On July12, 2024, the U.S. District Court of for the Eastern District of Virginia heard why the Winnebago Tribe v. U.S. Army lawsuit needs to go to trial instead of being dismissed as the U.S. Army would prefer. The Winnebago Tribe (Winnebago) filed the lawsuit because the Army refuses to comply with the Native American Graves and Repatriation Act (NAGPRA) to repatriate Winnebago tribal members Samuel Gilbert and Edward Hensley from the Carlisle Barracks Post Cemetery.
“We need our day in court because Samuel Gilbert and Edward Hensley deserve to be released from the military boarding school they had to endure alone, without the safety, without the love, without the understanding, and without the protection of their relatives. If the U.S. Army complied with NAGPRA, these children could finally come home and have a respectful burial away from the trauma they endured at Carlisle Industrial Indian Boarding School,” said Winnebago Tribal Historic Preservation Officer Sunshine Bear.
Captain W.H. Beck, United States Army, Indian Agent of the Omaha and Winnebago Indian Agency, transferred the two young men from Nebraska to Pennsylvania to the infamous Carlisle boarding school in 1895, where they both died. Without notifying their families, the school buried the children in a school cemetery. In spite of negotiations before the 2024 lawsuit, the Army still has the bodies of Hensley and Gilbert and refuses to comply with NAGPRA to return the boys to their people for burial.
The school was designed to destroy Native communities by separating children from their families to systematically destroy each child’s cultural identity within a controlled military-like environment. In 1895, a federal worker sent Samuel Gilbert and Edward Hensley away from their community to Carlisle. Gilbert survived 49 days; Hensley survived 3 years. The school did not notify their families of their deaths. The Army later moved their bodies without consent and still refuses to comply with NAGPRA to return the two children to their Tribe under NAGPRA. Photo credit: Carlisle Indian School Digital Resource Center. CC BY-NC-SA 4.0
NAGPRA ensures the rights of Tribal Nations to bring their relatives home in an expeditious and culturally appropriate manner. Congress passed NAGPRA in 1990 to end the macabre history of hoarding of Indigenous bodies and burial items by federal agencies and museums, and to outline how the U.S. will repatriate human remains and burial items back to Tribal Nations.
Instead of following NAGPRA, the Army claims to be above the law and has asked the court to dismiss the Winnebago’s lawsuit. The Army insists it can dictate whether and under what conditions it will return the two Winnebago boys’ and other children’s bodies. The Army has refused to return Gilbert’s and Hensley’s remains directly to Winnebago and has attempted to force Winnebago and other Tribal Nations to follow the Army’s own procedures and practices. The Army’s procedures and practices are largely unwritten and changed arbitrarily and unpredictably to suit the Army’s convenience. This has led to many problems for many Tribal Nations seeking to bring home the remains of their children from Carlisle.
The United South and Eastern Tribes and the Catawba Nation filed an amicus brief in support of Winnebago attesting to the flaws of the Army process and the trauma of seeking return of children from Carlisle. The Catawba Nation told of its frustrating and tragic experience trying to bring home one of its children, Wade Ayers. Catawba struggled through the Army process only to go to Carlisle and find the gravesite marked as Ayers’ contained a different set of remains. As a result, Catawba went home without its child. Today, the Army possesses Gilbert and Hensley, keeping them in an Army-run cemetery alongside close to 150 sets of remains of other Native children who tragically died at the boarding school.
The Winnebago Tribe of Nebraska is represented by its General Counsel, Danelle Smith, the Native American Rights Fund, and Cultural Heritage Partners.
To learn more about Hensley, Gilbert, and the Winnebago’s fight for their return, visit the Winnebago v. U.S. Army case page.
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