Winnebago Tribe of Nebraska v. United States Department of the Army
On Tuesday, August 11th, a federal appeals court cleared the way for the Winnebago Tribe of Nebraska to bring home two children who died in the government’s care at the Carlisle Indian Industrial School more than 125 years ago. The United States Court of Appeals for the Fourth Circuit denied the government’s petition for rehearing and rehearing en banc in Winnebago Tribe of Nebraska v. United States Department of the Army, leaving in place the panel’s May 14, 2026 decision holding that the Native American Graves Protection and Repatriation Act (NAGPRA) applies to the remains of Samuel Gilbert and Edward Hensley, two Winnebago boys buried in the Army-run cemetery at Carlisle Barracks in Pennsylvania. Not a single judge on the court asked for a poll on whether to rehear the case, which shows how well reasoned the panel’s decision was understood to be. Writing for the panel, Judge Harris put it plainly: “At the end of the day, the U.S. government kept and buried the remains of two Native American schoolchildren, Samuel Gilbert and Edward Hensley, without their families’ or tribe’s consent after forcing them from their homes and after they died in the government’s care. Nearly a century later, Congress passed a statute that, by its terms, entitles their tribe finally to bring their remains home and to bury them according to their tribal and religious traditions.” The decision vacated the district court’s dismissal of the Tribe’s lawsuit, and with rehearing now denied the case returns to the United States District Court for the Eastern District of Virginia, where the Tribe will continue to press for the return of the boys.
The Winnebago Tribe of Nebraska is represented by Big Fire Law, the Native American Rights Fund and Cultural Heritage Partners. Learn More about the case.