Introduction
Winnebago Tribe of Nebraska v. United States Department of the Army is the Fourth Circuit’s first published decision interpreting the Native American Graves Protection and Repatriation Act (“NAGPRA”), 25 U.S.C. § 3001 et seq. The Winnebago Tribe sued the Department of the Army and related officials seeking repatriation of the remains of two Winnebago boys, Samuel Gilbert and Edward Hensley, who were forcibly removed to the Carlisle Indian Industrial School in the 1890s, died there, and were buried without family or tribal consent. Their remains were later disturbed and reinterred at the Carlisle Barracks Post Cemetery (“Carlisle Cemetery”), an Army cemetery on federal land.
The key legal issue was whether NAGPRA’s repatriation framework can reach buried human remains located in a federal cemetery. The district court dismissed for failure to state a claim, holding that NAGPRA repatriation applies only to previously excavated remains and that a cemetery is not a “holding or collection.” The Fourth Circuit vacated and remanded.
Summary of the Opinion
The majority (Harris, joined by Floyd) held that the Tribe plausibly alleged the boys’ remains are part of a NAGPRA “holding or collection” under Army control and thus potentially subject to repatriation under 25 U.S.C. § 3005(a)(4) (repatriation where cultural affiliation is proven by a preponderance of the evidence). The court emphasized that “holdings or collections,” read in text, context, and in light of the Department of the Interior’s regulatory definition at 43 C.F.R. § 10.2, includes purposefully accumulated remains—even if those remains are interred in a cemetery. The court therefore vacated the dismissal and remanded for further proceedings.
Importantly, the majority did not decide the Tribe’s broader argument that § 3005(a)(4) applies to all remains “possessed or controlled” by an agency even outside § 3003 “holdings or collections.” It resolved the appeal on the narrower ground that the complaint adequately alleged a “holding or collection.”
Judge Rushing dissented, arguing NAGPRA does not require the government to disinter remains from federal cemeteries and that “holdings or collections” naturally refers to exhumed remains held for study, comparison, exhibition, or storage—rather than final resting places. The dissent also challenged the majority’s reliance on regulation to extend any “right of possession” concept to human remains repatriation.
Analysis
Precedents Cited
1. Thorpe v. Borough of Thorpe
Thorpe v. Borough of Thorpe, 770 F.3d 255 (3d Cir. 2014), is the most substantial appellate precedent discussed. There, descendants sought NAGPRA-based repatriation of Jim Thorpe’s remains from a Pennsylvania gravesite, arguing the site qualified as a NAGPRA “museum.” The Third Circuit rejected that theory, warning that applying NAGPRA to order disinterment from a burial site intended as a final resting place—chosen by next-of-kin—would be “patently absurd” and contrary to NAGPRA’s grave-protection purposes.
The Fourth Circuit treated Thorpe as context rather than control: it agreed that compelled disturbance of consensual burials could conflict with NAGPRA’s aims, but distinguished the Carlisle burials as alleged to have occurred without notice or consent, followed by a later “haphazard” relocation. In the majority’s framing, this case fits NAGPRA’s remedial purpose rather than undermining it.
The dissent leaned on Thorpe more heavily, adopting its intuition that NAGPRA’s “return” language presumes remains were moved from their intended final resting place and that cemeteries are not “collections.”
2. Haaland v. Brackeen (historical context)
The majority invoked Haaland v. Brackeen, 599 U.S. 255 (2023) (Gorsuch, J., concurring), to supply historical context about federal boarding schools’ role in forced assimilation, the removal of children, and the high death rates and abuse. While not a NAGPRA interpretation precedent, Brackeen supports the majority’s narrative of NAGPRA as a corrective to federal policies that severed tribal and familial burial practices.
3. Statutory-interpretation and interpretive-method precedents
The court anchored its method in ordinary meaning and contextual canons, citing:
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Bostock v. Clayton Cnty., 590 U.S. 644 (2020), for using contemporaneous dictionary definitions to determine ordinary public meaning.
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Williams v. Taylor, 529 U.S. 362 (2000), for avoiding constructions that render statutory terms superfluous (“give effect, if possible, to every clause and word”).
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Southwest Airlines Co. v. Saxon, 596 U.S. 450 (2022), to explain limits on ejusdem generis in reading broad catch-all phrases after non-exhaustive lists.
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Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982), as part of the majority’s avoidance of readings it labeled “absurd.”
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Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024), used by the majority to note that contemporaneous, consistent agency interpretations deserve “particular note” even though courts do not “defer automatically,” and used by the dissent to argue courts must independently interpret statutes and not allow regulation to rewrite Congress’s choices.
The Fourth Circuit also cited circuit authorities on de novo review and statutory interpretation (e.g., Benjamin v. Sparks, DIRECTV Inc. v. Nicholas, Stone v. Instrumentation Lab'y Co.) as methodological scaffolding rather than substantive NAGPRA guidance.
Legal Reasoning
1. The decisive holding: buried remains can be within a § 3003 “holding or collection”
The majority accepted (for purposes of its narrow holding) the government’s premise that § 3005 repatriation is linked to § 3003 inventories and thus to “holdings or collections.” It then asked whether the Carlisle Cemetery remains plausibly fit that phrase.
Ordinary meaning: The court used dictionaries to read “holding” as broadly encompassing that which is held (including “something that holds”), and “collection” as objects gathered together. On that basis, a cemetery described as “a repository for the remains of Indian School students” could qualify.
Contextual narrowing—but not to “excavated only”: The court agreed “holdings or collections” must add something beyond “possession or control,” and concluded that “something” is purposeful accumulation—excluding items unknowingly possessed or controlled. However, it rejected the district court’s further narrowing to “previously excavated remains,” finding no textual or structural basis for a location- or status-based exclusion (buried vs. not buried).
Regulatory confirmation (43 C.F.R. § 10.2): The court read the Department of the Interior’s definition—“an accumulation ... for any temporary or permanent purpose”—as broad and non-exhaustive, undermining the government’s attempt to limit “purpose” to study/exhibition-type ends.
2. Addressing § 3002 (ownership of newly discovered remains) and “overlap” arguments
The government argued that § 3002 already covers buried remains discovered/excavated after 1990, so extending § 3003/§ 3005 to buried remains would be redundant. The majority disagreed: § 3005 repatriation could require excavation to effect repatriation, while § 3002 assigns ownership/control once remains are discovered/excavated—serving complementary purposes.
3. Purpose and “absurdity”: distinguishing consensual burial from coerced, non-consensual burial
The majority treated the key policy fear (compelled desecration of proper burials) as addressed not by narrowing “holdings or collections,” but by the concept of “right of possession” and related regulatory limits—thus preserving room for repatriation where burial occurred without proper consent. It framed this case as remedial: forced removal of children, death in federal custody, burial without notice or consent, and later disturbance for base expansion.
4. The dissent’s counter-structure: NAGPRA as “graves protection” vs. “collections repatriation”
The dissent offered a sharper structural partition: § 3002/§ 3003/§ 3005 are said to treat (i) buried remains on federal/tribal lands as protected from excavation, and (ii) exhumed remains in museum/agency collections as subject to inventory and return—implying Congress did not intend a repatriation mandate to trigger disinterment.
The dissent also challenged the majority’s reliance on regulatory text to create a “right of possession” shield for human remains repatriation, emphasizing that § 3005(c) by its terms applies to certain objects (not “human remains and associated funerary objects”) and warning that reading otherwise could create perverse implications.
5. The opinion’s practical limiting principle
The majority attempted to avoid a sweeping “graveyard disinterment” rule by emphasizing two limiting ideas:
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The case concerns remains purposefully held by an agency (not unknown graves).
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It concerns remains held without requisite familial or tribal consent, aligned with NAGPRA’s remedial aims.
Still, the dissent argued those limits are not securely grounded in statutory text and that the majority’s reading functionally reclassifies cemeteries as “collections,” with potentially broad consequences.
Impact
1. Immediate doctrinal effect in the Fourth Circuit
The decision establishes that, at least at the pleading stage, a federal cemetery containing Native American remains can qualify as a NAGPRA “holding or collection” when the remains were intentionally gathered/maintained by the agency. This is a significant expansion beyond the district court’s “excavated only” approach and opens a pathway for tribes to litigate NAGPRA repatriation even where remains are still interred.
2. Increased litigation leverage for tribes seeking disinterment and repatriation
Tribes may now frame claims around intentional accumulation and agency control of burial grounds—particularly where historical evidence supports lack of consent, coercion, or later disturbance. This may be most consequential for:
- boarding school cemeteries on federal installations,
- relocated burial grounds created for government administrative convenience, and
- sites maintained with interpretive signage, tours, or public-facing historical narratives that reinforce “control.”
3. Administrative and compliance consequences for agencies
Agencies within the Fourth Circuit may face pressure to (i) treat certain cemeteries as inventoryable “holdings or collections,” (ii) engage in consultation processes, and (iii) prepare for potential repatriation logistics (including culturally appropriate handling and reburial coordination). The decision’s emphasis on “purposeful holding” may shift agencies toward clearer documentation of consent, chain-of-custody, and legal authority.
4. Tension points likely to recur
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Scope of § 3005 beyond “holdings or collections”: the court expressly avoided deciding the Tribe’s broader textual argument. Future cases may force that issue.
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Validity and role of 43 C.F.R. § 10.2 post-Loper Bright Enters. v. Raimondo: the dissent’s “regulation rewrites statute” critique previews challenges that may arise in future NAGPRA litigation.
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Defining “purposeful accumulation” in burial contexts: distinguishing “final repose” from “institutional holding” may become a fact-intensive inquiry.
5. Potential influence beyond the Fourth Circuit
Because there is limited appellate authority on NAGPRA repatriation outside the museum context, this decision may become a persuasive template. It also sets up a possible inter-circuit disagreement in emphasis with Thorpe v. Borough of Thorpe should other circuits confront cemetery-based repatriation demands.