Carlisle Cemetery Case Reopens Questions of Burial, Repatriation and Justice 

Opinion

In December 2023, I visited the campus of the former Carlisle Indian Industrial School, located within the grounds of the U.S. Army’s historic Carlisle Barracks in Pennsylvania.  The barracks, which date back to the Revolutionary War, are now home to the U.S. Army War College, where military leaders including Gen. Dwight D. Eisenhower, Gen. George S. Patton and Gen. H. Norman Schwarzkopf studied.

The Carlisle Indian Industrial School operated for 39 years, from 1879 to 1918. It closed in 1918 when the U.S. Army needed the Carlisle Barracks during World War I.

The school housed about 7,800 Native American children from more than 140 tribal nations, including children from as far away as Alaska. Native students were subjected to a system of forced assimilation that combined Western-style education, militaristic discipline and hard labor. They were forced to cut their hair, adopt English names, stop speaking their tribal languages and convert to Christianity. Many endured physical and emotional abuse.

While Carlisle was in operation, nearly 200 children from 59 different tribes died there. Many died from diseases, poor living conditions or abuse and were buried at the school, according to Volume I of the Federal Indian Boarding School Initiative Investigative Report. The report was authored by then-Interior Assistant Secretary for Indian Affairs Bryan Newland (Bay Mills Indian Community).

At the end of my tour of Carlisle, I visited the cemetery where Native students are buried. Walking through the cemetery and seeing the military-style white headstones of Native American children — buried far from their tribal homes — was overwhelming. The headstones listed tribal affiliations, dates and, in some cases, names.

Two of the names are those of Winnebago students Samuel Gilbert, who died a month after arriving at Carlisle in 1895 at age 19, and Edward Hensley, who died four years later at age 17.

The Winnebago Tribe of Nebraska wants the remains of Samuel and Edward returned to their homelands.

On Jan. 17, 2024, the tribe filed a lawsuit, Winnebago Tribe of Nebraska v. Department of the Army, against the U.S. Army and other federal agencies and officials. The lawsuit seeks enforcement of the Native American Graves Protection and Repatriation Act, or NAGPRA, to repatriate the remains of Samuel and Edward, who were taken from their homelands more than a century ago and never returned.

The tribe argues that it has clear legal rights under NAGPRA and continues to advocate for full enforcement of the law. Native American Rights Fund (NARF) staff attorney Beth Wright said the tribe has long supported NAGPRA and remains committed to defending its rights under the statute. The Winnebago Tribe is represented in the case by its general counsel, NARF, Danelle Smith of Big Fire Law & Policy Group LLP and Cultural Heritage Partners, PLLC.

The U.S. Army refused, claiming NAGPRA does not apply to students buried at Carlisle. A U.S. district court dismissed the case, but the Winnebago Tribe appealed to the U.S. Court of Appeals for the Fourth Circuit.

Last week, the 4th Circuit issued a landmark decision vacating the lower court’s dismissal and allowing the case to proceed under NAGPRA.

The appeals court held that the law applies to Native remains held in federal burial contexts, rejecting the government’s argument that such graves fall outside the statute’s protections. The court found that the remains qualify as part of a “holding or collection” and emphasized that Congress intended NAGPRA to remedy historic injustices involving the unauthorized possession of Native remains. Judge Pamela Harris wrote that the statute clearly supports repatriation in circumstances such as this.

The 4th Circuit also noted that there is no indication in the record that the families of Samuel and Edward were informed of their deaths or burials, nor any indication that the tribe was notified. The ruling reinforces tribal sovereignty and expands the interpretation of NAGPRA beyond museums to Native remains held in federal custody. The case now returns to district court for further proceedings related to repatriation and burial.

“A gravestone at Carlisle Cemetery marks Edward’s remains, though it misspells the name of his tribe as ‘Winnebaloo,’” Judge Harris wrote for the majority. “Another marks Samuel’s remains, spelling Winnebago instead as ‘Winnchaga.’”

The gravestones were wrong, and the U.S. Army was wrong. It is long overdue for those wrongs to be corrected.

As I walked through the Carlisle cemetery in 2023, I kept thinking about how far these children were from home. It is time for them to be returned to their tribal homelands.

Thayék gde nwéndëmen – We are all related.

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