The Winnebago Tribe of Nebraska, represented by the Native American Rights Fund (NARF), Big Fire Law & Policy Group LLP, and Cultural Heritage Partners, PLLC is celebrating a May 14, 2026, decision by the U.S. Court of Appeals for the Fourth Circuit vacating the lower court’s dismissal and holding that the Native American Graves Protection and Repatriation Act (NAGPRA) applies in Winnebago v. Department of the Army. The ruling allows the Tribe to proceed with its lawsuit against the U.S. Army seeking repatriation of the remains of Samuel Gilbert and Edward Hensley, two Winnebago boys who died at the Carlisle Indian Industrial School more than 125 years ago.
In the Fourth Circuit’s first decision interpreting NAGPRA, the court rejected the government’s argument that NAGPRA does not reach Native children buried without consent in the Carlisle boarding school cemetery and held that NAGPRA’s repatriation protections can apply there. The court recognized that these remains are part of a “holding or collection” under NAGPRA and made clear that the Tribe’s request is exactly the kind of remedy Congress intended when it enacted the law to address the long history of Native burial desecration and the retention of Native remains without consent.
“At the end of the day, the U.S. government kept and buried the remains of two Native American schoolchildren, Samuel Gilbert and Edward Hensley, without their families’ or tribe’s consent after forcing them from their homes and after they died in the government’s care. Nearly a century later, Congress passed a statute that, by its terms, entitles their tribe finally to bring their remains home and to bury them according to their tribal and religious traditions. Nothing in the statute’s text or purpose forecloses that outcome. Quite the opposite: All signs indicate that the Tribe’s repatriation request is precisely the kind of remedy of historic wrongs that NAGPRA was designed to facilitate.”
-Judge Harris in writing the opinion
This decision is a powerful affirmation of Tribal sovereignty, dignity, and the right of Tribal Nations to bring their children home. It acknowledges the profound injustice inflicted on Native families through the federal boarding school system and reinforces that NAGPRA is not limited to museum shelves or boxed collections. NAGPRA applies where federal agencies have retained Native children’s remains without the consent of their families or their Tribe.
NARF Staff Attorney Beth Margaret Wright explains, “Winnebago’s lawsuit demonstrates its commitment to honor its ancestors and its children; and Winnebago continues to advocate for its rights under NAGPRA to bring Samuel and Edward home and provide them with the Tribal burials they were denied over 125 years ago. The Fourth Circuit recognized that Congress enacted NAGPRA as a remedy for this ‘shameful injustice’.”
Today’s ruling is a major step toward bringing Samuel and Edward home so they may finally be laid to rest in accordance with Winnebago customs and traditions. It also sends an important message to federal agencies nationwide: NAGPRA must be honored as Congress intended; Native families and Tribal Nations cannot be denied the protections of a law designed to remedy historic wrongs.
“This is an extraordinarily important decision not only for the Winnebago Tribe, but for Tribal Nations across the country seeking to ensure that federal agencies finally comply with the laws enacted to help address the profound and multigenerational trauma inflicted by the federal Indian boarding school system,” said Greg Werkheiser of Cultural Heritage Partners, co-counsel for the Tribe.
The Winnebago Tribe of Nebraska’s Chairman, Chairman Brown stated, “The Fourth Circuit’s ruling brings joy to the Tribe. As the Court recognized, it would be a disservice to find NAGPRA does not protect the Winnebago’s right to bring home Samuel Gilbert and Edward Hensley for proper burials, according to our traditional practices. NAGPRA is an important statute our relatives fought for and is meant to “address the desires of Indians to bury their dead,” a right “for too long ignored.”
The case now returns to the United States District Court for the Eastern District of Virginia for further proceedings.
To learn more about Samuel Gilbert and Edward Hensley and Winnebago’s fight for their repatriation, visit the Winnebago v. U.S. Army case page. The Winnebago Tribe of Nebraska is represented by its General Counsel, Big Fire Law & Policy Group LLP, NARF, and Cultural Heritage Partners, PLLC.
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