January 30, 2025

Dear USET/USET SPF Family,

We write to share that, in partnership with the Catawba Nation, the National Association of Tribal Historic Preservation Officers, and the Association on American Indian Affairs, USET SPF prepared and filed an amicus brief in the Winnebago appeal now pending before the U.S. Court of Appeals for the Fourth Circuit. In that case, the Winnebago Tribe of Nebraska argues the U.S. Department of the Army is obligated under the Native American Graves Protection and Repatriation Act (NAGPRA) to repatriate Native children from the cemetery located at the Carlisle Indian Industrial School. USET SPF prepared and filed an amicus brief in the lower court and has provided previous alerts on this case, as well.

Cemeteries containing Native children at Indian boarding schools and repatriation under the Native American Graves Protection and Repatriation Act (NAGPRA).

Winnebago submitted a request under NAGPRA that the Army repatriate two Winnebago children held at the Carlisle cemetery, located on federal land operated by the Army. The Army denied Winnebago’s request, asserting NAGPRA did not apply but that the Army was willing to return the children under Army Regulation 290-5. Winnebago initiated a lawsuit against the Army on January 17, 2024. Knowing that our Tribal Nation members have children interred at Indian boarding schools, USET SPF provided an alert on the case.

The Army filed a motion to dismiss for failure to state a claim, and USET SPF, in partnership with the Catawba Nation, prepared and on June 12, 2024, filed an amicus brief supporting Winnebago. USET SPF prepared an alert and a video on that amicus brief. Unfortunately, the District Court on August 20, 2024, issued a decision granting the Army’s motion to dismiss and holding that NAGPRA’s repatriation provision applies only to holdings or collections, that a cemetery is not a holding or collection, and that applying NAGPRA to order disinterment would run contrary to Congress’s intent to protect Native burial sites. Winnebago appealed that decision and on January 22, 2025, filed its opening brief. USET SPF provided an alert on Winnebago’s decision to appeal.

The Army argues NAGPRA’s repatriation requirement for museums and federal agencies at 25 U.S.C. 3005 does not apply based on its assertion that individually named graves located within the Carlisle cemetery do not constitute “holdings or collections” of the Army. In its denial letter, the Army also argued that NAGPRA’s provision at 25 U.S.C. 3002 requiring return of Native remains discovered on federal or Tribal land does not apply based on the Army’s assertion that federal courts have held NAGPRA does not require the Army to engage in the intentional excavation or exhumation of a grave. Winnebago argues NAGPRA’s museum repatriation provision applies because the triggering standard is having “possession or control” of Native remains rather than remains being in a “holding or collection,” and further that the Carlisle cemetery qualifies as a holding or collection for purposes of NAGPRA.

This case could confirm that NAGPRA can apply to require the exhumation of a Native person’s grave at the request of a Tribal Nation for repatriation back to the Tribal community, especially from Indian boarding school cemeteries and especially when the Native person was buried without the consent of family with a right of possession. This litigation is part of a larger attempt by Indian Country to more fully enforce NAGPRA’s repatriation provision, including through pursuing amendments to NAGPRA’s implementing regulations, as described in a recent news story.

On January 29, 2025, USET SPF in partnership with the Catawba Nation, the National Association of Tribal Historic Preservation Officers, and the Association on American Indian Affairs, prepared and filed an amicus brief in Winnebago’s appeal.

The amicus brief explains, including through the lens of Catawba’s experience at Carlisle, how the Army’s insistence on applying the military disinterment procedures in Army Regulation 290-5 instead of NAGPRA continues the federal government’s wrongful practice during the Indian boarding school era of treating Native children as captive militants. It also illustrates how the Army’s position directly contradicts the United States’ truth and reconciliation efforts regarding the Indian boarding school era. And it demonstrates how the District Court misinterpreted Congress’s intent in drafting NAGPRA and misconstrued precedent interpreting NAGPRA’s application to buried human remains. Last, it discusses how the District Court failed to recognize that the Carlisle graveyard is not like other cemeteries where loved ones choose to inter their deceased relatives, but instead is a place where Native children were collected, relocated, and continue to be held captive by the Army.

Winnebago Tribe of Nebraska v. U.S. Dept. of Army et al., 24-2081, before the U.S. Court of Appeals for the Fourth Circuit.

For more information, please contact Liz Malerba, USET SPF Director of Policy and Legislative Affairs, or Katie Klass, USET SPF General Counsel.

September 4, 2024

Cemeteries containing Native children at Indian boarding schools and repatriation under the Native American Graves Protection and Repatriation Act (NAGPRA).

The Winnebago Tribe of Nebraska submitted a request under NAGPRA that the U.S. Department of the Army repatriate two Winnebago children held at the graveyard at Carlisle Indian boarding school. The Army denied Winnebago’s request, asserting NAGPRA did not apply but that the Army was willing to return the children under Army Regulation 290-5, a process only available to the closest living relative and not designed for or protective of Tribal Nations. Winnebago initiated suit against the Army on January 17, 2024. The federal defendants filed a motion to dismiss for failure to state a claim, and a hearing on that motion took place on July 12, 2024. Unfortunately, the District Court on August 20, 2024, granted the Army’s motion to dismiss, holding that NAGPRA’s repatriation provision applies only to holdings or collections; that a cemetery is not a holding or collection; and that applying NAGPRA to order disinterment would run contrary to Congress’s intent to protect Native burial sites. You can view the decision here. Winnebago’s deadline to appeal is October 21, 2024, and Winnebago has said they intend to challenge the decision.

The Army argues NAGPRA’s repatriation requirement for museums and federal agencies at 25 U.S.C. 3005 does not apply based on their assertion that individually named graves located within the Carlisle cemetery do not constitute “holdings or collections” of the Army. In its denial letter, the Army also argued that NAGPRA’s provision at 25 U.S.C. 3002 requiring return of Native remains discovered on federal or Tribal land does not apply based on the Army’s assertion that federal courts have held NAGPRA does not require the Army to engage in the intentional excavation or exhumation of a grave. Winnebago argues NAGPRA’s museum repatriation provision applies because the triggering standard is having “possession or control” of Native remains rather than remains being in a “holding or collection,” and further that the Carlisle cemetery qualifies as a holding or collection for purposes of NAGPRA.

Establishing that NAGPRA can apply to require the exhumation of a Native person’s grave at the request of a Tribal Nation for repatriation back to the Tribal community, especially from Indian boarding school graveyards and especially when the Native person was buried without the consent of family with a right of possession.

In partnership with the Catawba Nation, USET SPF prepared and on June 12, 2024, filed an amicus brief in the case. The brief provided the court context on how the Army’s position continues to treat Native children as captive militants, undermining ongoing truth and reconciliation efforts. It also explained how the Army’s compliance with NAGPRA rather than Army Regulation 290-5 could change the outcome for these Tribal Nations’ repatriation requests, and that Congress’s intentions in enacting NAGPRA where to bring home Native remains like those at issue here. A video prepared by USET SPF can be viewed here providing more background information on the federal Indian boarding school era and this litigation. You can view the amicus brief filed by USET SPF and the Catawba Nation here, and the Law360 article discussing the amicus brief can be viewed here.

Winnebago Tribe of Nebraska v. U.S. Dept. of Army et al., 1:24-cv-00078, before the U.S. District Court for the Eastern District of Virginia.

For more information, please contact Liz Malerba, USET SPF Director of Policy and Legislative Affairs, or Katie Klass, USET SPF General Counsel.

Established in 2014, the USET Sovereignty Protection Fund (USET SPF) is a non-profit, inter-Tribal organization advocating on behalf of thirty-three (33) federally recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. USET SPF is dedicated to promoting, protecting, and advancing the inherent sovereign rights and authorities of Tribal Nations and in assisting its membership in dealing effectively with public policy issues.