Good afternoon USET Staff!

This Litigation Update Alert is being shared with you as an FYI as part of our effort to keep all staff informed. If your position requires you to participate and/or engage, you should already be aware. If you have any questions about your personal engagement in this issue, please reach out to your supervisor.

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.