Background
In the late eighteen hundreds, two children of the Winnebago Tribe of Nebraska were removed from their homes and placed in the Carlisle Indian Industrial School, a federal boarding school on an Army base. The boys died at the school and were buried on site without the consent of their families or the Tribe. Decades later, the Army moved the remains to the Carlisle Barracks Post Cemetery to make room for a base expansion. The Tribe later requested repatriation under the Native American Graves Protection and Repatriation Act, but the Army denied the request, arguing the Act did not apply to graves in a cemetery. The district court dismissed the Tribe’s lawsuit, agreeing with the Army’s interpretation.
The court’s reasoning
The court analyzed the statutory text of the Native American Graves Protection and Repatriation Act, specifically the terms holding or collection. It concluded that dictionary definitions and statutory context support a broad reading that includes human remains purposefully accumulated by a federal agency, regardless of whether they are excavated or still buried. The court found that the Army’s intentional gathering and interment of the remains without consent created a holding or collection. The court also rejected the government’s reliance on legislative history and the Third Circuit’s decision in Thorpe, noting that the remains here were not buried with family consent and that the Act’s purpose is to remedy historic wrongs involving the desecration of Native American burial sites.
We therefore vacate the judgment of the district court and remand for further proceedings.
Opinion at 3
The dissent
What it means going forward
Federal agencies and museums must now consider that human remains buried in their facilities without consent may be subject to repatriation requests under the Native American Graves Protection and Repatriation Act. The ruling clarifies that the Act’s inventory and repatriation obligations extend to cemeteries and other accumulations of remains, not just museum collections of excavated items.
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