The Winnebago Tribe has scored a precedent-setting legal victory that paves the way for the repatriation of children buried at one of the most infamous symbols of the genocidal Indian boarding era.

By a vote of 2-1, the 4th Circuit Court of Appeals on Thursday sided with the tribe regarding the burials of two Winnebago boys who were taken from their community and sent hundreds of miles away to the Carlisle Industrial Indian School in Pennsylvania. The majority concluded that the Native American Graves Protection and Repatriation Act, a federal law commonly known as NAGPRA, applies to remains at a cemetery managed by the U.S. military.

“In the late 1800s, two children of the Winnebago Tribe of Nebraska were removed from their homes and placed in a federal Indian boarding school on a United States Army base,” Judge Pamela Harris noted in the 25-page majority decision.

“The boys died at the school, allegedly as a result of abusive conditions, and were buried on site without the consent of their families and in contravention of their tribal and religious traditions,” continued Harris, who was nominated to the federal bench over a decade ago by then-president Barack Obama.

The Department of the Army, which oversees the Carlisle Barracks Post Cemetery, rejected the tribe’s request to return the remains of Samuel Gilbert and Edward Hensley to Nebraska. But the appeals court said one of the primary purposes of NAGPRA is to correct “shameful” actions of the U.S. government.

“It does a disservice to the Congress that enacted NAGPRA to suggest that the act’s purpose would be vindicated by leaving this tragic injustice unremedied,” the decision stated.

“On the contrary, it is the repatriation of Samuel’s and Edward’s remains so that they may be buried consistent with tribal tradition that would honor Congress’s intent to address the ‘desires of Indians to bury their dead,’ for too long ‘ignored,'” Harris wrote, quoting the words of the late U.S. Sen. Daniel Inouye, a Democratic lawmaker who was the primary sponsor of NAGPRA more than 35 years ago.

Yet even though NAGPRA went on the books decades ago in 1990, the 4th Circuit observed that the Winnebago case represents the first of its kind. No tribe — so far — has been able to force the U.S. military to comply with the law.

Instead, other tribes have had to follow arcane military regulations to reclaim young ones who died at Carlisle and were buried there. Now, the burden is on the federal government to live up to its obligations under NAGPRA.

“The Fourth Circuit’s ruling brings joy to the tribe,” Winnebago Chairman Coly Brown said in a news release on Thursday. “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,'” Brown added, again emphasizing the legislative history of the 1990 statute.

But as is often the case with novel court actions, the view on NAGPRA is far from unanimous. The tribe lost the initial round in the litigation when a federal judge in Virginia sided with the Army and agreed to dismiss the lawsuit.

And one member on the 4th Circuit thinks the majority got it wrong with Thursday’s ruling. Judge Allison Jones Rushing — who was nominated to the federal bench by President Donald Trump during his first term in office — issued a dissent stating that she too would have dismissed the lawsuit.

“Edward and Samuel were buried on federal land before Congress passed NAGPRA and they remain buried there today,” Rushing wrote in the 16-page dissent — nearly as long as the majority ruling. “Under NAGPRA, then, their graves are protected from excavation.”

“So how does the majority conclude that NAGPRA requires the Army to exhume their bodies?” Rushing continued. “It does so by interpreting ‘holdings or collections’ to include all graveyards on federal land.”

“The statute’s language and structure refute that interpretation,” the Republican-nominated judge asserted.

For now, though, legal advocates are celebrating the decision. The tribe is represented in the case by the Native American Rights Fund (NARF), Cultural Heritage Partners and Big Fire Law and Policy Group.

“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,” said NARF Senior Staff attorney Beth Margaret Wright, who argued the appeal last September. “The Fourth Circuit recognized that Congress enacted NAGPRA as a remedy for this ‘shameful injustice.’”

“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.

The Carlisle Industrial Indian School 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 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 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 school records.

But as the 4th Circuit noted, there is no indication in the record that the families of Samuel and Edward were informed of their deaths and subsequent burials. There is no indication that the tribe was informed either.

“A gravestone at Carlisle Cemetery marks Edward’s remains, though it misspells the name of his tribe as ‘Winnebaloo,'” Judge Harris wrote for the majority. “Another marks Samuel’s remains, spelling Winnebago instead as ‘Winnchaga.'”

And neither the families, nor the tribe, were informed when the Army exhumed the burials of Carlisle students and moved them to the site now known as the Carlisle Barracks Post Cemetery. The lack of consent was a frequent topic in the appeals court decision.

“Our decision today does not open the floodgates to disinterment of consensually buried Native Americans,” the 4th Circuit majority stated. “Nor does it require agencies or museums to find and inventory remains they never knew they possessed.”

“It holds only that Native American human remains purposefully held by a federal agency or federally funded museum without the requisite familial or tribal consent must be inventoried and, upon a qualifying descendant’s or tribe’s request, repatriated pursuant to NAGPRA,” the ruling continues.

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The other member of the appeals court who joined the majority ruling is Senior Judge Henry F. Floyd, who was named to the 4th Circuit in 2011 by then-president Obama, a Democrat. He previously served as a federal judge in South Carolina, having been nominated by former president George W. Bush, a Republican.

The disagreement in the case makes it a possible candidate for a rehearing by a larger set of judges on the 4th Circuit. The court has not historically heard many Indian law cases as there are few federally recognized tribes in the states of Virginia, Maryland, North Carolina, South Carolina and West Virginia.

The headquarters of the Army, as well as the Office of Army Cemeteries, are in Virginia. The case will continue in the U.S. District Court for the Eastern District of Virginia, where it was heard in Alexandria, a city that recently observed its 275th anniversary.

Winnebago Tribe of Nebraska v. U.S. Department of the Army (May 14, 2026)