NAGPRA Issues in Hawaii, 2005
(Especially the Controversy Regarding Forbes Cave [Kawaihae Cave]; and Conflict Among Bishop Museum, Hui Malama, and other groups)
(c) Copyright 2005, Kenneth R. Conklin, Ph.D. All rights reserved
Forbes cave controversy
The Forbes cave controversy up until the NAGPRA Review Committee hearing in St. Paul, Minnesota, May 9-11, 2003 was originally described and documented at: http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html
The conflict among Bishop Museum, Hui Malama, and several competing groups of claimants became so complex and contentious that the controversy was the primary focus of the semiannual national meeting of the NAGPRA Review Committee meeting in St. Paul, Minnesota May 9-11, 2003. A webpage was created to cover that meeting and followup events related to it. But the Forbes Cave controversy became increasingly complex and contentious, leading to public awareness of other related issues. By the end of 2004, the webpage focusing on the NAGPRA Review Committee meeting and its aftermath had become exceedingly large, at more than 250 pages with an index of 22 topics at the top. See: http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html
That large webpage became so difficult to use that it was stopped on December 29, 2004; and this present webpage was created as a continuation of it. As before, an index appears at the beginning, and additional topics will be added as events unfold. Readers may then scroll down to find the detailed coverage of each topic.
The main focus is the Forbes Cave controversy, and the on-going conflict among Bishop Museum, Hui Malama, La'akea Suganuma (Royal Hawaiian Academy of Traditional Arts), Abigail Kawananakoa, and other groups of claimants to bones and artifacts from Forbes Cave and from Bishop Museum. However, closely-related topics will also be covered, especially when they involve conflict among Bishop Museum, Hui Malama, and those other groups -- topics such as Kanupa Cave and the Emerson collection, the role of Hui Malama in relation to the island burial councils, etc.
List of Topics
LIST OF TOPICS: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfold during 2005.
(1) On December 30, 2004 State of Hawai'i Legislative Auditor Marion Higa released her report on the state burial councils. The report focused on criticisms of administrative procedures related to the appointment of burial council members, and glitches in the processing of construction permits and related reburial decisions. The lengthy report contains interesting historical and cultural information about Hawaiian burial practices. 2 Newspaper articles and an editorial about the audit report are provided, plus a link to download the full report directly from the state auditor's office. Important excerpt from the Star-Bulletin article: "The audit criticized the state's historic-preservation law for citing the nonprofit Hui Malama I Na Kupuna O Hawaii Nei as an example of an "appropriate organization" that reburies remains and sacred items. "It infers authority and places an official imprimatur on the organization's behavior and practices," the audit said. The auditor's office recommended DLNR seek an amendment to remove Hui Malama from the historic-preservation law. Other reburial organizations accuse Hui Malama of "imposing its own burial protocol on others, despite the fact that Hawaiian burial practices vary from island to island, region to region, and even within families," the audit said.
(2) Meeting of the national NAGPRA REVIEW COMMITTEE scheduled for Honolulu for March 13-15, 2005. Presentations must be arranged in advance; statements and comments may also be submitted.
(3) Group headed by royal descendant and pretender to the throne, Abigail Kawanananakoa, age 78, is stepping into the Forbes Cave and other disputes in opposition to Hui Malama and in support of Bishop Museum and La'akea Suganuma. See also item (8), wherein this group won a federal court decision ordering Hui Malama to return the Forbes Cave artifacts to Bishop Museum.
(4) NAGPRA REVIEW COMMITTEE to hold open meeting at the East West Center, University of Hawai'i, March 13-15, 2005. Meeting agenda available on internet; how to submit testimony and/or request a hearing before the committee. The Advertiser portion of this item is an updated version of item #(2); however, the Star-Bulletin version of this item adds substantial content reviewing the history of various conflicts involving the NAGPRA Review Committee in Hawaiian issues.
(5) A circuit judge in mid-May, 2005 dismissed claims against Wal-Mart for allegedly desecrating human remains during the recent construction of its complex on Keeaumoku Street. Judge Victoria Marks ruled Monday that Paulette Kaleikini, who claims a cultural tie with ancestors buried at the site, and Hui Malama I Na Kupuna O Hawaii Nei, an organization that cares for the reburial of native Hawaiian remains, have no right to pursue their monetary claims against the retail giant. Marks ruled that under state law, the two cannot pursue desecration claims because they have no property interest in the land on which the ancestral bones were found. She said the two cannot seek other claims because the state, rather than Wal-Mart, has custody of the bones. Marks also ruled the two could not pursue claims alleging infliction of emotional distress for negligently handling of the remains because they could not prove a direct blood tie. Eventual court decision in Wal-Mart case absolves Wal-Mart of any guilt, but settlement agreement establishes principle that land which has been previously developed cannot be presumed to have no ancient remains.
(6) Guy Kaulukukui, former head of the Cultural Studies department of Bishop Museum, has filed a lawsuit against the museum, claiming that the museum fired him improperly. Kaulukukui claims the reason he was fired is because he refused to carry out an order that would be illegal under NAGPRA.
(7) Bishop Museum is keeping an artifact from Mo'omomi, Moloka'i because three competing claimants are unable to resolve their dispute over who should own it. Also, the museum has recognized an additional claimant group for the Forbes Cave artifacts.
(8) On Friday, September 2, 2005 Chief U.S. District Judge David Ezra ordered Hui Malama to return the Forbes Cave collection of 83 artifacts to Bishop Museum, so the museum can go forward with the process of resolving the conflicts among 13 claimants regarding who should have possession. The order was requested by Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, two of the 13 claimants; with the support of Bishop Museum. On Wednesday September 7 Chief U.S. District Judge David Ezra issued a 22-page written order that the artifacts must be returned by September 23. Hui Malama filed a request with the 9th Circuit Court of Appeals for a stay of the order pending an appeal they plan to file. The OHA monthly newspaper for September 2005 contained a full page devoted to the controversy, including side by side articles written by opponents Eddie Ayau and La'akea Suganuma regarding how we know what are the wishes of the ancestors regarding the artifacts. The 37-page pdf file of the September 7 motion by Hui Malama contains many legal technicalities (such as the discussion of the legal standards by which such an emergency motion is to be decided), but it also contains many substantive explanations and analyses. That pdf file is available for download at: http://www.angelfire.com/hi5/bigfiles3/HuiMalMotnEmrgncyStay090705.pdf On September 14 it was announced that a document has been filed with the 9th Circuit Court by Hui Malama written by the (stone)mason who sealed the cave after the artifacts had (allegedly) been reburied there, swearing that if the cave is re-opened to retrieve the artifacts, the cave might collapse. On September 20 the 9th Circuit Court ordered a stay (delay) in enforcement of Judge Ezra’s order to return the artifacts, until the 9th Circuit can consider the issues and make a ruling. However, the 9th Circuit also ordered an expedited hearing. Hui Malama must file its opening brief by Sept. 30 explaining why Ezra's decision should be overturned. The two Native Hawaiian groups that sought the injunction have until Oct. 21, or 21 days after the court receives the opening brief, to respond. Hui Malama would then have 10 days to reply. The appeals court said the case would be on the calendar during the week of Dec. 5. On October 7 Judge Ezra took the very unusual step of filing a "supplemental order" expressing doubts whether there is a problem of possible cave collapse, indicating that if such a problem exists it can be dealt with, and also noting that Hui Malama has neither revealed where the cave is nor whether all the artifacts are inside that cave.
(9) On October 19, 2005 it was reported that a housing subdivision developer has made an inadvertent discovery of more than 20 carved wooden figures (some only partially carved) in a lava tube at "The Shores at Kohanaiki," which is several miles north of Kailua-Kona on the "big island." There were no human remains. Speculation is that the images were carved in the early 1800s; and either it was a workshop for image-carvers who stopped after the ancient religion was overturned in 1819 by Ka'ahumanu, or else it was a warehouse where followers of the old religion hid the images to prevent their destruction by government agents.
(10) Caretaker of Mauna Ala (Royal Mausoleum) "goes public" with complaint that Kunani Nihipali, then head of Hui Malama, "borrowed" two sacred ancient pulo'ulo'u (kapu sticks) guarding the royal crypt, 5 years ago, and has never returned them; and nobody has been able to contact Mr. Nihipali for a very long time. Speculation that the "borrowing" of the pulo'ulo'u was a ruse for actual theft and reburial (or perhaps sale on the black market?) similar to the way the Forbes Cave artifacts were "borrowed" and "repatriated."
December 30, 2004 Report on State Burial Councils
(1) On December 30, 2004 State of Hawai'i Legislative Auditor Marion Higa released her report on the state burial councils. The report focused on criticisms of administrative procedures related to the appointment of burial council members, and glitches in the processing of construction permits and related reburial decisions. The lengthy report contains interesting historical and cultural information about Hawaiian burial practices. 2 Newspaper articles and an editorial about the audit report are provided, plus a link to download the full report directly from the state auditor's office. Important excerpt from the Star-Bulletin article: "The audit criticized the state's historic-preservation law for citing the nonprofit Hui Malama I Na Kupuna O Hawaii Nei as an example of an "appropriate organization" that reburies remains and sacred items. "It infers authority and places an official imprimatur on the organization's behavior and practices," the audit said. The auditor's office recommended DLNR seek an amendment to remove Hui Malama from the historic-preservation law. Other reburial organizations accuse Hui Malama of "imposing its own burial protocol on others, despite the fact that Hawaiian burial practices vary from island to island, region to region, and even within families," the audit said.
Editorial comment by Ken Conklin: Following are the competing news reports about the audit report: Honolulu Advertiser vs. Star-Bulletin. As always, Advertiser reported Vicki Viotti shows her strong bias in favor of Hui Malama and other radical groups. On Hawaiian sovereignty issues in general, she behaves like an "embedded reporter" inside the independence movement, but also sometimes favors the Akaka bill, and never favors the concept of equality under the law. In this case, Ms. Viotti completely failed to mention the report's strong criticism of Hui Malama. The audit report's criticism of Hui Malama was the main focus of the Star-Bulletin editorial following the news reports.
The State of Hawai'i Legislative Auditor, Marion Higa, released her report on December 30, 2004. The report is entitled: "Investigation of the Department of Land and Natural Resources' Process for Developing Recommended Candidate Lists for Appointment to the Island Burial Councils." The complete 73-page report has an excellent, detailed table of contents. The full report can be downloaded in pdf format directly from the auditor's office: http://www.state.hi.us/auditor/Reports/2004/04-15.pdf
Honolulu Star-Bulletin, Friday, December 31, 2004
http://starbulletin.com/2004/12/31/news/story11.html
State criticized over burial councils
By Mary Vorsino
The state's "disorderly" process of naming candidates to island burial councils needs an overhaul to decrease the number of interim appointments and make participation criteria clear, says a state audit released yesterday. The audit also criticized the state Department of Land and Natural Resources' burial sites program, saying it is understaffed and has hundreds of cases that need to be closed.
The burial councils advise DLNR on unmarked burial sites -- including native Hawaiian iwi (bones) and funerary objects -- that are more than 50 years old. Earlier this year, the Legislature requested an audit to determine whether "questionable administrative practices" involving council appointments amount to deviation from the state's historic-preservation law.
The audit found DLNR did submit a timely list of candidates to Gov. Linda Lingle in December 2002. But she returned it in April 2003, asking for more than two candidates for each seat so she could have a choice on each appointment. The department did not provide a revised list of 2003 candidates until Jan. 20, 2004.
The audit also charged DLNR has shirked its responsibility as an "administrator" of the burial councils program. "The department has failed to satisfy its statutory responsibility to maintain a current inventory of native Hawaiian burial sites and fallen behind in its workload supporting the councils," the audit says.
In a statement yesterday, DLNR Chairman Peter Young said the audit's "findings and each recommendation will be given serious consideration." "We were already aware of many of the issues that were raised in the audit, that went beyond burial councils nominations, and the division was already addressing many of these issues prior to the audit," Young said.
The audit criticized the state's historic-preservation law for citing the nonprofit Hui Malama I Na Kupuna O Hawaii Nei as an example of an "appropriate organization" that reburies remains and sacred items. "It infers authority and places an official imprimatur on the organization's behavior and practices," the audit said.
The auditor's office recommended DLNR seek an amendment to remove Hui Malama from the historic-preservation law. Other reburial organizations accuse Hui Malama of "imposing its own burial protocol on others, despite the fact that Hawaiian burial practices vary from island to island, region to region, and even within families," the audit said.
Edward Ayau, spokesman for Hui Malama, said the group is responsible for the reburial of hundreds of iwi, and the audit should focus "on the work itself, not who does it." "I'm not sure these are informed opinions," he said, referring to other organizations that have raised concerns about Hui Malama. "If Hui Malama hadn't done what it did, these iwi would still be there. ... I believe our ancestors are thankful for our work."
The audit recommends DLNR meet with native Hawaiian groups and community members to agree on protocols for "reflecting Hawaiian oral traditions" related to burial practices. The protocols would provide the basis for criteria to qualify candidates for seats on burial councils.
Honolulu Advertiser, Saturday, January 1, 2005
http://the.honoluluadvertiser.com/article/2005/Jan/01/ln/ln29p.html
Burial site program needs money and staff, audit says
By Vicki Viotti
The state program that deals with Hawaiian burial sites uncovered during construction suffers from inadequate staffing, inadequate funding and a lack of commitment to get the job done in a timely manner or with enough cultural sensitivity, according to a report by state auditor Marion Higa.
The investigation into the problems began in May, in response to a request by lawmakers to investigate the way members are appointed to the island burial councils, the groups that help direct how Native Hawaiian burials are treated. Hearings on that request had aired allegations that the state Department of Land and Natural Resources, the agency that oversees the burials program, had omitted some candidates from the nomination list without consulting with Hawaiian organizations.
While Higa's report called the appointment process "disorderly" and lacking criteria for nominating council members, it cleared DLNR of those allegations. Instead, the 73-page report dug more deeply into the operation of the 14-year-old state law and the burials program it created.
"When we looked at what the process was like and tried to get at the truth of whether names were omitted, there were larger issues," Higa told The Advertiser. "It was like peeling an onion."
In a prepared statement Thursday, DLNR head Peter Young said the department is "pleased" that the audit dismissed the original allegation and vowed to give its findings about its historic preservation division "serious consideration." "We were already aware of many of the issues that were raised in the audit that went beyond burial councils nominations, and the division was already addressing many of these issues prior to the audit," Young said.
Among the findings in the report:
• The state exhibits "a lack of commitment to the burial councils and the burial sites program," a failing that "foreshadows a collapse of Hawaiian iwi (bones) preservation efforts." That lack takes the form of staffing shortages, which led in one instance to a developer, 1250 Oceanside Partners, funding two positions for the department. That company, developer of the troubled Hokuli'a project on the Big Island, paid $71,000 for the positions. "We question whether it is ethical for a private entity to pay for positions in the department related to the entity's project, particularly while the entity was involved in litigation with the department," Higa said in the report. In another written response, Young said this practice has ended.
• The burial sites program has hundreds of unresolved cases involving human remains, according to the report, which includes a photo of a room in which iwi have been stored. Other bones have been stored at developments or elsewhere: As of July, the caseload includes about 350 sets of human remains awaiting reburial.
• The lines of authority over burials are confusing and can lead to excessive delays for developers, the report states. Among its examples, it cites the case of an unnamed North Shore landowner whose discovery of a partial set of remains has generated 19 months of delays, $45,000 in archaeological and other costs and no resolution to date.
• The state historical and cultural branch keeps insufficient records of potential council candidates and has maintained a sluggish pace in submitting names, according to the report. This is one factor leading to the delays in appointing council members in recent years.
• The state relies too heavily on Western archaeological methods for establishing the nature of the burial and not enough on oral tradition — testimony by Hawaiians about where burials are located. The state needs to reconnect with this oral tradition, according to the report, and could start by convening an 'aha (council). This meeting would enlist Hawaiians to develop burial protocols that would embrace a range of family practices, and to forge criteria for the qualification of burial council members. "Despite the respect for native Hawaiian iwi held by Burial Sites Program employees, the program is inadequately staffed, causing lateness in candidate lists, lack of proper notice of council meetings, an eight-month backlog of council minutes and a disarray of human skeletal remains inventories," the report concluded.
Honolulu Star-Bulletin, Monday, January 3, 2005
http://starbulletin.com/2005/01/03/editorial/editorials.html
Editorials [ OUR OPINION ]
State should regain role in burial issues
THE ISSUE: The state auditor has called for the overhaul of the state's process of naming candidates for island burial councils.
PROTECTION of ancient burial sites is the duty of the state Department of Land and Natural Resources, but a private organization has claimed much of the responsibility. A state audit blames the improper transfer of responsibility on staff shortages and a "disorderly" process of naming candidates to advisory councils. Changes are needed to assure proper care of the burial sites and sacred items found at those sites.
The impetus for burial protection came from the 1988 unearthing of more than 1,100 human skeletal remains during the construction of the Ritz-Carlton Kapalua Hotel on Maui. Hui Malama I Na Kupuna O Hawaii Nei, a private organization, was immediately formed. The 1990 Legislature enacted a law creating island burial councils to advise DLNR's newly created Historic Preservation Program on burials sites that are at least 50 years old.
Meanwhile, Congress enacted the 1990 Native American Graves Protection and Repatriation Act, or NAGPRA, which authorizes native Hawaiians to repatriate bones and sacred items, returning them to burial sites when appropriate. Hui Malama became the main organization authorized by NAGPRA to do so.
State Auditor Marion Higa notes in her report that the state historic preservation law names Hui Malama "as the only example of an appropriate Hawaiian organization" for reburial of remains and sacred items. She says the group has been "imposing its own burial protocol on others, despite the fact that Hawaiian burial practices vary from island to island, even within families." The audit recommends Hui Malama be removed from the law.
The report notes that Hui Malama's "involvement and practices have been controversial." Some historians disagree with the organization's premise that ancient Hawaiians intended that sacred items be buried alongside their remains. "Caves were simply the safest places for storage of precious goods," maintains Hawaiian historian Herb Kawainui Kane.
A NAGPRA review committee is scheduled to conduct hearings on the dispute in March. Meanwhile, the state should increase its historic program and fill vacancies in island burial councils to regain its intended authority.
NAGPRA REVIEW COMMITTEE March 13-15, 2005
(2) Meeting of the national NAGPRA REVIEW COMMITTEE scheduled for Honolulu for March 13-15, 2005. Presentations must be arranged in advance; statements and comments may also be submitted.
Honolulu Advertiser, Saturday, January 8, 2005
http://the.honoluluadvertiser.com/article/2005/Jan/08/ln/ln31p.html
Note from website editor Ken Conklin: This article was republished, with some additional information, on March 4, 2005, and that version is also copied in chronological order below.
Graves protection panel to meet
By Vicki Viotti
A federal panel will take up various conflicts over Native Hawaiian burial artifacts — including a hotly contested reburial of objects in a Kawaihae cave — at meetings set for March 13-15 at the East-West Center.
The panel, officially known as the Native American Graves Protection and Repatriation Review Committee, will convene at 1 p.m. March 13 at the Hawai'i Imin International Conference Center, 1777 East-West Road. The meetings will resume at 8:30 a.m. March 14 and 15, with sessions expected to adjourn about 5 p.m. each day.
The Kawaihae case, in which 83 objects formerly in the Bishop Museum collection were reburied nearly five years ago in a sealed cave, probably is the most high-profile case to be discussed. But other conflicts involving the museum, including the proposed "repatriation" of cultural objects to Moloka'i, also will be on the table.
The committee will hear public comments on other issues, including nominees for a seventh committee member.
Anyone wishing to schedule a presentation before the committee must submit a written request with an abstract of the presentation and contact information. Individuals also may submit written statements for consideration by the Review Committee during the meeting.
Requests and statements may be mailed to: Designated Federal Officer, NAGPRA Review Committee, National Park Service, 1849 C St. NW (2253), Washington, DC 20240. Anything sent by commercial delivery service should be addressed to the National Park Service, 1201 Eye St. NW, 8th floor, Washington, DC 20005.
Because increased security in the Washington area may delay mail delivery, copies also should be faxed to (202) 371-5197.
Abigail Kawanananakoa Steps In
(3) Group headed by royal descendant and pretender to the throne, Abigail Kawanananakoa, age 78, is stepping into the Forbes Cave and other disputes in opposition to Hui Malama and in support of Bishop Museum and La'akea Suganuma. See also item (8), wherein this group won a federal court decision ordering Hui Malama to return the Forbes Cave artifacts to Bishop Museum.
Honolulu Star-Bulletin, Monday, January 10, 2005
http://starbulletin.com/2005/01/10/news/story7.html
TEN TO WATCH
Abigail Kawananakoa
Kawananakoa a force in the dispute over Hawaiian artifacts
By Sally Apgar
Abigail Kawananakoa, a wealthy heiress and descendent of King Kalakaua, could live in blissful seclusion working her California ranch and raising more champion quarter horses while indulging her taste for pet philanthropic projects. Instead, Kawananakoa, at the age of 78, is stepping into a big fight.
Kawananakoa is throwing her wealth and support behind those who believe that native Hawaiian artifacts should not rot in caves, but should be protected in climate-controlled museums so that future generations can learn about their heritage.
Her opposition believes, just as fiercely, that ancestors meant for these items to be buried with them in caves.
Observers say her entry is significant because she has the wealth and tenacity to finance a fight over the disposition of priceless artifacts that could end up as costly court battles.
For the past 15 years, one native Hawaiian organization, Hui Malama I Na Kupuna O Hawaii Nei, has dominated the repatriations of human remains and artifacts. Hui Malama has had political backing reaching up to U.S. Sen. Daniel Inouye and supporters that include the Native Hawaiian Legal Corp.
To date, claimants who have disagreed with Hui Malama have had few resources. But now, Kawananakoa has stepped in.
To position herself, Kawananakoa formed Na Lei Alii Kawananakoa in November as a native Hawaiian organization defined under the 1990 Native American Graves and Repatriation Act.
Congress passed NAGPRA to create a process for native Americans and native Hawaiians to repatriate human remains and certain treasured artifacts from museums. Kawananakoa recently submitted Senate testimony criticizing aspects of the law she feels need to be retooled.
Kawananakoa's group includes her close advisers Rubellite Johnson and Edith McKinzie. Johnson, a professor emeritus at the University of Hawaii, is a renowned scholar of Hawaiian culture, language and history. McKinzie, a kumu hula, is an expert in Hawaiian genealogy who authored the two-volume "Hawaiian Genealogies," considered among the most authoritative texts on the subject.
Recently, Kawananakoa's group has staked claims with the Bishop Museum for several artifacts found on Molokai. Hui Malama is also competing for the items. Kawananakoa's group is expected to make more similar claims.
Kawananakoa's group is also backing La'akea Suganuma, a practitioner of ancient Hawaiian martial arts, in his fight over 83 artifacts, once part of the Bishop Museum's collection, that Hui Malama reinterred in Kawaihae Cave on the Big Island in 2002. "It's crucial that she has entered this fight," Suganuma said. "She has a strong sense of duty and obligation for the preservation of our culture for future generations."
Honolulu Advertiser, Saturday, August 20, 2005
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050820/NEWS23/508200345/1001
Kawananakoa seeks transfer of artifacts
By Ken Kobayashi
Advertiser Courts Writer
Two groups — including one headed by Abigail Kawananakoa, an heiress of the Campbell Estate who is descended from Hawaiian royalty — are filing a federal lawsuit demanding that a Native Hawaiian organization return 83 lots of priceless Hawaiian artifacts to Bishop Museum so that they can be properly returned to their rightful claimants.
Kawananakoa is president of Na Lei Alii Kawananakoa, which, along with the Royal Hawaiian Academy of Traditional Arts, submitted the suit at the federal courthouse yesterday. The two groups also submitted a request for a court order seeking the return.
The suit is over a long-standing dispute over artifacts recovered at the Kawaihae Caves on the Big Island in 1905. Known as the Forbes Caves collection, the objects include a female figure carved of wood; two stick 'aumakua; and gourds decorated with human teeth.
Bishop Museum lent those items for a year to Hui Malama I Na Kupuna 'O Hawai'i Nei in 2000, according to the suit. But Hui Malama did not return the items, has refused to do so and apparently buried them in the Kawaihae Cave complex, exposing them to environmental harm and thieves, the suit said.
The lawsuit said the items were wrongfully obtained from the museum under a previous administration in violation of the federal Native Hawaiian Graves Protection and Repatriation Act. The law establishes a process for museums to return cultural items to groups that include Native Hawaiian organizations. "Hui Malama hijacked an important part of Hawai'i's cultural past in a manner that should shock the conscience of this court," the two groups said in documents supporting their request that the items be returned to the museum. The groups are represented by Honolulu attorney George Van Buren.
The suit is against the museum and Hui Malama, a nonprofit group formed for the care of burial remains and associated objects.
But the museum's current president, William Y. Brown, issued a statement yesterday indicating that the institution sympathizes with the two groups. "We agree with the plaintiffs that the Kawaihae repatriation has not been completed and is not final," he said. "We strongly believe that these objects should be recovered and made secure from harm. Once that is done, consultation should continue among all recognized claimants in a manner that is respectful to them all. "We appreciate the frustration of the plaintiffs, and hope that this case can be resolved quickly."
Edward Halealoha Ayau, Hui Malama spokesman, would not comment because he had not read the lawsuit. But Guy Kaulukukui, a former museum employee who oversaw the claims to the artifacts under the federal statute, said the institution complied with "the letter and spirit of the law" in releasing the artifacts to Hui Malama. He said if the museum chose to defend its actions, it would prevail. "I don't know that it will attempt to defend itself very well, given that the landscape has changed," he said.
When it received the artifacts, Hui Malama was one of four groups recognized as a claimants under the federal law. Currently, there are 13 others, including the two filing the lawsuit.
The suit said a review committee, an advisory board to the Department of Interior, twice found that the process of identifying the correct claimants had not been completed. "We have tried every way possible to resolve this matter other than going to court," Kawananakoa said in a statement yesterday. "However, the refusal of Hui Malama to comply with the loan agreement, the review committee's two decisions and the law left us with no choice."
La'akea Suganuma, president of the Royal Hawaiian Academy, said in a statement they're not sure the artifacts are in a cave. "Even if they are, we are very concerned about their condition. It is certain that they have been subjected to deterioration and attack by insects for 5 1/2 years," he said.
The lawsuit and the request for an injunction were submitted to a receptacle at the federal courthouse, which was closed yesterday. The papers will be formally filed on Monday.
A hearing date on the request for the court order will be set after the documents are filed.
Honolulu Advertiser, Wednesday, August 31, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050831/NEWS20/508310339/1001/NEWS
Group defends keeping artifacts
By Ken Kobayashi
Advertiser Courts Writer
A Native Hawaiian group formed to care for Hawaiian burials and funerary objects rightfully obtained 83 priceless lots of Hawaiian artifacts from Bishop Museum and has them in a sealed cave safe from harm, the organization said this week in a response to a lawsuit.
Hui Malama I Na Kupuna 'O Hawai'i Nei and the museum were sued last week by two groups, including one headed by Abigail Kawananakoa. The suit asks for an injunction that would order Hui Malama to return the artifacts to the museum so that they can be given to their rightful claimants.
In the response submitted to the court Monday, Hui Malama said the two groups don't have the legal standing to ask for the court order and asked that the injunction be denied.
But the museum responded that it agrees with the suit and supports the request for the injunction.
U.S. District Judge David Ezra will hear the request Friday in what will be the latest development in the continuing dispute over who should get the artifacts known as the Forbes Caves collection. The artifacts include a female figure carved of wood and gourds decorated with human teeth.
Kawananakoa, a Campbell Estate heiress and a descendent of Hawaiian royalty, is the president of Na Lei Alii Kawananakoa, which filed the suit along with the Royal Hawaiian Academy of Traditional Arts. The two groups and Hui Malama are among 13 that have claims to the artifacts.
The suit alleges Hui Malama improperly obtained the artifacts from the museum in 2000 in violation of the federal Native American Graves Protection and Repatriation Act, which establishes a process for museums to return cultural items to groups, including Native Hawaiian organizations.
In its response filed by Native Hawaiian Legal Corp. lawyers, Hui Malama said the museum consulted Hui Malama and three other claimants — the Office of Hawaiian Affairs, the Department of Hawaiian Home Lands and the Hawaii Island Burial Council — before handing over the artifacts. Nine other groups later filed claims.
The claimants could not agree on a final disposition of the artifacts, but they "agreed to disagree" on that point, Hui Malama said.
Hui Malama said it has refused to return the items to the museum because the group has a claim on the objects and does not have a legal duty to return them.
The group said it is not necessary to give the items to the museum for a determination on which claimants should get the artifacts.
The artifacts were unlawfully taken from the Kawaihae caves on the Big Island in 1905 and purchased by the museum, Hui Malama said. The injunction would again "disturb" a Native Hawaiian burial site in violation of state laws, the group said.
"There is no harm with the items in a sealed cave and no threat of damage with the items lying in their natural state in the burial cave," Hui Malama said.
In its response, Bishop Museum said the Native American Graves Protection and Repatriation Act set up procedures for the return of the artifacts, but a review committee in 2003 found that the process was "flawed and incomplete."
The museum said that in 2000 it "unwittingly" lent the items to Hui Malama "without the knowledge or concurrence" of all claimants.
Hui Malama later sealed the items in the cave, again without the knowledge of the other claimants, the museum said.
The museum disagreed that the rightful claimants could be determined without the return of the artifacts. Until they are returned, the museum cannot complete the consultation process required by federal law, the museum said.
NAGPRA REVIEW COMMITTEE Open Meeting @ East West Center
(4) NAGPRA REVIEW COMMITTEE to hold open meeting at the East West Center, University of Hawai'i, March 13-15, 2005. Meeting agenda available on internet; how to submit testimony and/or request a hearing before the committee. The Advertiser portion of this item is an updated version of item #(2); however, the Star-Bulletin version of this item adds substantial content reviewing the history of various conflicts involving the NAGPRA Review Committee in Hawaiian issues.
The Honolulu Advertiser, Friday, March 4, 2005
http://the.honoluluadvertiser.com/article/2005/Mar/04/ln/ln40p.html
Panel to hear disputes over artifacts
By Vicki Viotti
A federal panel will take up conflicts over Native Hawaiian artifacts from a burial cave at Kawaihae, as well as other disputes over the handling of cultural objects, in a three-day public hearing set to convene March 13 at the East-West Center.
The Native American Graves Protection and Repatriation Review Committee will meet from 1 to 5 p.m. on March 13 and 8:30 a.m. to 5 p.m. on March 14 and 15 in the center's Keoni Auditorium.
The first day will involve presentations of evidence by the principal parties in each dispute, with public comment on the second day and committee members deciding on their recommendations before adjourning.
The agenda is available at http://www.cr.nps.gov/nagpra/
The March 13 session will involve three newer complaints filed by the nonprofit organization Hui Malama I Na Kupuna O Hawai'i Nei, which seeks the return to Hawaiian ownership of:
- Three funerary objects from Moloka'i now in the Bishop Museum collection - a rock oyster pendant, a wood image and a cowrie shell.
- Sandstone slabs known as the Kalaina Wawae, still owned by the museum but installed for public viewing at a Moloka'i site.
- Five objects - a female ki'i (figure), a cutting tool, a rock oyster pendant, a konane game board and a gourd - originally from Kawaihae Cave but now in the collection of Hawaii Volcanoes National Park.
The larger Kawaihae case, in which the hui reburied in the cave 83 objects formerly in the museum collection, will be discussed March 14. One of the competing claimants, the Royal Hawaiian Academy of Traditional Arts, brought its complaint about the incident before the committee in September.
Anyone wishing to schedule a presentation before the committee must submit a written request with an abstract of the presentation and contact information. Individuals also may submit written statements for consideration by the Review Committee during the meeting.
Requests and statements may be mailed to: Designated Federal Officer, NAGPRA Review Committee, National Park Service, 1849 C St. NW (2253), Washington, DC 20240. Because increased security in the Washington area may delay mail delivery, copies also should be faxed to (202) 371-5197.
Honolulu Star-Bulletin, Sunday, March 13, 2005
http://starbulletin.com/2005/03/13/news/story4.html
"Most aboriginal culture has been lost, and what remains is in the Bishop Museum. When it comes to artifacts, not human remains (which should be reburied), they should be available for the public to see."
- Dr. Charman Akina
- Member of Bishop Museum collections committee
Panel to hear artifacts dispute
A national advisory committee is in town to help settle thorny repatriation issues
By Sally Apgar
A national review committee will spend the next three days in Honolulu hearing testimony to help decide several controversial issues involving the repatriation, ownership and disposition of some highly valued native Hawaiian artifacts.
The review committee has only advisory power in such disputes under the federal Native American Graves Protection and Repatriation Act, which was enacted to set up a procedure for artifacts and human remains in museum collections to be returned to Native American and native Hawaiian claimants.
The three-day hearing, which begins this afternoon at the East-West Center on the University of Hawaii-Manoa campus, will bring together representatives of the Bishop Museum, Hawaii Volcanoes National Park and various native Hawaiian groups who have been at odds over the repatriation of items from the Kawaihae, or Forbes, cave on the Big Island and some artifacts originally found on Molokai. Many of the items are highly prized among some native Hawaiians for the mana, or spiritual power, they are believed to possess.
Of the four disputes that will be heard, Kawaihae is perhaps the most long-standing and bitter.
In February 1990, Bishop Museum crated 83 artifacts from its collection that were collected from Kawaihae cave in 1905 and handed them over to Hui Malama I Na Kupuna O Hawaii Nei, a group founded in 1989 to repatriate human remains and artifacts and rebury them to honor ancestors. The inventory list accompanying the crate labeled the transaction "a one-year loan." The items were never returned despite repeated requests from the museum.
Edward Halealoha Ayau, a spokesperson for Hui Malama, has said the items were reburied. Ayau has repeatedly said the organization never meant to return them, the museum staff knew that and the repatriation is final.
La'akea Suganuma, who represents the Royal Hawaiian Academy of Traditional Arts, questions the "loan" of the Kawaihae cave artifacts.
The dispute with Suganuma's group and the Bishop Museum arose because another 12 claimants said they wanted to review the repatriation, and some of those claimants wanted the items returned. Ayau has repeatedly said that if there is any dispute among the 13 "owners," it should be resolved in court, not by NAGPRA.
The NAGPRA review committee heard the dispute at a meeting in May 2003 in St. Paul, Minn. The committee found in a 6-to-1 decision that the repatriation was "flawed" and "incomplete." It said the museum was still responsible for the repatriation and therefore recommended that it renew the consultation with all claimants, recall the loan and have the items made available to all claimants.
Since the May 2003 decision, the review committee's membership has partly changed, and last fall members voted to rehear the case in Honolulu. The lone dissenting vote in St. Paul, Rosita Worl, is now chairwoman of the review committee. Worl, who was traveling, could not be reached for comment.
Suganuma alleges favoritism among some review committee members. "There are political alignments between Hui Malama and some on the board. People have orchestrated and fabricated reasons for rehearing a case that was already decided, with the intent of reversing the decision. It's a total travesty," Suganuma said.
Ayau could not be reached for comment.
Dr. Charman Akina, a member of the museum's collections committee, said, "Most aboriginal culture has been lost, and what remains is in the Bishop Museum. When it comes to artifacts, not human remains (which should be reburied), they should be available for the public to see." Akina added, "Some of the organizations that have gotten involved with these issues have become more emotional than realistic. And they are not looking at the needs of the general native Hawaiian population." Akina also voiced the opinion that NAGPRA's definitions for different classifications of artifacts that determine repatriation and ownership are useful to Native Americans, who have tribes and tribal governments, but do not fit with native Hawaiian culture.
The review committee will also hear disputes involving:
» Hui Malama and Hawaii Volcanoes National Park over five items from Kawaihae cave that reside in the park's collection. Ayau has said he has written three claims for the items since November 1999 and that they have been ignored. The five items are: a 27-inch-high carved wooden statue of a woman, a konane game board with legs made of carved wooden figures; a cutting tool that incorporates a human collar bone and a shark's tooth; a gourd with a shell stopper and a button. At least one other claimant, Suganuma, has filed a claim for the same items.
» Hui Malama and the Bishop Museum over artifacts found in burial sands of Moomomi Beach on Molokai and later donated to the museum. The items include: a hook-shaped pendant about 5 inches long; a cowrie shell and a kii, an 8-inch stick figure with human face carved in a dark wood. The kii and pendant in particular are considered by some to be imbued with strong spiritual powers. Hui Malama contends that the museum got the items from "grave robbers" and therefore has no legal "right of possession." The museum disagrees.
» Hui Malama and Bishop Museum over footprints in three sandstone blocks that were found on Molokai, put into the museum's collection and then recently restored to the beach and placed in a structure so that they can be viewed. The story of the footprints stems from a prophecy made by a young woman, Kuuna, several hundred years ago. She drew footprints in the sand of square-toed boots and said that foreigners would arrive who make such footprints rather than the barefoot prints of her people. She said the foreigners would hurt Hawaiians. Afraid of her prophecy, people stoned her to death. The museum has retained legal ownership to the footprints, arguing that they are items of "cultural patrimony" under NAGPRA, meaning they belong to all native Hawaiians and not a particular group. The museum argues the items should be on display for the education of current and future generations. Hui Malama claims that current museum director William Brown struck a private agreement with another native Hawaiian group that nullified an earlier NAGPRA finding under the museum's previous administration. Hui Malama claims it has legal ownership.
Hui Malama I Na Kupuna O Hawaii Nei
huimalama.tripod.com
Bishop Museum
www.bishopmuseum.org
U.S. Interior Dept. -NAGPRA
www.cr.nps.gov/nagpra
Claims against Wal-Mart dismissed
(5) A circuit judge in mid-May, 2005 dismissed claims against Wal-Mart for allegedly desecrating human remains during the recent construction of its complex on Keeaumoku Street. Judge Victoria Marks ruled Monday that Paulette Kaleikini, who claims a cultural tie with ancestors buried at the site, and Hui Malama I Na Kupuna O Hawaii Nei, an organization that cares for the reburial of native Hawaiian remains, have no right to pursue their monetary claims against the retail giant. Marks ruled that under state law, the two cannot pursue desecration claims because they have no property interest in the land on which the ancestral bones were found. She said the two cannot seek other claims because the state, rather than Wal-Mart, has custody of the bones. Marks also ruled the two could not pursue claims alleging infliction of emotional distress for negligently handling of the remains because they could not prove a direct blood tie. Eventual court decision in Wal-Mart case absolves Wal-Mart of any guilt, but settlement agreement establishes principle that land which has been previously developed cannot be presumed to have no ancient remains.
Honolulu Star-Bulletin, Wednesday, May 18, 2005
http://starbulletin.com/2005/05/18/news/story5.html
Wal-Mart absolved in bones lawsuit
By Sally Apgar
A circuit judge this week dismissed claims against Wal-Mart for allegedly desecrating human remains during the recent construction of its complex on Keeaumoku Street.
Judge Victoria Marks ruled Monday that Paulette Kaleikini, who claims a cultural tie with ancestors buried at the site, and Hui Malama I Na Kupuna O Hawaii Nei, an organization that cares for the reburial of native Hawaiian remains, have no right to pursue their monetary claims against the retail giant.
Marks ruled that under state law, the two cannot pursue desecration claims because they have no property interest in the land on which the ancestral bones were found. She said the two cannot seek other claims because the state, rather than Wal-Mart, has custody of the bones.
Marks also ruled the two could not pursue claims alleging infliction of emotional distress for negligently handling of the remains because they could not prove a direct blood tie.
Wal-Mart spokeswoman Cynthia Lin was pleased with the decision. She said, "Wal-Mart has made every effort to follow the state's direction, and we remain committed to doing so." Lin said, "We all recognize that this has been a difficult process for all parties involved, but we do hope that the iwi (bones) will have a final place of rest."
Moses Haia, one of the attorneys representing Kaleikini, was disappointed with the ruling. Haia said that they will seek existing claims against the state and city governments. Trial is scheduled for July 18.
Haia said, "Ultimately, we want to make sure a Wal-Mart never happens again," in which bones are desecrated and the city and state do nothing. Haia said Kaleikini may appeal Marks' ruling on the emotional distress claim.
About 44 sets of bones were found on the Wal-Mart site after construction began in December 2002.
There are lingering questions about the ancestry of the bones. While some groups claim they are the bones of native Hawaiians, there is historic evidence that suggests they were multi-ethnic victims of a smallpox epidemic in 1853. Historic records indicate a hospital operated on the site, and the practice at the time was to quickly bury smallpox victims to contain the disease.
In May 2003, Kaleikini and others visited the construction site and claim they saw the bones exposed to the sun in a trench littered with garbage that lay near portable toilets. Kaleikini claims to have seen a stray cat grab a bone.
The suit alleges that officials with Wal-Mart, the state's Historic Preservation Division and the city violated state laws that protect human remains and grave sites.
In a separate action, the attorney general is investigating claims the remains were desecrated when archaeologists glued remains and marked them with permanent markers.
Honolulu Advertiser, Tuesday, July 19, 2005
http://the.honoluluadvertiser.com/article/2005/Jul/19/ln/507190352.html
State, hui settle suit on Ke'eaumoku remains
By Ken Kobayashi
A tentative settlement has been reached over a lawsuit against the state by a Native Hawaiian group challenging the handling of human remains found at the site of the Ke'eaumoku Street Wal-Mart complex.
Under the agreement, the state's historic preservation division will not say remains aren't affected by new developments, such as Wal-Mart, just because the property was previously developed.
The agreement covers Ho-nolulu's urban corridor from River Street to Kapahulu Avenue and from the ocean to the H-1 Freeway. It also cancels a trial set for this week on the lawsuit by Hui Malama I Na Kupuna O Hawai'i Nei, a nonprofit group that oversees the care of Native Hawaiian remains.
"It's a good start toward trying to ensure that instances like Wal-Mart don't ever occur again," said Moses Haia III, Native Hawaiian Legal Corp. lawyer representing Hui Malama and Paulette Kaleikini.
Deputy Attorney General James Paige said the state is agreeing to the settlement because that's what state officials believe is the right thing to do, although the state isn't conceding that it found no impact on remains in other cases solely because the land was previously developed.
In addition, the state does not have to pay any attorney fees or money damages, Paige said.
The settlement still must be approved in writing by all parties.
Hui Malama filed the lawsuit in 2003 against Wal-Mart, the state and the city. It alleged that they violated the public trust and violated state laws dealing with the protection and preservation of human remains and the desecration of graves.
An archaeologist has determined that remains found at the site may be of people who died in an 1853 smallpox epidemic. More than 60 sets of human remains were found.
Lawyers for Wal-Mart, the city and the state had denied allegations of wrongdoing.
Circuit Judge Victoria Marks earlier threw out the claims against Wal-Mart and the city.
In addition to its store, Wal-Mart also built a Sam's Club on the 10.5 acre property. The stores opened last year.
Honolulu Advertiser, Friday, July 22, 2005, EDITORIAL
Burials accord should affirm wisdom of law
The settlement of a lawsuit over the state's Hawaiian burials law, stemming from the Wal-Mart development controversy, is a welcome easing of tensions that may allow the law to be carried out in the way it was intended.
The law was not passed to erect a wall between developers and Hawaiian families that want to see ancestral burials are treated as respectfully as possible. Rather, it was meant as a blueprint to guide government and builders so that development and Native Hawaiian burials can peacefully coexist.
Unfortunately, that wall went up and now must be dismantled, brick by brick. Very little has been peaceful about the Wal-Mart development, in which dozens of burials have been unearthed and still lay in boxes stored in a trailer off Sheridan Street.
These bones must be reburied as soon as possible. The state should expedite its investigation of alleged desecration by the archaeologists who were working to inventory the remains. Further delay would itself constitute a disrespect to the families that's both needless and counterproductive.
State historic preservation officials have agreed under the court settlement to consider how construction affects burials in urban Honolulu, regardless of whether the parcel in question has been developed before. Clearly, many Native Hawaiians were buried in unmarked graves throughout the area now pegged for major redevelopment projects, and these remains should be given their due.
The preservation office also needs a critical infusion of staff support to handle all the cases that are certain to come to light in Kaka'ako and other areas. And then they should work with developers to bring them through the burials review, which rightly gives a voice to families affected when the earth is turned.
The Wal-Mart case demonstrates how the best and most efficient course is to deal with the burials issue head-on. Trying to avert a clash seems to generate more conflict that, in the end, serves no one's interest.
Kaulukukui files lawsuit
(6) Guy Kaulukukui, former head of the Cultural Studies department of Bishop Museum, has filed a lawsuit against the museum, claiming that the museum fired him improperly. Kaulukukui claims the reason he was fires is because he refused to carry out an order that would be illegal under NAGPRA.
Honolulu Advertiser, Wednesday, July 13, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050713/NEWS23/507130344/1173/NEWS
Museum's former cultural chief files suit, cites remains dispute
By Gordon Y.K. Pang
The former chief of cultural studies at the Bishop Museum has filed suit against the institution, claiming he was fired when he refused to violate federal laws that require the return or "repatriation" of significant burial artifacts.
The suit, filed yesterday in state Circuit Court, raises the question of whether the museum is properly following the Native American Graves Protection and Repatriation Act of 1990.
The purpose of the act, according to its Web site, is to provide "a process for museums and Federal agencies to return certain Native American cultural items — human remains, funerary objects, sacred objects, and objects of cultural patrimony — to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations."
A spokeswoman for the museum said officials had not seen the lawsuit "and can't comment on what it may allege."
Guy Kaulukukui states he was fired from his job as vice president of cultural studies for the museum in January 2004 for refusing to sign off on two letters that would have halted a repatriation that would have given Hui Malama i Na Kupuna o Hawai'i Nei possession of funerary objects from Moloka'i.
According to the lawsuit, the letters were drawn up at the request of museum President Bill Brown and would have reversed the findings of a museum committee — headed by Kaulukukui — that reviewed NAGPRA claims and recommended acceptance of the claim to the Moloka'i objects by Hui Malama.
Brown wanted the process delayed until the museum's NAGPRA process could be reviewed, noting that there was a competing claim to the same objects.
The actions by Brown and the museum in the Moloka'i case are symptomatic of a bigger problem, Kaulukukui said. "I think this is part of a pattern, and it's a pattern of repatriating as little as possible," Kaulukukui told The Advertiser.
The issue has been a subject of debate in recent years. Some believe that while Kaulukukui was in charge of the museum's NAGPRA committee, it released items without adequate review. For example, controversy erupted among Native Hawaiian groups in 2000 when Hui Malama took 83 rare artifacts on loan from the museum and buried them in the Kawaihae Caves on the Big Island.
At the time of Kaulukukui's departure from the museum, Brown said in a statement: "The issues related to repatriation of cultural artifacts and funerary objects are very sensitive, and we take our stewardship role very seriously. At my direction, a very cautious approach to each claim is taken in order to make sure that a Kawaihae Caves situation never again occurs."
Kaulukukui's lawsuit states that in the Moloka'i case Brown "violated the letter and intent" of the federal repatriation act by seeking to delay the repatriation process. Kaulukukui refused to sign the letters "knowing that he was being asked to do an illegal act," the lawsuit states.
The dismissal, the lawsuit states, was "wrongful, done in bad faith, retaliatory in nature and punitive in intent."
Kaulukukui, who was hired by former museum President Donald Duckworth in 1997, seeks reinstatement to his $76,000-a-year post and retroactive pay with interest.
Bishop Museum Keeps Artifact
(7) Bishop Museum is keeping an artifact from Mo'omomi, Moloka'i because three competing claimants are unable to resolve their dispute over who should own it. Also, the museum has recognized an additional claimant group for the Forbes Cave artifacts.
Honolulu Advertiser, Friday, July 29, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050729/NEWS01/507290378/1001/NEWS
Museum keeping artifact in interim
The Bishop Museum has decided to keep a funerary object sought by three competing Hawaiian organizations until the groups settle on the disposition of the artifact, a cowrie shell that the museum acquired after it was unearthed near Mo'omomi, Moloka'i.
Also yesterday, the museum's directors decided to recognize another group as a claimant on the objects that were reburied at Forbes Cave in a controversial Big Island case.
In each case, the board followed the recommendations of a nine-member museum board collections committee.
The claims in both cases fall under the Native American Graves Protection and Repatriation Act of 1990, widely known as NAGPRA, which established a process for museums and federal agencies to return certain cultural items to lineal descendants, culturally affiliated Indian tribes and Native Hawaiian organizations.
"I think it's a fair treatment of the whole business, the back and forth of the arguments of the NAGPRA issues," said Isabella Abbot, co-chairwoman of the collections committee.
In deciding to retain the Moloka'i cowrie shell, the museum board said it could not be determined which of the claims of Hui Malama I Na Kupuna O Hawai'i Nei, Na Lei Alii Kawananakoa or the Royal Hawaiian Academy of Traditional Arts were most appropriate. In a press release, the board said none of the claimants presented evidence showing any of its members are descendants of the person whose remains are thought to have been associated with the cowrie shell.
The Big Island case involves 83 sets of objects from the Kawaihae caves complex, also known as Forbes Cave. Controversy erupted among Native Hawaiian groups in 2000 when Hui Malama took the artifacts on loan from the museum and buried them in the caves.
The recognition of Na Lei Alii Kawananakoa — a group incorporated last year by Campbell Estate heiress Abigail Kawananakoa — gives the organization standing in the ongoing dispute over the objects, including the right to take the matter to court.
Thirteen other groups, including Hui Malama, also have been recognized as culturally affiliated claimants to the objects.
Honolulu Star-Bulletin, Saturday, July 30, 2005
http://starbulletin.com/2005/07/30/news/story13.html
Museum qualifies group to receive artifacts
There are now 14 groups recognized as claimants
Associated Press
The Bishop Museum's board of directors has recognized Na Lei Alii Kawananakoa as a native Hawaiian organization with rights to claim ancient Hawaiian artifacts known as the Forbes Collection.
The action, announced Thursday, brings to 14 the number of native Hawaiian organizations recognized as culturally affiliated claimants of the objects, the museum said.
Na Lei Alii Kawananakoa's application for recognition was based on cultural affiliation and provided supporting information on kinship and geographic association with the objects, the museum said.
The organization was founded by Abigail Kawananakoa, a wealthy heiress and descendent of King Kalakaua.
The 83 artifacts were first collected in 1905 from Kawaihae Cave on the Big Island.
The items were labeled as being on loan when the museum handed them over to Hui Malama I Na Kupuna O Hawaii Nei in 2000. They were never returned, and Hui Malama has said they have been reburied in the cave.
In other action, the museum said the board was unable to determine which of three competing claims for a cowrie shell found on Molokai was the most appropriate.
The museum acknowledged in December that it was not the rightful owner of the cowrie under the terms of the federal Native American Graves Protection and Repatriation Act.
Hui Malama, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts each based its claim on the assertion of kinship or geographic association with Molokai, the museum said.
None of the three demonstrated that any of its members are descendants of the person whose remains are thought to have been associated with the cowrie, it said.
Under the terms of the Native American Graves Protection and Repatriation Act, the museum said it will retain the cowrie until the three agree upon its disposition or the dispute is otherwise resolved.
Artifacts Ordered Returned to Biship Museum
(8) On Friday, September 2, 2005 Chief U.S. District Judge David Ezra ordered Hui Malama to return the Forbes Cave collection of 83 artifacts to Bishop Museum, so the museum can go forward with the process of resolving the conflicts among 13 claimants regarding who should have possession. The order was requested by Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, two of the 13 claimants; with the support of Bishop Museum. On Wednesday September 7 Chief U.S. District Judge David Ezra issued a 22-page written order that the artifacts must be returned by September 23. Hui Malama filed a request with the 9th Circuit Court of Appeals for a stay of the order pending an appeal they plan to file. The OHA monthly newspaper for September 2005 contained a full page devoted to the controversy, including side by side articles written by opponents Eddie Ayau and La'akea Suganuma regarding how we know what are the wishes of the ancestors regarding the artifacts. The 37-page pdf file of the September 7 motion by Hui Malama contains many legal technicalities (such as the discussion of the legal standards by which such an emergency motion is to be decided), but it also contains many substantive explanations and analyses. That pdf file is available for download at: http://www.angelfire.com/hi5/bigfiles3/HuiMalMotnEmrgncyStay090705.pdf
On September 14 it was announced that a document has been filed with the 9th Circuit Court by Hui Malama written by the (stone)mason who sealed the cave after the artifacts had (allegedly) been reburied there, swearing that if the cave is re-opened to retrieve the artifacts, the cave might collapse. On September 20 the 9th Circuit Court ordered a stay (delay) in enforcement of Judge Ezra’s order to return the artifacts, until the 9th Circuit can consider the issues and make a ruling. However, the 9th Circuit also ordered an expedited hearing. Hui Malama must file its opening brief by Sept. 30 explaining why Ezra's decision should be overturned. The two Native Hawaiian groups that sought the injunction have until Oct. 21, or 21 days after the court receives the opening brief, to respond. Hui Malama would then have 10 days to reply. The appeals court said the case would be on the calendar during the week of Dec. 5. On October 7 Judge Ezra took the very unusual step of filing a "supplemental order" expressing doubts whether there is a problem of possible cave collapse, indicating that if such a problem exists it can be dealt with, and also noting that Hui Malama has neither revealed where the cave is nor whether all the artifacts are inside that cave.
Honolulu Advertiser, BREAKING NEWS, Posted at 11:53 a.m., Friday, September 2, 2005
[more detailed report the next day]
http://the.honoluluadvertiser.com/article/2005/Sep/02/br/br03p.html
Judge orders Hui Malama to return burial artifacts
BY KEN KOBAYASHI
Advertiser Courts Writer
Chief U.S. District Judge David Ezra this morning ordered a Native Hawaiian group to return to Bishop Museum 83 priceless lots of Hawaiian artifacts that were buried in a cave on the Big Island.
The return is pending a process to resolve competing claims on the artifacts from Native Hawaiian groups and to determine what should be done with the objects.
Hui Malama I Na Kupuna 'O Hawai'i Nei opposed the order, arguing that the return would once against disturb the sanctity of the artifacts and that they remain safe and secure in a sealed cave.
Ezra said he has no evidence on the condition of the objects and ordered the return to the museum, which would secure the items.
But he made clear the museum cannot not put them on public display while 13 Native Hawaiian organizations sort out what should happen to the artifacts under the federal Native American Graves Protection and Repatriation Act.
Hui Malama lawyers said they will immediately ask the 9th U.S.Circuit Court of Appeals to postpone the enforcement of the judge's ruling.
But it was not clear whether they could file and receive a response from the appeals by this afternoon, when Ezra is scheduled to formally file his decision.
The artifacts, known as the Forbes Caves Collection, include a female figure carved of wood and gourds decorated with human teeth. They were taken from the Big Island burial caves in 1905 and given to the museum. In 2000, the museum said it lent them to Hui Malama, but the group has resisted returning them, saying any transfer would further desecrate the burial site.
The disposition of the items has been a highly controversial issue among Native Hawaiians and others.
Ezra recognized that point.
"There is no way for me to decide this case to make everyone happy," he said. "There is simply no way to do that."
The order was requested by Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, two of the 13 claimants.
Bishop Museum supported the request. LindaLee Farmer, the museum attorney, argued that the items should be returned to ensure that they are safe and secure and available to all claimants pending the outcome of the process.
Honolulu Advertiser, Saturday, September 3, 2005
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050903/NEWS23/509030317
Artifacts must be returned, judge decides
By Ken Kobayashi and GORDON Y. K. PANG
A group dedicated to protecting and preserving Native Hawaiian burial sites was ordered by a federal judge yesterday to return to Bishop Museum 83 lots of sacred burial objects that the group said it had placed in a sealed Big Island cave.
But a leader of Hui Malama I Na Kupuna 'O Hawai'i Nei, which has resisted efforts to return the items, said the group planned to appeal the decision by Chief U.S. District Judge David Ezra. The Hui Malama official also said he wasn't sure what the group would do if the appeal fails. "I would hope that a federal court doesn't put Hawaiians in a position of having to violate their own spiritual beliefs and the practices of their kupuna (ancestors)," Hui Malama spokesman Edward Halealoha Ayau said after the court hearing.
He indicated that the group might not be able to return the sacred items. "We do not have the stomach to do something like that, to take from kupuna," he said. "Others may. We don't."
No fewer than 13 separate groups have claims on the priceless artifacts, which include carved-wood statuettes of family gods, or 'aumakua; carved bowls; a human-hair wig; ipu, or gourd objects such as drums and water bottles; tools; and pieces of feather capes.
Their removal from a burial cave on the Big Island in 1905 led to their placement with Bishop Museum, their reburial by Hui Malama and now the court fight among three competing claimants.
Reaction to the latest action, a federal court ruling 100 years after the artifacts were first removed, shows the raw emotions simmering for years surrounding the artifacts.
Even as Hui Malama decried the ruling, other Native Hawaiian groups that made claims to the items applauded Ezra's decision.
"It gives us faith that all claimants will have a say in the repatriation (of the items)," Van Horn Diamond of the Van Horn Diamond 'Ohana said.
In his ruling, Ezra said he recognized he was dealing with a highly emotional issue and indicated he might not issue the order if he could be assured the objects are kept in a safe place. "But I have nothing in front of me that indicates that is the case," the judge said.
He said he wanted to ensure that the objects will be safely stored at the museum pending the outcome of the repatriation process under federal law that would determine the rightfulness of claims by Hui Malama and 12 other Native Hawaiian organizations and what would be done with the items.
The judge pushed back the issuance of his formal written court order until Tuesday to give the parties an opportunity to work out the specific language.
The burial objects are known as the Forbes Collection and were taken from the Kawaihae Caves on the Big Island in 1905.
Hui Malama contends that the items were looted from the cave, then given to the Bishop Museum.
In 2000, the museum lent objects to Hui Malama, which said it returned the items to a Kawaihae cave and sealed the entrance. The group refused to return them, contending that to return them to a museum that accepted stolen items, as Hui Malama sees it, would again desecrate the sanctity of the objects and their ancestors' wishes.
The transfer raised concerns from other Native Hawaiian groups and the refusal to return them led two groups filing a lawsuit seeking the court order.
"This relief (return of the items) is repugnant," Native Hawaiian Legal Corp. lawyer M. Uilani Pau'ole told Ezra at the hearing. Pau'ole, who represents Hui Malama, argued that the items should remain at the sealed cave while the Native Hawaiian groups resolve their claims under the federal Native American Graves Protection and Repatriation Act.
But attorney LindaLee Farmer, who represents the museum, supported the court order. She said the museum's concern is that the items be kept in a secure place and be available to all claimants. "It has been a long and frustrating process, and the museum, too, seeks finality," she told the judge.
Attorney George Van Buren, who represents Na Lei Alii Kawananakoa, one of the two Native Hawaiian groups that sought the court order, said no one claimant should override the process of sorting out the claims. He asked the judge to issue the order to ensure that the process can continue with "dignity, honor, respect and aloha."
Ezra said he recognizes that he can't please everyone. "I have to say this is one of those cases that regardless of how I decide it, there will be significant number of people who are upset and who believe the court has made the wrong decision," he said.
He said he does not agree with Hui Malama that the return would be disturbing an ancient grave site. "This is a reburial, not a burial, and we don't know under what conditions," he said.
The judge said he understands Hui Malama's concerns about the museum, but he said he will not permit the objects to be placed on public display. Ezra said he realizes some are concerned about whether the artifacts are at a particular location, but he said he isn't concerned about locating the site because under his order, the individuals responsible for burying the artifacts must find them. The judge said the case involves "Hawaiians versus Hawaiians" with Hawaiian groups claiming the items. "That's the sad part of this matter," he said.
Ezra's decision was praised by Mel Kalahiki, a representative for Papa Kanaka o Pu'ukohola, one of the claimant organizations. "The artifacts went out the backdoor on a loan while all the organizations were waiting to make a decision on them," Kalahiki said.
As for what should happen now, he said: "I think they should have a group made up of individuals from the organizations go up to the valley and open up the cave and watch the artifacts come out and do the inventory right there." Kalahiki said he did not believe there would be any lingering animosity. "I think everything is going to come out all right" he said. "We're not fighting each other, we're just disagreeing. Everybody has their own idea of what's the right thing to do."
Isabella Abbott, a University of Hawai'i botanist and chairwoman of the museum's collections committee, said the court's decision was only the first step. "We'll put them in a very secure room, and the claimants ... will come look at them, examine them, and decide what they want to do."
La'akea Suganuma, president of Royal Hawaiian Academy of Traditional Arts, the other Native Hawaiian group that asked for the court order, said it was unfortunate the matter had to be turned over the courts. Asked how long the repatriation process will take, he said it's already taken a while to get to this point. "I think we're 5 1/2 years behind time," he said.
Ayau, who sat through the court proceedings, was somber when he emerged from the courthouse. Asked if he might disobey the judge's order and be willing to go to jail for that, he said: "I guess we'll see." He said the case isn't about the group excluding other claimants. "This is about respecting the decisions of our kupuna," he said. He said Ezra was correct when he talked about Native Hawaiian groups fighting each other. "I think he's right," Ayau said. "I think it's sad."
PRICELESS OBJECTS AND CONTROVERSY
1905: The David Forbes expedition takes artifacts and human remains from a Big Island burial cave and eventually conveys them to the Bishop Museum.
1990: The Native American Graves Protection and Repatriation Act, the federal law commonly known as NAGPRA, is passed, setting up a process for returning remains, burial objects and other cultural treasures to indigenous groups.
February 2000: The Bishop Museum, while reviewing a NAGPRA claim of the Forbes collection by several groups, lends 83 artifacts to Hui Malama I Na Kupuna 'O Hawai'i Nei. When the museum later asks for the items back, Hui Malama officials refuse and say repatriation had been completed.
May 2003: A NAGPRA review committee finds that the repatriation was "flawed" and that the items need to be returned.
March 2005: The review committee reaffirms its earlier decision, over the objections of Hui Malama.
August 2005: Two groups, including one headed by Abigail Kawananakoa, sue the museum and Hui Malama, seeking the return of the artifacts to the museum so they can be given to their rightful claimants.
September 2005: Federal Judge David Ezra orders the return of the artifacts to the museum so discussions among the claimants can continue.
Honolulu Star-Bulletin, Saturday, September 3, 2005
http://starbulletin.com/2005/09/03/news/story2.html
Disputed artifacts ordered returned All 14 claimants are to resolve the fate of the reburied items
By Sally Apgar
A federal judge ordered the return yesterday of 83 treasured native Hawaiian artifacts believed to have been secretly reburied in a Big Island cave five years ago.
Chief U.S. District Judge David Ezra ordered Hui Malama I Na Kupuna 'O Hawai'i Nei, a native Hawaiian group, to retrieve the funerary items and bring them "back to a secure location at the Bishop Museum where they will be held in an undisturbed condition until this matter is resolved" among 14 competing native Hawaiian claimants. His order is expected to take effect Tuesday.
Ezra told the court, "The sad thing here is that we have Hawaiians vs. Hawaiians."
Earlier this month, two native Hawaiian claimants filed a lawsuit against Hui Malama and the Bishop Museum demanding return of the items so that the whole group of claimants could have a say in their fate under the Native American Graves and Repatriation Act.
NAGPRA is a federal law that governs repatriation of native Hawaiian and American Indian remains and artifacts. Disputes under NAGPRA are handled by the federal court. The arguments in the lawsuit are based on violations of NAGPRA and the Fifth Amendment property law.
The two claimants are La'akea Suganuma, a practitioner of native Hawaiian martial arts and the president of the Royal Hawaiian Academy of Traditional Arts, and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell estate heiress and descendant of royal Hawaiian blood. The 14 claimants have all been recognized under NAGPRA.
When they filed the lawsuit, Suganuma and Kawananakoa asked for the preliminary injunction demanding the return of the items, which Ezra granted yesterday. They argued that the items had been "improperly loaned" to Hui Malama from the Bishop Museum in February 2000 and that they faced "imminent harm" in Kawaihae Cave (also known as Forbes Cave) due to environmental conditions, insect attack and possible theft.
Suganuma, who has been fighting for the return of the items since 2000, said he was pleased with Ezra's ruling. "We had to go through this step in federal court because of the arrogance and complete disregard for the rest of the claimants," he said.
Edward Halealoha Ayau, a founding member of Hui Malama, said that exhuming the items is desecrating an ancestral burial ground.
Standing outside the court, Ayau said, "I would hope that a federal court would not order someone to violate their spiritual beliefs or violate their kupunas' (ancestors') wishes."
Asked if he would comply with the federal order, Ayau said, "We do not have the stomach to take from our kupuna."
Hui Malama is expected to file an emergency appeal to the 9th U.S. Circuit Court of Appeals to overturn Ezra's order.
LindaLee Farm, an attorney representing Bishop Museum, said, "The museum is pleased. We will set up a place that is safe and secure" to hold the items until the claimants decide on their final resting place. Although identified as a defendant in the case, the museum filed pre-hearing documents that supported the injunction and return of the items.
Ayau has long said his group reburied the items in the cave according to the wishes of ancestors who originally chose to put them there. In the early 1900s, three men, including David Forbes, entered the cave, took the items and eventually sold or donated them to the Bishop Museum. The items include several valuable stick figure aumakua (deified ancestors), a female figure adorned with human hair, and refuse bowls studded with human teeth.
Ayau repeatedly has said Forbes and the others were grave robbers "who committed theft and desecrated the caves." Yesterday, he said he was especially angered the court ordered the items "returned to the very institution involved in the illicit taking."
Ezra addressed the potential defiance of his order, saying, "I will take such action as is necessary to ensure that my orders are complied with."
The judge also assured Hui Malama that the items would not be displayed in the museum and that the group would have equal "rights to assert their claim."
"I intend no whitewash here. There will be no giveaway to any particular entity or organization," Ezra said.
In explaining his decision, Ezra said he had not been assured by Hui Malama in court papers that the items were secure.
Ezra also referred to a "serious and fundamental allegation" in the lawsuit that Hui Malama had violated the NAGPRA process and that the group obtained the items "under false pretenses."
According to the lawsuit, the 83 items were crated up and handed over to Hui Malama on a Saturday in February 2000 when most of the museum staff was not present. The document releasing the items describes it as a "loan" from Feb. 26, 2000, until Feb. 26, 2001. The document also says, "These items are being loaned pending completion of NAGPRA repatriation per request of Hui Malama and Dept. of Hawaiian Home Lands."
Despite repeated requests from the museum, Hui Malama refused to return the items.
At the time of the loan, there were four claimants: Hui Malama, DHHL, the Office of Hawaiian Affairs and the Hawaii Island Burial Council.
In May 2003 a NAGPRA review committee, which gives only advisory opinions, found that the repatriation was "seriously flawed" and therefore not final. Last March, a second review committee meeting in Honolulu upheld the first ruling calling for reclamation of the objects from the cave while the NAGPRA consultation process proceeds.
During the March proceeding, Ayau told the review committee that "the loan was just to facilitate the repatriation" and that neither Hui Malama nor the museum staff had expected the items' return.
The museum's "loan" to Hui Malama was made under the administration of former museum Director Donald Duckworth. Current museum Director Bill Brown testified to the NAGPRA committee that the loan was wrong and that the items should be reclaimed.
Ayau said, "This is not about excluding anyone. It's about honoring the wishes of our kupuna."
Comment by Ken Conklin
The newspaper articles of September 8 and 9, below, are reporting on a motion filed September 7 by Hui Malama in the 9th Circuit Court of Appeals for an emergency stay of Judge Ezra's decision of September 2, finalized by a writ issued on September 7, ordering Hui Malama to return the Forbes Cave artifacts to Bishop Museum by September 23. It is interesting that the Native Hawaiian Legal Corporation is representing Hui Malama rather than Kawananakoa. NHLC is funded primarily by hundreds of thousands of dollars per year from the treasury of the State of Hawai'i, funneled through OHA. It's also interesting that Hui Malama has had an extremely close relationship with Senator Dan Inouye ever since Eddie Ayau worked as a staffer for Inouye and helped write the NAGRPA law. And, of course, OHA is pushing the Akaka bill for which Inouye is actually the primary sponsor and advocate (despite the politically correct ploy of putting Senator Akaka's name on it). Thus, once again, wealthy and powerful institutions team up with the federal and state governments, using government money, to oppose the "little people." If the Akaka bill were to pass, the new Akaka tribe would undoubtedly be controlled by these huge institutions and government agencies. The difference would be that the Akaka tribe would have sovereignty, meaning that the decisions of the tribal council would be final and could not be appealed to any state or federal court.
The 37-page pdf file of the September 7 motion by Hui Malama contains many legal technicalities (such as the discussion of the legal standards by which such an emergency motion is to be decided), but it also contains many substantive explanations and analyses. That pdf file is available for download at: http://www.angelfire.com/hi5/bigfiles3/HuiMalMotnEmrgncyStay090705.pdf
Honolulu Advertiser, Thursday, September 8, 2005
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050908/NEWS23/509080336/1001
Sept. 23 deadline for artifacts
By Ken Kobayashi
Advertiser Courts Writer
A federal judge yesterday gave a Native Hawaiian group until Sept. 23 to return to the Bishop Museum 83 priceless burial objects that the organization says it sealed in a Big Island cave five years ago.
But a lawyer for the group said it will immediately ask the 9th U.S. Circuit Court of Appeals to stay the enforcement of U.S. District Judge David Ezra's decision until an appeal by the organization is resolved. Ezra yesterday filed a 22-page court order formalizing an oral ruling Friday that directed Hui Malama I Na Kupuna 'O Hawai'i Nei to return the artifacts.
Ezra's decision is the latest development in the continuing controversy that has pitted Native Hawaiian groups against each other over what should be done with the moepu or funerary objects.
Alan Murakami, lawyer for the Native Hawaiian Legal Corp., which represents Hui Malama, said Ezra's decision goes against "the very core" of the group's religious and spiritual beliefs protected by the First Amendment. "We will have to sit down and pray and come up with a decision," Hui Malama president Charles Kauluwehi Maxwell said in discussing whether the group will comply if it doesn't get relief from Ezra's order.
Known as the Forbes Caves Collection, the items were taken from the Big Island's Kawaihae Caves in 1905 and turned over to the Bishop Museum.
The museum lent the items to Hui Malama in 2000, but the group has since refused to return them, saying they belong in their original resting place and that returning them would again desecrate the burial site.
Two Native Hawaiian groups, Na Lei Alii Kawananakoa and Royal Hawaiian Academy of Traditional Arts, which filed claims to the items, asked for the order. The Bishop Museum supported the request.
In his decision yesterday, Ezra said there are "serious questions" as to whether the federal law governing the disposition of burial objects was violated when Hui Malama received the items and refused to return them. In addition, the risk of harm to the objects also warrants their return to the museum, he said.
The judge also said he is "greatly troubled" by Hui Malama's failure to provide basic information about the whereabouts of the objects or their condition.
The judge directed his order to Hui Malama, its members or anyone who has custody of the items.
He said the members of Hui Malama are not required to participate in the removal, but Hui Malama "bears the burden of either returning the moepu to the Bishop Museum itself, or by causing them to be returned to the museum through other means procured by Hui Malama."
Ezra also said he will ask that federal officials be present to monitor the removal.
"We're pleased," said attorney George Van Buren, who represents Na Lei Alii Kawananakoa. "We believe the judge made the correct decision." Bishop Museum lawyer LindaLee Farm also said they were pleased with the order, which sets a definite timetable to minimize the risk of harm to the objects.
Van Buren declined to speculate about what might happen if Hui Malama does not get relief from the appeals court and does not comply. "I expect everybody to comply with court orders and generally they do, and I think Judge Ezra made it very clear that he expected compliance," Van Buren said. If anyone refuses to comply, the judge's options under federal law could include finding that party in contempt of court, which could include fines and, in extreme cases, jail time.
Honolulu Star-Bulletin, Thursday, September 8, 2005
http://starbulletin.com/2005/09/08/news/story4.html
U.S. judge issues writ for return of Big Isle artifacts
By Sally Apgar
A federal court judge issued a written order yesterday demanding the return of 83 treasured native Hawaiian artifacts reburied in a Big Island cave, in part because they "are at serious risk of irreparable harm."
Chief U.S. District Judge David Ezra issued a 22-page written order late yesterday that explained in detail the foundation of the same order he made verbally from the bench Friday during a controversial preliminary injunction hearing.
Ezra said the funerary objects, or "moepu," were to be retrieved by Hui Malama I Na Kupuna 'O Hawaii Nei, a group founded in 1989 to repatriate native Hawaiian remains and artifacts.
In his written order, Ezra also questioned the circumstances under which Hui Malama obtained the items from the Bishop Museum on Feb. 26, 2000.
Hui Malama is expected to appeal the decision to the 9th U.S. Circuit Court of Appeals in San Francisco. Attorneys representing Hui Malama could not be reached for comment late yesterday.
Ezra's order yesterday is the result of a federal lawsuit against Hui Malama filed last month by two native Hawaiian claimants to the artifacts. The two groups argued they want the return of the items so that the 14 federally recognized native Hawaiian claimants, including Hui Malama, can consult equally about their fate. The two are suing under Fifth Amendment property rights laws and provisions of the Native American Graves Protection and Repatriation Act, which Congress passed in 1990 to right the wrongs of the past. NAGPRA is a federal law that governs the repatriation of human remains and artifacts.
In his written order, Ezra questioned whether a valid repatriation of the items occurred, a point that might be taken up at trial.
The two plaintiffs are La'akea Suganuma, a practitioner of native Hawaiian martial arts and president of the Royal Academy of Traditional Arts, and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell Estate heir and descendent of royal native Hawaiian blood.
In granting the injunction, Ezra wrote the priceless items "are at serious risk" from environmental harm and possible theft as has occurred at other caves, and "that the interests of justice and the public would best be served by bringing the items back to a secure location at the Bishop Museum" while 14 federally recognized native Hawaiian claimants decided the fate of the items under federal legal procedures.
In his order, Ezra also noted "the court is greatly troubled, in particular, by the failure of defendant Hui Malama to be forthcoming with even the most basic information regarding the whereabouts of the moepu (funerary objects)."
Edward Halealoha Ayau, a founder of Hui Malama, could not be reached for comment last night. Ayau has long said that his group reburied the items in the cave according to the wishes of ancestors who originally chose to place them there.
Friday, September 9, 2005
Newspaper's front-page headline
http://starbulletin.com/2005/09/09/news/story1.html
Group challenges court order on artifacts
Hui Malama says the federal ruling violates its right to freedom of religion
By Sally Apgar
A federal court order demanding the return of 83 artifacts reburied in a Big Island cave five years ago would violate Hui Malama I Na Kupuna 'O Hawaii Nei's constitutional right to freedom of religion, the native Hawaiian group argued yesterday.
Earlier this week, U.S. District Judge David Ezra gave Hui Malama, a group founded in 1989 to repatriate native Hawaiian remains and artifacts, until Sept. 23 to return the burial items, or "moepu." The group reburied the items in Kawaihae in 2000 to honor the wishes of kupuna (ancestors). Ezra ordered the return so that 14 competing native Hawaiian claimants can have equal say in the fate of the items.
Hui Malama filed an emergency appeal of the order with the 9th U.S. Circuit Court of Appeals in San Francisco yesterday, arguing, "There is no safe manner by which to carry out the (U.S.) District Court's order as it would place ... members of Hui Malama in real physical and spiritual danger."
In a declaration filed yesterday supporting their argument, Edward Halealoha Ayau, a founding member of Hui Malama, said that complying with the court order "would inflict spiritual, emotional, religious and emotional injury upon me and members of Hui Malama."
"Specifically, it would be an extreme hewa (wrong) for me or any other Hui Malama member, if ordered, to take part in any effort to enter the Kawaihae burial cave, with two to three known caves, to remove the 83 moepu, as they belong to the kupuna buried therein," and that would harm "the integrity of the afterlife of these kupuna," he said.
It "amounts to stealing from the dead, an action that threatens severe spiritual consequences for anyone involved," Ayau added.
Ezra's order arises from a recent case filed by two other native Hawaiian groups against Hui Malama and the Bishop Museum demanding return of the items so that 14 federally recognized native Hawaiian claimants could be consulted in what to do with the items.
In 1905 three men, including David Forbes, whom Hui Malama refer to as grave robbers, opened the cave and gave the items to the Bishop Museum, an act that Hui Malama considers a desecration that they needed to right. In a controversial 2000 "loan," Hui Malama obtained possession of the items.
There is a sharp split in the claimants' groups over whether the items should be buried in the cave to honor kupuna and allowed to decay, or whether they should be preserved in a hermetically sealed environment for the eyes of future native Hawaiian generations.
The two native Hawaiian groups contesting Hui Malama's claim are represented by La'akea Suganuma, a practitioner of "lua," or "bone-breaking," an ancient form of Hawaiian martial arts, who is also president of the Royal Hawaiian Academy of Traditional Arts; and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell Estate heir and descendent of royal Hawaiian blood.
The 14 competing claimants, including Suganuma, Hui Malama and Kawananakoa, are recognized under the Native American Graves and Repatriation Act, which was passed into law in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts.
When Suganuma and Kawananakoa filed the suit, they asked for a preliminary injunction, demanding the return of the items, saying they were "improperly loaned" to Hui Malama and that they faced "imminent harm" in Kawaihae Caves because of environmental conditions, insect attack and possible theft. Ezra granted the injunction this week.
According to court documents, the 83 items were crated and handed over by museum staff to representatives of Hui Malama on a Saturday in February 2000 with a notation that it was a one-year "loan" until February 2001 and pending the outcome of an ongoing NAGPRA consultation.
Ezra wrote that the museum "breached its own policies in an apparent, but inexplicable, rush to deliver the items to Hui Malama."
In Ezra's order he noted the loan was based on Hui Malama's assurances that all four of the claimants who were recognized at the time agreed to the reburial. Ezra wrote "that premise was false ... because they (the four claimants) did not agree to Hui Malama's ultimate plans."
Aside from spiritual or religious beliefs, Hui Malama has said it does not want to return the items because it would be handing them over to the museum, which they say "acted as a fence for the original grave robbers."
Honolulu Star-Bulletin, Friday, September 9, 2005
http://starbulletin.com/2005/09/09/editorial/editorials2.html
Editorial
OUR OPINION
Clash over artifacts should be settled
THE ISSUE
A federal judge has ordered the return of Hawaiian artifacts from a Big Island cave to the Bishop Museum.
FAILURE to arrive at a compromise in an unseemly tug of war over sacred Hawaiian artifacts reburied in a Big Island cave has resulted in a judge's decision that they be returned, at least temporarily, to the Bishop Museum. A settlement is possible while the ruling is on appeal and should be sought to avoid the possibility of federal marshals forcing compliance.
U.S. District Judge David Ezra, who has unblemished affinity for Hawaiian welfare, has ordered that 83 items, including several valuable stick figures of deified ancestors, a female figure adorned with human hair and refuse bowls studded with human teeth, be returned to the museum while their ultimate destination is resolved. That will be decided by the court, under terms of the 1991 Native American Graves Protection and Repatriation Act.
A group of Hawaiians called Hui Malama I Na Kupuna 'I Neu [sic!] obtained the items from the museum in February 2000. A document releasing the items called it a "loan" and stated that they would be returned to the museum a year later, but Hui Malama has refused to give them up.
La'akea Sugenuma, president of the Royal Hawaiian Academy of Traditional Arts, and a group founded by Abigail Kawananakoa, a Campbell Estate heiress who traces her ancestry to King Kalakaua, filed the lawsuit against Hui Malama and the museum, which supports the suit. The museum's directors recently recognized Kawananakoa's group as the 14th with rights to claim Hawaiian artifacts for repatriation.
Hui Malama cofounder Edward Halealoha Ayau, a lawyer who was on Senator Inouye's staff when he sponsored the 1991 legislation, left open the question of whether he will defy Ezra's order. "We do not have the stomach to take from our kupuna (ancestors)," he said.
Ezra vowed to "take such action as is necessary to ensure that my orders are complied with."
That collision should be avoided if possible.
Honolulu Advertiser, Friday, September 9, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050909/NEWS20/509090375/1170/NEWS
Hui Malama wants court to rule on its appeal before acting
By Ken Kobayashi
Advertiser Courts Writer
A Native Hawaiian group is asking the U.S. 9th Circuit Court of Appeals to postpone the enforcement of a federal judge's ruling directing the organization to return to Bishop Museum 83 priceless burial objects.
Hui Malama I Na Kupuna 'O Hawai'i Nei said U.S. District Judge David Ezra's order directing the group to return the items by Sept. 23 would violate the group's free exercise of religion protected by the First Amendment and place the group members in physical and spiritual danger.
"It is an order to steal from the dead," the group said in papers filed with the appeals court this week.
The request asks that the enforcement of the order be postponed pending the outcome of Hui Malama's appeal of Ezra's decision, a process that could take months.
At the request of two other Native Hawaiian groups, Ezra had ruled that the artifacts should be returned to the museum while Native Hawaiian organizations sort out claims to the artifacts and decide what should be done with them.
In his order issued Wednesday, the judge said there are "serious questions" about whether a federal law was violated when Hui Malama got the items from the museum in 2000 and refused to give them back. He also expressed concerns about Hui Malama not providing information about the location of the objects or their condition.
Hui Malama maintains the objects were looted from a Big Island cave in 1905 and turned over to the museum. The group said it returned the items to the cave where they were originally placed, and sealed the entrance.
In a declaration attached to the request, Hui Malama spokesman Edward Halealoha Ayau said it would be wrong for him or any other Hui Malama member to remove the 83 artifacts in the burial cave.
He also said the removal would threaten their safety because of the "physical nature of the interior of the caves and the real threat of collapse of the ceiling and walls."
Ka Wai Ola O OHA Article
The monthly newspaper of the Office of Hawaiian Affairs, "Ka Wai Ola O OHA", published a very valuable full-page article about the dispute between Eddie Ayau for Hui Malama vs. La'akea Suganuma for the Royal Hawaiian Academy of Traditional Arts. The article summarizes the dispute, and then provides side-by-side essays written by the opponents. Those essays are focused primarily on a disagreement over what would be the wishes of the ancestors whose artifacts were buried in the cave. Eddie Ayau takes the position that the objects were buried with the bones of the ancestors, and therefore it is clear that the ancestors wanted the objects to remain in the cave. La'akea Suganuma takes the position that the spirits of the ancestors are alive and remain active in guarding their bones and artifacts; that a burial cave is not discovered by accident; and that it must be the wishes of the ancestors to choose that the artifacts were found in the cave and made available to the modern generation for inspiration and education. The full-page article can be downloaded in pdf format from the OHA website by clicking here: http://www.oha.org/pdf/kwo05/0509/7.pdf
Comment by Ken Conklin
The newspaper articles of September 8 and 9, above, are reporting on a motion filed September 7 by Hui Malama in the 9th Circuit Court of Appeals for an emergency stay of Judge Ezra's decision of September 2, finalized by a writ issued on September 7, ordering Hui Malama to return the Forbes Cave artifacts to Bishop Museum by September 23. It is interesting that the Native Hawaiian Legal Corporation is representing Hui Malama rather than Kawananakoa. NHLC is funded primarily by hundreds of thousands of dollars per year from the treasury of the State of Hawai'i, funneled through OHA. It's also interesting that Hui Malama has had an extremely close relationship with Senator Dan Inouye ever since Eddie Ayau worked as a staffer for Inouye and helped write the NAGRPA law. And, of course, OHA is pushing the Akaka bill for which Inouye is actually the primary sponsor and advocate (despite the politically correct ploy of putting Senator Akaka's name on it). Thus, once again, wealthy and powerful institutions team up with the federal and state governments, using government money, to oppose the "little people." If the Akaka bill were to pass, the new Akaka tribe would undoubtedly be controlled by these huge institutions and government agencies. The difference would be that the Akaka tribe would have sovereignty, meaning that the decisions of the tribal council would be final and could not be appealed to any state or federal court.
The 37-page pdf file of the September 7 motion by Hui Malama contains many legal technicalities (such as the discussion of the legal standards by which such an emergency motion is to be decided), but it also contains many substantive explanations and analyses. That pdf file is available for download at: http://www.angelfire.com/hi5/bigfiles3/HuiMalMotnEmrgncyStay090705.pdf
Honolulu Advertiser, Wednesday, September 14, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050914/NEWS23/509140338/1173/NEWS
Reopening artifact cave may cause collapse, mason says
By Gordon Y.K. Pang
Advertiser Staff Writer
Reopening a Kawaihae cave to retrieve Hawaiian burial artifacts as ordered by a federal judge could cause the collapse of the Big Island cave, according to a mason who helped seal it.
The mason's statement, filed with the 9th U.S. Circuit Court of Appeals on behalf of the group Hui Malama I Na Kupuna O Hawai'i Nei, came to light yesterday as Hui Malama leaders reaffirmed their vow to resist the court order.
U.S. District Judge David Ezra earlier this month ordered the group to help return to Bishop Museum 83 lots of sacred burial objects that the group said it placed in the cave.
In his ruling, Ezra sided with two of the 13 Native Hawaiian groups that had filed suit arguing that the museum should have possession of the artifacts until the claimants can come to an agreement on their final resting place under the federal Native American Graves Protection and Repatriation Act.
Hui Malama, one of the 13 claimants, has argued that the artifacts were taken illegally from the cave in 1905 and should remain there until the groups resolve their claims.
A declaration filed this week by Kona mason George W.K. Fields III, who resealed the cave, warns that "removal of the security measures at the cave will cause the cave to collapse." Fields, hired to work on the project by Hui Malama, also cited the possible expense of working on a cave that is in a remote area of the Big Island.
"I would not attempt the removal of the cave's security because it would violate my cultural beliefs ... (and) would be cost-prohibitive to ensure safe working conditions, account for extraordinary costs of working at this remote location, and guard against life-threatening conditions posed by the location of the cave," Fields said.
George Van Buren, an attorney of the two groups that sued Hui Malama, yesterday said Fields had not raised safety concerns previously.
Van Buren said Fields' claims will be one of a number of points addressed when his legal team files a response to Hui Malama's request for an appeal, a filing that is expected today.
At a news conference yesterday at the University of Hawai'i-Manoa Center for Hawaiian Studies, Hui Malama leaders vowed to be steadfast in their fight.
Alan Murakami, attorney with the Native Hawaiian Legal Corp., which represents Hui Malama in the case, said the group is hoping to convince the appeals court to set aside Ezra's decision.
Charles Kauluwehi Maxwell Sr., Hui Malama president, said the group will not back down.
"From the cultural standpoint, if all legal means fail and Hui Malama is obligated to follow the ruling of Judge Ezra, we are set in our cultural feelings that we will protect the kupuna (ancestors)," Maxwell said. "That is our job. That is our solemn duty."
The court has ordered Hui Malama "to do the unthinkable," said Hui Malama spokesman Edward Halealoha Ayau. "We won't be a party to a theft of our kupuna."
Honolulu Star-Bulletin, Wednesday, September 14, 2005
http://starbulletin.com/2005/09/14/news/story3.html
Hui Malama says complying with ruling is not an option
By Sally Apgar
Edward Halealoha Ayau calls a recent federal court order requiring the return of 83 priceless artifacts "a defining moment" for native Hawaiians' spiritual and cultural heritage.
"The choice is made. We must stand and protect our kupuna (ancestors)," said Ayau, who for the last 16 years has worked to repatriate native Hawaiian remains and burial items from museums so they can be reburied to honor the wishes of kupuna.
At a news conference and forum yesterday at the Center for Hawaiian Studies at the University of Hawaii at Manoa, Ayau said: "This is a wake-up call to take care of our ancestors," referring to the federal court case that involves 83 items reburied in 2000 in Kawaihae or "Forbes" cave on the Big Island.
Ayau is a founding member of a controversial group, Hui Malama I Na Kupuna O Hawaii Nei, which was formed in 1988 when, during the construction of the Ritz Carlton on Maui, about 1,100 native Hawaiian remains were found.
Ayau said he would not retrieve the Kawaihae items as ordered earlier this month by U.S. District Judge David Ezra. "We will not be a party to theft from our kupuna," he said.
Despite repeated questions from the media, Ayau did not specifically say that he would go to federal prison rather than comply with Ezra's order to retrieve the items and hand them over to the Bishop Museum so that 13 native Hawaiian claimants to the items can decide their fate.
Last week, Ezra gave Ayau and his group until Sept. 23 to return the burial items, or "moepu," that they reburied in Kawaihae in 2000 to honor the wishes of their kupuna. Two of the 13 recognized claimants filed a federal lawsuit earlier this month asking that the court order the return of the 83 items, so that the competing native Hawaiian claimants can have an equal say on what will happen to the items.
The two are suing under Fifth Amendment property rights laws and provisions of the Native American Graves Protection and Repatriation Act, which Congress passed in 1990 to right the wrongs of the past.
NAGPRA is a federal law that governs the repatriation of human remains and artifacts. In his written order, Ezra questioned whether a valid repatriation of the items occurred.
The two plaintiffs are La'akea Suganuma, a practitioner of native Hawaiian martial arts and the president of the Royal Academy of Traditional Arts, and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell Estate heiress and descendent of royal native Hawaiian blood.
Ayau and others made it clear yesterday that disinterring the items, which do not include the bones of ancestors, would spiritually desecrate the grave in a way that could not be later fixed.
In granting the injunction, Ezra wrote the priceless items "are at serious risk" from environmental harm and possible theft.
Hui Malama filed an emergency appeal of the order with the 9th U.S. Circuit Court of Appeals in San Francisco last week arguing: "There is no safe manner by which to carry out the (U.S.) District Court's order as it would place ... members of Hui Malama in real physical and spiritual danger."
In addition to bark cloth and canoe parts, the items in the cave include several priceless carved wooden ki'i (typically carved as wooden protecting gods for a specific person).
Ayau said he finds himself at odds between his spiritual beliefs to honor and returning iwi (human remains) and moepu (burial objects) to what his group believes is their intended home, according to the wishes of kupuna, and federal laws that govern the processes returning various native Hawaiian items to burial sites. The 83 items do not include any bones or iwi.
Yesterday, Ayau appeared with several high-profile native Hawaiians, including Pualane Kanahele, Charles Maxwell and others to explain Hui Malama's side to reporters and UH students. Ayau said: "The court has ordered us to do the unthinkable ... to steal from our kupuna." Charles Maxwell, a longtime activist, said: "It is against our will, our desire and our First Amendment right to freedom of religion to direct us to the cave to take the moepu. It is against our will; it is against our cultural being."
In 1905, three men, including David Forbes, whom Hui Malama identified as grave robbers, got the items appraised by the Bishop Museum for $472.
"It is illegal to steal from kupuna," said Kaleikoa Kao [sic, Ka’eo], another member of Hui Malama. "Judge Ezra is putting us into a very difficult position: What is the price of the integrity of our culture?"
Honolulu Advertiser, Thursday, September 15, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050915/NEWS23/509150342/1173/NEWS
Artifacts dispute resolution elusive
By Gordon Y.K. Pang
A group that is seeking to block a court order to return 83 burial artifacts from the Kawaihae Cave on the Big Island can avoid any trauma by letting others do it for them, according to a legal brief filed yesterday by an attorney for the parties seeking return of the items to the Bishop Museum.
The suggestion drew a rebuke from an attorney representing Hui Malama I Na Kupuna 'O Hawai'i Nei, the group fighting to keep the artifacts where they are.
Yesterday, attorney George Van Buren dismissed Hui Malama's key objection that forcing them to go into the cave and return the artifacts to the museum would cause emotional harm to its members and physical harm to the artifacts.
Not only has Hui Malama failed to prove there would be irreparable harm if the artifacts are returned to the museum, but "there is ample precedent in Hawaiian culture for the removal of and transfer of burial items," Van Buren wrote.
What's more, "the members of Hui Malama are not required to subject themselves to the supposed physical and spiritual harm that they perceive," Van Buren wrote. "Others can perform the transfer under the supervision of federal officials."
The proposal angered Alan Murakami, an attorney for the Native Hawaiian Legal Corp., which is representing Hui Malama. "What they're offering to do is immaterial," Murakami said. "That's like saying, 'I don't have to push my baby off a cliff but I can get a someone else to do it, and it's not going to affect me.' "
In 2000, the museum lent the items for a year to Hui Malama, one of 14 Native Hawaiian group who have come forward as claimants to the artifacts. Hui Malama members say the items have been returned to the cave from which they were removed and then sold to the museum in 1905. They have refused requests, at first by the museum and now by a federal court, to send them back to the museum.
Native Hawaiian organizations Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, also among the 14 claimants, sued the museum and Hui Malama, arguing that the artifacts should be in the museum's possession until the claimants can agree on their final resting place.
Van Buren said the two organizations suing for their return "have no hesitation whatsoever in performing the necessary functions."
Murakami said the constitutional right of Hui Malama members to practice their religion is being violated regardless of who removes the artifacts.
In the documents they filed this week, Hui Malama attorneys submitted the testimony of a mason who helped seal the cave. He warned that reopening the site could cause its collapse, endangering the artifacts and those entering the cave.
But Van Buren, in his filing yesterday, questioned why Hui Malama had not previously issued that warning. He said that Hui Malama has been advocating for other artifacts to be repatriated in the cave, which would require it to be reopened.
Murakami said the filings yesterday by his opponents fail to adequately address Hui Malama's point that all of the claimants should be participants in the lawsuit, which has not happened.
Hui Malama's core argument is that repatriation ended with the placement of the artifacts back in the cave, and that any disputes at this point are between the claimants themselves and outside the jurisdiction of the museum or the courts.
Honolulu Star-Bulletin, Monday, September 19, 2005
http://starbulletin.com/2005/09/19/news/story1.html
"It's been made out that these perspectives are just my own. They're lessons we've been taught from our kupuna, and so it's the perspective of Hui Malama and a lot of other Hawaiians." --Edward Ayau, Director, Hui Malama
Showdown over artifacts unearths spiritual divide
By Sally Apgar
Warring factions of native Hawaiians are headed for a legal showdown in a federal court in San Francisco as early as this week over the fate of 83 treasured items that were reburied five years ago in a Big Island cave.
In preparation for that battle, the two sides filed scores of papers last week with the 9th Circuit Court of Appeals that not only advanced their legal arguments, but gave an insight into the deep spiritual divides between the groups over their interpretations of burial traditions, the uses of ancient caves, the wishes of kupuna (ancestors) and even what it means to be Hawaiian.
The 9th Circuit could decide this week whether to overturn a lower court decision by U.S. District Judge David Ezra on Sept. 7 that demands the return of the native Hawaiian burial items by Friday. Ezra wants them held at the Bishop Museum (but not on public display) until 14 federally recognized native Hawaiian claimants can decide on their final disposition.
One of the opposing native Hawaiian groups, Hui Malama I Na Kupuna 'O Hawaii Nei, said in recent court papers filed with the 9th Circuit that complying with Ezra's order would be "stealing from the dead, an action that threatens severe spiritual consequences for anyone involved." Hui Malama said retrieval would be a desecration that violates the group's First Amendment right to freedom of religion.
The legal war ignited last month when La'akea Suganuma, an expert in the ancient Hawaiian martial practice of lua, or "bone breaking," and Abigail Kawananakoa, a Campbell Estate heiress and descendent of Hawaiian royalty, filed a federal lawsuit against the Bishop Museum and Hui Malama, a group formed in 1988 to repatriate native Hawaiian remains and funerary objects from museums and when they are discovered in places such as construction sites.
Suganuma and Kawananakoa argued that the items were "improperly loaned" when museum staffers, under the former administration of museum director Donald Duckworth, crated them one Saturday morning in February 2000 and handed them to Hui Malama with inventory papers that identified the package as a one-year loan.
Hui Malama, they said, not only "arrogantly" ignored the rights of other native Hawaiian claimants when it reburied the items, but the "loan" violated the museum's own loan polices and the procedures of the Native American Graves Protection and Repatriation Act. NAGPRA is a federal law enacted in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts from museums back to indigenous people.
Edward Halealoha Ayau, Hui Malama's po'o (director), said the group reburied the items in Kawaihae or "Forbes Cave" to honor the wishes of the kupuna who put them there.
Ayau said, "As part of the repatriation process, Bishop Museum first transferred the moepu (funerary objects) to Hui Malama by a loan." Last March, Ayau told a NAGPRA review committee investigating the issue that "the loan was a vehicle to facilitate repatriation" and that neither Hui Malama nor the museum staff involved expected their return.
In court papers also filed last week, Bishop Museum, under the administration of director Bill Brown, supported the retrieval of the items. Brown said the Duckworth administration erred in making the loan.
Hui Malama maintains the repatriation is complete. Last week, it filed statements from two of the four original claimants, the Department of Hawaiian Home Lands and the Hawaii Island Burial Council, supporting Hui Malama's position. The items, they said, should not be taken from the kupuna. DHHL owns the Kawaihae cave lands and controls access. "Our objective is to protect and not further disturb the burial site," DHHL said.
Suganuma and Kawananakoa believe the items are in danger of "imminent harm," an argument they used in the injunction granted by Ezra. The two want the items held safely, but not on public display, until native Hawaiian groups determine their final disposition.
There is a sharp ideological split among the claimants over whether the items should be buried in the cave to honor kupuna, and allowed to decay, or whether they should be placed in an environmentally safe place so that future generations can learn about their past.
Hui Malama believes that the items are moepu that kupuna wanted buried with them, so the group secretly returned them to the "sacred resting place" from which they were stolen. In 1905 three men, including David Forbes, had discovered the items and sold them to the Bishop Museum.
Suganuma and Kawananakoa offered last week to retrieve the items for Hui Malama to spare them any harm.
But Ayau dismissed the offer, saying, "A desecration is a desecration. It does not matter whose hand."
Ayau assured the court that the burial items are secure from theft because the cave was sealed "using reinforced concrete barriers."
Kawananakoa and Suganuma contend that Hui Malama invents practices and beliefs to defend their actions and "wall off" the rest of the Hawaiian community. They say Hui Malama monopolizes repatriations from Bishop Museum or construction sites such as the Wal-Mart complex on Keeaumoku Street, to the exclusion even of families with closer lineal ties to the objects, who should have precedence.
In a statement last week, Kawananakoa said Hui Malama "has been able to falsely assert, under the pretext of so-called Hawaiian traditional belief, the dictates of the kupuna of ancient times and has refused to return the items."
Suganuma, who has fought Hui Malama for more than five years for the return of the items, said in court papers, "Hui Malama's so-called traditional burial practices are modern creations of its founders." Suganuma also said the word moepu is a modern invention.
Ayau said he has not had a chance to read either statement from Suganuma or Kawananakoa so he did not want to comment, but he is aware of their general criticisms.
"It's been made out that these perspectives are just my own," Ayau said. "They're lessons we've been taught from our kupuna, and so it's the perspective of Hui Malama and a lot of other Hawaiians."
Hui Malama and others groups disagree about the use of caves by ancient Hawaiians. Hui Malama believes that most caves are sacred burial sites that contain funerary objects. Suganuma and Kawananakoa say many caves were not burial sites, but rather places to hide sacred objects after Queen Kaahumanu outlawed the Hawaiian religion.
Ayau said that Hui Malama intends to hold more "teach-ins," as it did recently, "so people can for themselves decide what is the truth."
At the teach-in, Charles Maxwell, a founding member of Hui Malama, told how the group was formed when the Ritz Carlton was being built on a 13-acre parcel on Maui. About 800 sets of native Hawaiian remains were found.
Ayau told the audience that the finding was "a wake-up call" that Hawaiians had forgotten their burial practices.
Maxwell explained how Pualani Kanahele, a kumu hula and native practitioner, taught them burial rituals and the proper way to wrap the bones.
Kawananakoa questioned the source of Hui Malama's burial practices, saying, "The ability to receive instructions from the ancient kupuna is mana (authority or power)," and "such mana rests solely with the alii (aristocratic class)."
Referring to Hui Malama members as commoners, or "makaainana," and noting that Kawaihae was an alii burial site, Kawananakoa said, "At no time was the commoner allowed to participate at any stage of the rituals concerning the burial of an aristocrat."
Honolulu Advertiser, Wednesday, September 21, 2005
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050921/NEWS20/509210351/1001/NEWS
Retrieval of artifacts blocked
By Ken Kobayashi and Gordon Y.K. Pang
A federal appeals court yesterday lifted a court order directing a Native Hawaiian group to retrieve 83 priceless burial artifacts from a sealed Big Island cave and return them to the Bishop Museum by Friday.
The 9th U.S. Circuit Court of Appeals decision averts for now a potential confrontation between Hui Malama I Na Kupuna 'O Hawai'i Nei, which wants the objects to remain in the cave, and Chief U.S. District Judge David Ezra, who ordered them returned.
"Fantastic," said Alan Murakami, the Native Hawaiian Legal Corporation lawyer representing Hui Malama. "The first hurdle has been overcome."
Without the appeals court's decision, Hui Malama would be facing "a crisis of conscience" this week, Murakami said.
The appeals court ruled that the artifacts can remain in the cave while Hui Malama appeals Ezra's injunction of Sept. 2 ordering the return to ensure the objects aren't damaged while Native Hawaiian groups determine what should ultimately be done with them.
But the appeals court also ordered an expedited appeal, which could result in a decision as early as December. The appeals process usually takes a year or longer.
Edward Halealoha Ayau, spokesman for Hui Malama, said he and his group are pleased with the decision.
After Ezra's Sept. 2 decision, Ayau said he hoped the federal court would not force Hawaiians to violate their spiritual beliefs by returning the artifacts. "We do not have the stomach to do something like that," he said. Yesterday, he affirmed the group's commitment to "protect the kupuna, their possessions and the integrity of their burial site." "To be successful, we need to ensure the integrity of the burial site is maintained, and we have to be able to stave off any attempt to disturb them," he said.
The leader of one of two Native Hawaiian groups that asked for the return focused on the appeals court order expediting the appeal. "We are gratified by the 9th Circuit Court's decision to expedite the appeal of the injunction order," Abigail Kawananakoa, head of Na Lei Alii Kawananakoa, said in a statement. "The court, by scheduling the hearing on the appeal for the first week of December — which is the earliest possible date — recognizes the importance of this case to the people of Hawai'i." She said her group is pleased the decision will be made "in three months instead of three years."
LindaLee Farm, lawyer for the Bishop Museum, which supported Ezra's order, also said she was pleased the court put the appeal on the "fast track." Farm said she thinks the appeals court ordered an expedited appeal because it recognizes the issue of possible "irreparable harm" to the artifacts.
The appeals court ruling is the latest development in the contentious dispute that has pitted Native Hawaiian groups against one another over the artifacts, which include carved-wood statuettes, a human-hair wig, gourd objects and tools.
The museum handed the artifacts to Hui Malama in 2000. But Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts filed a lawsuit last month asking for the injunction. They argued that the transfer to Hui Malama was not legal and that the group should have returned the items which may now be in jeopardy from insects and environmental elements.
Hui Malama argued that the objects had been stolen from the cave in 1905 and turned over to the museum. The group contended the moepu are now in their original and rightful place, and that to return them would violate First Amendment protection of religious beliefs.
In granting the injunction, Ezra agreed that the items might be at risk and agreed that the two groups raised legal issues about whether Hui Malama can rightfully refuse, under the law, to return the items.
Hui Malama told the appeals court that Ezra's decision was "an order to steal from the dead." Also, the group argued that retrieving the artifacts from the sealed cave could cause the cave to collapse.
Under yesterday's appeals court order, Hui Malama must file its opening brief by Sept. 30 explaining why Ezra's decision should be overturned. The two Native Hawaiian groups that sought the injunction have until Oct. 21, or 21 days after the court receives the opening brief, to respond. Hui Malama would then have 10 days to reply.
The appeals court said the case would be on the calendar during the week of Dec. 5. Farm said the ruling could come shortly after that.
Honolulu Star-Bulletin, Wednesday, September 21, 2005
http://starbulletin.com/2005/09/21/news/story5.html
Court halts removal of Hawaiian items
By Leila Fujimori
The 9th Circuit Court of Appeals yesterday suspended a federal judge's order to have 83 native Hawaiian objects dug up from a Big Island cave and returned to the Bishop Museum by Friday.
The appeals court will hear arguments on the judge's order in December.
Hui Malama I Na Kupuna 'O Hawaii Nei's attorney, Alan Murakami, said the decision was a great relief to the group. "What would have had to happen would have been really major," he said, adding that it would have been impossible to have removed all the items from what is known as Forbes Cave by Friday.
On Sept. 7, U.S. District Judge David Ezra ordered Hui Malama to return the buried items by Friday. They were to be held by Bishop Museum until 14 native Hawaiian claimants can decide on their disposition.
Hui Malama contends the objects are moepu (funerary objects) and the group must honor the wishes of the kupuna (elders) who put them there. But others contend most items are not funerary items and were kept in a cave for safekeeping and should be returned to the rightful parties.
In 1905, three men, including David Forbes, discovered the items and sold them to the Bishop Museum.
Last month, Laakea Suganuma, an expert in the Hawaiian martial art of lua, or "bone breaking," and Abigail Kawananakoa, a descendant of Hawaiian royalty, filed a federal lawsuit against Bishop Museum and Hui Malama, a group formed in 1988 to repatriate native Hawaiian remains and funerary objects from museums and when discovered elsewhere, such as construction sites.
They said Hui Malama's decision to rebury the objects ignored other native Hawaiian claimants' rights and violated the museum's loan policies and procedures of the Native American Graves Protection and Repatriation Act (a federal law governing the repatriation of native Hawaiian and American Indian remains and artifacts from museums to indigenous peoples).
Suganuma said the 9th Circuit Court's order was not a judgment on "who is right and who is wrong," rather, "it's just buying a couple of months of time. "Perhaps because of the controversial nature of the case, they took a conservative opinion," he said.
Edward Halealoha Ayau, director of Hui Malama, said that while the group is pleased, "what still remains is that there is a pending case that seeks to cause the removal of moepu from the kupuna themselves, and until that case is resolved and any efforts to disturb them, they've lost. "We cannot truly be happy about the situation," he said. "There's a long road ahead."
LindaLee Farm, attorney for Bishop Museum, refrained from commenting on the portion of the order that halted the return of the cave items, but did appreciate that the order expedites the scheduled briefing.
In court papers last week, Bishop Museum supported the retrieval of the items and its director said the museum's previous administration had erred in making the loan.
In a written statement, Kawananakoa said: "We are gratified by the 9th Circuit Court's decision to expedite the appeal of the injunction order. The court's decision to schedule the hearing for the first week of December -- the earliest possible date -- recognizes the importance of this case to the people of Hawaii."
Suganuma stressed the importance of stepped-up security because of the possible danger of a break-in at the cave.
Court TV, September 23, 2005 updated September 28.
http://www.courttv.com/news/2005/0923/hawaiian_artifacts_ctv.html
What would the ancestors want? A suit over Hawaiian artifacts could decide
Photo caption: Hawaiian artifacts, including a funerary bowl studded with human teeth, are at the center of a legal battle.
Photo from http://www.courttv.com/graphics/photos/topnews/hawaii/lede/artifacts-insidelede-092605.jpg
By Lisa Sweetingham
Court TV
When an explorer named David Forbes dug up ancient artifacts from a Hawaiian cave 100 years ago and sold them to a Honolulu museum, was it an act of grave robbing, or was he guided by the spiritual wishes of the dead?
That is the deeper question underlying a federal suit funded by a Hawaiian princess and filed against a native Hawaiian organization that reburied the collection of artifacts five years ago in the same Big Island cave where they were first unearthed in 1905.
"It was there for three or 400 years before Mr. Forbes stole it. It's supposed to deteriorate in the burial tomb. That's what it does," said Rev. Charles Kauluwehi Maxwell, president of the board of directors of Hui Malama I Na Kupuna O Hawaii Nei, a native organization that believes the cultural relics should stay in their sacred resting place. "It was not meant for us. For us, we feel it's very bad luck to even touch those items."
But another group, the Royal Academy of Traditional Arts, wants the items retrieved from the cave so that the process of "repatriation," or returning the items to their rightful owners, can continue. Ultimately, they'd like to see the items put on display in a Hawaiian-owned museum "for the people of the world to view."
"I believe, and anybody who thinks in a Hawaiian fashion would know this, I believe the ancestors allowed the items to be discovered," said La'akea Suganuma, the academy's president.
He is suing Hui Malama along with Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, an heiress and royal Hawaiian who is footing the legal bill. They say Hui Malama has violated the Native American Graves Protection and Repatriation Act (NAGPRA) as well as Fifth Amendment property rights laws.
Earlier this month, a federal judge sided with Suganuma and his royal co-plaintiff, and ordered Hui Malama to dig up and return the items by Sept. 23 to the Bernice Pauahi Bishop Museum in Honolulu. Hui Malama filed an emergency appeal, and a stay was granted by the Ninth U.S. Circuit Court of Appeals, allowing the ancient remains to stay in their cavernous tomb until the appeals court makes a final decision. But instead of taking years for the appeals process, which is typical, the court has fast-tracked the case and will make a decision in December.
Some of the items in dispute include funerary pieces, such as a wig made of human hair, a bowl embedded with human teeth, and carved gods that Hui Malama believes were meant to accompany the dead for eternity.
"It is very similar to putting a ring on your grandmother when she dies — jewelry to accompany her into eternity — and then 200, 300 years down the line, someone discovers the objects and takes them off her body," Maxwell said. He and his attorney claim that when Forbes sold the stolen items to the Bishop Museum in 1905, they agreed to keep the illegal sale "under wraps," according to their correspondence.
Hui Malama was formed in 1988 on the heels of a dispute between native Hawaiians and the builders of a Ritz Carlton hotel, which was planned on a burial site. The hotel was eventually constructed inland, away from the ancestral grounds.
In 1990, Congress enacted NAGPRA, which requires museums and federal agencies to return certain Native American, Hawaiian and Alaskan artifacts to the descendants or organizations to which they belong. The act gave Hui Malama legal standing to care for and protect na iwi kupuna, or "ancestral remains." Since then, the group has repatriated and reinterred artifacts returned from more than two dozen museums, including the Smithsonian in Washington, D.C., and the Field Museum in Chicago.
The Bishop Museum loaned the 83 items from the Kawaihae caves collection to Hui Malama in February 2000. Under NAGPRA guidelines, 13 native Hawaiian organizations were found to be culturally affiliated with the items, some after the items had already been reburied.
The museum has since asked for the items to be returned and for the repatriation process to continue.
Abigail Kawananakoa, a descendant of a Hawaiian royal family, is funding the suit.
"They've recognized the so-called princess as a claimant ... unilaterally deciding the repatriation process has to be reopened and renewed, despite two published notices that it is complete," said attorney Alan Murakami of the Native Hawaiian Legal Corporation.
The museum did not return calls for comment.
A NAGPRA review committee also determined that the repatriation process the museum followed was "flawed and remains incomplete." NAGPRA advised the museum to recall its so-called loan, reopen the process and reconsult with all interested parties. The NAGPRA program office did not return calls for comment.
If the appeals court finds that Hui Malama must return the objects, it would mean digging up the buried items from their secret resting place.
"We won't do it. We'll defy the court's order," Maxwell said, adding that he was prepared to defy the Sept. 23 deadline before the stay was granted. "I gathered my family a week ago and told them I might be arrested. I'm 68 years old, and I'm in a wheelchair, but I would be willing to sacrifice myself for my culture."
His attorney contends that forcing the group to dig up the items would be "totally against their fundamental religious cultural beliefs," and a violation of their First Amendment rights.
Not to mention, it could be dangerous. The cave has been sealed and reinforced to protect against future theft, according to Maxwell. "The cave is very unstable. If you move one rock, the entire cave could collapse," he said.
Suganuma claims he has offered to retrieve the items himself, but will leave the matter up to the courts. He believes the outcome is not really in his hands, but is being guided by a higher authority. "What I want to see is the wishes of the ancestors," Suganuma said. "What will be will be — all in its own timing."
Honolulu Advertiser, Saturday, October 8, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051008/NEWS23/510080337/1173/NEWS
Ezra issues ‘supplement’ critical of Hui Malama
By Gordon Y.K. Pang
U.S. District Judge David Ezra has taken the unusual step of issuing a "supplement" to his ruling in the case involving artifacts at Kawaihae Cave, essentially criticizing the Native Hawaiian organization Hui Malama I Na Kupuna 'O Hawai'i Nei for not raising concerns earlier that the disturbance of the funereal objects could cause destruction of the caves and the objects, also called moepu.
Hui Malama attorneys first raised those concerns in affidavits filed while seeking an appeal to Ezra's original order, which directed the group to retrieve the 83 priceless moepu from the sealed cave. On Sept. 20, the 9th U.S. Circuit Court of Appeals lifted Ezra's order, pending a decision on Hui Malama's appeal.
Two Native Hawaiian organizations filed a lawsuit against Hui Malama and the Bishop Museum, claiming that Hui Malama illegally kept possession of the artifacts after initially borrowing them from the museum. Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts wants the artifacts returned to the museum, pending a final decision by the items' different claimants on their final resting place, a decision that to date has proven elusive. Hui Malama wants the moepu to stay where they are.
Ezra, in his supplemental order dated Thursday, said that if he had been informed about the potential collapse, he still would not have changed his ruling.
Instead, he said, the court "could fashion a remedy which would require, once the exact location of the cave has been disclosed, an appropriate structural engineering review and survey to determine whether in fact damage will occur to the cave in the event the cave is opened, and remedial measures if any could be taken to ameliorate the potential collapse."
Hui Malama, Ezra said, had "refused to specifically identify the location of the cave or if in fact all of the objects that were loaned to them are in fact in the cave."
Hui Malama attorney Alan Murakami said he was puzzled by Ezra's filing and he questioned whether the judge had the jurisdiction to make it. "I'm not sure what he's trying to do," Murakami said. "It sounds like he's reaffirming his order. I don't know what the purpose of that is, especially since we're currently on appeal. I've never seen anything like this while on appeal."
Honolulu Star-Bulletin, October 8, 2005
http://starbulletin.com/2005/10/08/news/story05.html
Judge reiterates artifact retrieval order
He rejects the new argument that items could be damaged
By Sally Apgar
A federal judge says he would not change his order for retrieval of artifacts from a Big Island cave even though a native Hawaiian group argues that such a move could cause a cave collapse and destroy some of the items.
U.S. District Judge David Ezra weighed in yesterday on a federal lawsuit filed in August by two native Hawaiian organizations that demand 83 items be retrieved from Kawaihae, or Forbes, Cave on the Big Island. The groups want the items held by the Bishop Museum until 14 competing native Hawaiian claimants decide on their disposition.
On Sept. 2, Ezra ordered the native Hawaiian group Hui Malama I Na Kupuna 'O Hawaii Nei to return the 83 items that the group's leaders said they had secretly reburied in the cave in 2001. Hui Malama officials said they had reburied the items to honor the wishes of ancestors just after it took custody of them from the Bishop Museum under terms of a one-year loan.
Hui Malama told Ezra that retrieving the items would desecrate an ancestral burial ground and violate their constitutional rights to the free exercise of religion. Hui Malama has since appealed Ezra's ruling to the 9th U.S. Circuit Court of Appeals in San Francisco, arguing in part that the cave, which was secured from thieves with cement, would collapse if reopened.
Ezra, addressing that point in his supplemental filing yesterday, wrote that Hui Malama in its appeal "for the first time raised the argument that disturbance of the objects in the cave would cause 'potential' destruction of the items through a collapse of the cave in which they are allegedly housed. Defendants have raised this argument despite the fact that, while arguing before this court, they did not affirmatively acknowledge either the exact whereabouts of the cave or the fact that the objects were all definitively located within the cave."
Ezra said it is not clear whether the items are in the cave, so the newly offered threat of a cave collapse has no effect on his decision that the items should be removed.
Alan Murakami, an attorney with Native Hawaiian Legal Corp., which is representing Hui Malama, said he was "puzzled" by Ezra's supplemental order. "I've never seen a lower court act this way once an appeal is taken," Murakami said. "I don't know the purpose."
George Van Buren, an attorney representing Abigail Kawananakoa, representative of one of two native Hawaiian organizations that have demanded the retrieval of the 83 items, said, "We've been concerned, and remained concerned, about the safety of the items, and believe they need to be returned to a safe place."
Discovery of Wooden Figures
(9) On October 19, 2005 it was reported that a housing subdivision developer has made an inadvertent discovery of more than 20 carved wooden figures (some only partially carved) in a lava tube at "The Shores at Kohanaiki," which is several miles north of Kailua-Kona on the "big island." There were no human remains. Speculation is that the images were carved in the early 1800s; and either it was a workshop for image-carvers who stopped after the ancient religion was overturned in 1819 by Ka'ahumanu, or else it was a warehouse where followers of the old religion hid the images to prevent their destruction by government agents.
Honolulu Star-Bulletin, October 19, 2005
http://starbulletin.com/2005/10/19/news/story01.html
Artifacts found in lava tube
A developer comes across carved wooden figures on the Big Isle that likely date to the early 1800s
By Sally Apgar
The developer of a luxury golf and residential project on the Big Island recently discovered "a significant archaeological" find when construction equipment accidentally breached a lava tube, according to documents obtained by the Star-Bulletin.
Sources with knowledge of what was found on Sept. 21 said there are more than 20 carved wooden images, standing between 3- and 4-feet tall. The carved wooden images were described as being in various stages of completion, with some expertly finished. Two upright carved stones were also discovered, according to the sources, who all spoke on condition of anonymity.
No human remains were found inside the lava tube, according to a Sept. 27 letter from Melanie Chinen, administrator for the state Historic Preservation Division, to Dennis Frost of Rutter Development Corp. of Irvine, Calif.
It is unclear whether the images are ki'i, or carved images that were made as personal gods. Sources said the objects date back to the 1800s and might have been carved in the 1840s, about 20 years after Chiefess Kaahumanu outlawed the Hawaiian religion and the practice of using ki'i.
For several weeks, the state Historic Preservation Division, Rutter and landowner Kennedy-Wilson International have tried to keep the discovery confidential, partly because they want the site secured from looters.
They have each declined to answer repeated Star-Bulletin inquiries about the find at "The Shores at Kohanaiki," which is several miles north of Kailua-Kona. The 450-acre property is the future site of a championship golf course and about 500 luxury homes.
Community groups long fought the development and finally relented, in part, when Rutter agreed to provide a 128-acre public coastal park with 120 parking stalls and a beach facility with snack bar, restrooms and showers.
Paul Rosendahl, an archaeologist hired by Rutter, told the Star-Bulletin last week that the lava tube has been resealed and 24-hour security is in place. All construction work was stopped in the immediate area when the find was made and has not resumed.
Rosendahl said that in deference to families with ties to the site he would not comment on what was found. "We are following the administrative rules for dealing with an inadvertent discovery like this and are consulting with members of the appropriate ethnic groups." Referring to families and kupuna with ties to the site, Rosendahl said, "I put their concerns before anyone else's."
Rutter notified the Historic Preservation Division when it found the images and state staff inspected the site. But since no human remains were found along with the images, Rosendahl said the developer, under his interpretation of state law, has the right to determine the disposition of the artifacts. Rosendahl said they are consulting with kupuna who have ties to Kohanaiki to further identify the images and collect information needed in deciding their fate. He is also working with MaryAnne Maigret, the Hawaii Island archaeologist for the Historic Preservation Division.
In an Oct. 10 letter to Chinen, Rosendahl referred to state law and wrote that Rutter "as the owner of a historic property located on private property and lacking in any human skeletal remains asserts its right to assume the leading role in determining the appropriate protection, treatment and ultimate disposition of the site and its contents."
In the same letter, he challenged Chinen, saying that contrary to her Sept. 27 letter, the Historic Preservation Division "does not have any authority to make unilateral decisions regarding the site."
Rosendahl wrote that Rutter "will continue to assert its sole right to control access and determine in consultation with the professional staff" of the Big Island office of Historic Preservation "who will be, and under what conditions, granted access to the site." He also said that Rutter "wishes to maintain a low profile with regard to the site for now as the best protection for the site."
Van Horn Diamond, former chairman of the Oahu Island Burial Council, said, "This is the way the law is written. I don't think that the developer is trying to deny the Hawaiian community participation in this." "I hope they make the right overtures to get cultural input from Hawaiians and they can do that by finding the lineal descendants" with ties to the site, Diamond said.
The finding has been whispered about on the Big Island for weeks.
Herb Kane, an artist and historian who lives on the Big Island, was intrigued that so many carvings were found in one place. He offered two possible reasons that the carvings were found in a group without human remains.
First, he said that after Kaahumanu outlawed the Hawaiian religion in about 1819, some families hid their ki'i in caves to safeguard them from being destroyed by gangs "who made bonfires of ki'i." He said the site could be where several families or even a village hid their ki'i. He said if the images have a worn patina from being handled, that would suggest they were someone's ki'i.
Another theory is that this was a storage area for one or more expert carvers. He said that after 1820 a whole class of trained wood carvers found they had lost their market.
However, Kane said, sailing ships from Europe came into port seeking such carved images to fill museums in their home countries and the craftsman, according to a captain's diary at the time, began selling carved images.
Kane said lave tube could also have been the simple storage place for several craftsmen.
Honolulu Advertiser, Thursday, October 20, 2005
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051020/NEWS23/510200355/1173/NEWS
Debate builds over new archaeological discovery
By Gordon Y.K. Pang
A "significant archaeological find" — that included carved wooden images — in a lava tube on the construction site of a Kona luxury home project is causing a buzz on the Big Island despite attempts to keep the discovery under wraps.
On Sept. 21, equipment accidentally punctured a lava tube on the construction site of The Shores of Kohanaiki, according to a Sept. 27 letter from state Historic Preservation Division Administrator Melanie Chinen to Dennis Frost of Rutter Development Co., which is heading the project.
While no human remains were "documented," Chinen said in her letter, "we believe a significant archaeological site is located within the tube."
Chinen yesterday declined to discuss the project, citing a request for confidentiality made by the landowner.
Paul Rosendahl, a Hilo, Hawai'i-based archaeologist hired by California-based Rutter Development Corp., said an unspecified number of artifacts of an indeterminate age were located in the lava tube at the construction site of the 500-home project between Keahole Airport and Kailua, Kona.
Rosendahl declined to give details of what was found.
"It's impressive, I will tell you that," he said. In 37 years as an archaeologist in Hawai'i, he said, "I have never seen anything like this." He said the artifacts were at least 50 years old and "likely" more than 100 years old.
After talking to Chinen's office, the landowner has sealed the cave temporarily and kept it under around-the-clock monitoring. Work in the immediate vicinity of the cave has ceased, although construction continues elsewhere on the 450-acre site.
In cases in which human remains are found, the final disposition is made by the state, Rosendahl said, but in cases where there are no human remains, the landowner "takes the lead."
Before making a final determination, Rutter and partner Kennedy-Wilson International want to consult with the state and interested parties he described as "kupuna who are kama'aina to Kohanaiki and adjacent lands."
The landowner wanted to keep information about the site confidential both to protect it and to adhere to the wishes of elders in the area who "felt this was a private matter (and that) these things were hidden and meant to stay hidden."
Hawai'i County Councilman Angel Pilago, who represents North Kona, disagreed with Rosendahl and criticized both the landowner and the Historic Preservation Division for keeping the matter private. "I think it's much more than a lineal descendancy issue," he said. "I firmly believe it's cultural and intellectual property, and that remains in the purview of the general Hawaiian community."
While the company may have a legal right to withhold the information, the public should know what is buried there, said Pilago, who has had a history with the Kohanaiki site, having been a plaintiff in a landmark 1995 Hawai'i Supreme Court decision that affirmed Native Hawaiian gathering and cultural rights on the coastal development and, ultimately, all private property. Pilago said he does not trust either the Historic Preservation Division or Rutter and wants the county to be more involved.
But Hawai'i County Planning Director Chris Yuen said that, to date, he has seen nothing nefarious in the actions of Rutter or Historic Preservation. "My guess is that both SHPD and the majority of the Hawaiian community will say it should be kept in place and sealed up so it can't be disturbed," Yuen said. "And the county would be fine with that."
Honolulu Advertiser, Tuesday, October 25, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051025/NEWS0101/510250314/1003/NEWS
Hawaiian groups want say on artifacts
By Kevin Dayton
Advertiser Big Island Bureau
HILO, Hawai'i — Three West Hawai'i community groups alleged yesterday that secrecy surrounding a major archeological find at a construction site at Kohanaiki violates an agreement the developer made with the county and others to allow the luxury home project to go forward.
In a written statement released yesterday, the groups Kohanaiki 'Ohana, Pono I Ke Kanawai, and Na Keiki He'e Nalu O Hawai'i said they want to be included in the discussions on what will happen to artifacts found in a punctured lava tube on the construction site.
The groups warned of possible lawsuits or protests if Rutter Development Co. of California does not explain its actions, and urged the company to make a public statement by Thursday "to prevent confrontation." "This week we were informed by local and outside island groups of plans and intent to conduct acts of civil disobedience against the developer," the groups said in a joint statement.
Dennis Frost, project manager for Rutter, said he had not seen the statement, and declined to comment on it.
In their written statement, the groups said they had confirmed that artifacts found on the site of a project called The Shores of Kohanaiki included more than 20 ancient god images that stand 3 to 4 feet tall, and were found in the cave on Sept. 21.
"Rutter, with their consultants and advisors are wrong to see our ki'i (image or statue) as their property, and that only they, will decide what's best for and when to exclude the Hawaiian people," the statement said. "We challenge their assertion, and remind them that Gods do not belong to individuals, they belong to the community whose values and practices they represent. They are the cultural and intellectual property of a social group, and the society that the sacred icons symbolize and represents have the right to determine the care and disposition of their god-forms," the statement said.
Paul Rosendahl, the Hilo-based contract archeologist hired by the developer, said consultations about the objects in the cave have begun with a group of six to eight Hawaiians with family and residential ties to the property, which is near a surf spot known as "Pine Trees," between Kailua village and the Kona airport.
Rosendahl said the area where the artifacts were found was not used for burials, but described it as "a very significant site." The developer has resealed the cave and posted security, and is following state administrative rules that govern inadvertent archeological finds in caves, he said.
Those state rules prohibit the state from releasing information about the find without the permission of the land owner. Rosendahl said the developer has withheld information from the public to protect the artifacts, but has shared information with the state and with Hawaiians with historic family ties to the land.
"Rutter views themselves basically as custodians of this site to protect it until it's been decided what should happen with it," Rosendahl said. Rosendahl said he does not agree that the confidential process the developer is following violates the 2003 "Good Faith Agreement" that settled a number of other public access and shoreline issues, and required the owners to create a 109-acre public park.
The agreement requires the developer to advise the state, the county and a "designated representative" of the community about any surprise archeological finds, and then consult with all of them to determine what should be done about the find.
Honolulu Star-Bulletin, October 25, 2005
http://starbulletin.com/2005/10/25/news/story07.html
3 cultural groups want a voice in disposition of wooden icons
By Rod Thompson
KAILUA-KONA » Three West Hawaii cultural and community groups are warning of unspecified "civil action" against a residential and golf development at Kohanaiki, North Kona, where old Hawaiian wooden images were found in a lava tube cave in September.
Kohanaiki Ohana, Pono I Ke Kanawai and Na Keiki Hee Nalu O Hawaii expressed anger at the "willful exclusion of interested parties" who were not consulted when the images were found.
"This week, we were informed by local and outside island groups of plans and intent to conduct acts of civil disobedience against the development," the groups said in a statement. The groups said they hope to avoid confrontation, "but we will not interfere, intervene nor be responsible for any civil action by others after Thursday, Oct. 27, 2005." They asked for "resolution" by then. The three groups "may seek legal remedy," they said.
More than 20 images, believed to be kii, or carved images of gods, were found on the 450-acre property north of Kailua-Kona, where the Shores at Kohanaiki is being created by two California companies, Rutter Development Corp. and Kennedy-Wilson International.
Some of the images were finished objects, while others were incomplete, according to sources familiar with them. Probably dating from the first half of the 19th century, they might be religious images hidden when the old Hawaiian religion was overthrown or commercial objects created for sale to foreign sailors, said Hawaiian historian Herb Kane.
No human bones were found in the lava tube, said the development's archaeological consultant, Paul Rosendahl.
The fact that this is not a burial site and was accidentally discovered gives the landowner the legal right to determine how to dispose of the artifacts, Rosendahl said. The developers see themselves as custodians of the objects while they work with people with specific family links to the area, he said.
The three groups stated, "Gods do not belong to individuals; they belong to the community whose values and practices they represent. They are the cultural and intellectual property of a social group."
Rosendahl said the developers are not obliged to turn the images over to any particular group that makes a claim. The developers are working with "those with the strongest genealogical and residential ties," he said.
The groups accused the developers of violating a 2003 "good faith agreement" that requires consultation with community groups in case of discoveries.
But Rosendahl said that refers only to a 109-acre shoreline area being developed as a park. A state cave protection law allows landowners to keep cave information confidential to protect it, he said. The lava tube has been sealed, Rosendahl said.
West Hawaii Today (Kona), Tuesday, October 25, 2005
http://www.westhawaiitoday.com/articles/2005/10/25/local/local02.txt
Group demands answers on find -- civil disobedience a possibility
by Bobby Command
A group of Native Hawaiian organizations has issued an ultimatum demanding a developer explain why it failed to disclose the discovery of religious objects on property it is developing in Kailua-Kona.
The developer was also warned that acts of civil disobedience by other groups and individuals may occur as a result.
Rutter Development, however, said it has adhered to proper procedures and protocols following the Sept. 21 inadvertent find at the Shores at Kohanaiki site of more than 20 ancient tiki, or kii, and will ultimately involve the community in their disposition.
In addition, the mayor said everyone involved is trying to do the right thing but the situation is so sensitive it is easy to see how a misunderstanding could come about. Mayor Harry Kim said he has called a meeting of those involved in the issue and is confident of a resolution.
Kohanaiki Ohana, Pono I Ke Kanawai, and Na Keiki Hee Nalu O Hawaii released a joint statement Monday giving Rutter Development until Thursday afternoon to issue a public explanation of their actions following what the group calls a cover-up of an inadvertent discovery of the idols, which are three to four feet in height.
"This timeline is urgent to prevent confrontation," according to a press release by Kohanaiki Ohana. "This week we were informed by local and outside island groups of plans and intent to conduct acts of civil disobedience against the developer."
The groups said they found out on Oct. 8 of a significant inadvertent discovery at Kohanaiki. According to the press release, communications and discussions between Rutter, the state and Hawaii County, "may have resulted in a conspiracy to defraud the Hawaiian community and keep secret a significant archeological find that represents the values and beliefs of our people."
The group said it was "deeply disturbed by circumstances stemming from discovery, disposition, and willful exclusion of interested parties who should have been consulted upon discovery of significant Hawaiian cultural and intellectual objects."
Mike Eadie of Rutter Development said from the company's office in Irvine, Calif., that Rutter followed the letter of the law when it discovered the idols. "We observed state and county procedures as well as the good-faith agreement and notified the proper authorities," he said. "We sealed it as soon as we found it. There are certain conditions and procedures that we must follow before we get the community involved."
According to the press release, the group discovered that conversations and communications between the developer, state, and county administrative agencies advised the developer of their privilege to invoke confidentiality. "In other words, to keep the find secret from the Hawaiian people. That action, though legal, was wrong."
Kim said the controversy is odd because everyone involved is trying to do the right thing. "The difference here, some people felt this was such a significant find that decisions were made by individuals without the inclusion of others," he said. "There is no basis for any other accusation," said Kim, who added that he found out about the find by reading West Hawaii Today. "And I don't mean to demean this, because this is special and sensitive."
The group, who labeled Rutter as "devious, insensitive, and disrespectful," said the developer should not consider the tiki their property, nor should it be the only ones to decide the fate of the items. "We challenge their assertion and remind them that gods do not belong to individuals, they belong to the community whose values and practices they represent."
But Eadie said Rutter is not trying to hide anything. "Kohanaiki has been in such a spotlight," said Eadie. "We believe we are acting in the spirit in which this whole thing came together."
Rutter Development, Kohanaiki Ohana and Na Keiki Hee Nalu O Hawaii endorsed an August 2003 good-faith agreement which includes notification and consultation with community members when such discoveries were made. "We feel that agreement is now abrogated by Rutter Development's decision for confidentiality that excludes and denies our inclusion and involvement," the release said. "Our organizations, with the inclusion of Pono I Ke Kanawai, urges Rutter Development and Hawaii County to include us in their discussions to try to avert future complications."
While the group said it hopes to avoid confrontation and does not condone acts of violence, it also said it would not interfere, intervene, nor be responsible for any civil action by others after Thursday.
The release also said the groups may seek a legal remedy to further clarify protocol, disposition, and curatorship of Hawaiian cultural and intellectual property, and may invite other local, national and international culturally based organizations to join them.
Kim said he has contacted all the major parties who have agreed to meet and discuss the situation. "Everyone is on the same page," said Kim. "I don't think we'll have much of a problem."
Shores at Kohanaiki is a 500-lot golf course community and shoreline park under construction four miles north of Kailua-Kona.
Honolulu Advertiser, Thursday, October 27, 2005
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051027/NEWS01/510270361/1190/NEWS
OHA cites stake in Kona artifacts
By Gordon Y.K. Pang
The state Office of Hawaiian Affairs says it also wants to be in the loop and have a say in what happens with more than 20 significant artifacts found at a North Kona construction site last month.
"OHA is obligated to work towards the betterment of native Hawaiians and Hawaiians, and to serve the needs and interests of a wide and diverse beneficiary group (and) must also ensure that other agencies, on the state and county levels, uphold their constitutionally, statutorily and judicially mandated obligations to the native Hawaiian and Hawaiian people," administrator Clyde Namu'o said in a letter to Rutter Development Inc., which is developing the Shores of Kohanaiki between Keahole Airport and Kailua town.
After reviewing news stories about the artifacts, "it is becoming clear that OHA should be officially and formally notified of this discovery and consulted with regards to the interests of our beneficiaries," Namu'o said.
Archaeologist Paul Rosendahl, who is helping developers with the project, could not be reached for comment late yesterday. He previously said that after consultation with the state Historic Preservation Division, the cave has been sealed temporarily while a final plan is discussed with state officials and Native Hawaiians from the area.
"OHA is concerned regarding any discovery of historic properties, especially when they are native Hawaiian in origin and of apparent cultural significance," Namu'o said.
Caretaker of Mauna Ala complains kapu sticks not returned
(10) Caretaker of Mauna Ala (Royal Mausoleum) "goes public" with complaint that Kunani Nihipali, then head of Hui Malama, "borrowed" two sacred ancient pulo'ulo'u (kapu sticks) guarding the royal crypt, 5 years ago, and has never returned them; and nobody has been able to contact Mr. Nihipali for a very long time. Speculation that the "borrowing" of the pulo'ulo'u was a ruse for actual theft and reburial (or perhaps sale on the black market?) similar to the way the Forbes Cave artifacts were "borrowed" and "repatriated."
Honolulu Star-Bulletin, October 30, 2005
http://starbulletin.com/2005/10/30/news/story01.html
Mausoleum fears theft of treasures
The caretaker says a Hawaiian group has reneged on a loan
By Sally Apgar
Two sacred staffs topped with golden orbs that for more than 113 years watched over the crypt of the royal line of Kamehameha are missing and believed stolen, according to the caretaker of the Royal Mausoleum known as Mauna 'Ala.
In interviews last week, William Kaihe'ekai Mai'oho, the "kahu," or caretaker, of the Royal Mausoleum in Nuuanu Valley, said he stood on sacred ground of the high chiefs, or, "ali'i," and looked straight into the eyes of another Hawaiian who asked to borrow the pair of "pulo'ulo'u." Mai'oho said he "made a good-faith loan."
That was five years ago and they have never been returned.
Mai'oho said that Kunani Nihipali, then po'o, or director, of Hui Malama I Na Kupuna 'O Hawaii Nei, a controversial group that repatriates native Hawaiian remains and burial objects from museums, wanted to borrow the pulo'ulo'u to guard over bones from Kamehameha lands that their group had reclaimed from the Bishop Museum for proper reburial.
Mai'oho said Nihipali promised to return the pulo'ulo'u to Mauna 'Ala after the bones were reinterred.
"I took his word that he would return them," said Mai'oho, the sixth generation of his family to serve as kahu at Mauna 'Ala. "I told him I wanted them returned because Mauna 'Ala is where they belong."
Mai'oho said he doesn't know if the bones were ever reburied but that he has never seen or heard from Nihipali despite repeated efforts to contact him. In late 2004, Nihipali left Hui Malama and Eddie Halealoha Ayau, a founding member and spokesman of the group, became po'o.
"It is my responsibility to bring the pulo'ulo'u home. I took them at their word. I accept my responsibility that I let them go from Mauna 'Ala. But I never thought they had any hidden agenda. I can see now they had an underlying agenda."
Ayau did not return calls to his Molokai home. Mai'oho and others said that Ayau was often present during visits concerning the restoration. "This isn't a police matter. It would be very un-Hawaiian for me to go to the police," said Mai'oho, a soft-spoken man who was groomed from early childhood by his grandparents to assume the responsibility of kahu. He is descended from two chiefs hand-picked by Kamehameha I (who is not buried at Mauna 'Ala) to hide his bones after his death from enemies who would want to use the "mana," or spiritual power, from his bones.
"This is not just about stolen items," said Mai'oho, "This is on a much larger, spiritual scale. And I try, but I cannot understand why they did it."
Sitting outside of his small, one-story home on the grounds of Mauna 'Ala last week, Mai'oho said: "It is my responsibility to bring the pulo'ulo'u home. I took them at their word. I accept my responsibility that I let them go from Mauna 'Ala. But I never thought they had any hidden agenda. I can see now they had an underlying agenda."
Mai'oho said that each year he makes several inquiries after Nihipali, but has never heard from him. Even though the loan was made to Hui Malama as a group, Mai'oho said: "This is between Kunani and myself. I want to deal with him directly because it is who I handed the sacred objects to."
The Star-Bulletin has made repeated unsuccessful attempts to reach Nihipali in Hawaii and on the West Coast, where he is believed to be living or traveling. The Star-Bulletin has also tried reaching Nihipali and Ayau through the Native Hawaiian Legal Corp., which represents Hui Malama and was informed of the missing pulo'ulo'u.
Mai'oho said he decided to go public about the loan and alleged theft because in recent weeks he has heard that Hui Malama buried them in a cave.
"I am afraid to say that I don't think they ever intended to return them," said Mai'oho.
Mai'oho said that in 1999 or 2000, the Charles Reed Bishop Trust, which oversees Mauna 'Ala, agreed to restore the two deteriorating Kamehameha pulo'ulo'u, which were made from an iron staff and a copper orb covered in gold and placed with the crypt in 1887.
In ancient Hawaiian culture, pulo'ulo'u were a symbol that royalty was present, according to Mai'oho and other experts. They were carried at the front of royal processions. They were found in pairs outside of a royal house. And if royals decided to take a swim, pulo'ulo'u would be planted in the nearby sand to warn others away.
Typically, pulo'ulo'u contained in the staff or the orb the relics -- bones, teeth or hair -- of ancestral chiefs who watched over the living chiefs or chiefesses. The pulo'ulo'u are believed to hold strong mana. In front of a chief's house, they were sometimes crossed, which forbade entrance to others unless the person chanted their genealogy and business and was permitted entrance. If the pulo'ulo'u were upright, a person could pass through.
The pulo'ulo'u that stand, upright and uncrossed, before the crypts of the royal families at Mauna 'Ala are symbolic, and do not contain relics, but are believed to have strong mana, said Mai'oho.
Several appraisers contacted by the Star-Bulletin said it is almost impossible to estimate a commercial price for the pulo'ulo'u because few if any have ever been sold and they are such a rare, one-of-a-kind item.
In about 2000, Nihipali and George "Billy" Fields, a Big Island mason who often does work for Hui Malama, were hired for the restoration of the pulo'ulo'u, according to Mai'oho and Lurline Naone- Salvador, who worked for 29 years at Kamehameha Schools and has worked closely on restorations at Mauna 'Ala.
Naone-Salvador confirmed Mai'oho's statement that Nihipali and Fields said the originals were too badly deteriorated to be refurbished and a new pair should be made. The day they installed the new ones at the crypt, Nihipali asked to borrow the old ones.
Mai'oho said Nihipali explained how Hui Malama had taken possession of ancestral bones from the Bishop Museum and that they were stored at his Pupukea home until they could be properly reinterred. He said some of the bones were from Kamehameha lands and that he wanted the pulo'ulo'u to guard over them.
"I loaned them because there was a connection with Kamehameha," said Mai'oho. "But I told him I wanted them back because they belong here and I would either find someone to refurbish them or I would bury them behind the Kamehameha crypt."
Naone-Salvador agreed with Mai'oho, "It was definitely a loan."
"If they put the pulo'ulo'u in a cave, it is like blasphemy," she added.
Naone-Salvador said that in late 2000, she visited Nihipali at his Pupukea home. She said that behind his house he had built a wooden shed lined with shelves that held the bones repatriated from the Bishop Museum. When she opened the door of the shed, she said, "I saw the pulo'ulo'u with my own eyes.
"When I saw the pulo'ulo'u, I said: 'Why are they still here? Why are they not back at Mauna 'Ala?'
"It wasn't like a confrontational conversation with Kunani. It was casual. And Kunani said he had them until the iwi (bones) were buried."
Not long after, Naone-Salvador said she had a falling out with Hui Malama. "It has to come back because it is meant to be here. And if it can't be used, it should be buried here and not removed," she said.
Fields also told the Star-Bulletin that "Hui Malama borrowed (the pulo'ulo'u)."
"And it's like Kunani just vanished,' he added.
Fields noted that he is not a member of Hui Malama. "I am just a hired gun."
In a recent affidavit he filed in a federal lawsuit over the disposition of items from Forbes or Kawaihae cave, Fields testified that he has performed "various masonry, welding and construction work in conjunction with over 50 repatriations" that Hui Malama has conducted to rebury native Hawaiian remains and burial objects since 1990.
Mai'oho said the way Nihipali borrowed and never returned the pulo'ulo'u is similar to his understanding of how Ayau allegedly borrowed 83 sacred artifacts known as the "Forbes collection" from the Bishop Museum as a "one-year loan" in February 2000. The items, originally taken from the Kawaihae or Forbes Cave on the Big island, were not returned.
Ayau has said the items were resealed in Kawaihae. He has repeatedly defended Hui Malama's actions, saying that the items were originally stolen from the ancestors in 1905 by David Forbes and two others, and that the museum knew that it was buying stolen goods. Ayau has repeatedly said Hui Malama reburied the items to honor ancestors and right the wrongs of the 1905 theft.
Hui Malama also claims that the Kawaihae items were properly repatriated under the Native American Graves Protection and Repatriation Act, a federal law that governs the reclamation of native Hawaiian and American Indian remains and artifacts from museums. Some of the other 13 claimants to the Forbes items say they did not get a fair voice in the disposition of the items when Hui Malama reburied them.
Last March, the NAGPRA Review Committee came to Honolulu to hear testimony on the case. When asked by the committee what he thought a loan meant, Ayau told them, "It was a vehicle for repatriation."
He also told the committee that neither Hui Malama nor the museum staff expected the items returned. The committee, which has only advisory power, ruled the repatriation was "seriously flawed."
Today, Kawaihae cave is at the center of a federal lawsuit that seeks the retrieval of the 83 items so that 14 native Hawaiian claimants may have a voice in their final disposition. The suit was bought by two claimants: La'akea Suganuma, a practitioner of lua, which is a form of ancient Hawaiian martial arts, and Abigail Kawananakoa, a Campbell Estate heiress and descendent of the royal Kalakaua line. The two argued that Hui Malama disregarded the rights of other claimants when they reburied the items.
Suganuma, who has long been at odds with Hui Malama, said that if the taking of the pulo'ulo'u is true, it "is the height of arrogance. This is total disrespect for the culture and the ali'i to just take these things. It is so disrespectful."
Mai'oho compared his loan to Hui Malama to the Bishop Museum's loan of the Forbes items: "It's what Hui Malama did at the Bishop Museum with the Forbes cave items. But to come and do the same thing at Mauna 'Ala, I just don't understand."
"This is far worse than taking from the Bishop Museum," he added.
Mai'oho said that when someone crosses the threshold of the gold-tipped gates of Mauna 'Ala, they come onto 3.5 acres of royal land under the Hawaiian flag. He said the Western world and its laws and customs are left behind on Nuuanu Avenue and that Hawaiians can relate to one another completely on Hawaiian terms.
"If you are Hawaiian, your word is life and death, especially here," said Mai'oho. "Here, on Mauna 'Ala, we can be completely Hawaiian with one another."
He noted that everything that is of Mauna 'Ala belongs there, including the pulo'ulo'u.
"Even the dirt is consecrated here," he said. "It is blessed and it isn't taken from here."
Note from Ken Conklin: For extensive information about Mauna Ala, focusing on the claim that the land there was never transferred to the United States and remains sovereign territory of the Kingdom of Hawai'i, see: http://www.angelfire.com/hi5/bigfiles2/MaunaAlaMidweekMay2004.html
Cartoon
On November 1, 2005 The Honolulu Star Bulletin published a cartoon (right) by "Corky" showing the famous statue of Kamehameha The Great missing ("borrowed") from its pedestal in front of Ali'iolani Hale. http://starbulletin.com/2005/11/01/news/corky.jpg The photo on the left shows the statue as it really exists.
