ALEXANDRIA, Virginia — A federal judge here is weighing a decision that the Winnebago Tribe hopes will set a strong precedent at one of the most infamous Indian boarding schools in the nation.

Two Winnebago children — Samuel Gilbert and Edward Hensley — are known to have died while attending the Carlisle Indian Industrial School. But the Department of the Army, the military agency that controls the cemetery where the boys and hundreds of other tribal youth are buried, is refusing to repatriate the remains under a key federal law.

According to the federal government, the U.S. Army does not have to comply with the Native American Graves Protection and Repatriation Act, the law known as NAGPRA. So a delegation of Winnebago leaders and citizens packed a federal courthouse in Virginia last week to stand up for the children whose voices have been denied for more than a century.

“Those children at Carlisle never had a choice,” Chairwoman Victoria Kitcheyan said in an interview on Friday after the hearing in Alexandria, a colonial-era city whose own dark history is being re-examined.

“Now that tribes recognize that, and have the fitness to bring our kids home, it’s the most important thing that they be laid to rest with the protocols that each unique tribe holds as sacred,” Kitcheyan told Indianz.Com.

Kitcheyan acknowledged that the tribe could seek to reclaim Samuel and Edward, who were sent from the Winnebago Reservation in northeastern Nebraska to Carlisle in 1895, under U.S. Army regulations. But she said doing so would subject family members of the youth to even more bureaucratic hurdles, thus defeating the purpose of NAGPRA, which requires the return of ancestral remains to their rightful places.

“They’re going to jerk us around,” Kitcheyan said of the Army’s complex regulations governing disinterment of human remains.

“And we think that no agency is exempt from Congress’s intentions and we feel that the tribe has rights under NAGPRA,” Kitcheyan added. “For the Army to ignore those rights is just disrespectful and inappropriate.”

During the hearing, the federal government did not dispute that Samuel and Edward are buried at the Carlisle Barracks Post Cemetery in Pennsylvania. According to an Army study, at least 179 Indian children have been laid to rest there.

But Peter K. Dykema, an attorney from the Department of Justice, argued that the cemetery at Carlisle does not meet the definition of a “holding or collection” under NAGPRA, drawing a comparison to the museums, federal agencies and educational institutions that are covered by the law. As a result, he said that the Army should not be required to remove the Winnebago children from the gravesite.

“NAGPRA does not require the exhumation of remains,” Dykema told Judge Claude M. Hilton of the U.S. District Court for the Eastern District of Virginia.

Dykema went further and warned that a victory by Winnebago would open the doors for other tribes to seek the repatriation of ancestors from hundreds of federally-run cemeteries — and even from any parcel of the millions of acres of public lands controlled by the United States.

“I’m not saying that’s bad,” Dykema said, “but it would be a huge undertaking.”

On June 7, in the U.S. District Court of Virginia, the Winnebago Tribe of NE filed its response to the Army’s motion to dismiss their demand to bring home the remains of two boys who died at the Carlisle Boarding School. Read more: https://t.co/WFT70wUM8j #BoardingSchoolHealing

— Native American Rights Fund (@NDNrights) July 2, 2024

The Native American Rights Fund (NARF) argued on behalf of the tribe at the hearing, which lasted about 30 minutes. NARF staff attorney Beth Wright pointed out that the U.S. Army moved the remains of Samuel and Edward from their original graves to the current cemetery in 1927 — without ever notifying their families or their community.

“The purpose of NAGPRA is to empower Indian tribes,” Wright told the court,” and that is what Winnebago is here to do.”

In a sign of the precedent that could be set with the case, the United South and Eastern Tribes Sovereignty Protection Fund, which represents 33 tribes from Maine to Florida, and the Catawba Nation submitted a friend of the court brief in support of NAGPRA applying to the Carlisle cemetery. A Catawba child died at Carlisle but the Army has been unable to find his remains and even removed his headstone from the gravesite where the military thought he had been buried, Chief Brian Harris stated in a sworn declaration.

“NAGPRA’s provisions clearly apply to the remains at the Carlisle cemetery which are only there because the federal government collected our children, subjected them to treatment that killed them, and now continues to hold their remains in a graveyard controlled by a federal agency and located on federal land,” the tribal brief states.

Carlisle was founded by the U.S. government in 1879. By the time it closed in 1918, more than 10,000 children from over 140 tribes were sent there as part of a federal policy aimed at disconnecting them from their nations and communities.

The Indian boarding school’s infamous founder and longtime superintendent was Richard Henry Pratt, a military general. In a speech just three years before Samuel and Edward were taken from their tribal community at Winnebago, he explained why Indian children were being sent to Carlisle

The goal was simple, Pratt said in 1892: “Kill the Indian in him, and save the man.”

According to the Carlisle Indian School Digital Resource Center, a project of Dickinson College in Pennsylvania, Samuel Gilbert died at Carlisle only a month after arriving in the fall of 1895. He was just 19 years old.

Edward Hensley also entered Carlisle in 1895, on the same day as his fellow Winnebago citizen. He died four years later, at the age of 17, according to boarding school records.

Wade Ayers was just 13 years old in the fall of 1903 when he arrived at Carlisle from Catawba homelands in South Carolina. He died just four months later.

Judge Hilton, a nominee of Ronald Reagan who holds senior status at the federal court in Alexandria, did not indicate when he would rule on the government’s motion to dismiss the lawsuit, which the Winnebago Tribe filed in January. He didn’t really ask questions of either side during the proceeding.

“I’ll look at this a little further,” Hilton said at the conclusion of the hearing.

Chairwoman Kitcheyan believes Indian Country made its presence known in the courtroom, where she was joined by the tribe’s vice chair and other tribal leaders and citizens, including a relative of one of the boys who died at Carlisle. She was wearing earrings made in honor of the late Louis LaRose, a prominent Winnebago leader who passed away last November at the age of 81, and worked on beadwork she will be presenting to one of her young nephews.

“We came here with present tribal leadership, past tribal leadership,” Kitcheyan said. “We came here with the relatives of our ancestors and they brought their strength and their prayers.”

The case comes amid growing attention to the genocidal legacy of Indian boarding schools. Secretary Deb Haaland, who is the first Native person to serve in a presidential cabinet, established the Federal Indian Boarding School Initiative to investigate the role of the Department of the Interior in what has been called one of the darkest chapters in U.S. policy and history.

The federal government wasn’t the only party involved either. Churches and non-profits also participated in the removal of Indian children from their communities, an issue being addressed with bipartisan legislation to create a Truth and Healing Commission on Indian Boarding School Policies to fully examine the ongoing impacts.

“The Winnebago Tribe is in full support of the Truth and Healing Commission and we’ve sent letters of support,” Kitcheyan said.

The Truth and Healing Commission on Indian Boarding School Policies Act is moving forward in the 118th Congress, with versions ready for passage in both the U.S. House of Representatives [H.R.7227] and the U.S. Senate [S.1723]. The House version is led by Rep. Sharice Davids (D-Kansas), a citizen of the Ho-Chunk Nation.

“We’re very thankful for our sister, Sharice Davids from our sister tribe, who’s a part of this work,” Kitcheyan said.

The NAGPRA case is Winnebago Tribe v. Department of the Army.