The Office of Army Cemeteries is blocking the return of remains of children who died at the infamous Carlisle school.
By Mary Annette Pember ,
PublishedAugust 31, 2024
Tombstones of Native children are decorated with small tokens of memory at the old Carlisle Indian School Cemetery, now located on the grounds of the United States Army War College in Carlisle, Pennsylvania, in August, 2010
Andrew Lichtenstein / Corbis via Getty Images
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WARNING: This story contains disturbing details about residential and boarding schools. If you are feeling triggered, here is a resource list for trauma responses from the National Native American Boarding School Healing Coalition in the U.S. In Canada, the National Indian Residential School Crisis Hotline can be reached at 1-866-925-4419.
Hiding in the shadows of the U.S. government’s boarding school investigation is an obscure agency with broad control over the remains of about 180 Native children who died at Carlisle Indian Industrial School.
“As long as the Army can avoid scrutiny and accountability and maintain absolute control over the remains, it doesn’t care if tribes’ rights as sovereigns are abused in the process,” said Greg Werkeiser, an attorney with Cultural Heritage Partners, which has joined with the Native American Rights Fund in representing the Winnebago Tribe of Nebraska in a lawsuit over the issue, along with the tribe’s general counsel, Danelle Smith, at Big Fire Law & Policy Group.
The final investigative report from the U.S. Department of the Interior’s Federal Indian Boarding School Initiative makes only passing reference to the U.S. Office of Army Cemeteries. The small agency oversees all graves at Army installations across the United States as well as the graves of children buried at the Carlisle Barracks Main Post Cemetery in Pennsylvania.
The office is now at the center of a legal battle, however, between tribal nations and the U.S. government over whether the Native American Graves Protection and Repatriation Act, known as NAGPRA, should apply to the military.
The dispute pits tribal sovereignty — and a tribe’s right to claim the remains of its own citizens — against military regulations designed for deceased soldiers and their families. It also has raised questions about the handling of archeological sites identified on military property.
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For many, it is yet another abuse of power by the U.S. military, which for decades played a key role in forcing Native children to attend federal boarding schools that worked to strip them of their culture, identity and language.
“As long as the Army can avoid scrutiny and accountability and maintain absolute control over the remains, it doesn’t care if tribes’ rights as sovereigns are abused in the process,” said Greg Werkeiser, an attorney with Cultural Heritage Partners, which has joined with the Native American Rights Fund in representing the Winnebago Tribe of Nebraska in a lawsuit over the issue, along with the tribe’s general counsel, Danelle Smith, at Big Fire Law & Policy Group.
“Asking tribes to subserviate themselves once again just continues the Army’s tradition of abuses,” Werkeiser said. “Some traditions need to end.”
Under NAGPRA, a request from a tribe would be sufficient to bring the remains back to their homelands. Museums, universities and other institutions are scrambling to comply with new NAGPRA regulations issued in January that speed up the process of repatriation.
The Office of Army Cemeteries, however, says its own regulations for soldiers and their families should apply, requiring that next of kin make a request for remains. But identifying next of kin can often be nearly impossible for children who died at boarding schools more than 100 years ago with sometimes only a tribal affiliation and Anglicized name to identify them.
“The Native students who died at Carlisle were kids; they didn’t have a chance to have families,” Werkeiser said.
To the casual observer, the question of following NAGPRA might seem like a minor point. Under both NAGPRA and the Office of Army Cemeteries’ policies, the goal is to return Indigenous remains to their homelands, and the Army has launched a new “multi-phase disinterment project” that is set to include the return of 11 remains from the Carlisle cemetery in September.
In a move many find mystifying, however, the U.S. Army and the Office of Army Cemeteries have dug in their heels on whether NAGPRA applies, even as the country moves forward with acknowledging its ugly boarding school history.
An investigation by ICT has learned that the office’s unusual history and handling of remains may offer some clues to its intractability on the issue, including the government’s past record of lost or mixed-up graves and a growing number of unidentified remains.
The dispute has left the Army withholding the remains of some children from tribes that won’t, or can’t, acquiesce to the military conditions.
A National Scandal
The Office of Army Cemeteries was created in 2014 after the Army faced an embarrassing national scandal that erupted over long-simmering problems with mishandling of soldiers’ remains at Arlington National Cemetery, “our nation’s most sacred shrine.”
The allegations surfaced in 2008 after the widow of a U.S. soldier complained that the wrong headstone had been placed on her husband’s grave. Pentagon officials found, instead, that two soldiers had been buried in the same grave.
A series of stories beginning in 2009 by the news site Salon found a history of poor record-keeping and other mismanagement at the cemetery, including reports that leaders spent millions of dollars on questionable contractors with little to show for their efforts.
In late 2009, Secretary of the Army John McHugh ordered an internal probe.
“This is the place where valor rests, a place of reverence and respect for all Americans,” McHugh said at the time. “As the final resting place of our nation’s heroes, any questions about the integrity or accountability of its operations should be examined in a manner befitting their service and sacrifice.”
A later investigation in 2010 led by a Senate Subcommittee found that between 4,000 to 6,000 graves at the cemetery were unmarked, improperly marked or mislabeled on maps. There were also news reports of cremated remains accidentally dumped into a landfill, of numerous cremains buried in gravesites along with other remains and financial irregularities.
Among the issues uncovered by news organizations and government scrutiny were allegations that the cemetery’s superintendent and deputy superintendent had mishandled government funds in paying contractors to digitize the cemetery records but with little to show for it. The deputy superintendent was a former security guard who had been placed in charge of monitoring the daily cash flow with little training in government contracting, according to a report in the Washington Post.
The men eventually lost their jobs but were allowed to retire with benefits, and no charges were filed.
McHugh apologized during a 2010 press conference recorded by C-Span, and announced the creation of a new agency, the Army Cemeteries National Advisory Commission, to “establish a baseline of assurance and accountability” at Arlington. The office was later renamed the Office of Army Cemeteries, and its duties were expanded to include oversight of all Army cemeteries.
Since shortly after its inception, the Office of Army Cemeteries has been involved in a battle for power and authority over how the Army treats Indigenous remains buried on Army property.
According to its stated mission, the Office of Army Cemeteries is responsible for policy, training, and oversight of the Army cemetery enterprise, consisting of 30 Army cemeteries including Arlington National Cemetery.
The little cemetery at Carlisle, with its tidy rows of plain white headstones, is also under the office’s purview. The cemetery contains the graves of an estimated 180 Native children who died while attending the Carlisle Indian Industrial School, which operated from 1879 to 1918 in Carlisle, Pennsylvania.
Several other federal boarding schools also operated on military lands, but all except Carlisle have been relinquished to other agencies or tribes.
Working to “Build Trust”
The Office of Army Cemeteries received a brief mention in the second and final report of the Federal Indian Boarding School Initiative, released in July by the Department of the Interior.
“The Department supports the Office of Army Cemeteries (OAC), United States Army, collaborating with Indian Tribes, Alaska Native Villages, and descendants regarding human child remains buried at the Carlisle Barracks Main Post Cemetery consistent with specific Tribal practices for disinterment, continued safeguarding of child remains at the cemetery, or headstone modification,” the report noted.
But the report doesn’t address whether NAGPRA should apply to the military, or acknowledge a lawsuit filed in January 2024 in federal court in Virginia by the Winnebago Tribe. The tribe filed suit after the office refused the tribe’s request made under NAGPRA to return the remains of Samuel Gilbert, who died at age 19 on Oct. 24, 1895, and Edward Hensley, who died on Jan. 29, 1899, at age 20.
Both Winnebago boys died of pneumonia, according to records kept by the Carlisle Indian School Digital Resource Center. A short article in The Indian Helper, Carlisle’s school newspaper, noted that Hensley was a “band boy, a tinner by trade and a most excellent young man, beloved by all.”
The Army filed a motion to dismiss the Winnebago suit in May, stating that the Office of Army Cemeteries “is willing to carry out the disinterment and return of both children entirely at the Army’s expense,” but only under the office’s current regulations.
Army attorneys argued that NAGPRA shouldn’t apply to the children’s graves at Carlisle, saying the cemetery does not constitute a “holding or collection” such as a museum or university would have, as described under the NAGPRA provisions.
“One thing the Act does not do is require managers to unearth the dead,” attorneys wrote in court documents. “The Army is trying to do the right thing in honoring the remains of Samuel Gilbert and Edward Hensley and all those interred at the Post cemetery in Carlisle; this lawsuit will not advance either goal.”
Beth Wright, an attorney at the Native American Rights Fund and a citizen of the Laguna Pueblo, said the office’s policies undermine tribal sovereignty.
“Under their policy, they have no government-to-government relationship with tribal nations,” said Wright, who is working with Werkeiser in representing the Winnebago Tribe.
The creation of NAGPRA, which was approved by Congress in 1990, acknowledged the Army’s stormy history with Indigenous people. During a 1990 U.S. Senate committee hearing on NAGPRA, then-Sen. Daniel Inouye noted that the Army frequently plundered Indian burial grounds for research.
“When the Army Surgeon General ordered the collection of Indian osteological remains during the second half of the 19th century, his demands were enthusiastically met by Army personnel,” said Inouye, a Democrat from Hawai’i who died in 2012 at age 88.
In recent interviews and public statements, the Office of Army Cemeteries has expressed regret for the Army’s historical relationship with tribes and expressed a desire to work together.
“I can give you 150 years’ worth of reasons why tribes shouldn’t trust the United States Army,” said Justin Buller, attorney for the Army. “But ours is an ongoing program where we are continuing to build trust.”
The legal dispute took a turn on Aug. 22, when a federal judge in Virginia dismissed the Winnebago Tribe’s lawsuit, saying the U.S. Army is not required by law to return the remains of two who died at Carlisle.
The tribe vowed to appeal the decision.
“In refusing to recognize and honor Tribal nations’ NAGPRA rights at Carlisle, the Army affronts tribal sovereignty and harms tribal cultural and religious practices,” the Native American Rights Fund said in a statement released after the decision.
“The Army is defying Congressional intent, perpetuating the very injustices that led to the creation of NAGPRA,” according to the statement. “Congress crafted NAGPRA to ensure exactly what Winnebago seeks in this lawsuit — vindicating the sovereign prerogative of Tribal nations to facilitate the culturally appropriate repatriation of their relatives’ remains in the wrongful possession or control of federal agencies.”
“Peace and Closure”
The Office of Army Cemeteries has now launched the disinterment project, pledging to work with tribes to accommodate tribal customs and requirements.
The plan calls for 11 disinterments and return of remains in September, with another 18 scheduled for 2025. Among the graves, 17 are marked as unknown.
Since 2017, the office has disinterred and returned to 18 tribes the remains of 32 children who died and were buried at Carlisle. Indeed, the office has shown willingness to adapt and change its rules in response to tribal requests and complaints.
In 2023, officials for the office signed an unprecedented agreement with the Sisseton Wahpeton Oyate tribe of South Dakota in which the Army not only disinterred and returned the remains of two children but also provided buffalo robes for their remains and firewood for a sweat lodge built on cemetery grounds. The office also permitted tribal members to conduct ceremony, and paid most of the costs associated with the process.
“The return of these children to their Native American families is one of the Army’s highest priorities and we hope it will bring them the long-awaited peace and closure they deserve,” said Karen Durham-Aguilera, executive director of Army National Military Cemeteries and the Office of Army Cemeteries, in a statement to ICT regarding the upcoming disinterment and return planned for September.
“We will continue to work with families and tribes in their courageous undertaking to return these children home,” Durham-Aguilera said.
The handling of cases appears to have been inconsistent, however, with the office continuing to insist that the “closest living relative” of the child must initiate the request for repatriation.
“We give great deference to traditional tribal knowledge; if a tribe comes to us and says this person is indeed the closest living relative of the deceased child, we’re not questioning that,” Buller said in a July 2024 Zoom interview with ICT. “We have never questioned a claim from a tribe.”
But in an earlier email statement in 2023 to ICT, Renea Yates, director of the Office of Army Cemeteries, wrote, “Under Army policy and because we have custody of the remains, we have to allow family to be the one who notifies us. Tribal requests cannot be made. It has to be the individual, closest family member.”
In several cases, in fact, the Army has refused to return children if tribes fail to adhere to the office’s internal processes, and the office is currently refusing to return the remains of the Winnebago children cited in the tribe’s lawsuit.
In 2016, the Army initially refused the Sisseton Wahpeton Oyate’s request under NAGPRA for the return of the remains of two students, Amos LaFromboise and Edward Upright. Amos was a Sisseton Wahpeton Oyate boy who died at just 13 years old; Edward, of the Spirit Lake Tribe, also died at age 13.
Finally, after attorneys from the Native American Rights Fund sent a letter to the Army in 2023 stating that the statute does indeed apply, the Army agreed to negotiate an agreement with the tribe but stated in no uncertain terms that it was not submitting to NAGPRA.
“The Army responded only after media and NARF got involved,” Tamara St. John, archivist for the Sisseton Wahpeton Oyate’s tribal historic preservation office, told ICT in an interview in 2023. “They created an atmosphere of conflict and division.”
Records show that tribal requests for the return of remains date back to at least 2007, although officials have claimed the Army was unaware until 2016 that tribes were interested in seeking the return of children.
“We never knew at headquarters … that there were tribes interested in the return of their children from Carlisle Barracks until we received requests in early 2016,” Buller said in the recent interview with ICT.
The Northern Arapaho Tribe of Wyoming, however, wrote to the Army in 2007 asking for return of the remains of Dickens Nor, who died at Carlisle in 1883 at age 14 from unspecified causes.
Army legal officer Thomas Kane denied the Northern Arapaho Tribe’s request and described the cemetery as a tribute to Native people that draws visitors, according to The Lakota Times.
“Basically, he said it’s an attraction, a tourism site,” said Yufna Soldier Wolf, then-director of the tribe’s historic preservation office, in an interview with The Riverton Ranger.
“There have been other tribes that have wanted their children repatriated from that area,” Soldier Wolf told Wyoming Public Media. “It’s been a big fight. For some reason, they don’t want to let the children go up there. It’s really about the idea of finally bringing these kids home after 150 years.”
Eventually, in 2017, the Army returned two Arapaho children — Dickens Nor or Little Chief, and Horace Washington or Horse. Although the tribe had also sought the return of Hayes Vanderbilt or Little Plume, the remains in her grave didn’t match. So the bones were returned to the grave with a new headstone, marked “Unknown.”
The Army then created in 2017 its own process for returning children’s remains to tribes.
Wright and Werkeiser claim that some tribes have capitulated to the Army’s demands rather than endanger the return of their children. Shannon O’Loughlin, chief executive of the Association on American Indian Affairs, agrees.
“Many tribes are worried if they bring controversy to the process, it will further delay the return of their ancestors,” said O’Loughlin, a citizen of the Choctaw Nation.
When the Rosebud Sioux Tribe brought home the remains of nine children from Carlisle in 2021, they did so under the Army’s rules.
“We didn’t want to pick a fight because we want our bodies back,” Lloyd Guy, general counsel for the tribe, said in an interview with Native News Online.
Guy told Native News Online that although he and the tribe disagreed with the Army’s interpretation of NAGPRA, they didn’t want that to stand in the way of repatriating their children.
Stringent New Guidelines
New NAGPRA rules released in January have put additional pressure on museums, universities and other institutions with Indigenous remains or cultural items, forcing some to close off entire exhibits until the items could be further identified.
The new regulations — deemed the “final rule” on NAGPRA — require that tribal requests for repatriation of remains must be addressed within 90 days, a far shorter timeline than had typically been used in the past. The new rules also give institutions until 2029 to notify tribes that their holdings or collections may include Indigenous remains or cultural items affiliated with the tribe.
Werkeiser noted that under the Office of Army Cemeteries’ internal regulations, there is no urgency or timeline for responding to requests for disinterment.
“NAGPRA has very specific guidelines for the timeliness of the process,” Werkeiser said. “There’s nothing under the Army’s current policy that speaks to a timeline or requires them to continue dealing with tribes.”
Olivia Van Den Heuvel, public affairs specialist for the Office of Army Cemeteries and Arlington Cemetery, said the office’s policies are beneficial to tribes.
“The process the Army uses has several advantages over the NAGPRA claim process,” Van Den Heuvel wrote in an email to ICT. “This process only requires two straightforward documents to be completed by the family and tribe, which the Army is prepared to provide assistance with, including sending Army personnel at Army expense to the tribe or family to assist in person.”
“Finally,” she continued, “the process under Army regulation pays for the expenses associated with the disinterment, transportation, reburial, and travel expenses for two family members and two tribal representatives to be present for the disinterment. Repatriation under NAGPRA pays for none of these expenses.”
While NAGPRA has no direct mechanism for funding, there are several grants available under the statute to assist with costs of repatriation. And there is nothing in the statute precluding the Army from paying for all or part of the process, according to Werkeiser.
“I don’t think it’s about money for tribes,” he said. “I think they will get their children’s remains returned to them by any means.”
The Army’s internal documents further confuse the issue.
In a 2014 memo, the Department of the Army states, “NAGPRA applies to all Army commands, installations and activities and places affirmative duties on the Army for the protection, inventory and disposition of Native American cultural items.”
Melanie O’Brien, manager of the national NAGPRA program within the National Park Service, said the decision whether it applies appears to be discretionary.
“It is up to the federal land manager to determine when NAGPRA applies to their lands,” she said in an email to ICT.
In a follow-up email, however, she pointed to a quote from the Department of the Interior published in the National Register about the recent changes in NAGPRA.
“We agree with the comment that the intentional excavation provisions of NAGPRA apply to the human remains and cultural items disinterred from cemeteries on federal and tribal lands,” O’Brien wrote.
Avoiding Future Scandal
Tensions apparently remain, however, over the office’s dealings with some tribal leaders.
Army officials who asked not to be identified described to ICT a dictatorial, racist culture within the office and an ironclad commitment to following directives and regulations created in the wake of the Arlington scandal — rules that don’t apply to a cemetery filled with children.
The primary concern now appears to be to protect the Army from future scandal, one of the officials said.
“The Office of Army Cemeteries as we see it today emerged out of the Arlington Cemetery scandal,” the official said. “So, by God, they think they should be the boss of anyone buried on Army land.”
The officials who spoke to ICT reported that during a meeting of about 10 people at an Army facility about two years ago, personnel from the Office of Army Cemeteries described how they went to great lengths to ensure that different Native nations would not meet each other during scheduled disinterments.
“They said they had to make sure different tribes wouldn’t interact because historically they were enemies and might cause trouble,” the official said. “Their program is set up based on such racial stereotypes.”
Later, in response, Buller said that he recalled an incident in which a tribe requested another tribe not be present during a disinterment.
Regarding claims of racism within the office, Yates said during the Zoom interview with ICT, “I’d like to say that has not happened since I’ve been with the director’s office on cemeteries. And every year we work diligently to work with each and every individual tribe to accommodate and meet their wishes.”
The other Army officials who spoke to ICT also described how representatives from the Office of Army Cemeteries bragged to the group that the Army would be destroying all the headstones of children returned from Carlisle, rather than turning them over to families.
“Some families requested the headstones because it represented written proof that their child died in federal custody,” a source said. “Representatives of the Office of Army Cemeteries declared they are holding firm because the headstones are Army property.”
Buller confirmed that according to Army regulation, the headstones are destroyed so they can’t be reused. The same policy is used for soldiers, officials said.
“We do offer rubbings of the headstones to families if they request it,” Buller said.
Tensions have also emerged over new efforts by the office to exert control over Indigenous burial grounds, some over 500 years old, on Army lands.
Officials would not disclose the number of such burial sites, but indicated that there are several on various Army controlled lands. Officials were also unsure of any possible plans the office has in exerting control over historic burial sites.
“Basically they want to expand their jurisdiction over any human being buried on Army land for any reason; currently historic Indigenous burial grounds are unmarked,” the officials told ICT. “They want to declare all burial grounds on Army lands as Army cemeteries.”
Many of the employees at the Office of Army Cemeteries are undertakers by trade and training, “yet they’ve decided they know more about Indigenous burials than cultural resource managers, Army liaisons and archeologists,” a source told ICT.
Office of Army Cemeteries officials verified that many of its 17 full-time employees have training and experience in the mortuary sciences.
According to Yates, overseeing historic burial sites is a new responsibility for her office. She deferred to Buller in answering questions during the Zoom interview.
“There is a whole new mechanism across Army, Air Force, Navy and the Office of the Secretary of Defense to ensure that all Department of Defense cemeteries are properly cared for,” Buller said. “This includes burial sites across the Department of the Army, not just traditional cemeteries.”
Representatives of the Office of Army Cemeteries said they work with cultural resource managers to ensure burial markings are dignified and appropriate. “We’re ensuring proper management,” Buller said.
The office works in conjunction with tribes, Native Hawaiian and Alaska Native families through consultation and ongoing conversations, Buller said. In 2016, members of the office met with members of the Northern Arapaho Tribes to create the policy on Native peoples.
The Army officials who spoke with ICT, however, described the office’s leadership as misinformed.
They described attending mandated Office of Army Cemetery training sessions that included day-long presentations regarding the handling of funeral flowers.
“We haven’t had a burial on our base in over 80 years,” one official said. “Somebody really needs to challenge their whole operation and get them out of anything to do with Indigenous peoples.”
Boarding School Past
In addition to its role in battling and policing Native nations from the days of the American Revolution and beyond, the U.S. Army also has had a checkered past with Indian boarding schools.
Carlisle, the first federal Indian boarding school, was founded in 1879 by Army Brigadier Gen. Richard Henry Pratt, who is credited with the phrase, “kill the Indian, save the man.” His previous experience operating a military prison school for Native Americans at Fort Marion in Augustine, Florida, shaped nearly every aspect of the Carlisle school experience.
From its beginning in 1879, federal Indian boarding school life was modeled after military life, with uniforms for boys, drills, marches and ranks, according to Barbara Landis, former Carlisle Indian school biographer for the Cumberland County Historical Society.
The Army’s sloppy handling and poor record-keeping regarding human remains at the schools also extends back for generations.
Records show that the Army has already unearthed the children’s remains at Carlisle at least once before. In 1927, Army officials at the Carlisle barracks disinterred and moved the entire cemetery in order to make way for what an Army report described as a parking lot.
According to the Army’s research published in 2017, the move was conducted in an especially haphazard, poorly documented manner. There is almost no record of the move apart from a brief mention in the local newspaper at the time, reporting that the relocation crew consisted of 16 men hired for that purpose. Workers also found several more graves than expected.
“Reinterment occurred immediately after disinterment; there are no indications that grave contents were examined, inventoried or otherwise documented,” researchers wrote. “No attempt was made to organize the graves according to their sequence from the Carlisle Indian School cemetery.”
The original cemetery was located on the north side of the barracks, overlapping at least one existing cemetery used for soldiers and their families prior to the opening of the school.
“(Student’s) graves were scattered more or less at random,” the report noted, citing a 1997 interview with a researcher. Student deaths were also poorly documented, and ICT reported earlier this year that Pratt was known to underreport deaths at the school in order to disguise the high mortality rates among students from disease.
In addition to the 180 Native students buried in the current cemetery, there are at least 17 unknown graves, according to the Army research document and information provided by Van Den Heuval. In at least three instances, planned repatriations of student remains were halted after officials discovered the remains didn’t match the information on their grave markers.
Indeed, in the very first disinterment in 2017, officials expected to disinter the girl, Hayes Vanderbilt, of the Northern Arapaho Tribe. The remains in the gravesite, however, were inconsistent with the child’s age and gender. Officials concluded the grave contained the remains of two unidentified people, a teenage male and a person of undetermined age and gender.
In 2022 and 2023, officials discovered the remains buried in the graves of Wade Ayres of the Catawba Indian Nation of South Carolina and Edward Spott of the Puyallup Tribe of Indians were also inconsistent with their respective ages and genders. The remains were reburied and marked with headstones reading “Unknown.”
A ground-penetrating radar survey of the Carlisle Indian School Cemetery, the Old Burial Ground and the Carlisle Barracks Post Cemetery in 2017 indicates that there may be other unmarked graves at or near the sites.
“It should be noted that the grounds of Carlisle Barracks have been in use as a military facility or school since the 1750s; it is not unlikely that there could be unmarked of unidentified remains found on the property that are not connected to the children who tragically died while attending Carlisle school,” Van Den Heuval wrote in an email to ICT.
Indeed, there likely are other graves misidentified. Although barracks leaders were instructed to create a report following the reinterment of the children’s remains in 1927, it does not appear to have ever been done.
“The remains they’re turning up do not match the sex and age of the person marked on the headstones,” said Jason Searle, an attorney with the Native American Rights Fund told HuffPost.
The Office of Army Cemeteries has no capability to conduct DNA analysis on remains, according to Buller. Officials say they do non-destructive analyses of the remains to determine approximate age and gender.
Buller said Army officials believe that most of the records are accurate.
“We believe that the majority of the children lie under the headstones that represent them in the cemetery,” Buller said.
Winnebago Lawsuit
The Winnebago Tribe eventually decided to challenge the Army in court, according to Werkeiser.
“Ultimately, the Winnebago Tribe decided that enough is enough,” Werkeiser said. “The Army is inherently and historically an oppressive institution when it comes to Native people. Regardless of the respectful language the Office of Army Cemeteries uses in its press releases surrounding the disinterment and return of children’s remains, it is still an example of the Army keeping tribes underfoot.
“They’re not going to put up with this kind of forced sacrifice of their federal rights,” he said.
In a January 2024 interview with Huffpost, Sunshine Thomas-Bear, the tribe’s NAGPRA representative, described an interaction with Buller when she contacted the office regarding return of the two boys’ remains.
When told that there were no family descendants available to file requests for the boys’ return, Buller suggested the tribe pass a resolution naming Thomas-Bear as the closest living relative, according to Thomas-Bear.
Both Thomas-Bear and the tribal council declined to pass legislation that they said would amount to lying, Huffpost reported.
“When you get to the point that you have a federal agency saying, ‘Just make it up and fill out the form,’ we have a problem,” Werkheiser told the news organization.
The Winnebago Tribe has drawn the backing of other tribes. Documents were filed in May 2024 in support of the tribe’s legal action by the Catawba Nation and the United South and Eastern Tribes Sovereignty Protection Fund, a nonprofit inter-tribal organization advocating on behalf of 33 federally recognized tribes from the Northeastern Woodlands to the Everglades.
According to the protection fund’s attorneys, however, the Army’s current actions should not be viewed as generous or benevolent.
“The Army must stop treating our children as militants and prisoners of war and instead afford them the protections of NAGPRA,” attorneys wrote. “The Army’s position today directly contradicts important truth and reconciliation work the U.S. is undertaking with regard to federal boarding schools.”
The tribe indicated it will continue the legal fight despite the judge’s ruling.
“This case transcends the repatriation of two young boys; it strikes at the heart of tribal sovereignty and the sacred duty to honor and ensure Native American ancestors are treated with the dignity and respect they deserve, ” Werkheiser said in a statement after the judge’s ruling.
“We’re eager to take this fight to the Fourth Circuit and secure a ruling that holds federal agencies accountable to fully comply with NAGPRA,” he said. “The fight for justice isn’t over.”
ICT producer/reporter Stewart Huntington contributed to this report.
Mary Annette Pember is an independent journalist and has been writing about Native people and issues since 2000 for Indian Country Today, Rewire.News, the Guardian and others. She is an enrolled member of the Red Cliff Band of Wisconsin Ojibwe.
For many, it is yet another abuse of power by the U.S. military, which for decades played a key role in forcing Native children to attend federal boarding schools that worked to strip them of their culture, identity and language.
“As long as the Army can avoid scrutiny and accountability and maintain absolute control over the remains, it doesn’t care if tribes’ rights as sovereigns are abused in the process,” said Greg Werkeiser, an attorney with Cultural Heritage Partners, which has joined with the Native American Rights Fund in representing the Winnebago Tribe of Nebraska in a lawsuit over the issue, along with the tribe’s general counsel, Danelle Smith, at Big Fire Law & Policy Group.
“Asking tribes to subserviate themselves once again just continues the Army’s tradition of abuses,” Werkeiser said. “Some traditions need to end.”
Under NAGPRA, a request from a tribe would be sufficient to bring the remains back to their homelands. Museums, universities and other institutions are scrambling to comply with new NAGPRA regulations issued in January that speed up the process of repatriation.
The Office of Army Cemeteries, however, says its own regulations for soldiers and their families should apply, requiring that next of kin make a request for remains. But identifying next of kin can often be nearly impossible for children who died at boarding schools more than 100 years ago with sometimes only a tribal affiliation and Anglicized name to identify them.
“The Native students who died at Carlisle were kids; they didn’t have a chance to have families,” Werkeiser said.
To the casual observer, the question of following NAGPRA might seem like a minor point. Under both NAGPRA and the Office of Army Cemeteries’ policies, the goal is to return Indigenous remains to their homelands, and the Army has launched a new “multi-phase disinterment project” that is set to include the return of 11 remains from the Carlisle cemetery in September.
In a move many find mystifying, however, the U.S. Army and the Office of Army Cemeteries have dug in their heels on whether NAGPRA applies, even as the country moves forward with acknowledging its ugly boarding school history.
An investigation by ICT has learned that the office’s unusual history and handling of remains may offer some clues to its intractability on the issue, including the government’s past record of lost or mixed-up graves and a growing number of unidentified remains.
The dispute has left the Army withholding the remains of some children from tribes that won’t, or can’t, acquiesce to the military conditions.
A National Scandal
The Office of Army Cemeteries was created in 2014 after the Army faced an embarrassing national scandal that erupted over long-simmering problems with mishandling of soldiers’ remains at Arlington National Cemetery, “our nation’s most sacred shrine.”
The allegations surfaced in 2008 after the widow of a U.S. soldier complained that the wrong headstone had been placed on her husband’s grave. Pentagon officials found, instead, that two soldiers had been buried in the same grave.
A series of stories beginning in 2009 by the news site Salon found a history of poor record-keeping and other mismanagement at the cemetery, including reports that leaders spent millions of dollars on questionable contractors with little to show for their efforts.
In late 2009, Secretary of the Army John McHugh ordered an internal probe.
“This is the place where valor rests, a place of reverence and respect for all Americans,” McHugh said at the time. “As the final resting place of our nation’s heroes, any questions about the integrity or accountability of its operations should be examined in a manner befitting their service and sacrifice.”
A later investigation in 2010 led by a Senate Subcommittee found that between 4,000 to 6,000 graves at the cemetery were unmarked, improperly marked or mislabeled on maps. There were also news reports of cremated remains accidentally dumped into a landfill, of numerous cremains buried in gravesites along with other remains and financial irregularities.
Among the issues uncovered by news organizations and government scrutiny were allegations that the cemetery’s superintendent and deputy superintendent had mishandled government funds in paying contractors to digitize the cemetery records but with little to show for it. The deputy superintendent was a former security guard who had been placed in charge of monitoring the daily cash flow with little training in government contracting, according to a report in the Washington Post.
The men eventually lost their jobs but were allowed to retire with benefits, and no charges were filed.
McHugh apologized during a 2010 press conference recorded by C-Span, and announced the creation of a new agency, the Army Cemeteries National Advisory Commission, to “establish a baseline of assurance and accountability” at Arlington. The office was later renamed the Office of Army Cemeteries, and its duties were expanded to include oversight of all Army cemeteries.
Since shortly after its inception, the Office of Army Cemeteries has been involved in a battle for power and authority over how the Army treats Indigenous remains buried on Army property.
According to its stated mission, the Office of Army Cemeteries is responsible for policy, training, and oversight of the Army cemetery enterprise, consisting of 30 Army cemeteries including Arlington National Cemetery.
The little cemetery at Carlisle, with its tidy rows of plain white headstones, is also under the office’s purview. The cemetery contains the graves of an estimated 180 Native children who died while attending the Carlisle Indian Industrial School, which operated from 1879 to 1918 in Carlisle, Pennsylvania.
Several other federal boarding schools also operated on military lands, but all except Carlisle have been relinquished to other agencies or tribes.
Working to “Build Trust”
The Office of Army Cemeteries received a brief mention in the second and final report of the Federal Indian Boarding School Initiative, released in July by the Department of the Interior.
“The Department supports the Office of Army Cemeteries (OAC), United States Army, collaborating with Indian Tribes, Alaska Native Villages, and descendants regarding human child remains buried at the Carlisle Barracks Main Post Cemetery consistent with specific Tribal practices for disinterment, continued safeguarding of child remains at the cemetery, or headstone modification,” the report noted.
But the report doesn’t address whether NAGPRA should apply to the military, or acknowledge a lawsuit filed in January 2024 in federal court in Virginia by the Winnebago Tribe. The tribe filed suit after the office refused the tribe’s request made under NAGPRA to return the remains of Samuel Gilbert, who died at age 19 on Oct. 24, 1895, and Edward Hensley, who died on Jan. 29, 1899, at age 20.
Both Winnebago boys died of pneumonia, according to records kept by the Carlisle Indian School Digital Resource Center. A short article in The Indian Helper, Carlisle’s school newspaper, noted that Hensley was a “band boy, a tinner by trade and a most excellent young man, beloved by all.”
The Army filed a motion to dismiss the Winnebago suit in May, stating that the Office of Army Cemeteries “is willing to carry out the disinterment and return of both children entirely at the Army’s expense,” but only under the office’s current regulations.
Army attorneys argued that NAGPRA shouldn’t apply to the children’s graves at Carlisle, saying the cemetery does not constitute a “holding or collection” such as a museum or university would have, as described under the NAGPRA provisions.
“One thing the Act does not do is require managers to unearth the dead,” attorneys wrote in court documents. “The Army is trying to do the right thing in honoring the remains of Samuel Gilbert and Edward Hensley and all those interred at the Post cemetery in Carlisle; this lawsuit will not advance either goal.”
Beth Wright, an attorney at the Native American Rights Fund and a citizen of the Laguna Pueblo, said the office’s policies undermine tribal sovereignty.
“Under their policy, they have no government-to-government relationship with tribal nations,” said Wright, who is working with Werkeiser in representing the Winnebago Tribe.
The creation of NAGPRA, which was approved by Congress in 1990, acknowledged the Army’s stormy history with Indigenous people. During a 1990 U.S. Senate committee hearing on NAGPRA, then-Sen. Daniel Inouye noted that the Army frequently plundered Indian burial grounds for research.
“When the Army Surgeon General ordered the collection of Indian osteological remains during the second half of the 19th century, his demands were enthusiastically met by Army personnel,” said Inouye, a Democrat from Hawai’i who died in 2012 at age 88.
In recent interviews and public statements, the Office of Army Cemeteries has expressed regret for the Army’s historical relationship with tribes and expressed a desire to work together.
“I can give you 150 years’ worth of reasons why tribes shouldn’t trust the United States Army,” said Justin Buller, attorney for the Army. “But ours is an ongoing program where we are continuing to build trust.”
The legal dispute took a turn on Aug. 22, when a federal judge in Virginia dismissed the Winnebago Tribe’s lawsuit, saying the U.S. Army is not required by law to return the remains of two who died at Carlisle.
The tribe vowed to appeal the decision.
“In refusing to recognize and honor Tribal nations’ NAGPRA rights at Carlisle, the Army affronts tribal sovereignty and harms tribal cultural and religious practices,” the Native American Rights Fund said in a statement released after the decision.
“The Army is defying Congressional intent, perpetuating the very injustices that led to the creation of NAGPRA,” according to the statement. “Congress crafted NAGPRA to ensure exactly what Winnebago seeks in this lawsuit — vindicating the sovereign prerogative of Tribal nations to facilitate the culturally appropriate repatriation of their relatives’ remains in the wrongful possession or control of federal agencies.”
“Peace and Closure”
The Office of Army Cemeteries has now launched the disinterment project, pledging to work with tribes to accommodate tribal customs and requirements.
The plan calls for 11 disinterments and return of remains in September, with another 18 scheduled for 2025. Among the graves, 17 are marked as unknown.
Since 2017, the office has disinterred and returned to 18 tribes the remains of 32 children who died and were buried at Carlisle. Indeed, the office has shown willingness to adapt and change its rules in response to tribal requests and complaints.
In 2023, officials for the office signed an unprecedented agreement with the Sisseton Wahpeton Oyate tribe of South Dakota in which the Army not only disinterred and returned the remains of two children but also provided buffalo robes for their remains and firewood for a sweat lodge built on cemetery grounds. The office also permitted tribal members to conduct ceremony, and paid most of the costs associated with the process.
“The return of these children to their Native American families is one of the Army’s highest priorities and we hope it will bring them the long-awaited peace and closure they deserve,” said Karen Durham-Aguilera, executive director of Army National Military Cemeteries and the Office of Army Cemeteries, in a statement to ICT regarding the upcoming disinterment and return planned for September.
“We will continue to work with families and tribes in their courageous undertaking to return these children home,” Durham-Aguilera said.
The handling of cases appears to have been inconsistent, however, with the office continuing to insist that the “closest living relative” of the child must initiate the request for repatriation.
“We give great deference to traditional tribal knowledge; if a tribe comes to us and says this person is indeed the closest living relative of the deceased child, we’re not questioning that,” Buller said in a July 2024 Zoom interview with ICT. “We have never questioned a claim from a tribe.”
But in an earlier email statement in 2023 to ICT, Renea Yates, director of the Office of Army Cemeteries, wrote, “Under Army policy and because we have custody of the remains, we have to allow family to be the one who notifies us. Tribal requests cannot be made. It has to be the individual, closest family member.”
In several cases, in fact, the Army has refused to return children if tribes fail to adhere to the office’s internal processes, and the office is currently refusing to return the remains of the Winnebago children cited in the tribe’s lawsuit.
In 2016, the Army initially refused the Sisseton Wahpeton Oyate’s request under NAGPRA for the return of the remains of two students, Amos LaFromboise and Edward Upright. Amos was a Sisseton Wahpeton Oyate boy who died at just 13 years old; Edward, of the Spirit Lake Tribe, also died at age 13.
Finally, after attorneys from the Native American Rights Fund sent a letter to the Army in 2023 stating that the statute does indeed apply, the Army agreed to negotiate an agreement with the tribe but stated in no uncertain terms that it was not submitting to NAGPRA.
“The Army responded only after media and NARF got involved,” Tamara St. John, archivist for the Sisseton Wahpeton Oyate’s tribal historic preservation office, told ICT in an interview in 2023. “They created an atmosphere of conflict and division.”
Records show that tribal requests for the return of remains date back to at least 2007, although officials have claimed the Army was unaware until 2016 that tribes were interested in seeking the return of children.
“We never knew at headquarters … that there were tribes interested in the return of their children from Carlisle Barracks until we received requests in early 2016,” Buller said in the recent interview with ICT.
The Northern Arapaho Tribe of Wyoming, however, wrote to the Army in 2007 asking for return of the remains of Dickens Nor, who died at Carlisle in 1883 at age 14 from unspecified causes.
Army legal officer Thomas Kane denied the Northern Arapaho Tribe’s request and described the cemetery as a tribute to Native people that draws visitors, according to The Lakota Times.
“Basically, he said it’s an attraction, a tourism site,” said Yufna Soldier Wolf, then-director of the tribe’s historic preservation office, in an interview with The Riverton Ranger.
“There have been other tribes that have wanted their children repatriated from that area,” Soldier Wolf told Wyoming Public Media. “It’s been a big fight. For some reason, they don’t want to let the children go up there. It’s really about the idea of finally bringing these kids home after 150 years.”
Eventually, in 2017, the Army returned two Arapaho children — Dickens Nor or Little Chief, and Horace Washington or Horse. Although the tribe had also sought the return of Hayes Vanderbilt or Little Plume, the remains in her grave didn’t match. So the bones were returned to the grave with a new headstone, marked “Unknown.”
The Army then created in 2017 its own process for returning children’s remains to tribes.
Wright and Werkeiser claim that some tribes have capitulated to the Army’s demands rather than endanger the return of their children. Shannon O’Loughlin, chief executive of the Association on American Indian Affairs, agrees.
“Many tribes are worried if they bring controversy to the process, it will further delay the return of their ancestors,” said O’Loughlin, a citizen of the Choctaw Nation.
When the Rosebud Sioux Tribe brought home the remains of nine children from Carlisle in 2021, they did so under the Army’s rules.
“We didn’t want to pick a fight because we want our bodies back,” Lloyd Guy, general counsel for the tribe, said in an interview with Native News Online.
Guy told Native News Online that although he and the tribe disagreed with the Army’s interpretation of NAGPRA, they didn’t want that to stand in the way of repatriating their children.
Stringent New Guidelines
New NAGPRA rules released in January have put additional pressure on museums, universities and other institutions with Indigenous remains or cultural items, forcing some to close off entire exhibits until the items could be further identified.
The new regulations — deemed the “final rule” on NAGPRA — require that tribal requests for repatriation of remains must be addressed within 90 days, a far shorter timeline than had typically been used in the past. The new rules also give institutions until 2029 to notify tribes that their holdings or collections may include Indigenous remains or cultural items affiliated with the tribe.
Werkeiser noted that under the Office of Army Cemeteries’ internal regulations, there is no urgency or timeline for responding to requests for disinterment.
“NAGPRA has very specific guidelines for the timeliness of the process,” Werkeiser said. “There’s nothing under the Army’s current policy that speaks to a timeline or requires them to continue dealing with tribes.”
Olivia Van Den Heuvel, public affairs specialist for the Office of Army Cemeteries and Arlington Cemetery, said the office’s policies are beneficial to tribes.
“The process the Army uses has several advantages over the NAGPRA claim process,” Van Den Heuvel wrote in an email to ICT. “This process only requires two straightforward documents to be completed by the family and tribe, which the Army is prepared to provide assistance with, including sending Army personnel at Army expense to the tribe or family to assist in person.”
“Finally,” she continued, “the process under Army regulation pays for the expenses associated with the disinterment, transportation, reburial, and travel expenses for two family members and two tribal representatives to be present for the disinterment. Repatriation under NAGPRA pays for none of these expenses.”
While NAGPRA has no direct mechanism for funding, there are several grants available under the statute to assist with costs of repatriation. And there is nothing in the statute precluding the Army from paying for all or part of the process, according to Werkeiser.
“I don’t think it’s about money for tribes,” he said. “I think they will get their children’s remains returned to them by any means.”
The Army’s internal documents further confuse the issue.
In a 2014 memo, the Department of the Army states, “NAGPRA applies to all Army commands, installations and activities and places affirmative duties on the Army for the protection, inventory and disposition of Native American cultural items.”
Melanie O’Brien, manager of the national NAGPRA program within the National Park Service, said the decision whether it applies appears to be discretionary.
“It is up to the federal land manager to determine when NAGPRA applies to their lands,” she said in an email to ICT.
In a follow-up email, however, she pointed to a quote from the Department of the Interior published in the National Register about the recent changes in NAGPRA.
“We agree with the comment that the intentional excavation provisions of NAGPRA apply to the human remains and cultural items disinterred from cemeteries on federal and tribal lands,” O’Brien wrote.
Avoiding Future Scandal
Tensions apparently remain, however, over the office’s dealings with some tribal leaders.
Army officials who asked not to be identified described to ICT a dictatorial, racist culture within the office and an ironclad commitment to following directives and regulations created in the wake of the Arlington scandal — rules that don’t apply to a cemetery filled with children.
The primary concern now appears to be to protect the Army from future scandal, one of the officials said.
“The Office of Army Cemeteries as we see it today emerged out of the Arlington Cemetery scandal,” the official said. “So, by God, they think they should be the boss of anyone buried on Army land.”
The officials who spoke to ICT reported that during a meeting of about 10 people at an Army facility about two years ago, personnel from the Office of Army Cemeteries described how they went to great lengths to ensure that different Native nations would not meet each other during scheduled disinterments.
“They said they had to make sure different tribes wouldn’t interact because historically they were enemies and might cause trouble,” the official said. “Their program is set up based on such racial stereotypes.”
Later, in response, Buller said that he recalled an incident in which a tribe requested another tribe not be present during a disinterment.
Regarding claims of racism within the office, Yates said during the Zoom interview with ICT, “I’d like to say that has not happened since I’ve been with the director’s office on cemeteries. And every year we work diligently to work with each and every individual tribe to accommodate and meet their wishes.”
The other Army officials who spoke to ICT also described how representatives from the Office of Army Cemeteries bragged to the group that the Army would be destroying all the headstones of children returned from Carlisle, rather than turning them over to families.
“Some families requested the headstones because it represented written proof that their child died in federal custody,” a source said. “Representatives of the Office of Army Cemeteries declared they are holding firm because the headstones are Army property.”
Buller confirmed that according to Army regulation, the headstones are destroyed so they can’t be reused. The same policy is used for soldiers, officials said.
“We do offer rubbings of the headstones to families if they request it,” Buller said.
Tensions have also emerged over new efforts by the office to exert control over Indigenous burial grounds, some over 500 years old, on Army lands.
Officials would not disclose the number of such burial sites, but indicated that there are several on various Army controlled lands. Officials were also unsure of any possible plans the office has in exerting control over historic burial sites.
“Basically they want to expand their jurisdiction over any human being buried on Army land for any reason; currently historic Indigenous burial grounds are unmarked,” the officials told ICT. “They want to declare all burial grounds on Army lands as Army cemeteries.”
Many of the employees at the Office of Army Cemeteries are undertakers by trade and training, “yet they’ve decided they know more about Indigenous burials than cultural resource managers, Army liaisons and archeologists,” a source told ICT.
Office of Army Cemeteries officials verified that many of its 17 full-time employees have training and experience in the mortuary sciences.
According to Yates, overseeing historic burial sites is a new responsibility for her office. She deferred to Buller in answering questions during the Zoom interview.
“There is a whole new mechanism across Army, Air Force, Navy and the Office of the Secretary of Defense to ensure that all Department of Defense cemeteries are properly cared for,” Buller said. “This includes burial sites across the Department of the Army, not just traditional cemeteries.”
Representatives of the Office of Army Cemeteries said they work with cultural resource managers to ensure burial markings are dignified and appropriate. “We’re ensuring proper management,” Buller said.
The office works in conjunction with tribes, Native Hawaiian and Alaska Native families through consultation and ongoing conversations, Buller said. In 2016, members of the office met with members of the Northern Arapaho Tribes to create the policy on Native peoples.
The Army officials who spoke with ICT, however, described the office’s leadership as misinformed.
They described attending mandated Office of Army Cemetery training sessions that included day-long presentations regarding the handling of funeral flowers.
“We haven’t had a burial on our base in over 80 years,” one official said. “Somebody really needs to challenge their whole operation and get them out of anything to do with Indigenous peoples.”
Boarding School Past
In addition to its role in battling and policing Native nations from the days of the American Revolution and beyond, the U.S. Army also has had a checkered past with Indian boarding schools.
Carlisle, the first federal Indian boarding school, was founded in 1879 by Army Brigadier Gen. Richard Henry Pratt, who is credited with the phrase, “kill the Indian, save the man.” His previous experience operating a military prison school for Native Americans at Fort Marion in Augustine, Florida, shaped nearly every aspect of the Carlisle school experience.
From its beginning in 1879, federal Indian boarding school life was modeled after military life, with uniforms for boys, drills, marches and ranks, according to Barbara Landis, former Carlisle Indian school biographer for the Cumberland County Historical Society.
The Army’s sloppy handling and poor record-keeping regarding human remains at the schools also extends back for generations.
Records show that the Army has already unearthed the children’s remains at Carlisle at least once before. In 1927, Army officials at the Carlisle barracks disinterred and moved the entire cemetery in order to make way for what an Army report described as a parking lot.
According to the Army’s research published in 2017, the move was conducted in an especially haphazard, poorly documented manner. There is almost no record of the move apart from a brief mention in the local newspaper at the time, reporting that the relocation crew consisted of 16 men hired for that purpose. Workers also found several more graves than expected.
“Reinterment occurred immediately after disinterment; there are no indications that grave contents were examined, inventoried or otherwise documented,” researchers wrote. “No attempt was made to organize the graves according to their sequence from the Carlisle Indian School cemetery.”
The original cemetery was located on the north side of the barracks, overlapping at least one existing cemetery used for soldiers and their families prior to the opening of the school.
“(Student’s) graves were scattered more or less at random,” the report noted, citing a 1997 interview with a researcher. Student deaths were also poorly documented, and ICT reported earlier this year that Pratt was known to underreport deaths at the school in order to disguise the high mortality rates among students from disease.
In addition to the 180 Native students buried in the current cemetery, there are at least 17 unknown graves, according to the Army research document and information provided by Van Den Heuval. In at least three instances, planned repatriations of student remains were halted after officials discovered the remains didn’t match the information on their grave markers.
Indeed, in the very first disinterment in 2017, officials expected to disinter the girl, Hayes Vanderbilt, of the Northern Arapaho Tribe. The remains in the gravesite, however, were inconsistent with the child’s age and gender. Officials concluded the grave contained the remains of two unidentified people, a teenage male and a person of undetermined age and gender.
In 2022 and 2023, officials discovered the remains buried in the graves of Wade Ayres of the Catawba Indian Nation of South Carolina and Edward Spott of the Puyallup Tribe of Indians were also inconsistent with their respective ages and genders. The remains were reburied and marked with headstones reading “Unknown.”
A ground-penetrating radar survey of the Carlisle Indian School Cemetery, the Old Burial Ground and the Carlisle Barracks Post Cemetery in 2017 indicates that there may be other unmarked graves at or near the sites.
“It should be noted that the grounds of Carlisle Barracks have been in use as a military facility or school since the 1750s; it is not unlikely that there could be unmarked of unidentified remains found on the property that are not connected to the children who tragically died while attending Carlisle school,” Van Den Heuval wrote in an email to ICT.
Indeed, there likely are other graves misidentified. Although barracks leaders were instructed to create a report following the reinterment of the children’s remains in 1927, it does not appear to have ever been done.
“The remains they’re turning up do not match the sex and age of the person marked on the headstones,” said Jason Searle, an attorney with the Native American Rights Fund told HuffPost.
The Office of Army Cemeteries has no capability to conduct DNA analysis on remains, according to Buller. Officials say they do non-destructive analyses of the remains to determine approximate age and gender.
Buller said Army officials believe that most of the records are accurate.
“We believe that the majority of the children lie under the headstones that represent them in the cemetery,” Buller said.
Winnebago Lawsuit
The Winnebago Tribe eventually decided to challenge the Army in court, according to Werkeiser.
“Ultimately, the Winnebago Tribe decided that enough is enough,” Werkeiser said. “The Army is inherently and historically an oppressive institution when it comes to Native people. Regardless of the respectful language the Office of Army Cemeteries uses in its press releases surrounding the disinterment and return of children’s remains, it is still an example of the Army keeping tribes underfoot.
“They’re not going to put up with this kind of forced sacrifice of their federal rights,” he said.
In a January 2024 interview with Huffpost, Sunshine Thomas-Bear, the tribe’s NAGPRA representative, described an interaction with Buller when she contacted the office regarding return of the two boys’ remains.
When told that there were no family descendants available to file requests for the boys’ return, Buller suggested the tribe pass a resolution naming Thomas-Bear as the closest living relative, according to Thomas-Bear.
Both Thomas-Bear and the tribal council declined to pass legislation that they said would amount to lying, Huffpost reported.
“When you get to the point that you have a federal agency saying, ‘Just make it up and fill out the form,’ we have a problem,” Werkheiser told the news organization.
The Winnebago Tribe has drawn the backing of other tribes. Documents were filed in May 2024 in support of the tribe’s legal action by the Catawba Nation and the United South and Eastern Tribes Sovereignty Protection Fund, a nonprofit inter-tribal organization advocating on behalf of 33 federally recognized tribes from the Northeastern Woodlands to the Everglades.
According to the protection fund’s attorneys, however, the Army’s current actions should not be viewed as generous or benevolent.
“The Army must stop treating our children as militants and prisoners of war and instead afford them the protections of NAGPRA,” attorneys wrote. “The Army’s position today directly contradicts important truth and reconciliation work the U.S. is undertaking with regard to federal boarding schools.”
The tribe indicated it will continue the legal fight despite the judge’s ruling.
“This case transcends the repatriation of two young boys; it strikes at the heart of tribal sovereignty and the sacred duty to honor and ensure Native American ancestors are treated with the dignity and respect they deserve, ” Werkheiser said in a statement after the judge’s ruling.
“We’re eager to take this fight to the Fourth Circuit and secure a ruling that holds federal agencies accountable to fully comply with NAGPRA,” he said. “The fight for justice isn’t over.”
ICT producer/reporter Stewart Huntington contributed to this report.
Mary Annette Pember is an independent journalist and has been writing about Native people and issues since 2000 for Indian Country Today, Rewire.News, the Guardian and others. She is an enrolled member of the Red Cliff Band of Wisconsin Ojibwe.
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