Fight For Native Boys’ Remains On Army Property Tests Strength Of Landmark Federal Law

CARLISLE, Pa. — On Sept. 7, 1895, a group of 11 children and young adults from the Winnebago, Omaha and Cheyenne tribes arrived in the town of Carlisle, Pennsylvania. They had been sent on their 1,200-milejourney by Capt. W.H. Beck, an Indian agent who oversaw the Winnebago and Omaha tribes at a time when the federal government was breaking up reservation lands.

John Grant, at 12 years old, was the youngest of the group; 26-year-old John Clay was the oldest. Three were orphans.

The group likely wound its way down Garrison Road, following the same route used to provide Carlisle Indian Industrial Schoolwith coal. Administrators planned to enroll all 11 youths at the boarding school for five years.

Two of them never left. Today, Edward Hensley’s and Samuel Gilbert’s graves lie within a few feet of one another at a cemetery on the eastern edge of what today serves as the U.S. Army War College and Carlisle Barracks.

The Winnebago Tribe wants their boys back. The U.S. Office of Army Cemeteries wants to send them.

But the clash over how to do it has opened a legal battle with sweeping implications for tribal rights and sovereignty as the federal government struggles with its own efforts to atone for the injustices of a decades-long boarding school policy aimed at extinguishing Indigenous cultures.

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A landmark federal law passed in 1990 called the Native American Graves Protection and Repatriation Act, or NAGPRA, requires government agencies, universities and museums to identify pilfered cultural artifacts and human remains they possess and return them to their affiliated tribes.

The law has become a powerful tool for tribes to recoup sacred objects and ancestral remains, though in practice many struggle with its limitations. NAGPRA does not apply at all to private individuals, who continue to trade looted artifacts — includinghuman skulls — at art auctions.

And the government agencies, museums and universities specifically targeted by the law still hold roughly 110,000 Native human remains trafficked or grave-robbed from the dawn of colonization until the early 20th century.

Archeologists excavated many of them in a trend that dates back at least to the late 1700s, when Thomas Jefferson looted a burial mound near his home in Virginia. Army officers sent thousands of Native skeletons from battlefields, historic tombs and recent graves to the Army Medical Museum at the request of the surgeon general in 1868, who hoped to assess Indigenous intelligence by measuring skulls — a now-debunked technique developed from the field of scientific racism.

Several tribes have invoked NAGPRA over the last two decades to compel the Office of Army Cemeteries to return the remains of tribal members who died at Carlisle IndianIndustrial School — one of the earliest and most prominent boarding schools created to assimilate Native youth into Anglo-American culture by severing them from their own.

But in one of the thorniest conflicts to emerge since NAGPRA passed, the Army has insisted for nearly two decades that the law doesn’t apply to the cemetery at Carlisle, or any othercemeteryon federal property.

After years of resisting attempts to repatriate Native students’ remains entirely, and eschewing NAGPRA’s provisions, the Army has instead developed for tribes a modified form of its procedure for sending home soldiers who die in combat. That process has saddled tribes with bureaucratic hurdles that NAGPRA was designed to avoid while allowing the Army to dictate the repatriation process — at times in ways that flatly violate tribal sovereignty. Without NAGPRA’s support, tribes have little recourse to press claims over misidentified graves — a recurring problem at Carlisle that looms over the Winnebago Tribe’s pending claim for Hensley’s and Gilbert’s remains.

The result is that a major federal law passed specifically to force agencies to return Native human remains now plays no role in repatriating one of the most obvious collections of them, the vast majority of which are marked with headstones that identify the deceased by name and tribal affiliation.

There’s no question that NAGPRA applies to human remains excavated from gravesites and sent off to museums for display. The law clearly applies to human remains found on federal property. But the law doesn’t say one way or another whether it applies to human remains buried in cemeteries on federal land, like the graveyard that holds Gilbert and Hensley.

The Winnebago sued the Office of Army Cemeteries in January 2024, kicking off a case that promises to settle definitively the question of whether NAGPRA applies to boarding school graves found today on federal land.

“There was no consent for the boys to be buried there without any Winnebago customs or traditions practiced,” said Beth Wright, an attorney with the Native American Rights Fund, which is representing the Winnebago. “NAGPRA compels the return of remains. It doesn’t matter where they are. If that were the case, federal agencies could just bury remains they didn’t want to return.”

The case could have major repercussions. Nearly 1,000 children and young adults like Gilbert and Hensley died while housed in the sprawling system of federal boarding schools modeled on the one at Carlisle. Their graves — scattered across at least 74 burial sites, at least 21 of which were left unmarked — serve as one of the most glaring reminders of a decades-long assimilation policy championed by 19th-century reformers that tribes today widely view as a campaign of cultural genocide.

The courts have yet to decide whether NAGPRA applies to boarding school cemeteries on federal land. But the rich archival documentation of Carlisle Indian Industrial School’s history makes it possible to get a glimpse of the boys’ experience there — and offers insight into the clash over their return home.

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It’s no coincidence that a military official sent Gilbert and Hensley to Carlisle Indian Industrial School, or that the school was located at an Army barracks. The federal government designed the boarding school system to assimilate tribes defeated in war, with veterans of those campaigns playing key roles in its development.

No one influenced it more than the Carlisle Indian Industrial School’s founder, Richard Henry Pratt. Standing 6 feet tall with a face scarred from smallpox, Pratt prided himself on his military bearing. He fought in the Civil War before going on to serve as an officer for more than a decade in the campaigns against the Plains tribes.

After the Red River War ended in 1875, Pratt escorted dozens of Comanche, Kiowa and Cheyenne prisoners of war, all adults, from Oklahoma to Ft. Marion, in Florida. There, he taught prisoners to speak and read English, contracting local teachers to help. He convinced local businesses to hire the prisoners as workers.

Most of the prisoners returned to reservations in the West within a few years. Seventeen of them, however, continued on to Hampton, Virginia, where Pratt developed a second educational program at a school for Black Americans — this time recruiting Native children as well.

Pratt’s assimilationist ambitions dovetailed with the federal government’s military strategy. Then-Commissioner of Indian Affairs Ezra Hayt directed Pratt to start recruiting from the Oglala Lakota Tribe at Pine Ridge Reservation and the Sioux at Rosebud Reservation “because the children would be hostages for the good behavior of their people,” Pratt wrote in his autobiography.

Pratt himself appeared to chafe at his superiors’ logic, seeing farther-reaching implications for boarding schools. In a departure from the prevailing racist beliefs of the time, Pratt viewed Indigenous people as equally intelligent and physically gifted as any European. Education offered a way to prove it — and to calm the lingering hostilities of war by integrating Native peoples into white society.

But Pratt’s views of Native culture differed little from his overtly racist contemporaries. He saw the hunter-gatherer tribes of the Plains as economically backward and disparaged their “savage rites and ceremonies.”

In Pratt’s mind, reservations only made those problems worse by allowing tribes to keep owning land collectively and living off wild food instead of building personal wealth by farming private holdings or learning a trade. His contradictory ideals are most famously summed up in an often-quoted line from a speech delivered in 1892 extolling the “advantages of mingling Indians with whites.”

“A great general has said that the only good Indian is a dead one, and that the high sanction of his destruction has been an enormous factor in promoting Indian massacres,” Pratt said. “In a sense, I agree with the sentiment, but only in this: that all the Indian there is in the race should be dead. Kill the Indian in him, and save the man.”

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When Pratt opened Carlisle IndianIndustrial School’s doors in 1879, the steady arrival of Indigenous youths drew spectators, according to Jim Gerencser, an archivist at nearby Dickinson College who has spent the last several years co-directing an effort to digitize documents elucidating the school’s operation and make them available for the public online. One of the first things Pratt did was to repair the barracks’ fences to keep gawkers out.

Pratt began working toward his goal of transforming incoming students’ worldview in those early days with a harsh transformation of their outward appearance. Those known only by names in their Native language had to pick a new one in English. Administrators swapped the students’ clothes from home for suits and dresses that students themselves would come to produce on site. Native boys typically wore their hair long. Shortly after enrolling, administrators cut it short.

“We’d lost our hair and we’d lost our clothes; with the two we’d lost our identity as Indians,” one Apache student later said of his experience. “Greater punishment could hardly have been devised.”

By 1895, when Gilbert and Hensley arrived, Native youths had become a common sight in the town of Carlisle. They worked at local businesses, lived in white households, and a few attended classes at the town’s schools. A football team whose future alumni would include the legendary Jim Thorpe (born Wa-Tho-Huk, or Bright Path) had recently begun to challenge neighboring colleges.

On a cool morning in June, Gerencser guided me on a tour of the former campus of Carlisle Indian Industrial School with Army Public Affairs Officer Curt Keester. While the Army has removed some of the old buildings and erected new ones in the 130 years since Gilbert and Hensley arrived, much of the area remains remarkably similar to how they would have experienced it.

The heart of the Carlisle campus was a long, tree-lined meadow running from the southwest, where the chapel and guard house were located, to the trade shops and still-in-construction gymnasium to the northeast. White-painted brick buildings flanked the meadow on either side, with Pratt’s offices located roughly in the center, facing the bandstand, where the school’s group portraits were typically taken.

Gilbert and Hensley entered Carlisle Indian Industrial School at a time of rapid expansion. Some 668 students were enrolled, with about half of them living off-site — usually performing menial labor for white families while living in their homes. On the same weekend that Gilbert and Hensley’s party arrived, 29 boys and girls came in from the Sac and Fox Nation in Oklahoma, 18 Chippewas from the White Earth Nation in Wisconsin, and eight Cheyennes from Oklahoma.

“New pupils are coming in quite rapidly,” an article in The Indian Helper, the student newspaper, noted that week. Administrators had cleared a reading room to house older boys, whose sleeping quarters were “full to overflowing.”

Pratt’s high regard for military discipline dominated all aspects of the school’s functioning. The first way Gilbert and Hensley would have experienced it was through the school’s rigid ordering of time.

In contrast to a schedule dictated by the rise and fall of the sun and moon, the seasons and the animal migrations that their elders would have experienced, Gilbert and Hensley would have awoken on their first day at Carlisle to the sound of a bugle playing “Reveille,” Gerencser said. They would have spent part of their day marching in formation along the meadow.

Their days would have been divided between classroom education, sports and vocational training in one of several disciplines — farming, blacksmithing, sewing — on a campus that produced most of the provisions the students used. They wrote and printed The Indian Helperwith an in-house printing press. The paper’s tagline noted that it was “PRINTED by Indian boys, but EDITED by the Man-on-the-band-stand who is NOT an Indian.”

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The experience at Carlisle did not last long for Gilbert. Six weeks after his arrival, on Oct. 24, 1895, he died of pneumonia at age 19. Another student named Herbert Littlehawk, 26, died of the same disease five days later. (The Army repatriated Littlehawk’s remains to the Sioux Nation in 2018.)

It’s not clear how Gilbert developed pneumonia, but the deaths were a predictable consequence of shuttling so many people around such vast distances and then cramming them together in tight quarters in an era of rampant contagious disease. Tuberculosis remained one of the country’s top killers at the time, and outbreaks at both Indian boarding schools and reservations were common, along with meningitis, mumps and measles.

Six students died in Carlisle’s first year of operation, according to “Education for Extinction: American Indians and the Boarding School Experience, 1875–1928,” David Wallace Adams’ history of the boarding school era. The numbers sharply underestimate the lethal toll that boarding schools inflicted on tribes, Adams noted. Pratt routinely refused students who arrived showing signs of illness, turning them back to die on the road or back at home.

Life went on for Hensley. He played in the band and trained in the trade of tinsmithing, according to the few records that mention him by name, unearthed by Lily Sweeney, a digital project assistant at the Dickinson College archive.

Carlisle administrators controlled the wages that students earned through jobs the school arranged — an evolution of the “outing” program that Pratt pioneered back at Ft. Marion. Students had to ask permission to access their money and provide a reason for spending it. Ledgers from Hensley’s account show a consistent string of deposits labeled “farm” — wages he earned either from growing vegetables at the school or from working at an off-site private farm.

Most of the money he earned went to pay for YMCA dues and to send mail back home. There’s no way to know whom Hensley corresponded with, but both of his parents had died; his student card listed him as the ward of a woman named Julia Prophet.

On at least two occasions, he took out money to pay for a portrait of himself. The Carlisle archive preserves both of those images. He appears in the first, taken about 1896, wearing a suit, seated next to his classmate Myron Moses, a boy from the Seneca Tribe who had entered Carlisle four years earlier at age 13. (Moses stayed at Carlisle until he graduated in 1901, then returned for six weeks at the end of 1903; he left due to illness and died of tuberculosis in January of the next year.)

The other image, taken the following year, shows Hensley in a studio portrait with slicked, short hair combed to the side and a tie beneath his buttoned-up coat. He was about 18 years old at the time.

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Records do not indicate that Hensley was disciplined during his four years at Carlisle, but he must have felt the institution’s severity on a near-daily basis.

In theory, boarding school attendance was voluntary. Agents like Capt. Beck were supposed to secure the consent of parents or guardians when recruiting students. In practice, the federal government imposed boarding schools on the tribes.

By the time Beck sent Gilbert and Hensley to Carlisle, the federal government had placed roughly three-quarters of Native youths into boarding schools, with about one-third of them sent to far-flung campuses hundreds of miles away from the reservations where their families had been confined, according to the preface to Pratt’s autobiography “Battlefield and Classroom: Four Decades with the American Indian, 1867–1904.”Pratt and his recruiters routinely brought children to Carlisle against the wishes of their parents or tribal elders and often disregarded requests to return them.

Two years before Gilbert and Hensley arrived, chiefs of the Cayuga Nation wrote to President Grover Cleveland from New York to demand the return of dozens of the tribe’s children. The parents had been misinformed when they released their children, and some were taken to Carlisle without their parents’ knowledge at all, the letter said. Instead of studying, the children “were put to work and allowed a very little schooling, while they seeking scholarship [sic].” The food was inadequate and “the punishments to the children in aforesaid school beyond reasonable.”

“The undersigned believes that the United States of America is a free country and no person should be detained in any manner, unless through crimes,” the letter reads.

The clearest sign that students were frequently recruited against their will was the frequency with which they tried to escape — especially older male students, according to Gerencser.

“We’ve identified close to 1,200 individuals running away at least once,” Gerencser told HuffPost. “That is pretty darn endemic.”

Pratt sometimes viewed escapees as troublemakers that he didn’t want reenrolled. More often, he alerted police to keep a lookout for the students, requesting their return, despite the fact that many of the runaways were legal adults.

No building more clearly symbolizes Carlisle’s prison-like nature than the Hessian Guard House. The building of limestone and plaster, with windows fortified by iron bars, served in the boarding school’s days as a jail for students who misbehaved. The most severe punishments were reserved for the older boys, around Hensley’s age.

Pratt put students themselves in charge of meting out punishments through a tribunal modeled on the court-martial. The tribunals doled out sentences including confinement in the Guard House, forced labor without pay, fines and whipping.

“Quite a number of the students who have required discipline have turned out well, and in some cases have maintained correspondence with the school management and thanked us for disciplining,” Pratt wrote in an 1891 report to the Office of Indian Affairs, the agency today known as the Bureau of Indian Affairs.

The Guard House is one of the few buildings from Gilbert and Hensley’s time that visitors can still freely enter today. It houses a museum installation of the barracks’ history, both as an Indian boarding school and a war college.

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On Jan. 27, 1899, The Indian Helper reported that “Edward Hensley has been very low with pneumonia, his third or fourth attack.” Illness was common enough that the school maintained a two-story hospital large enough to house 50 patients. While laid up there, Hensley was “doing nicely,” the paper noted, and the medical staff had “wonderful success in pulling pneumonia patients through.”

But Hensley didn’t recover. He died the second evening after the story’s publication. He was 20 years old.

“His heart becoming involved, there was little hope,” his obituary in The Indian Helper reads. The paper described him as “a most excellent young man, beloved by all.”

Pratt often personally informed families when students fell ill, sometimes sending several letters to update them about their condition, according to Gerencser. When students died, he generally wrote to the family informing them of the death after the fact, noting that they had received a Christian burial at the school cemetery.

If Pratt penned such a letter for Hensley, archivists have yet to unearth it. Whatever the case, school authorities almost certainly buried both Hensley and Gilbert without the knowledge, let alone consent, of their families or the Winnebago Tribe.

For the next three decades, Gilbert and Hensley’s remains lay 10 markers and one row apart in the schoolyard’s cemetery, which grew to contain nearly 200 graves, including at least eight unidentified bodies.

The Bureau of Indian Affairs removed Pratt as superintendent of Carlisle Indian Industrial School in 1904 in response to his repeated public criticisms of the bureau and the reservation system, which he viewed as an obstacle to cultural assimilation. The school closed in 1918, returning its grounds to Army control. Pratt died six years later. His body is buried in Arlington National Cemetery.

The Army turned the former school into a war college. To make way for new construction, the Army disinterred the graves in 1927, moving the cemetery to its current location on the northwest corner of the barracks. Many suspect the remains of the dead were moved with little care, which created a recurring problem with misidentified graves a century later.

In 2007, the Northern Arapaho Tribal Historic Preservation Office sent a request asking the Office of Army Cemeteries to return the remains of three of the tribe’s students buried at Carlisle — Little Chief (died at age 16), Little Plume (died at age 10) and Horse (died at age 12), all of whom were sent from Wind River Indian Reservation in Wyoming to Carlisle when Pratt opened the school in 1879. The request cited NAGPRA’s requirement to return tribal human remains in government possession.

The U.S. Army War College’s legal officer, Thomas Kane, tried to fend off the request. “I can understand and appreciate your desire to move the remains of your family member to your local burial site; however this installation has serious concerns related to this proposal,” Kane responded in a letter cited by The Lakota Times. “The most obvious is that this cemetery has become part of our community and is a historic site.”

Over the next decade, more tribes made similar NAGRPA requests asking the Army to return their lost children. The Army, however, has insisted that the Native remains in its possession are different than the Native remains in government possession that NAGRPA was designed to repatriate.

By 2016, the Office of Army Cemeteries crafted its own solution: It would begin to return remains requested by tribes under NAGPRA using Army Regulation 290-5 — a variation of the procedure the Army uses to return the bodies of veterans to their families. The following year, the Army used the protocol for the first time to repatriate the remains of Little Chief and Horse. Little Plume’s grave contained two separate sets of human remains, neither of which matched his age.

In the years that followed, the Office of Army Cemeteries has taken steps to work with tribes to make the process more respectful. The Army carried out its seventh disinterment in September, returning the remains of nine children who died more than a century ago at Carlisle. The Army has returned a total of 41 Native boarding school students so far, with 18 repatriations planned for this year.

But the Catawbas’ experience highlights the disappointment and frustration tribes can face without NAGPRA for support.

Wade Ayers died less than five months after arriving at Carlisle in what the school’s sanitary report recorded as “vaccine fever.” A group of Catawba tribal members, including one of Ayers’ descendants, asked the Army to repatriate Ayers. The tribal government joined the conversations to support the family, but was surprised to find the Army declined to recognize NAGPRA, instead offering its own protocol. When the Army disinterred the grave in 2022, it contained the remains of a young girl.

The episode left Catawba Chairman Brian Harris incensed but with few options. NAGPRA makes it the federal agency’s responsibility to inventory human remains, which Harris says would give the Catawba a tool to pressure the Army to search both the current and original cemeteries more thoroughly.

“I want new technology and new radar run over there to see if there is another person at the bottom and they have rejected to even respond to that request,” Harris told HuffPost. “It’s another situation where we’re getting our nose thumbed at — where our culture is just being made to go away.”

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The Winnebagos’ lawsuit stemmed from a similar experience. Sunshine Thomas-Bear, the tribe’s historic preservation officer, routinely made NAGPRA requests as part of her job. When she started the repatriation process for Gilbert and Hensley, she was surprised to find the Office of Army Cemeteries disputed that NAGPRA applied to the remains of children who died at boarding schools on federal land.

Congress crafted NAGPRA in partnership with the country’s tribes. It recognizes tribal sovereignty, lets Native councils lead the process and prioritizes consultation — features that make a big difference for a law that serves 574 federally recognized tribes, each with unique histories and governing traditions.

The Army regulations serve as a blunt tool by comparison. The first problem arose when the Office of Army Cemeteries asked Thomas-Bear to find the boys’ closest living relatives. Gilbert and Hensley both died without having children of their own. Thomas-Bear had no practical way to comb the census records to find a more distant relative.

“They didn’t have names like we’re used to, English names — they were named by their birth order, and male or female,” Thomas-Bear told HuffPost. “It’s just something that seems impossible for our tribe.”

When Thomas-Bear objected, the Army suggested she ask the tribal council to designate her as the closest living relative — an expedient way to fill out paperwork, but one that tramples over the principle of tribal sovereignty. (The Army declined to speak about the case while litigation continues.)

“I, as a mother and grandmother, would want someone to bring my child back here, but I also want it to be done in a good way,” Thomas-Bear said. “We shouldn’t have to lie on documents or pass resolutions that say that we’re the closest living relative to appease the Army’s rules and policies on these children and how to bring them back, when we could just follow NAGPRA.”

The Winnebago sued the Office of Army Cemeteries last January, asking a federal judge in Virginia to force the agency to scrap the Army regulationand instead return Gilbert and Hensley’s remains under NAGPRA.

“To deny this existing tool is just so backwards-looking — it’s so out of alignment with where we are today in federal Indian law,” said Kaitlyn Klass, an attorney with the United South and Eastern Tribes. “The Army process, when you read the definition section, is clearly made for cemeteries containing service members. It’s not at all made for a situation where the government collected kids, their behavior killed them, and now they have their bodies.”

In court filings, the Army says it wants to send Gilbert and Hensley home and will cover the costs of disinterment, repatriation and travel for four people to attend the disinterment. The Army pointed to past repatriations and the series of disinterments it eventually carried out in September of last year as evidence of its good faith.

The Army flatly denied, however, that NAGPRA requires exhuming graves. If that were the case, its lawyers argued, the federal government might be required to inventory and repatriate the remains of perhaps thousands of Native Americans buried at any of the nearly 200 cemeteries managed by the Department of Veterans Affairs, the Army or the National Park Service.

“The Army is trying to do the right thing in honoring the remains of Samuel Gilbert and Edward Hensley,” the Office of Army Cemeteries’ lawyers wrote in a court filing. “The Army is trying to do the right thing for all of those interred at the Post Cemetery in Carlisle. This lawsuit will not advance either goal.”

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Surprisingly, given how long NAGPRA has existed, the federal courts have never considered whether the law applies to Indian boarding school cemeteries or mandates disinterment until now.

A plain reading of the law’s text makes it hard to escape the conclusion that it does. Section 3003 requires federal agencies to inventory the Native human remains they hold, identify their cultural affiliation and notify the tribes. Section 3005 requires the agency to repatriate those remains at the request of the affiliated tribe or a lineal descendant. The act is enforceable for Native human remains found on federal land.

No one disputes that the Carlisle cemetery contains the remains of more than 180 Native Americans or that the graves are located on federal land. The tribal affiliations of the deceased were registered at enrollment, generally documented in well-preserved archives and, in many cases, recorded on the students’ headstones.

Instead, the Army’s lawyers argue that the remains in its possession do not constitute a “holding or collection” for the purposes of NAGPRA. Even if they did, NAGPRA doesn’t require the government to disinter remains, Army lawyers say — only to return those removed from their original burial site.

The Army cited three cases to back those arguments. In one, a man named David Hawk sued the Oneida Tribe of Indians of Wisconsin under NAGPRA for building a parking lot over what he believed was a burial site containing the remains of his ancestors. But the 7th U.S.Circuit Court of Appeals ruled that NAGPRA applies to federal agencies and museums, not tribal governments.

In another case, the 3rd U.S. Circuit Court of Appeals found that the descendants of football legend Jim Thorpe could not use NAGPRA to move his grave from the Borough of Jim Thorpe in Pennsylvania to Sac and Fox tribal land in Oklahoma. The borough did not qualify as a “museum” for the purposes of the law, the court ruled. And Thorpe’s widow had right of possession of the remains and chose to bury them there.

NAGPRA’s text recognizes that family members with the right of possession can freely choose to bury relatives on federal land, which appears to address the Army’s concerns that the law could force disinterment of veterans.

The third ruling came out of the District of Columbia in 2010. Descendants of Apache warrior Geronimo sued the federal government and Yale University, asking to move his remains from the current grave at Ft. Sill in Oklahoma to the headwaters of the Gila River, where he was born. Yale University was included in the lawsuit over allegations that Prescott Bush, George H.W. Bush’s father, raided the tomb at Ft. Sill with members of the Skull and Bones society, stole Geronimo’s skull and took it to New Jersey.

The Geronimo case, however, presented unusual questions that pushed the limits of NAGPRA’s applicability. The plaintiffs raised doubts about the location of Geronimo’s remains and speculated that a private individual might have taken them. NAGPRA doesn’t require the government to locate missing remains, and the federal government can’t enforce it against private citizens.

None of the three cases address whether the law requires the federal government to disinter remains in its possession for repatriation. The courts considered a related question in both the Geronimo and Hawk cases, in which they ruled that the NAGPRA doesn’t require the government to excavate areas in an attempt to find remains whose location isn’t known. But the Winnebago Tribe isn’t asking for the Office of Army Cemeteries to go on a fishing expedition — the Army itself acknowledges it holds Gilbert’s and Hensley’s remains.

The Army’s other key argument turns narrowly on word choice. The cemetery doesn’t meet NAGPRA’s definition of a “holding or collection,” the Army’s lawyers argue. The law uses that term twice in its text and doesn’t define it. The Army’s lawyers point to Interior Department implementing regulations that define “holding or collection” as an accumulation of one or more objects or remains for purposes including conservation, education and exhibition.

It’s up to the courts to decide whether Carlisle cemetery, which is open to the public and affixed with memorial markers explaining its history, meets those requirements. The answer so far is “no.”

U.S. District Judge Claude Hilton dismissed the Winnebago case in August, ruling that NAGPRA didn’t require the exhumation of Native graves and that the cemetery at Carlisle fell outside the law’s definition of “collection or holding.”

Hilton acknowledged that NAGPRA did not define either of those two key words, so he looked instead to their plain meaning.

“The Merriam-Webster online dictionary defines a ‘collection’ as ‘an accumulation of objects gathered for study, comparison, or exhibition or as a hobby,’” Hilton’s opinion reads. He went on to conclude that the term applied naturally to museum or federal agency collections of previously excavated human remains, but not to cemeteries. (Hilton ignored Merriam-Webster’s much broader definition of the term as simply “something collected,” which appears ahead of the one he cited.)

Hilton also sided with the Army’s argument that using NAGPRA to force disinterments would “compel exhumation of tribal graves anywhere on federal land — including those created according to the decedent’s wishes or tribal custom.”

The ruling, which attorneys for the Winnebago say they will appeal, appeared to disregard the principle of right of possession, which NAGPRA outlines explicitly and which was litigated in the Jim Thorpe case. The law clearly states that it does not apply to cases where someone consents to bury a family member on federal land. It only applies in cases where an institution took human remains that did not belong to it without the consent of the dead people’s families.

“Anyone will tell you NAGPRA was decided so that museums or agencies that don’t have the right of possession will send remains back to where they belong,” Wright, the Native American Rights Fund attorney, told HuffPost. “It’s simple.”

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The litigation over Gilbert’s and Hensley’s remains has coincided with a wider reckoning over the federal government’s boarding school policy. Shortly after taking over as the Interior Department’s first Indigenous secretary in 2021, Deb Haaland ordered an exhaustive investigation to document the history of the Bureau of Indian Affairs’ boarding school policy and chart a path toward reconciliation.

The conclusions, issued in a pair of reports over the last three years, painted a tragic picture. A network of 408 schools and as many as 1,000 private institutions spread across 37 states systematically separated generations ofNative children from their families for decades. Boarding schools routinely subjected students to corporal punishment, including whipping and solitary confinement. Sexual abuse was common and appears to have particularly targeted boys.

At least 973 children and young adults died at boarding schools, today lying in one of more than 70 burial sites, at least two dozen of which are either unmarked or contain unmarked graves. The federal government often raided funds allocated to tribes to carry out the boarding school policy, ultimately spending the inflation-adjusted equivalent of $23.3 billion.

The reports issued several recommendations to help correct and heal the wrongs the boarding school system caused, starting by acknowledging the damage and apologizing for it. President Joe Biden took that historic step in October at the Gila River Indian Reservation.

“It’s horribly, horribly wrong,” Biden said. “It’s a sin on our soul.”

Another of the reports’ recommendations was to identify and repatriate students who died while attending boarding schools, “pursuant to NAGPRA.” The BIA did not respond to multiple requests from HuffPost to discuss the reports’ implications for Carlisle.

Congress may settle the question of whether NAGPRA applies to boarding school cemeteries before the federal courts. A bill first filed by Haaland before she left the U.S. House of Representatives to head the Interior Department would create a truth and healing commission focused on Indian boarding schools. Last year’s version of the bill, which garnered bipartisan support but failed to pass, clarifies that NAGPRA applies to Native graves at boarding schools — a provision included specifically to address the recurring conflict over the cemetery at Carlisle.

Part of the urgency to ensure NAGPRA applies to boarding school cemeteries stems from differing spiritual beliefs. Many tribes, including the Winnebago and the Catawba, perform specific ceremonies to send their loved ones into the afterlife. Without performing those rites, the deceased cannot rest.

That’s a painful thought for many — made worse by the growing number of misidentified remains whose tribal affiliations can’t be readily confirmed.

“We would take those 14 unknown,” Harris said, referring to the growing number of misidentified remains. “We may be a different tribe, but we have a lot of similarities. With our ceremonies, they could be laid into rest.”

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As the litigation plays out, Gilbert’s and Hensley’s graves remain behind a waist-high metal fence at the intersection of Jim Thorpe and North Roads on the west side of the town of Carlisle. There, six rows of mostly uniform white headstones stretch out below the shade of a weeping cherry tree.

Visitors had left offerings at many of the graves the day I visited in June — flowers, toys, a conch shell, a dreamcatcher. The tribal flag of the Cherokee Nation adorned one of the tombstones.

Some of the headstones are newer, reflecting the Office of Army Cemeteries’ policy of allowing families to petition for a replacement that better reflects their heritage. A few of the new ones lack the standard-issue cross, which some families object to on religious grounds.

A growing number of empty spaces have opened up between the headstones as the Army slowly digs up and returns the remains of students who died there more than a century ago.

In September, when the Army conducted its seventh disinterment since the development of regulation 290-5, it unearthed and transferred the remains of nine children who died at Carlisle — Fanny Charingshield, James Cornman and Samuel Flying Horse of the Oglala Sioux; Almeda Heavy Hair, Bishop Shield and John Bull of the Gros Ventre; Albert Mekko of the Seminole Nation and William Norkok of the Eastern Shoshone.

But the grave of Alfred Charko, a Wichita boy who died at age 15, contained the remains of an older young man, according to the Office of Army Cemeteries. The Army returned the remains to the graveyard and removed Charko’s headstone. It now reads “unknown.”

Thomas-Bear remains hopeful that Gilbert and Hensley will soon be among the successfully returned, retracing the 1,500-mile journey they took nearly 130 years ago.

“It’s well over time to start that process,” Thomas-Bear said. “We need to bring them home.”