The Winnebago Tribe is suing the federal government to recover the remains of two children who died at the Carlisle Indian Industrial School, one of the most infamous legacies of a genocidal era in U.S. history.

A lawsuit filed on Wednesday accuses the U.S. Army of failing to follow the Native American Graves Protection and Repatriation Act, a federal law commonly known as NAGPRA. Tribal officials are invoking NAGPRA in order to ensure the military returns Samuel Gilbert and Edward Hensley to their people.

“The traditional name for the Winnebago people is ‘Ho-Chunk,’ which translates to ‘the big voice,’” Chairwoman Victoria Kitcheyan said in a news release. “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.”

BREAKING: the Winnebago Tribe of Nebraska has filed a complaint to repatriate two children held at Carlisle Cemetary. Learn more: https://t.co/WFT70wUM8j

— Native American Rights Fund (@NDNrights) January 17, 2024

According to the Carlisle Indian School Digital Resource Center, a project of Dickinson College in Pennsylvania, Samuel Gilbert died at Carlisle barely a month after arriving in the fall of 1895. He was just 19 years old.

Edward Hensley also entered Carlisle in 1859, on the same day as his fellow tribal citizen. He died four years later, at the age of 17, according to boarding school records.

However, the lawsuit filed in federal court alleges the families of Samuel and Edward were never informed of their deaths and were never informed of their burials at Carlisle. The boarding school site in Pennsylvania is located more than 1,100 miles from the Winnebago Reservation in northeastern Nebraska.

“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, the NAGPRA representative and Tribal Historic Preservation Officer at Winnebago.

Carlisle was founded by the U.S. government in 1879. By the time it closed in 1918, more than 10,000 children from over 140 tribes were sent there as part of a federal policy aimed at disconnecting them from their nations and communities.

“Everybody here knows that for the better part of two centuries, the United States policy was to decide what was best for us as Indian people, to make decisions for us without talking with us, without consulting with us and even coercing us to take paths that we didn’t want to take,” Assistant Secretary for Indian Affairs Bryan Newland said at the 80th annual convention of the National Congress of American Indians in November.

“One of the ways that the government carried out this policy of deciding what was best for Indian people was through forced assimilation in the boarding school system,” Newland, who is a citizen of the Bay Mills Indian Community, said at NCAI’s conference in New Orleans, Louisiana.

Under the leadership of Secretary Deb Haaland, whose own ancestors were also sent to Carlisle from their homes at the Pueblo of Laguna in New Mexico, the Department of the Interior initiated an unprecedented accounting of the boarding school era. According to the initial report from the Federal Indian Boarding School Initiative, the federal government operated or supported 408 boarding schools in 37 states between 1819 and 1969.

“It is undeniable that federal policies set out to break Indigenous peoples, to destroy our cultures, our life ways, and our inherent connection to the land,” Haaland, who is the first Native person to serve in a presidential cabinet, said at the opening of the White House Tribal Nations Summit last month. “I think it is also undeniable that those policies failed. They failed to break us, and now, we’re bringing every resource to bear to restore what they set out to destroy.”

But while Carlisle is included in Interior’s accounting of Indian boarding schools, the site of the former boarding school — as well as the cemetery where Indian children are buried — falls under the control of the U.S. Army as one of its active facilities. As a result, tribes have been forced to navigate complex military regulations, instead of NAGPRA, in order to reclaim their loved ones.

For example, the Army regulations only allow “close relatives” of an Indian child to request disinterment from the Carlisle Barracks Post Cemetery. The Winnebago Tribe’s lawsuit says the requirement is difficult to meet, given the genocidal legacy of the former boarding school.

According to the lawsuit, Thomas-Bear, the tribe’s NAGPRA representative, “knew that identifying closest living relatives would be challenging, if not impossible, because neither Edward nor Samuel had any direct descendants, since they died at Carlisle without any children.”

A study completed by the Army in 2017 acknowledged that at least 179 Indian children were buried at Carlisle. Since that year, when the first disinterment project took place, only 36 requests from “close relatives” have been approved under military regulations, the lawsuit states, citing notices that have published in the Federal Register over the past six years. Secretary Haaland attended one such ceremony in 2021, when 10 children were returned to their tribal families.

“In a series of Federal Register notices issued in connection with the disinterment of other Native American human remains at Carlisle Cemetery, Defendants have asserted that disinterment of students from Carlisle is not governed by NAGPRA for various reasons, which have changed from 2017 to 2023,” the 54-page complaint states in reference to the U.S. government defendants.

In September, the U.S. Army completed the sixth disinterment project at Carlisle. Four children — identified as Beau Neal (Northern Arapaho Tribe), Launy Shorty (Blackfeet Nation), Amos Lafromboise (Sisseton Wahpeton Oyate) and Edward Upright (Spirit Lake Nation) — were returned to their families, the military said.

A family from the Puyallup Tribe expected to reclaim the remains of Edward Spott from the cemetery. But the transfer didn’t take place after the Army said the remains that were removed did not match those of the young student.

“The Army is truly saddened we were unable to return Eddie to his family this year,” Karen Durham-Aguilera, the executive director of the Office of Army Cemeteries, said at the time.

“We remain honored to have had the opportunity to work with these Native American families and to help them find closure,” said Durham-Aguilera, who is one of the named defendants in the Winnebago Tribe’s lawsuit, which was filed in the U.S. District Court for the Eastern District of Virginia. Durham-Aguilera’s office operates out of Arlington National Cemetery in Virginia, located near Washington, D.C., the seat of the U.S. government.

Following the release of Volume 1 of the Federal Indian Boarding School Initiative Investigative Report, the Department of the Interior embarked on a “Road to Healing” to hear from boarding school survivors, descendants and families across Indian Country. Based on that work, a second volume of the investigation is expected to be released early this year, Secretary Haaland said at the White House Tribal Nations Summit.

“I am so grateful to those of you who hosted us on this journey. It was an honor to be with you and your communities to listen, share, and heal together,” Haaland said.

As part of a partnership with the National Endowment for the Humanities, Interior is creating an oral history project to document the experiences of Indian boarding school students. Haaland said the Smithsonian National Museum of American History is also in talks for a collaboration.