(CN) — A federal judge Tuesday dismissed a lawsuit from a Nebraska tribe seeking the return of the remains of two boys who died more than a century ago while attending the Carlisle Indian Industrial School.
The Winnebago Tribe argued the U.S. Army was obligated to repatriate the bodies of Samuel Gilbert and Edward Hensley, students who died in the 1890s while attending the Indian boarding school in Carlisle, Pennsylvania.
The tribe argued repatriation was necessary under the Native American Graves Protection and Repatriation Act (NAGPRA), a 1990 law that governs the return of human remains and tribal cultural artifacts in the possession of federal agencies.
Senior U.S. District Judge Claude M. Hilton wrote in an 8-page decision Tuesday that the tribe misinterpreted the law, which only applies to excavated remains held by a museum or federal agency.
The law was not written to compel the exhumation of existing graves, the Ronald Reagan appointee reasoned, but instead to protect Native American burial sites from unpermitted excavation.
“While the court acknowledges Winnebago’s interest in possessing Samuel and Edward’s remains, the court will not order the excavation of buried remains where (the law) does not confer such authority,” Hilton wrote.
A spokesman for the tribe did not immediately respond to a request for comment.
The tribe filed a complaint in January asking for the boys’ bodies to be returned to the tribe within 90 days so that they could be buried in a way that aligns with the tribe’s beliefs, customs and practices.
Founded in 1879, Carlisle was the first government-run boarding school in the nation and became a model for hundreds of other schools that sought to assimilate Native Americans. Children were forced to leave their communities and traveled hundreds of miles to attend the military-style schools, where they received a formal education while being indoctrinated in American customs and practices.
Carlisle’s students were exposed to foreign diseases, especially tuberculosis, which killed hundreds of children before the school closed in 1918. The Army established a medical school on the grounds in 1920 before the site eventually became part of U.S. Army War College.
The tribe accused the Army of being callous in its handling of the students’ remains. Officials mixed up gravestones while relocating bodies during an expansion in 1927, the plaintiffs claim in the complaint, while other graves appeared to have been forgotten and now remain beneath a base parking lot.
The tribe also claims the college uses the boys’ remains, which are interred with the bodies of at least 179 other students at the Carlisle Indian burial ground, for the purposes of “research, display, tourism and education.”
“Particularly egregious, Defendants use the holding or collection for these purposes to serve their institutional goals: to tell their own version of Carlisle’s history and to distance themselves from and absolve themselves of responsibility for their role in tragic aspects of that history,” the tribe wrote.
The Office of Army Cemeteries has offered to return the bodies of Samuel and Edward subject to its disinterment policies, but the Winnebago tribe argues that process does not take into account the tribe’s cultural traditions.
Since 2017, the remains of more than 30 children have been returned to tribes and families, according to the office’s website.