tribe, but for Tribal Nations across the country seeking to ensure that federal agencies finally comply with the laws enacted to help address the profound and multigenerational trauma inflicted by the federal Indian boarding school system,” said Greg Werkheiser of Cultural Heritage Partners, co-counsel for the Tribe.

More here. Previous post here.

Trevor Reed on NAGPRA

Matthew L.M. Fletcher

Trevor Reed has posted “The Intangible NAGPRA,” forthcoming in the Maryland Law Review, on SSRN.

Here is the abstract:

Following a 2023 regulatory update, the Native American Graves Protection and Repatriation Act (“NAGPRA”) of 1990, which recognizes Tribal Nations’ ownership interests in their ancestors and artifacts, now expressly includes a controversial public display right that has shuttered museum displays across the country. Though functionally similar to widely criticized provisions of Italian cultural heritage law, I argue that the new regulations are justifiable given the unique status of Tribal Nations in U.S. constitutional law and Congress’s intent to negotiate a remedy for long-standing human rights abuses.  Indeed, the Intangible NAGPRA is precisely what Tribal representatives on the Congressionally mandated year-long Panel for a National Dialogue on Museum/Native American Relations believed they were working toward in the lead-up to NAGPRA’s passage.  Thus, this paper encourages the continued exercise of Indigenous peoples’ rights to protect their ancestors, belongings, sacred and cultural materials and the corresponding intellectual property rights that pertain to them.

Alex Pearl on NAGPRA

Matthew L.M. Fletcher

M. Alexander Pearl has published “Corporeal Property and the Limits of NAGPRA” in the Fordham Law Review.

Here is an excerpt:

The Native American Graves Protection and Repatriation Act represents a pivotal but incomplete legislative effort to confront the enduring legacy of colonialism in the United States. NAGPRA addresses a specific and deeply troubling consequence of colonialism: the unlawful appropriation of Native American ancestors and cultural items by federal and federally funded institutions. Although it lays a critical foundation for repatriation and a sense of cultural justice, NAGPRA’s effectiveness is constrained by its grounding in Western legal traditions—especially its emphasis on corporeal, material property. To redress a wider range of harms suffered by Native communities, we must look beyond the statute’s current framework and embrace an expanded understanding of property, one that includes intangible rights based
in cultural harms and rights.

Michalyn Steele on NAGPRA and Protecting Sacred Sites

Matthew L.M. Fletcher

Michalyn Steele has posted “The Native American Graves Protection and Repatriation Act as a Model of Cultural Sovereignty for Protecting Indigenous Sacred Sites” on SSRN.

Here is the abstract:

This Essay argues that NAGPRA provides a model for reassessing how to measure sacred site protection against competing values. Part I briefly maps the scope and history of Indigenous dispossession of sacred sites that has resulted in the unique challenges Indigenous people face in gaining access to and protection of these sites. Part II illustrates the values that most frequently compete with (and defeat) sacred site access and protection claims. Finally, Part III argues that NAGPRA offers a case study for reordering these values to recognize and prioritize the human rights and religious interests of Indigenous peoples in their sacred sites.

NAGPRA Review Committee FY2025 Report to Congress

Matthew L.M. Fletcher

Here:

FY2025 Review Committee Report to Congress (approved 9-30-2025).pdfDownload

Virginia Federal Court Dismisses Winnebago Effort to Reclaim Indian Children’s Remains

Matthew L.M. Fletcher

Here are the new pleadings in Winnebago Tribe of Nebraska v. United States Department of the Army (E.D.Va.):

45 Reply

50 DCT Order

Prior posts here and here.

Update in Winnebago Tribe Suit against the Army over Remains of Indian Child at Carlisle

Matthew L.M. Fletcher

Here are the new pleadings in Winnebago Tribe of Nebraska v. United States Department of the Army (E.D.Va.):

31 Army Motion to Dismiss.pdfDownload
35 Tribe Response.pdfDownload
38-1 USET and Catawba Amicus Brief.pdfDownload
Pages: 1 2

U.S. Senators’ Letter to UC-Berkeley re NAGPRA Non-Compliance

Matthew L.M. Fletcher

Here.

NAGPRA Compliance Letter – University of California, Berkeley.pdfDownload

ProPublica background reporting here.

Texas Observer: “Bringing the Dead Home”

Matthew L.M. Fletcher

“Thirty years after Congress passed the Native American Graves Protection and Repatriation Act, only a fraction of human remains held by Texas’ museums and universities have been returned.”

Here.