(c) Copyright 2019,
Kenneth R. Conklin, Ph.D.
All rights reserved
Coverage of NAGPRA-related topics in Hawaii first came to this website in 2003 when the national NAGPRA review committee decided to devote its national meeting to the Forbes Cave controversy. Forbes cave was the most intensively covered topic from 2003 to 2007. But other topics also came to public attention, including Bishop Museum, the Emerson collection repatriated and reburied at Kanupa Cave, the discovery of ancient bones during a major construction project at Ward Center (O'ahu), construction of a house built above burials at the shorefront at Naue, Ha'ena, Kaua'i; etc.
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:
https://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:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html
That large webpage became so difficult to use that it was stopped on December 29, 2004; and a new webpage was created to collect news reports for NAGPRA issues in Hawai'i during year 2005. An index for 2005 appears at the beginning, and readers may then scroll down to find the detailed coverage of each topic. For coverage of NAGPRA issues in Hawai'i in 2005 (about 250 pages), see:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html
For year 2006 another new webpage was created, following the same general format. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html
For year 2007, another new webpage was created, following the same general format. See:
https://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html
For year 2008, another new webpage was created, following the same general format. See:
https://www.angelfire.com/planet/big60/nagprahawaii2008.html
For year 2009, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09a/nagprahawaii2009.html
For year 2010, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09a/nagprahawaii2010.html
For year 2011, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2011.html
For year 2012, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2012.html
For year 2013, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2013.html
For year 2014, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2014.html
For year 2015, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2015.html
For year 2016, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big11a/nagprahawaii2016.html
For year 2017, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big11a/nagprahawaii2017.html
For year 2018, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big11a/nagprahawaii2018.html
NOW BEGINS 2019
================
LIST OF TOPICS FOR 2019: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfold during 2019.
(1) Jan 21-22: TV news reports that Russian Fort Elizabeth at Waimea's Paulaula on the island of Kaua'i is the subject of a diplomatic dispute between Russia and the USA because local Native Hawaiians want to restore the area's precontact name and because, they say, the tumbledown rocks came from a heiau and the place contains ancient burials. An online news blog favorable to the Russian viewpoint gives a different analysis.
(2) A Maui resident has sued the state, Maui County and a developer to stop construction of a housing subdivision after learning that at least 182 Native Hawaiian burials have been disturbed by the project.
(2a) Feb 24: Ahia's complaint, prepared by the Native Hawaiian Legal Corp., alleges the project's developer, an affiliate of Towne Development of Hawaii Inc., is violating state historic preservation law intended to protect ancient Hawaiian burials. The lawsuit also claims the state and county didn't follow the law either, and that the developer inadequately surveyed the Central Maui subdivision site for burials despite a significant likelihood of their presence.
(2b) March 19: Attorneys delivered their final arguments Monday in one Maui resident's case against the state, the County of Maui and HBT of Maui Lani over Native Hawaiian burial sites. Both sides plan to submit their proposed findings of fact, conclusions of law and decision and order by March 29. Judge Joseph Cardoza will issue a ruling on April 5 at 10:30 a.m.
(2c) April 7: Judge Cardozo issued a preliminary injunction until both sides agree on additional protections for the burials.
(3) Feb 27: New York Times and Honolulu Star-Advertiser report that there are major doubts about the authenticity of a 21-inch wooden carving of the Hawaiian war god Kuka'ilimoku that was bought at auction at Christies in Paris in November 2017 for $7.5 Million and donated by the buyer to Bishop Museum in 2018 where it is a featured display item. See news report #6 in NAGPRA 2017 compilation.
(4) Mar 15: FBI seeking to repatriate thousands of Native artifacts 'collected' by Christian missionary. Recovery of Native cultural artifacts is the largest single discovery of cultural property in FBI history. Christian missionary had used a skull as a fruit bowl and adorned skeletons
(5) June 22: U.S. Navy Pacific Missile Range, Kaua'i, provides space and assistance for a crypt with square stone ahu for ancestral native Hawaiian bones uncovered from nearby shoreline sand dunes by large waves during winter storms in recent and future years.
(6) June 25: The huge wood image of Hawaiian war god Kuka'ilimoku, installed at Peabody Essex Museum (Salem MA) in 1846, gets newly renovated exhibit space with ceremonies by Native Hawaiians. Hui Malama had filed a NAGPRA right of possession claim against the museum in the 1990s but withdrew the claim back then after dialog and a review of records.
(7) Law school student essay, June 2019: "Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains"; abstract and link to download 54 page essay.
(8) Hawaii Public Radio celebrates Eddie Ayau who likes to liberate artifacts from museums for reburial and eventual disintegration.
(9) Puebla of Acoma gets back sacred shield slated for auction in Paris; Congress considering legislation to strengthen NAGPRA-like tribal rights to repatriation from foreign nations.
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FULL TEXT OF ARTICLES FOR 2019
(1) Jan 21: TV news reports that Russian Fort Elizabeth at Waimea's Paulaula on the island of Kaua'i is the subject of a diplomatic dispute between Russia and the USA because local Native Hawaiians want to restore the area's precontact name and because, they say, the tumbledown rocks came from a heiau and the place contains ancient burials. An online news blog favorable to the Russian viewpoint gives a different analysis.
https://www.hawaiinewsnow.com/2019/01/20/kauai-park-with-ties-russia-is-stirring-up-an-international-name-dilemma/
Hawaii News Now [3 TV stations], January 19, 2019
A Kauai park with ties to Russia is stirring up an international name dilemma
HONOLULU (HawaiiNewsNow) -- A historic park on Kauai is playing a role in the troubled relationship between the United States and Russia.
The Russian ambassador and Russian Americans are fighting to preserve the name of Russian Fort Elizabeth in Kauai's west side town of Waimea.
But cultural experts and state officials say the site is far more Hawaiian than Russian, and both sides are accusing each other of cultural insensitivity.
More than 200 years ago, a Russian trading company affiliated with the Czar helped built three forts on Kauai at the request of Kauai's King Kaumualii.
The fort site at Waimea's Paulaula was preserved as a state park in 1972 and called "Russian Fort Elizabeth." Over the years the fort has become barely recognizable.
"We would really like to see this, our presence and the history of our presence here," Russian-American Hawaii Resident Mihail Gilevich said.
Gilevich is helping organize efforts to restore the site, which won considerable support.
"We managed to get the Russians to put up all the wood that was necessary to send us a shipload of people do the physical work," Jay Freidheim, Hawaii Attorney said.
"The idea was to rebuild the fort. We did not know at the time its impossible to rebuild the fort," another supporter said.
That's because as experts looked closer, they confirmed that the fort was built with native Hawaiian labor with rocks from a heiau. The Russians left after two years and the people of Kauai used the fortress and cannon to defend the island against Kamehameha's invasion.
"Many people died. Some of them are buried in that fort so not only is it a fort and a chiefly compound, it is a burial ground and it's a Hawaiian burial ground," Alan Carpenter of the State Parks Division said.
Carpenter says he's glad the Russians kick-started discussion on how to preserve the site.
But says at times the Russian insensitivity hurt their cause including in 2017, raising a Russian trade company's flag above the stones of Paulaula.
"Here you had visitors from another country raising their flag, which may have been raised there for a very brief time 200 years ago over the graves of Hawaiian chiefs, and to me, it seemed a very disrespectful act and I thought it was worthy of calling it out," he said.
Gilevich says the Russians have great respect for the Hawaiian history there and the flag was raised to honor the Russian ancestors.
"It doesn't mean someone was trying to disrespect local rules or claim anything," Gilevich said.
As for a new name, the Russians agreed the Hawaiian name should come first but they are angry because the state is proposing renaming the park Paulaula Ft. Elizabeth and removing the word Russian.
"Yes the Russians were here for a little while but the Hawaiians were there for much longer and that history has been more or less forgotten or not highlighted enough," Carpenter said.
The dispute provoked news stories on Russian television and a letter from Russia's ambassador to the U.S.
He implored Governor Ige to keep Russian in the name of the site in the interest of international relations.
It will be a long process to improve and rename the site much as more research and archaeology needs to be done.
** Ken Conklin's note: All three of the Russian forts on Kaua'i were built before 1819, and therefore while Kamehameha The Great was still alive, and therefore before the old religion was abolished. So it's rather surprising to read that "as experts looked closer, they confirmed that the fort was built with native Hawaiian labor with rocks from a heiau." So apparently heiaus, and burial grounds, were disrespected and desecrated, by Hawaiian natives, being used as rock quarries even before the religion was abolished and, of course, before the missionaries arrived.
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https://www.bignewsnetwork.com/news/259128019/hawaii-declares-war-on-its-russian-heritage
BigNewsNetwork.com, January 22, 2019
Hawaii declares war on its Russian heritage
by John Varoli
As Hawaiian nationalist sentiment rises after more than a century of American conquest and occupation, the Pacific archipelagos small but important 200-year Russian legacy unexpectedly finds itself in the crossfire.
Remind an American that their Alaskan 'icebox' used to be Russian and you'll probably be met with a shrug and easy acceptance. But tell them that their tropical Pacific jewel, Hawaii, almost forged an alliance with the Tsars, and the reaction is often one of shock, disbelief and even horror. Now, some Americans wouldn't mind scrubbing that fact from the historical record.
While 2017 saw celebrations of two centuries of peaceful relations between Russia and Hawaii, the local Russian community was blindsided one year later, at the end of 2018, when its historical legacy suddenly became subjected to revisionist scrutiny.
The trouble started in November 2018 when the Association of Hawaiian Civic Clubs, at its 59th annual convention, made an official appeal to the State of Hawaii's Board of Land and Natural Resources asking to rename Russian Fort Elizabeth State Historical Park to 'Pulaula,' which is the traditional native name for that area.
"Place names should reflect our cultural heritage and its historical and geographical integrity," said the Association in its appeal.
"Over the years, places have been renamed and our ancient names have been lost in use...," said Nalani K. Brun, a tourism specialist for the County of Kauai's Office of Economic Development, in a statement.
The Russian Community Council of the USA (RCC), a non-profit social organization that unites Russian emigres, disagrees with the Hawaiian position, and claims that "renaming the fort will erase the unique and vastly undiscovered history" connecting the Hawaiian and Russian people. "The most logical and conflict-free solution is to add the native name to the already existing historic one without dropping any parts of the original title.
The Russian community's compromise is to call the site by a dual name: "Russian Fort Elizabeth / Pulaula."
"We are opposed to removing the word 'Russian' from the name, because it will not be clear about which Elizabeth is in question. Most likely people will have associations with the Queen of England, and not the Russian Empress," added Elena Branson, head of the RCC. "We hope the Hawaiian community can make a friendly gesture and leave the name of 'Russian Fort Elizabeth.' This would be in the spirit of diversity, multiculturalism and friendship."
3 forts were built
With its crumbling ramparts that today rise more than ten feet high, (originally they were 20 feet high), the fort is the last visible reminder of the historic Russian presence on the archipelago. Still, Hawaiian nationalists are not interested in compromise.
"The decision to name, and or rename this area, is the people of Kauai's to make, as is the decision as to which name shall be primary and more prominent," said Mauna Kea Trask, the former County Attorney, in an email sent to the Congress of Russian Americans, another Russian emigre non-profit organization.
Russian Fort Elizabeth was founded on the island of Kauai in 1816 by explorers in the service of the Russian-American Company (RAC) from St. Petersburg, but it was abandoned several years later when the Russians were chased from the island by American traders who concocted an anti-spy hysteria in order to secure commercial monopolies with local chieftains.
Public Domain
In addition to Fort Elizabeth, the Russians built two other forts -- Fort Alexander, and Fort Barclay-de-Tolly -- but almost nothing remains of those, except foundation stones. All three were built as part of an unofficial alliance with High Chief Kaumuali'i, the island's last independent ruler. According to recent historical research, said Ms Branson, the High Chief needed the Russian-made forts to defend his kingdom against a rival Hawaiian king on the other islands. The Russians, however, never became directly involved in the internal Hawaiian dispute.
American conquest
The Hawaiian kingdom was destroyed and conquered in the 1890s by American corporations with the support of mercenaries and the U.S. military. By 1920 only about 20,000 native Hawaiians remained, compared to about 500,000 in the 1780s. Today's greater awareness of this tragedy fuels the local nationalist revival, as well as the widespread calls for historical and social justice.
"We understand the Hawaiian wish to preserve and celebrate their culture and history, and returning native and historic names is an important part of this process," said Ms Branson. "The Russians were never involved in military operations or any of the painful events of the past; rather, Russia was an ally and helper of the Hawaiians, for instance by building three forts."
State officials say there is no desire to erase Russian history or ignore the important role that Russians played in the planning, design and initial construction of the fort. An American map dating to 1885 clearly mentions the "Old Russian Fort," and the site was designated a National Historic Landmark by the U.S. Government in 1962.
"It's the State Parks' desire to engage in a process that accurately reflects the history of the site, respects the native Hawaiian culture, and acknowledges the role of the Russian-American Company," said Curt Cottrell, Hawaii's State Parks Administrator, in a statement on Dec. 28, 2018. "This [issue] is still very much a work in progress."
Is compromise possible?
The controversy could not come at a worse time. In 2017, the local Russian community on Hawaii held a large commemorative celebration at Russian Fort Elizabeth to mark 200 years of relations between the Motherland and the archipelago.
Plans have been drawn up to transform the ruins of Fort Elizabeth into a cultural and research center for the study and preservation of Russian-Hawaiian cultural heritage and history. A website was created to popularize the cause.
To strengthen its case, the Russian community points to other sites in the U.S., such as San Francisco's "Russian Hill," which was named in the 1850s when settlers discovered a small Russian cemetery at the top of the hill. While the cemetery was removed, the name remains to this day, and no one suggests to remove the word "Russian" and replace it with a Native American name.
Natalie Sabelnik, head of the Congress of Russian Americans, points to Russian Fort Elizabeth as a "symbol of friendly relations ... between Russia and the United States. Do not rename Fort Elizabeth. Let's continue working together to restore, revitalize, and put the fort back on the map, so that we can all work together on this project. There can only be a win-win when we work together."
As far as the future, Mr. Cottrell emphasized that any final decision can only be made by Hawaii's Board of Land and Natural Resources, but a final decision is not expected for several months. In the meantime, his office will study the issue, and hopes to find a solution that restores friendly relations between the Russian and Hawaiian communities.
================
(2) A Maui resident has sued the state, Maui County and a developer to stop construction of a housing subdivision after learning that at least 182 Native Hawaiian burials have been disturbed by the project.
(2a) Feb 24: Ahia's complaint, prepared by the Native Hawaiian Legal Corp., alleges the project's developer, an affiliate of Towne Development of Hawaii Inc., is violating state historic preservation law intended to protect ancient Hawaiian burials. The lawsuit also claims the state and county didn't follow the law either, and that the developer inadequately surveyed the Central Maui subdivision site for burials despite a significant likelihood of their presence.
(2b) March 19: Attorneys delivered their final arguments Monday in one Maui resident's case against the state, the County of Maui and HBT of Maui Lani over Native Hawaiian burial sites. Both sides plan to submit their proposed findings of fact, conclusions of law and decision and order by March 29. Judge Joseph Cardoza will issue a ruling on April 5 at 10:30 a.m.
(2c) April 7: Judge Cardozo issued a preliminary injunction until both sides agree on additional protections for the burials.
https://www.staradvertiser.com/2019/02/24/hawaii-news/lawsuit-filed-over-burials-on-maui-project-site/
Honolulu Star-Advertiser, February 24, 2019
Lawsuit filed over burials on Maui project site
By Andrew Gomes
A Maui resident has sued the state, Maui County and a developer to stop construction of a housing subdivision after learning that at least 182 Native Hawaiian burials have been disturbed by the project.
Jennifer Ahia filed the complaint in state Circuit Court Tuesday to stop work on The Parkways at Maui Lani.
Ahia's complaint, prepared by the Native Hawaiian Legal Corp., alleges the project's developer, an affiliate of Towne Development of Hawaii Inc., is violating state historic preservation law intended to protect ancient Hawaiian burials.
The lawsuit also claims the state and county didn't follow the law either, and that the developer inadequately surveyed the Central Maui subdivision site for burials despite a significant likelihood of their presence.
"(These) defendants have ignored the clear sequential steps required under administrative rules of the historic preservation review process," the complaint said. "Instead, they have adopted an ad hoc, build it till you hit it approach to historic preservation."
The state Department of Land and Natural Resources, which is in charge of historic preservation laws through its State Historic Preservation Division, said it doesn't comment on pending litigation.
Maui County officials didn't respond to requests for comment.
Towne, a firm owned by Wisconsin-based Zilber Ltd., also didn't comment despite requests.
The Parkways subdivision represents the sixth phase of the master-planned Maui Lani community that began in the 1990s and covers 1,000 acres on the outskirts of Wailuku and Kahului.
Ahia's lawsuit and attorney David Kopper said the burials were disturbed over 10 years of construction work in a roughly 15-acre final piece of the 45-acre Parkways subdivision that borders The Dunes at Maui Lani Golf Course.
This last piece of the Parkways is to include about 70 single-family homes, and the plaintiff's attorneys believe most of the construction to date has been grading and infrastructure work.
The lawsuit argues that an archaeological survey, which Towne did for the 45-acre site by digging 52 test trenches, was inadequate given that the land comprising old sand dunes was known to contain burials.
Trenching discovered just one burial site containing five burial features, though three other burial sites on the 45 acres had been previously documented in state records, the lawsuit said.
If more testing had been done, Towne could have better known where burials were and could have designed its project to avoid them, the lawsuit contends.
"Construction continues while burials are hit or discovered," Kopper said in a statement. "If the law was followed, all parties would know where to build, if at all."
Another allegation in the lawsuit is that the developer didn't follow a monitoring plan approved by the State Historic Preservation Division, and that a new monitoring plan approved last year didn't involve consultation with the Office of Hawaiian Affairs and the Maui/Lanai Island Burial Council as required by law.
Maui County raised concerns in 2017 about the number of burials disturbed and a year ago suspended project grading permits, but the preservation division required only the new monitoring plan that was approved in June instead of requiring a new survey, the lawsuit said.
Since construction resumed last year, 12 burials have been disturbed, Ahia's complaint said.
The Native Hawaiian Legal Corp. obtained the burial counts after requesting documents from the preservation division last year.
Ahia, who is recognized by the state as a cultural descendent of the disturbed burials, said in a statement that the lawsuit was necessary because burials weren't being respected.
"It's sad that we have to take this route, but after decades of desecration, we must use every avenue available to secure protection for our iwi kupuna (bones of ancestors)," she said. "The erasure of kanaka maoli (native population) in our own homelands has become so normalized many barely notice. But we are still resisting the forces that would have our sacred burial grounds reduced to developments that destroy our history and collective mana (spiritual power)."
The Native Hawaiian Legal Corp. plans to seek an emergency injunction halting construction before arguments in the case are taken up in court.
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http://www.mauinews.com/news/local-news/2019/03/closing-arguments-heard-in-maui-lani-ancestral-site-case/
The Maui News, March 19, 2019
Closing arguments heard in Maui Lani ancestral site case
Complaint by Maui resident argues that project has disturbed about 180 burials
COLLEEN UECHI, Assistant City Editor
cuechi@mauinews.com
WAILUKU -- Attorneys delivered their final arguments Monday in one Maui resident's case against the state, the County of Maui and HBT of Maui Lani over Native Hawaiian burial sites.
Jennifer Noelani Ahia filed the complaint last month in 2nd Circuit Court, putting a temporary stop to construction of Maui Lani Phase 6. Ahia is a recognized cultural descendant to the burials found at the site.
The complaint contends that the state Historic Preservation Division, Maui County and landowner HBT of Maui Lani knew the project site contained Native Hawaiian burials and yet failed to protect them. The complaint states that the defendants "have adopted an ad hoc, build it till you hit it approach to historic preservation" and in the process have disturbed about 180 burial sites and remains.
The complaint also argues that SHPD did not follow its own historic preservation rules in classifying the burials and thus hid the number, location and treatment of the burials from groups that usually have a say in burial matters, like the Office of Hawaiian Affairs, the Maui Lanai Islands Burial Council and the Native Hawaiian community.
Maui Lani is a master-planned community of about 200 homes, and most of the area around Phase 6 is already developed, said Michael Carroll, attorney for HBT of Maui Lani. Phase 6 is a single-family residential development of 45.2 acres between The Dunes at Maui Lani Golf Course and Maui Lani Parkway. It's being developed in four increments. The first three are just about completed; homes have been built, and people have moved in, Carroll said. Ahia's complaint centers on the fourth increment, which includes rock grading that is 97.5 percent complete and utility installation that is "substantially underway."
Attorneys began questioning witnesses in the case Friday and continued Monday.
David Kauila Kopper, attorney with the Native Hawaiian Legal Corp., said in his closing argument Monday that the archaeological inventory survey for Phase 6 was inadequate because it didn't fully describe the historical properties in the area. After the AIS was accepted in 2007, HBT found more than 170 burials, possible burial sites and burial features during work at the site from 2008 to 2016, according to the complaint. The 2007 AIS only identified five, Kopper said.
"If the purpose of the AIS is to adequately and in fact completely identify subsurface and on-the-surface historic properties, how is it working when only 3 percent of those properties are found?" Kopper said. "How can an archaeological inventory survey inform a project design, redesign or location when only 3 percent of the historic properties are found?"
He also questioned the testing methods, saying that surveyors only dug 59 test trenches of 6 to 13 feet deep on the 45-acre property. However, iwi kupuna (ancestral bones) have been found as deep as 22 feet, he said.
Kopper also believed that the AIS was inadequate because the preservation area for the burials has continued to expand throughout the process.
"They are waiting to discover more iwi kupuna before they come up with the boundaries of the preservation site," he said. "And we heard admissions that they're still finding burials."
Kopper also argued that each new activity covered by a permit is considered a project and thus requires its own AIS.
Daniel Morris, attorney for the state, countered that just because burials were found after the survey was completed doesn't mean the survey was inadequate.
"That cannot be the test of adequacy for an AIS survey," Morris said. "AISs are not designed to find every shred of every historical property on the development site. If they did, the disturbance to the iwi would be monumentally greater."
He also added that it didn't make sense to suggest that every permit counts as a new project, because all developments have dozens of permits.
"You cannot do that for every single permit," Morris said. "That would bring development to a halt. That cannot be how the law is interpreted."
And, in response to arguments that the ever-growing preservation area was proof of SHPD's failure to interpret the law and warranted a new AIS, Morris said that SHPD "is doing their best to accommodate the need to protect and respect these iwi by increasing the area, taking away homes from the developer."
"You can take that as a criticism of SHPD for saying, 'Well, why does it keep getting bigger?' " Morris said. "Or you can say it's what SHPD is supposed to be doing by saying, 'Let's gather the evidence that we have and determine how big an area should be off limits to the developer.' "
Carroll argued that the project is more than 75 percent complete, "and at this stage, the developer has vested rights with respect to entitlements." If the project came to a halt, it would cost HBT millions of dollars and delay much-needed housing.
Carroll said that HBT has followed the proper steps in stopping work, reporting burials to SHPD and awaiting a determination. All burials have been left in place since 2011, he added.
But Kopper said the financial impacts "do not outweigh the interests of the public when it comes to protecting cultural traditions," or Ahia's kuleana to the iwi kupuna.
"It's not a foreign concept that the public is interested in protecting the remains of someone's loved one," he said. "Now, this interest should be no less when it comes to Native Hawaiian burial sites."
Both sides plan to submit their proposed findings of fact, conclusions of law and decision and order by March 29. Judge Joseph Cardoza will issue a ruling on April 5 at 10:30 a.m.
* Colleen Uechi can be reached at cuechi@mauinews.com.
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https://www.usnews.com/news/best-states/hawaii/articles/2019-04-07/judge-temporarily-halts-work-on-maui-housing-development
U.S. News, April 7, 2019
Judge Temporarily Halts Work on Maui Housing Development
A judge has temporarily stopped work on a Maui housing development following a complaint that the project has disturbed Native Hawaiian burial sites.
WAILUKU, HAWAII (AP) -- A judge has temporarily stopped work on a Maui housing development following a complaint that the project disturbed Native Hawaiian burial sites.
Judge Joseph Cardoza granted the preliminary injunction Friday, with both sides agreeing to meet to propose additional protections for the burial sites near the Maui Lani development in Kahului, The Maui News reported .
Jennifer Noelani Ahia had filed the complaint in February against the state, Maui County and the landowner, claiming about 180 burials were disturbed. She claimed officials and the landowner knew about the burial sites but failed to protect them.
"My name is on the lawsuit as the plaintiff, but this is a group effort representing the lahui (people) who have been advocating to protect burials for years and years," Ahia said. "This is the culmination of many years of hard work by many kupuna (elders) from this area."
Landowner HBT is building the single-family residential development on about 45 acres (18 hectares). The project is being developed in four parts, with the first three nearly completed.
"On behalf of HBT of Maui Lani, we are pleased with Judge Cardoza's ruling, and we look forward to working with the plaintiff to address the issues requested by the court," said Michael Carroll, the landowner's attorney.
State attorney Daniel Morris declined to comment following the ruling Friday.
The injunction will stay in place until protection terms are discussed, said David Kauila Kopper, the Native Hawaiian Legal Corp. attorney representing Ahia.
"The judge recognized the irreparable harm when burials are disturbed or desecrated == you can't fix that once it happens," Kopper said. "He also recognized that burials deserve the highest protection under the law."
===============
(3) Feb 27: New York Times and Honolulu Star-Advertiser report that there are major doubts about the authenticity of a 21-inch wooden carving of the Hawaiian war god Kuka'ilimoku that was bought at auction at Christies in Paris in November 2017 for $7.5 Million and donated by the buyer to Bishop Museum in 2018 where it is a featured display item. See news report #6 in NAGPRA 2017 compilation.
https://www.nytimes.com/2019/02/27/arts/design/hawaii-sculpture-bishop-museum-marc-benioff.html
New York Times, February 27, 2019
and
https://www.staradvertiser.com/2019/02/27/breaking-news/masterpiece-or-mistake-bishop-museums-7-5m-question/?
Honolulu Star-Advertiser, breaking news, February 27, 2019
Masterpiece or Mistake? A Hawaii Museum's $7.5 Million Question
A statue of a Hawaiian war god bought at auction for about $7.5 million is now the centerpiece of a major exhibition in Honolulu. But some experts say it might not be as old, or as valuable, as the auction house claimed.
It was a generous gift -- and one completely in tune with our cultural times.
In 2018, tech billionaire Marc Benioff donated a wooden statue of a Hawaiian war god he had bought at auction for about $7.5 million to the Bernice Pauahi Bishop Museum in Honolulu. The snarling, muscle-bound deity, known as "The Island Eater," is now the centerpiece of a major exhibition there, exploring the role of traditional sculpture in Hawaiian culture and society.
This private act of restitution came amid a growing clamor for Western collections to return ethnographic artifacts to their places of origin.
Benioff, chairman and chief executive of software company Salesforce, said in a statement announcing the gift that he felt the sculpture "belonged in Hawaii, for the education and benefit of its people."
At the sale in Paris, Christie's said the wooden war god was about 200 years old. But now doubts have emerged about the sculpture's age, inside and outside the Bishop Museum. Some international experts say the piece could be from the 20th century and worth less than $5,000.
"It's the sort of thing you see in a tiki bar," said Daniel Blau, an expert in the art of the Pacific islands who is based in Munich.
Such a wide discrepancy in valuation could be a concern for the IRS, should Benioff wish to claim the donation on his tax return, as well for museumgoers having to pay as much as $24.95 to see the sculpture in Honolulu.
Benioff, who would not comment for this article, currently has a net worth of about $6.8 billion, according to Forbes. In September, he bought Time magazine for $190 million. He strongly identifies with the spiritual values of Hawaii, where he owns a six-bedroom beachfront house. His desire to infuse the corporate culture of Salesforce with the "Aloha spirit" -- including turning his employees' Fridays into Hawaiian shirt days -- has, however, led to accusations of cultural appropriation.
Now questions are being asked about Benioff's act of cultural repatriation. The Christie's sale in Paris was the last of several from the fabled private collection of Pierre Vérité and his son Claude, both highly regarded dealers in tribal art. The elder Vérité had the distinction of selling artifacts to Pablo Picasso, Henri Matisse and André Breton, among others.
Lot 153 in Christie's sale was cataloged as "Hawaiian figure, kona style, circa 1780-1820, representing the god of war, ku ka 'ili moku." Hitherto unknown, with no documented history of ownership, the 21-inch sculpture, carved from wood of the Hawaiian metrosideros tree, was thought to have been acquired by Pierre Vérité from dealer and collector Marie-Ange Ciolkowska during the 1940s, according to Christie's. It was estimated to sell for 2 million to 3 million euros ($2.3 million to $3.4 million).
"We couldn't imagine that such a work could still exist in a private collection," Susan Kloman, head of African and Oceanic art at Christie's, said in the pre-auction promotional content for the Verité sale. "It's an incredible discovery," she added. "This figure could stand on the world stage."
Kloman declined to comment on the doubts subsequently raised about the sculpture, but a Christie's representative said last week in an email that it was "an important rediscovery that is sure to inspire continued scholarship and interest."
Anthony Meyer, a dealer based in Paris and a specialist in Oceanic artworks, said: "I don't think it's a pre-contact or post-contact sculpture carved by someone with the belief systems of that period or place," referring to Captain James Cook's arrival in Hawaii in 1778. "I think it's made later, but I don't know when," Meyer added.
He added that if the sculpture is of a much later date, it could have a financial value of less than $5,000.
But Julian Harding, a respected private dealer and expert in Pacific Island artifacts, said in by telephone last week that he remained convinced that the wooden war god was "a masterpiece of Oceanic art."
"If I had $7 million to spend," he added, "I would have spent it on that figure."
Harding said he had told Christie's before the sale that the sculpture was the "mate" of a similar-looking figure made from the same type of wood in the British Museum; records show that sculpture was acquired by the London Missionary Society in Hawaii in 1822.
George Bennet, a voracious collector, was on that voyage, and Harding believes that the figure sold at Christie's was very likely from his personal collection. "I'm 90 percent sure it's a Bennet piece," Harding said. This provenance, "George Bennet collection, London," which has no documentary corroboration, was included in marketing materials from Christie's.
Last fall, a fact-finding delegation of curators from the Bishop Museum visited experts in London and Paris, including Meyer, to investigate the history of the sculpture. The museum's current "Transformative Images" exhibition, in which the figure is on show, presents it cautiously, describing it as "long held in a private French collection," but not specifying when it was carved.
Melanie Ide, the museum's president and chief executive, said the museum was aware of "a question about its history and provenance," adding that curators were doing "additional research." The wood has been scientifically analyzed, she said, adding that further DNA testing "may be informative."
Blau and other experts point out that DNA testing can narrow down the age of the wood, but not when it was carved.
Adrienne Kaeppler, curator of Oceanic Ethnology at the Smithsonian Institution in Washington and one of the world's foremost experts on Hawaiian art, said in an email that Christie's had contacted her about the figure before the sale. "I told them it looked like a similar replica of the sculpture in the British Museum, only smaller," Kaeppler said. "I was concerned that its history only went back to the 1930s."
A spokeswoman for Christie's said Kaeppler had only seen photographs of the sculpture and had not viewed it person.
The issue could be given closure if Benioff were to claim a charitable tax deduction for his $7.5 million donation to the Bishop Museum. Having been bought at auction for more than $50,000, the sculpture would have to be appraised by the IRS Art Advisory Panel, which would recommend a true market value.
"The IRS generally won't accept an auction receipt as an appraisal," said David Shapiro, a senior appraiser at Victor Wiener Associates in New York. "The IRS requires an appraisal, and at this level the Art Advisory Panel will take a good look at it. Values of an ethnographic artwork can be wildly different if there are doubts about it."
But Shapiro also pointed out that donated artworks generally qualify for significant tax deductions only if they have been owned by a collector for at least a year. This was not the case with Benioff's Hawaiian sculpture.
Benioff said through a Salesforce spokeswoman that he would not comment for this article, and did not respond to further emails asking if he intended his gift to be tax-deductible.
And so the debate, and the uncertainty, goes on. Marques Marzan, a cultural adviser at the Bishop Museum who has been coordinating the museum's research, said that a date for the donated sculpture "cannot be confirmed at this time."
But, he added, the exhibition in which it is featured focuses on what this enigmatic Hawaiian sculpture "represents to the living people today."
"Provenance and dates are helpful in better understanding the cultural and global context of objects," Marzan said. "But if a piece cannot provoke discussion or appreciation, what really is it worth?"
=================
(4) Mar 15: FBI seeking to repatriate thousands of Native artifacts 'collected' by Christian missionary. Recovery of Native cultural artifacts is the largest single discovery of cultural property in FBI history. Christian missionary had used a skull as a fruit bowl and adorned skeletons
https://newsmaven.io/indiancountrytoday/news/fbi-seeking-to-repatriate-thousands-of-native-artifacts-collected-by-christian-missionary-WvUjm9Fj4EikTh7ouEUSZg/
Indian Country Today, March 15, 2019 [excerpts]
According to the Federal Bureau of Investigation's website, an official operation by the FBI -- which led to the discovery of over 7,000 seized artifacts -- has resulted in the FBI reaching out to the 573 federally-recognized Native American tribes in the United States in an attempt to find the proper home and legal repatriation of thousands of culturally-significant items.
The discovery has been the subject of ongoing investigations for years in which a 91-year-old Christian missionary by the name of Donald C. Miller, who lived in Indiana, had run an amateur museum of sorts out of his farmhouse.
According to the FBI and several news reports, tens of thousands of cultural artifacts in varying methods of display--from being encased in jars, to sitting behind glass display cases--and now, according to the APTN, as actual skeletons adorned with breastplates and/or bone choker necklaces or as a saw-carved skull into a fruit bowl on a table--set the stage for his museum.
The seized artifacts and human remains were part of a much larger collection amassed by Don Miller, a renowned scientist who helped build the first atomic bomb and a globetrotting amateur archaeologist whose passion for collecting sometimes crossed the line into illegality and outright looting.
For more than seven decades, Miller unearthed cultural artifacts from North America, South America, Asia, the Caribbean, and in Indo-Pacific regions such as Papua New Guinea. A Ming Dynasty vase or intricate Italian mosaic might be on display in his home alongside Civil War and Revolutionary War items.
"Don would collect pretty much anything," Carpenter said. "He collected from just about every corner of the globe." Areas of his Waldron, Indiana, farmhouse where he displayed many of the approximately 42,000 items in his collection were stacked "floor to ceiling" with material, Carpenter said. "But his passion, I think, was Native American cultural goods."
Coffey told APTN, "The guy's house was literally a museum. He had these huge display cases and fully articulated skeletons laying in these display cases in his living room ... He then dressed these skeletons in the grave goods that he had robbed. These skeletons had bone chokers on, breastplates and armbands that he had stolen from the graves. He took a skull, and cut the crown of that skull off and he had it on his coffee table as a fruit bowl and he had fruit in that skull," said Coffey.
The FBI has reached out to the federally recognized tribes in the United States.
The FBI is asking official representatives of Native American tribes and foreign governments that would like to determine whether they have a claim to any of the recovered artifacts to contact the Bureau's art theft program and submit a request via artifacts@fbi.gov.
For more information on this case, visit the FBI's Art Crime webpage.
https://www.fbi.gov/news/stories/fbi-seeks-owners-of-recovered-cultural-artifacts-022719
===============
(5) June 22: U.S. Navy Pacific Missile Range, Kaua'i, provides space and assistance for a crypt with square stone ahu for ancestral native Hawaiian bones uncovered from nearby shoreline sand dunes by large waves during winter storms in recent and future years.
https://www.thegardenisland.com/2019/06/22/hawaii-news/a-place-to-rest/?TGI=8d94a3826035a21f941a5f2f339fc4b6b9829329
The Garden Island Saturday, June 22, 2019
A place to rest
By Jessica Else
** Photo caption
Capt. Vinnie Johnson, commanding officer of the U.S. Navy Pacific Missile Range Facility at Barking Sands, confers with Aletha Kaohi on the placement of the kukui nut lei on the crypt where iwi (human bones) from pre-contact were interred Friday morning during the noon on the summer solstice blessing.
BARKING SANDS -- Every winter, big swells uncover human bones in the sand along Kauai's Westside, and those iwi, or bones, found at the U.S. Navy Pacific Missile Range Facility now have a new resting place.
Dedicated in the full sun of high noon on the summer solstice, a stone crypt now sits on the grounds of PMRF. In Hawaiian tradition, the summer solstice is one of the most important days of the year.
For Friday's ceremony, the base hosted families that trace their ancestry to the place, as well as members of the Kauai/Niihau Burial Council, the archaeologist who has been working with the family, and base Commanding Officer Capt. Vincent Johnson.
After an opening prayer by Aletha Kaohi, Johnson welcomed the group with an oli (prayer), and then opened up the floor for the Kilauano family.
"We are very thankful," said Vida Mossman, who made a short speech on behalf of the Kilauano family. "We hope this sets an example for future projects on the island. It's so very beautiful."
The crypt, a stone square about two feet high and measuring about eight feet by eight feet, is covered by a heavy lid that is removed once a year on the summer solstice. The lid is covered with loose rocks.
Throughout the year, iwi that are discovered are held in a temporary crypt until that auspicious day, when the family is present and gives the go-ahead to open the crypt.
Situated near a historic Japanese cemetery and the Missile Defense Viewing Site, the crypt is a place where families can visit frequently.
"We worked in concert with the families," said archaeologist Carly Antone. "This place provides accessibility, it's within sight of the dunes and near the ocean and, logistically, it's close to irrigation, so we can take care of it."
While the first choice is to keep the kupuna iwi where they are, Native Hawaiian and archaeologist Missy Kamai said a crypt is a good second, safe resting place.
Kauai/Niihau Burial Council representative Keith Yap echoed Kamai.
"It's about the right thing to do for the iwi," Yap said. "If they need to be moved, we want to put them in a safe place, and that's the crypt."
After prayers, speeches and mana'o from several in attendance, members of the Kilauano family placed lei on the crypt and took a moment to honor the iwi.
Then, PMRF staff broke out the food and served lunch.
"This is a tribute to what can be done between the military and our Hawaii family," Kaohi said. "The dead is very much a part of the family."
===============
(6) June 25: The huge wood image of Hawaiian war god Kuka'ilimoku, installed at Peabody Essex Museum (Salem MA) in 1846, gets newly renovated exhibit space with ceremonies by Native Hawaiians. Hui Malama had filed a NAGPRA right of possession claim against the museum in the 1990s but withdrew the claim back then after dialog and a review of records.
** This excerpt from the following article explains why it is relevant to the NAGPRA law. Readers of his website will recall the passionate public quarrel, 2003-2007, between various factions of ethnic Hawaiians regarding who should have custody of artifacts from Kawaihae Cave (Forbes Cave) being held by Bishop Museum, and the "Hui Malama" group was the most militant group demanding reburial. But in that older dispute, Hui Malama refused to compromise and even demanded that photos be suppressed.
"Like other U.S. cultural institutions that receive federal funding, the Peabody Essex Museum complies with the Native American Graves Protection and Repatriation Act -- or NAGRPA -- a legal mechanism enacted in 1990 to help return human remains and sacred objects to indigenous communities. PEM director Dan Monroe was instrumental in NAGRPA's creation. According to the museum, a NAGPRA right of possession claim for Kū was submitted by Hui Malama I Na Kupuna 'Oh Hawai'i Nei (Group Caring for the Ancestors of Hawai'i) in the '90s. After a review of records and dialogue with the PEM, the request was withdrawn, according to PEM officials. The museum says it will continue to work closely with Native Hawaiians to care for the sculpture. In the new wing, Kramer says, thousands of visitors will be exposed to Kū's history and artistry."
https://www.wbur.org/artery/2019/06/25/ku-hawaiian-god-peabody-essex
WBUR (Boston radio station), June 25, 2019
Kū, A Fierce Living God For Many Native Hawaiians, Now Faces His Homeland
By Andrea Shea
** Photo caption
Kūka'ilimoku now sits on a sky bridge outside the newly renovated East India Marine Hall at the Peabody Essex Museum in Salem (Courtesy Peabody Essex Museum / Photo by Kathy Tarantola)
Staff quietly trickle into a granite-floored atrium in the Peabody Essex Museum's elegant new wing. They mill about, hushed and excited, waiting to see an imposing, larger-than-life carving known as Kūka'ilimoku, or Kū for short. Outgoing PEM director and CEO Dan Monroe is clearly excited for what's about to unfold.
"As anyone who sees Kū will understand, he is very powerful," Monroe says. "He's fierce."
Flaring nostrils, a gaping mouth and curled-up, jutting chin animate Kū's large head. His thick legs look ready to pounce. According to Hawaiian mythology, one of Kū's many manifestations is God of War.
The deity was favored by King Kamehameha I, who unified the Hawaiian islands by 1812.
"He's a very complex god. He has not only a strong visual presence but a very strong spiritual presence as well," Monroe says. "So he is being attended to by a number of practitioners of Native Hawaiian culture that we brought together to do this."
"This" is a private ceremony to honor Kū and bless his new location. The carving is one of the first works to be reinstalled in PEM's $125 million dollar expansion. The girthy, grimacing, 6-and-a-half-foot-tall wooden sculpture has been in storage during construction. He's one of only three temple images (ki'i) of this kind in the world.
Kū is revered as a living god by many Native Hawaiians. The last time this rare object went through a similar ritualistic protocol was in 2010 when the trio of remaining Kūs were reunited for an exhibition in Honolulu at the Bishop Museum. (That museum houses a Kū; the third is owned by the British Museum in London.)
As we wait for the ceremony, a Native Hawaiian woman with braided hair, a wreath of dark seashells and bare feet sits quietly at the bottom of a stairway. Kū is on the second floor in a prominent place outside the new East India Marine Hall.
The cultural practitioner walks toward us with a greeting, and some news.
"Aloha everyone. My name is Mehana," she says warmly. "I will be ushering us up the stairs. They're almost ready."
This ceremony is sacred for the practitioners, so I'm asked to shut off my recorder.
Soon the delegation's series of chants rise and fall in the cavernous space to welcome Kū to his new home. His muscular form towers over the humans from a raised pedestal. Then I get the green light to record the final chant as offerings are laid at Kū's feet, including a bright-green lei made of native plants, and salts from all around Hawaii.
** Photo caption
Hawaiian cultural practitioners traveled to Salem for a private ceremony welcoming Kūka'ilimoku into his new space at the Peabody Essex Museum (Courtesy Peabody Essex Museum / Photo by Kathy Tarantola)
Marques Hanalei Marzan traveled from Hawaii to lead the ceremony. He's also cultural adviser at the Bishop Museum.
"We did a series of chants, first beginning with three chants that honored Hawaii," he explains. "So the idea of bringing Hawaii to Salem with our presence, with our voice, with all of the things that we brought to connect Kū back with his homeland."
Other chants were intended to awaken Kū, to mark the beginning of a new cycle, to create balance and to ask for inspiration and growth for all the work being done at the museum.
Kū was taken from Hawaii as waves of Christian missionaries arrived to convert the indigenous population in the 1820s, '30s and '40s, Marzan says. The Hawaiian monarchy denounced native religious practices and iconography was rejected and destroyed. But Marzan says countless objects survived. Many were collected by captains of trading ships passing through the Pacific islands.
"Whenever I travel to different places around the world I always think about what would happen if they actually stayed in Hawaii," he says. "Would they have still been around for us to see and experience today?"
Marzan says some Native Hawaiians strongly believe artifacts like Kū should be returned to Hawaii, but he's grateful this piece of his culture's history is being preserved at the Peabody Essex Museum. Here, he says, Kū can be an ambassador for Hawaiian people. He calls the museum a steward.
"Being from Hawaii, and having the value systems of the Pacific, we understand that just because you are the steward of something doesn't mean you own it," Marzan says. "You have a responsibility to care for that on behalf of the people and community that it comes from."
** Photo caption
A sketch of Kū, donated by John T. Prince, when it was installed in East India Hall in 1846. (Courtesy)
"What we're doing is honoring Native Hawaiians' living relationships that they have with Kū," Karen Kramer told me after the ceremony. She's the museum's curator of Native American and Oceanic Art and Culture. "How can we be better caretakers, always lifting him up and letting him be the amazing star that he is?"
Kū entered the museum's collection in the 1840s. Kramer says a donor named John T. Prince wrote a letter to the East India Marine Society stating the temple image was procured from a converted Native chief who had planned to destroy it. A ship's carpenter was ordered to remove Kū from his tall pole. The effigy would later be installed in the Salem museum in 1946.
For Kramer, it's impossible to know for sure if Kū would've been burned -- or not -- if he had stayed in Hawaii.
"Did we save him? I don't know," she says. "But have we taken care of him since we've had him? Yes."
Like other U.S. cultural institutions that receive federal funding, the Peabody Essex Museum complies with the Native American Graves Protection and Repatriation Act -- or NAGRPA -- a legal mechanism enacted in 1990 to help return human remains and sacred objects to indigenous communities. PEM director Dan Monroe was instrumental in NAGRPA's creation.
According to the museum, a NAGPRA right of possession claim for Kū was submitted by Hui Malama I Na Kupuna 'Oh Hawai'i Nei (Group Caring for the Ancestors of Hawai'i) in the '90s. After a review of records and dialogue with the PEM, the request was withdrawn, according to PEM officials. The museum says it will continue to work closely with Native Hawaiians to care for the sculpture. In the new wing, Kramer says, thousands of visitors will be exposed to Kū's history and artistry.
** Photo caption
Kūka'ilimoku is one of four main gods in Hawaiian mythology. This Kū, one of only three in the world, is carved from one large piece of wood. (Andrea Shea/WBUR)
"If you follow the lines of his headdress [braided hair] from the tip of his head all the way down -- and it hangs almost as low as his hands -- that's all one piece of wood," she marvels. "And it is an unbelievable work of art, and you can feel power emanating from him."
One person who experienced Kū's power up close during the ceremony is Native Hawaiian Kamuela Werner. He's one of five Native American Fellows studying at the museum this summer.
"The past and the past became ever so relevant -- accessible -- as if he was reaching his arm out to me and bringing me back -- and reminding me about the present and the future -- all connected with the past," Werner muses. "So that's what it felt like."
Werner's field of study is anthropology and one of his goals is to help elevate Hawaiian historical memory. He says he's been pleasantly surprised by the cultural sensitivity and respect the museum has shown for Native Hawaiian practices and toward the important sculpture.
"How Kū was taken out of the box, brought to the place, all of the ceremony," he recalls. "I hope the relationship grows and that it engenders more types of events with other cultural objects."
The museum staff and their Hawaiian guests conclude the ceremony with a midday meal. Before sitting down, the visiting delegation's Marques Marzan smiles and says he's thankful to see Kū standing proudly in a prime window spot where he can look outside and see the world again.
"See the sky," Marzan hopes, "maybe not feel the rain, but you know he can definitely see the rain falling, see the wind blowing through the trees."
Now Kū is also facing west, toward his homeland.
===================
(7) Law school student essay, June 2019: "Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains"; abstract and link to download 54 page essay.
Rogers, Alix, Owning Geronimo but Not Elmer McCurdy: The Unique Property Status of Native American Remains (June 11, 2019).
Abstract Available at SSRN: https://ssrn.com/abstract=3402650
or
http://dx.doi.org/10.2139/ssrn.3402650
Full paper in pdf format at
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3402650_code2119077.pdf?abstractid=3402650&mirid=1
Abstract
This article unifies two areas of property scholarship that have not historically intersected. In the field of biotechnology and the law, it is generally understood that human remains and many body parts are not objects of legal property. This general rule has a startling exception, which heretofore has gone unnoticed in the literature and relevant case law. The bodily remains of Native Americans were, and I argue, continue to be, objects of legal property.
With the passage of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) Native American remains are classified as familial and tribal property. The distinction and significance of property status under NAGPRA has been overlooked in the Native American legal scholarship. The perpetuation of property status is surprising given that NAGPRA was passed to address the systematic disrespect for Native American burial grounds and commercialization of Native American remains. Property status is all the more striking and important because some federal circuits have also interpreted NAGPRA to apply to contemporary individuals with Native American ancestry. With the rise of genetic testing technologies, application of this property rule takes on some surprising implications.
At first glance, we might condemn the property status of Native American remains as continued evidence of dehumanization. Property is traditionally associated with rights of alienability, exclusion, commensurability, and commodification. The understanding of property in Native American human remains advocated for in this paper challenges classic property constructs of wealth-maximization and an individually centered right of exclusion. Instead, after re-considering the paradigm of property, I argue that the communal property approach embodied by the Act enables Native Americans to more effectively protect their dead compared to any other American group. NAGPRA, therefore, represents an intriguing pathway for human biological materials regulation reform more broadly.
================
(8) Hawaii Public Radio celebrates Eddie Ayau who likes to liberate artifacts from museums for reburial and eventual disintegration.
https://www.hawaiipublicradio.org/post/indigenous-authority-over-museum-objects-could-be-future#stream/0
Hawaii Public Radio, November 11, 2019
Indigenous Authority Over Museum Objects Could Be the Future
By KU`UWEHI HIRAISHI
Museums and archives are often celebrated as rich repositories of culture and history. But for the communities whose culture and history are on display, having a say over what should become of these items is an ongoing battle – one that some native Hawaiian advocates and scholars are tackling head on.
Decolonizing Museums
Halealoha Ayau has spent decades hunting for native Hawaiian remains and sacred objects in museums around the globe. His group, Hui Mālama I Nā Kūpuna O Hawaiʻi Nei, helped repatriate feather cloaks, wooden statues, and more than 6,000 ancestral bones in the past 30 years.
“So the good part is that our ancestors are coming home,” says Ayau, “The bad part and worse part about this problem is we will never know how many kūpuna are out there.”
Ayau joined scholars and museum officials to discuss broadening the role of indigenous communities in museums at this year’s American Studies Association Convention in Honolulu. The session, titled "Decolonizing Museums," took a deep dive into the ways in which museums are responding to national and global calls to decolonize. Returning objects to the communities of origin are one option.
Native Hawaiians like many indigenous communities have no records of when, why, or how cultural items left the islands. Museums, however, work very hard to ensure everything they’re holding has a legal right to be there. Ben Garcia, director of the Ohio History Collection, says museums may have a high legal standard but often lack an ethical standard.
“The piece that museums are not required to look at is how items or belongings or ancestors left their communities,” says Garcia. “With a focus on how [items] came into the museum rather than how [items] left, you miss a really important part of the history, which was the part where separation happened.”
Hālena Kapuni-Reynolds, an American Studies graduate student at University of Hawaiʻi at Mānoa, says he’s searching museums and archive collections for old photos and documents taken from his hometown of Keaukaha on Hawaiʻi Island. For his dissertation, he plans to document exactly how these items left.
“Nui ʻino nā palapala kahiko i mālama ʻia ma kēia mau wahi akā ʻaʻole i maopopo paha ke kaiāulu ma hea lā ia mau palapala,” says Kapuni-Reynolds. He says there’s a large repository of old documents in these archives and the community may not even know they exist.
Kapuni-Reynolds believes the ancestral wisdom and place-based knowledge stored in these documents are an invaluable asset to the strong native Hawaiian community of Keaukaha. He says returning these items to the community will help strengthen the community's sense of self and sense of place.
But reconnecting indigenous people with items originating from their community may mean museums lose possession. It’s something Noelle Kahanu says requires a shift in how museums relate to communities. Kahanu works at UH Mānoa’s American Studies Department.
“There’s a perception that there’s a loss, that theyʻre giving up something,” says Kahanu. “When museums are ceding authority that can build relationships between communities and museums in a way that can really last for generations and be transformative.”
Rather than "ceding authority," Kahanu and others on the panel use the phrase "seeding authority" to convey a generative sense of growth. But all of this theoretical talk has her eager for action.
"What does that mean on the ground?" says Kahanu. "What does it mean when the San Diego Museum of Man locks down their archives and says, 'Unless you can show us that you have consent from the community that you're studying, we're not going to grant you access to photographs, to field notes from that community.' I mean that's so simple and yet really transformative."
Garcia was deputy director of the San Diego Museum of Man when these changes were being made. He says for museums, this means including perspectives from communities that were not historically included before.
“Allowing the people who have the greatest connection to the things in museums the ability to decide what happens to them,” says Garcia.
Repatriation advocate Ayau says he’s not waiting for the museums to come around. He spends most of his free time looking up museums around the world and emailing them to see if they have any native Hawaiian remains in their possession, a time-consuming yet fruitful undertaking, he says.
He's headed for Germany in the coming months to retrieve a mea kapu or sacred object -- a carved wooden statue of the goddess Kihawahine -- one of the most sacred he’s ever sought to return.
---------
** Ken Conklin's online comment:
This article fails to mention that one of the main reasons why Bishop Museum was created was to provide a safe and secure place where native Hawaiians could place the cultural artifacts of their own family members and ancestors to make sure the artifacts would be preserved for the education of future generations. Eddie Ayau has been noted for his demands to remove cultural artifacts from museum, including Bishop Museum, in order to bury them and allow them to disintegrate so the spirit could return to the 'aina. Look up the huge controversy over the Kawaihae Cave (Forbes Cave) artifacts during the 1990s, and also the "inside job" theft of the Ka'ai which had been personally placed in Bishop Museum by Prince Kuhio for safekeeping. So who has greater mana and authority to speak on behalf of Hawaiian culture and ancestors: heir to the throne Prince Kuhio, or maka'ainana Eddie Ayau?
================
(9) Puebla of Acoma gets back sacred shield slated for auction in Paris; Congress considering legislation to strengthen NAGPRA-like tribal rights to repatriation from foreign nations.
https://www.indianz.com/News/2019/11/18/homecoming-pueblo-of-acoma-set-to-reclai.asp
Indianz.com blog, November 18, 2019
'Homecoming': Pueblo of Acoma set to reclaim sacred item
By Acee Agoyo
The Acoma Shield is finally coming home after years in legal and political limbo.
The sacred item was taken from the Pueblo of Acoma in New Mexico in the early 1970s. It ended up in France, where it went up for auction until diplomatic efforts halted the sale at the last minute back in 2016.
The shield, however, remained in France, triggering new legal and political battles. But those are finally over and the tribe is ready to reclaim an important piece of its heritage.
"Acoma has looked forward to this day for the last four years, steadfastly working with many people for this result," Governor Brian D. Vallo said on Monday morning. "The Pueblo of Acoma is deeply grateful for the assistance of the many parties who have supported us in our efforts to reclaim the Acoma Shield.”
The tribe is hosting a press conference at the Bureau of Indian Affairs office in Albuquerque, New Mexico, in the morning to discuss the historic return of the Acoma Shield. Gov. Vallo will be joined by U.S. Attorney John Anderson, James Langenberg of the Federal Bureau of Investigation and James “Jim” James from the BIA.
"The Pueblo of Acoma has waited years for the return of the Shield after successfully halting its sale at auction," Vallo said. "The shield is integral to the cultural sustainability of the Acoma people and is a significant item of our cultural patrimony."
Vallo credited federal officials with helping secure the return of its sacred property. But he also thanked a New Mexico man named Jerold Collings, whose family had possession of the item for "several decades."
According to a claim filed in federal court, Collings "inherited" the shield after his mother passed away in 1984. He said it had been kept in a box until around 2012 and he denied any knowledge of it being stolen or taken from the tribe.
"Claimant is an innocent owner of the shield," the filing said of Collings.
In a separate court filing, Collings admitted he shipped the shield to the EVE Auction House in France. He denied having it "smuggled out of the United States."
But after the tribe informed Collings "of the shield’s importance to the Pueblo, he cooperated with Pueblo leadership to secure its return to Acoma," Gov. Vallo said. A settlement agreement was reached in July, paving the way for its release to federal officials. From there, the shield will be given back to the tribe.
"Its homecoming is critical and highly sensitive," Vallo added. "With absolutely no intent to diminish the great effort of achieving this momentous return, we continue to ask the public for privacy as the Pueblo prepares to welcome the shield home."
For years, the EVE Auction House has repeatedly sold tribal property over the objections of Indian nations and the United States. The company has long insisted that it acquired all items in compliance with French law.
Since the items are outside of the U.S., laws such as the Native American Graves Protection and Repatriation Act cannot be used to reclaim them. In the case of the Acoma Shield, federal authorities instead cited the Archaeological Resources Protection Act and a stolen goods law in hopes of having it returned to its rightful owner.
The lack of protections prompted lawmakers to introduce the Safeguard Tribal Objects of Patrimony Act. The bipartisan bill, also known as the STOP Act, makes it a crime to export tribal items from the U.S. It also increase penalties for stealing and illegally trafficking tribal cultural patrimony.
“No one’s cultural, sacred, and historical items should be stolen and trafficked for profit, but for centuries Native American property has been taken from our communities and sold off to the highest bidder," said Rep. Deb Haaland (D-New Mexico), a citizen of the Pueblo of Laguna, which is located near Acoma. "Our people are not just some long ago culture forced into extinction – we are still here and we still practice our traditional ceremonies and pilgrimages."
"The STOP Act would ensure that our communities regain the authority to determine how and where our loved ones and property are shared, while ensuring those responsible for taking our sacred property bare the consequences,” said Haaland, who is one of the first two Native women to serve in Congress.
The House version of the bill is H.R.3846. A hearing took place before the House Subcommittee for Indigenous Peoples of the United States on September 19.
"Despite the existing federal laws in place, trafficking in tribal cultural heritage items continues unabated, especially internationally," Governor Timothy Manchego of the Pueblo of Santa Ana said in his testimony in support of the STOP Act.
"According to the Government Accountability Office, tribal cultural heritage items are being illegally obtained, transported, and sold in overseas auctions and other marketplaces," Manchego told lawmakers, citing a GAO report from September 2018. "A quick look at past auction catalogs of places where Pueblos’ cultural heritage items have been sold reveals the sheer enormity of tribal cultural heritage items that have left the country."
The Senate version is S.2165. A hearing has not yet been held in the chamber.
Until such legislation becomes law, Indian nations will have to rely on other channels to secure the return of their property. Diplomatic efforts recently resulted in an agreement for the Republic of Finland to return ancestral remains and artifacts that were taken more than a hundred years ago from a site now known as Mesa Verde National Park in Colorado. Pueblo tribes will be among the recipients.
“The agreement recognizes the importance of treating these individuals and their descendants, who will be welcoming them home, with dignity. It also reaffirms how important that Native American remains be treated with care and respect," said Assistant Secretary for Indian Affairs Tara Sweeney, the Trump administration official who oversees the BIA.
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Send comments or questions to:
Ken_Conklin@yahoo.com
LINKS
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:
https://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:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html
This present webpage covers only the year 2016.
For coverage of events in 2005 (about 250 pages), see:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html
For year 2006 (about 150 pages), see:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html
For year 2007, another new webpage was created, following the same general format. See:
https://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html
For year 2008, another new webpage was created, following the same general format. See:
https://www.angelfire.com/planet/big60/nagprahawaii2008.html
For year 2009, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09a/nagprahawaii2009.html
For year 2010, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09a/nagprahawaii2010.html
For year 2011, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2011.html
For year 2012, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2012.html
For year 2013, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2013.html
For year 2014, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2014.html
For year 2015, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big09/nagprahawaii2015.html
For year 2016, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big11a/nagprahawaii2016.html
For year 2017, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big11a/nagprahawaii2017.html
For year 2018, another new webpage was created, following the same general format. See:
https://www.angelfire.com/big11a/nagprahawaii2018.html
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