Administrative – Court construes Native American Graves Protection and Repatriation Act

Where the Winnebago Tribe of Nebraska sought the return of the remains of two children who died in a federal Indian boarding school on a United States Army base in the late 1800s, the trial court erred when it held the Native American Graves Protection and Repatriation Act did not require repatriation of remains buried in cemeteries.

Background

In the late 1800s, two children of the Winnebago Tribe of Nebraska were removed from their homes and placed in a federal Indian boarding school on a United States Army base. The boys died at the school, allegedly as a result of abusive conditions, and were buried on site without the consent of their families and in contravention of their tribal and religious traditions.

The Tribe now seeks the return of the boys’ remains so that they may be properly honored and reburied. In this suit, it has invoked the Native American Graves Protection and Repatriation Act, or NAGPRA, enacted in 1990 to facilitate repatriation of Native American human remains in the possession or control of federal agencies and federally funded museums.

The district court dismissed the Tribe’s action for failure to state a claim, concluding that the Act requires repatriation only of previously excavated remains and not of remains buried in cemeteries.

Analysis

The Tribe argues, even if 25 U.S.C. § 3005(a)(4) applies only to remains that are part of a “holding or collection” under § 3003, the remains of Samuel and Edward, buried with other Native American students at the Carlisle Cemetery, so qualify. The court agrees.

The court begins with the “plain language” of the statute and the ordinary meaning of the phrase “holding or collection.” Here, the Tribe and the government, along with the district court, have focused on contemporaneous dictionary definitions, which courts often use to illuminate “the ordinary public meaning of [a statute’s] terms at the time of its enactment.”

On their face, these definitions would seem to cover human remains “held” by a federal agency and “collected and arranged” in a cemetery. Likewise, a cemetery that serves, in the Army report’s own words, as “a repository for the remains of Indian School students,” would seem to qualify as “something that holds.”

The government suggests that the relevant statutory context points toward a narrower definition of “holdings or collections” that reaches only items obtained through an “intentional, affirmative act.” This court agrees that “holding or collection,” in the context of this statute, must refer to something intentionally or purposefully accumulated. But that refinement does not help the government because the Tribe alleges (and there really is no dispute) that the Army purposefully – in the government’s words, “intentionally and affirmatively” – gathered the remains of Native American students to be held in the Carlisle Cemetery.

The district court narrowed the definition of “holding or collection” in a different way, reading that term as applying “naturally” only to human remains already excavated, and not to human remains in a cemetery. But when it comes to the statutory text, at least, this court sees no warrant for that distinction.

A different provision of NAGPRA, the government nevertheless argues – the “ownership” provision at § 3002 – already covers human remains that are still buried, imposing distinct obligations on those who discover or excavate such remains. If NAGPRA’s repatriation provision also extended to such remains, the government argues, it would make no sense for Congress to have covered them separately in § 3002. But this court sees nothing redundant or odd about these paired provisions.

The district court also relied on the Department of the Interior’s regulatory definition of “holding or collection,” finding that it was consistent with a reading of “holding or collection” limited to human remains already excavated. The regulatory definition, however, is exceedingly broad, defining “holding or collection” as “an accumulation of one or more objects, items or human remains for any temporary or permanent purpose. It is clear from the face of § 10.2 that any purpose will do – including the laying to rest of human remains in a cemetery.

To defend its narrower reading of the statute, the government falls back on legislative history and statutory purpose. Neither is persuasive.

Vacated and remanded.

Dissenting opinion

Rushing, J., dissenting:

Does the Native American Graves Protection and Repatriation Act require the federal government to dig up the graves of deceased Native Americans buried in federal cemeteries? The majority says yes. I disagree.

Winnebago Tribe of Nebraska v. United States Department of the Army, Case No. 24-2081, May 14, 2026. 4th Cir. (Harris), from EDVA at Alexandria (Hilton). Beth Margaret Wright for Appellant. Tamara N. Rountree for Appellees. VLW 026-2-176. 41 pp.

Full-Text Opinion
VLW 026-2-176