(AP Photo/Matt Slocum)1
As much as I admire and respect our military, there are some decisions they have made that are simply immoral. Native Americans serve in the military at disproportionate numbers that are much higher than any other ethnic group in America. Yet, the failure for the U.S. Army to understand the need for healing between the military and Native America, destroys the prospects of healing.
The U.S. Army has simply refused to comply with NAGPRA, claiming they are exempt.
A couple of weeks ago, I wrote about the new NAGPRA regulations, effective January 12, 2024, and my disappointment that they did not do more.2 One of the issues the Department of Interior would not fix although multiple comments asked for a resolution, is redefining federal lands to include “residential schools”. This would increase the scope of NAGPRA over the recently exposed and widespread abusive deaths and burials of Native American children in “residential schools” in particular the Carlisle Indian School operated by the U.S. Army.3 Five days after the regulations failed to fix the problem of whether NAGPRA applied to these schools, a federal court was asked to answer the question. The consequence of failing to fix this problem is now, litigation.
In April 2021, the Office of Army Cemeteries (OAC) published their official position in the Federal Register that they were “honoring the requests” of the Rosebud Sioux family members and an Aleut family member to repatriate their ancestors human remains from the Carlisle Barracks Post Cemetery, Carlisle, Pennsylvania. There were ten individuals in this Federal Register announcement.
But their “honoring” fell short. They vehemently argued that NAGPRA, the Native American Graves Protection and Repatriation Act did not apply to the request to repatriate the remains of the children who came from Tribal Nations making the requests. Their argument is simply that the human remains are not part of a “collection” as defined in NAGPRA so they are therefore exempt from any obligations under the federal law. They stated:
This disinterment will be conducted in accordance with Army Regulation 290– 5. This is not a Native American Graves Protection and Repatriation Act (NAGPRA) action because the remains are not part of a collection. 4
The U.S. Army has continued to fight against the application of NAGPRA to its residential school where in the continued genocidal policy of the U.S. in its declared war against Tribal Nations until the late 19th Century, led to kidnapping children from reservations and sending them thousands of miles from their homes to be assimilated into a bizarre and cruel life without their families. Upon arrival, their clothes were stripped away and their hair was cut short. Everything that connected them to their homes was stripped away. From 1879 to 1918, (when the school was closed to accommodate World War I returning soldiers) more than 10,000 children from more than 140 tribes passed through the Carlisle Industrial School.5
Survivors of these residential schools have shared horrendous stories of the abuse they endured and the deaths of other children they saw from diseases as well as beatings. It is said that most survivors refuse to speak about their experience there even with their families.6
This refusal by the U.S. Army to accept that they fall within the scope of NAGPRA is in the historical context of a past that is nothing a nation can be proud of, and while you cannot change the past, you do not need to perpetuate the bad behavior in the present.
An example of the context for the U.S. Army’s handling of Native American human remains, it is important to recall that in 1868, the U.S. Army Surgeon General issued an order for members of the Army to collect the skulls and skeletons of Native Americans and send them to Washington, D.C. for experimentation.7 This resulted in a vast movement of human remains being sent to the Army’s Medical center in Bethesda, Maryland which became the Army Medical Museum—and recently closed. No one seems to know where the human remains were moved. Because they consider themselves exempt from NAGPRA, there is no accounting for their inventory of Native American human remains collected from all over the U.S. by the U.S. Army on order of the U.S. Army Surgeon General.
Over the past two years, these new regulations for NAGPRA were proposed for supposedly strengthening NAGPRA. Many commenters during the notice and comment period of the regulation development asked that the regulations define “federal lands” to include all residential schools, having been built and run as government contractors. However, the Agency declined to make that determination, saying that simply providing federal money for the schools did not make the land federal.
After waiting to hear from the Department of Interior to once and for all clarify the reach of NAGPRA to cover U.S. military possession of human remains of Native American children, that door closed administratively, but another opened that is judicial.
The Winnebago file a complaint against the U.S. Army
On January 17, 2024, five days after the publication of the Department of Interior’s decision not to include the U.S. Army within the scope of the NAGPRA regulations, another Tribal Nation seeking to bury their children who died at the Carlisle Indian School went to federal court with their complaint.8
The Winnebago Tribe of Nebraska is seeking the repatriation of two children who did not return from Carlisle — Samuel Gilbert and Edward Hensley.9
The Winnebago Tribe addresses the sole argument of the U.S Army that they are not subject to NAGPRA because the human remains are not part of a “collection.” The Winnebago Tribe argues that the U.S. Army has asked the wrong question:
“ The actual standard is whether Native American human remains are “possessed or controlled by Federal agencies[.]” 25 U.S.C. § 3005(a). It is obvious and undisputed that Samuel’s and Edward’s remains are Native American human remains in Defendants’ possession and control. . .10
The Army as in the previous case published in the Federal Register insists that they will only follow their own regulation for disinterment of human remains. The Winnebago Tribe of Nebraska outline why this is a problem:
For example, pursuant to NAGPRA, upon receiving Winnebago’s repatriation request, Defendants are required to repatriate Samuel and Edward to Winnebago itself, as an Indian Tribe, within ninety days, and in a culturally appropriate manner.
In contrast, by imposing the OAC Disinterment and Return Process, Defendants retain complete discretion over whether to return the boys’ remains at all. . . .the OAC Disinterment and Return 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 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.11
A tone of evil pervades a directive that requires a living relative to claim the remains of a deceased child that was robbed of the opportunity to have such descendants. Even living relatives may be hard to find when children all of the same age were swept up in the wave of government-sanctioned kidnapping of children sentenced to these “schools” where many never came home.
One of the most poignant paragraphs in the complaint sums up the failure of the U.S. Army to rise to the occasion and do the right thing in a missed opportunity to write centuries of wrongs:
4. Defendants’ conduct perpetuates an evil that the United States Congress sought to correct when it enacted NAGPRA in 1990; namely, the United States Army’s (“the Army”) historical and longstanding practice of abusing and mishandling Native American human remains, funerary and sacred objects, and objects of cultural patrimony, and its refusal to treat such remains and objects with dignity and respect.12
The U.S. Army can still do the right thing, but hope is running low.
https://www.wifr.com/2022/06/21/army-disinterred-remains-do-not-match-native-american-boy/
https://www.theguardian.com/us-news/2022/jul/09/native-american-elders-us-government-schools-oklahoma
https://www.govinfo.gov/content/pkg/FR-2021-04-02/pdf/2021-06784.pdf
https://www.wifr.com/2022/06/21/army-disinterred-remains-do-not-match-native-american-boy/
https://ny1.com/nyc/all-boroughs/politics/2022/07/25/3-part-series--the-history-of-native-american-boarding-schools
https://pubmed.ncbi.nlm.nih.gov/19720324/
https://narf.org/nill/documents/20240117winnebago-carlisle-complaint.pdf
https://ictnews.org/news/winnebago-suit-seeks-remains-of-two-boys-who-died-at-carlisle
https://narf.org/nill/documents/20240117winnebago-carlisle-complaint.pdf, para. 5.
Case 1:24-cv-00078 Document 1 Filed 01/17/24 Page 4 of 54 PageID# 119 at https://narf.org/nill/documents/20240117winnebago-carlisle-complaint.pdf
https://narf.org/nill/documents/20240117winnebago-carlisle-complaint.pdf, para. 4.