Winnebago Tribe Sues Army to Repatriate Remains of Two Carlisle Indian School Students

January 27, 2024
Headstones are seen at the cemetery of the U.S. Army's Carlisle Barracks.

For Edward Hensley, the prognosis seemed favorable only days before his fatal turn for the worse.

The Winnebago boy died on Jan. 29, 1899, while he was enrolled at the Carlisle Indian Industrial School.

“He was not able to pull through this his third or fourth attack of pneumonia,” the Indian Helper, a student publication, reported on Feb. 3. “His heart becoming involved there was little hope.”

Like other Native American youths who died at the boarding school, Hensley was buried in a cemetery at Carlisle Barracks. A student for about four years, he was remembered as a band member and tinsmith by trade, “a most excellent young man, beloved by all,” the Helper article reads.

On Jan. 17, the Winnebago Tribe of Nebraska sued the U.S. Army in federal court seeking repatriation of not only the remains of Hensley, but those of another boy named Samuel Gilbert who died of pneumonia on Oct. 24, 1895, just 47 days after his arrival in Carlisle.

Both boys are believed to be buried in the Carlisle Barracks Post Cemetery along Claremont Road. Their bodies may have been moved in 1927 from the original Indian School cemetery that was located in the vicinity of present-day Root Hall.

The lawsuit focuses on the Army’s alleged refusal to follow the federal Native American Grave Protection and Repatriation Act of 1990 to end the robbery, desecration and exploitation of Native American burial sites by the Army and other federal agencies, according to a news release issued by the tribe.

“Instead of following NAGPRA to repatriate remains from Carlisle, the Army has been forcing tribal nations to follow a toothless process of the Army’s own design, which contains none of the rights and protection for tribal nations granted by Congress,” the tribe said in a statement.

The Disinterment and Return Process has been used for years by the Office of Army Cemeteries to evaluate requests for the repatriation of remains that are believed to be buried in the Post Cemetery. The office is one of the federal agencies named in the lawsuit filed in the U.S. District Court for the Eastern District of Virginia.

“The Army cannot speak to ongoing litigation,” said Olivia Van Den Heuvel, Office of Army Cemeteries spokeswoman. “The Army remains committed to working with all tribes and families to return their children who died while attending the Carlisle Indian Industrial School and are buried at the Carlisle Barracks Post Cemetery, to their native tribes and lands.”

From 2017 to 2023, the Army, at its own expense, returned 32 sets of remains to their tribes and lands. The Office of Army Cemeteries has the documents to return an additional 30 sets of remains during 2024 and 2025 fiscal years, Van Den Heuvel said.

Of the 229 burial plots in the Post Cemetery, 180 are believed to contain the remains of Native American children and young adults who attended Carlisle, which was the first nonreservation boarding school in the country. Close to 8,000 youths went through the school while it occupied the Carlisle Barracks campus for almost 40 years from 1879 to 1918.

The school was designed as a social experiment to remove youths from tribal influence, assimilate them into the white man’s culture and teach them a vocation. These goals traumatized many of the children and their families.

On Oct. 16, 2023, the Winnebago tribe sent a formal letter to the Army to repatriate the remains of Hensley and Gilbert within 90 days pursuant to the federal act. On Dec. 11, 2023, the tribe received a letter back from Karen Durham-Aguilera, executive director of the Office of Army Cemeteries, which denied the request and refused to repatriate the remains.

In her letter, Durham-Aguilera said the office would only consider processing the request under the protocols spelled out under the Disinterment and Return Process, according to information in the lawsuit. The lawsuit names Durham-Aguilera as a defendant, along with the U.S. Department of the Army, Secretary of the Army Christine E. Wormuth, Director of the Office of Arm Cemeteries Renea C. Yates and the current Carlisle Barracks garrison commander, Army Lt. Col. Priscella A. Nohle.

“Defendants’ denial and continuing refusal to comply with Winnebago’s repatriation request violates NAGPRA,” the lawsuit reads. “Under the process, defendants retain complete discretion over whether to return the boys’ remains at all. And if the defendants decide to return the remains, the process provides no timeline, allowing defendants to drag their feet and adopt generic protocols for disinterment instead of those aligned with Winnebago cultural traditions.

“Defendants will not return Samuel and Edward to Winnebago directly or by its request alone,” the lawsuit continues. “Instead, defendants require a ‘closest living relative’ — a concept that is nowhere defined and nearly impossible to apply in these circumstances — to initiate the OAC Disinterment and Return Process.”

In September 1895, Army officials removed Gilbert and Hensley from their home in Nebraska and sent them to Carlisle, the tribe said. “The school kept news of the boys’ deaths and burials from the families and Winnebago. According to Winnebago’s traditional beliefs, Samuel’s and Edward’s spirits will remain lost until they are returned home and laid to rest in accordance with Winnebago’s customs.”

“As a mother and grandmother, I stand for Samuel and Edward, knowing that their parents and grandparents were never able to properly bury them and send them on their final journey,” said Sunshine Thomas-Bear, NAGPRA representative and tribal historic preservation officer for Winnebago.

“The traditional name for the Winnebago people is ‘Ho-Chunk,’ which translates to ‘the big voice,'” said Victoria Kitcheyan, chairwoman of the Winnebago. “As we have always done, we will use our voice to hold our federal partners accountable for undermining NAGPRA and diluting the protections it guarantees to all Tribal Nations. Many leaders before us fought for that law and we will carry the battle forward.”

The tribe is represented by its general counsel at Big Fire Law & Policy Group LLP, and by legal counsel at the Native American Rights Fund and Cultural Heritage Partners.

“The Army at Carlisle has been defying Congress and abusing Tribal Nations in the shadows,” said Greg Werkheiser, a Cultural Heritage Partners attorney. ” Winnebago now brings this misbehavior into the sunlight, trusting the attention of the courts, Congress and the public will cure this injustice.”


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