EDITOR’S NOTE by website editor Ken Conklin: The following lengthy statement by Bishop Museum deserves to be read in its entirety. Legal technicalities are interspersed with important historical information and moral arguments explaining why Bishop Museum is different from other museums in the continental United States and is entitled to be treated as a “Native Hawaiian Organization” under the NAGPRA law. The reason why the museum is producing this document in the summer of 2004 is to help it fight a political and legal battle to get back artifacts that were improperly taken by Hui Malama, and to prevent future assaults against its extraordinarily valuable collection of artifacts (many of which were donated to the museum by Hawaiian ali’i more than a century ago, for safekeeping).
For details of the most recent history of the struggle over the Forbes Cave artifacts, see:
To read about the earlier history of the Forbes Cave controversy before the meeting of the national NAGPRA Review Committee, see:
Forbes Cave (Kawaihae Caves) Artifacts Controversy
To read about a long history of controversies over Hawaiian bones and artifacts, and the NAGPRA law in general, see:
The following article was originally published on the Bishop Museum website at:
http://www.bishopmuseum.org/NAGPRAGuidlines.html
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Bishop Museum
Interim and Proposed Final Guidance
Native American Graves Protection and Repatriation Act
June 30, 2004
“I remember when I started working at Bishop Museum and the old Hawaiians came and brought their grandchildren. They saw the wooden images, feather capes, kapa, and much more. They wept with joy to see that some things remained from the old days, and they thanked the ali‘i for having kept them. They had great aloha for Pauahi’s legacy.” Patience Namaka Bacon, Bishop Museum staff since 1939.
Bishop Museum opened to the public on June 22, 1891. The Museum had been founded in the name of the ali‘i High Chiefess Pauahi Bishop and included her collections and those of Princess Ruth Ke‘eliko-lani and Queen Emma. Lili‘uokalani was Queen when the Museum opened and was its first official visitor. A reporter attending the event wrote: “Many aged Hawaiians recognized among the large collection idols which their ancestors reverenced with fear and awe. The god of Kamehameha I, and a god of rain attracted a large share of their attention.” [1]
More than a century later, Bishop Museum remains steward of these treasures. Ku-ka-‘ilimoku, Kamehameha’s war god, still looks fiercely on those who stand before it, and some tremble. This past year, when the Pleiades rose and Makahiki began, the wooden image of Lono was dressed as in days gone by and turned in the Museum vestibule as the trade winds filled its kapa sails. This wooden image is the last of its kind: none other remains from the days when the ancestors lived the old ways. Bishop Museum keeps the old for those who live now and who will live later.
The guidance below addresses responsibilities of Bishop Museum under a Federal law concerning responsibilities for Native Hawaiian cultural items. The guidance is a legal analysis. Bishop Museum will honor the law and has prepared this guidance with that objective. However, long before this law, Bishop Museum was conceived and made real by the ali‘i and other people of the Hawaiian Kingdom. We remember and honor the vision and love of Bernice Pauahi Bishop. We believe that her dream and our responsibility has always been, and will remain, to be a bridge to the past so that the living will remember from whence they came.
Guidance
Introduction
This document sets forth interim and proposed final guidance (“Guidance”) of Bishop Museum (or “Museum”) in respect to key provisions of the Native American Graves Protection and Repatriation Act (“NAGPRA” or “Act”), enacted on November 16, 1990. [2] Over the past three centuries, many Native American human remains and funerary objects have been taken from burial sites and placed in museums or held by federal agencies. NAGPRA provides a mechanism for return of Native American human remains and other cultural objects to Indian tribes (including Alaskan Native Villages) and Native Hawaiian organizations. NAGPRA’s repatriation provisions apply to cultural items from federal agencies and museums receiving federal funds. Five categories of cultural items are defined by the Act: human remains, associated funerary objects, unassociated funerary objects, objects of cultural patrimony, and sacred objects. [3] Other items may have enormous cultural significance, but only these five items are covered by the repatriation provisions of the Act.
Since NAGPRA’s enactment, Bishop Museum has taken many steps to comply with the Act’s requirements, including completing repatriations of human burial remains. This Guidance reflects the Museum’s conclusion that it should review key NAGPRA terms and publish public guidance on the Museum’s interpretations of these terms and how these interpretations will affect future requests for repatriation. The Guidance addresses in particular Bishop Museum’s dual role as a steward of Native Hawaiian culture as well as a museum with repatriation responsibilities defined by the Act.
The Museum welcomes comments from all persons on the Guidance and will consider any comments submitted in writing by September 1, 2004 before issuing final guidance. Comments should be addressed to Malia Baron, Registrar, Bishop Museum, 1525 Bernice Street, Honolulu, Hawai`i 96817.
This Guidance is prospective only. The Museum does not intend to revisit completed repatriations. Furthermore, the Museum does not intend to apply this Guidance in its effort to complete repatriation in the matter of 83 items from the Kawaihae Cave Complex. In that matter, the Museum will continue with the position that it took in testimony before the National Park Service NAGPRA Review Committee on May 10, 2003. In particular, unless directed by a court, the Museum will not assert interpretations of this Guidance which had they been applied previously might have indicated that repatriation was unwarranted.
Tribes and Native Hawaiian Organizations
NAGPRA defines Indian tribes by reference to Bureau of Indian Affairs (“BIA”) policy, which provides for general recognition of the tribe by BIA and requires a petitioner to have continuously existed as an Indian tribe since historic times. [4] Native Hawaiian organizations (“NHOs”) are, alternatively, defined by NAGPRA to mean –
“any organization which — (A) serves and represents the interests of Native Hawaiians,
(B) has as a primary and stated purpose the provision of services to Native Hawaiians, and (C) has expertise in Native Hawaiian Affairs, and shall include the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei.” [5]
Unlike the case for Indian tribes, to be an NHO as defined by NAGPRA does not require traditional history or native membership. More than one hundred NHOs have been recognized by museums and Federal agencies. Two recognized NHOs are agencies of the State of Hawai‘i (OHA and the Department of Hawaiian Homelands or “DHHL”). The federal Hawaiian Homes Commission, predecessor to the current state governing board of the DHHL, was established in 1920. [6] OHA was established in 1978. [7] Most NHOs were incorporated more recently. An NHO simply needs to have purpose, function and expertise as defined in NAGPRA.
Bishop Museum clearly meets NAGPRA’s definition of an NHO, and Bishop Museum here recognizes itself to be a Native Hawaiian organization. The Museum’s Articles of Incorporation were amended in 2003 to state that the purposes of the Corporation shall include “as a primary purpose providing services to and in general serving and representing the interests of Native Hawaiians . . .” [8] In fact, for over a century, the Museum has served this purpose and developed enormous expertise in Native Hawaiian affairs through work to preserve cultural objects and to study and tell the stories of Native Hawaiian culture. The core, original collections were comprised of Native Hawaiian items that the ali‘i High Chiefess Pauahi (whose collections included those of Princess Ruth Ke‘eliko-lani) and Queen Emma wished to preserve and exhibit for their people. Pauahi and Emma’s collections were augmented in the Museum’s first decade by the collection of the Hawaiian National Museum (which Bishop Museum replaced). [9] The Museum now cares for over 1,470,000 Hawaiian objects. The Museum’s library and archives are a vast repository of printed and audio-visual materials, including publications and tapes in the Hawaiian language. Thousands of Museum research projects and publications address Native Hawaiian culture. Exhibits and educational programs on Native Hawaiian culture are offered continuously by Native Hawaiians and others on the Museum staff.The Museum’s library and archives are a vast repository of printed and audio-visual materials, including publications and tapes in the Hawaiian language. Thousands of Museum research projects and publications address Native Hawaiian culture. Exhibits and educational programs on Native Hawaiian culture are offered continuously by Native Hawaiians and others on the Museum staff. [10] Over the last five years, nearly 500,000 Native Hawaiians were served through exhibits and educational programs. More than 20 Native Hawaiian organizations and 200 Native Hawaiian individuals benefited directly as participants in Museum cultural programs. Cultural traditions on the verge of disappearance—such as voyaging canoe making, kapa (barkcloth) making, ku‘ialua (martial arts), makaloa (native sedge) weaving, the art of chanting, and protocol—were revived through Bishop Museum programs. Sources over the years have shown that these activities at Bishop Museum have helped to foster great pride in Native Hawaiians in their culture. Since its inception, Bishop Museum has been a steward of Native Hawaiian culture
Bishop Museum represents the interests of Native Hawaiians by caring for and providing access to 1,470,000 Hawaiian objects of great cultural importance and beauty, including artifacts belonging to the ali‘i and donated by them to the Museum, historical photographs and moving images, Hawaiian language manuscripts, early Hawaiian language publications, and Hawaiian language audio recordings. It represents the interests of Native Hawaiians through its presentation of countless educational programs, exhibits, publications, community events, and individual mentorships aimed at perpetuating Hawaiian cultural traditions and values. Over the last five years, nearly 500,000 Native Hawaiians were served through exhibits and educational programs. Twenty Native Hawaiian organizations and 200 Native Hawaiian individuals benefited directly as participants in Museum cultural programs. Cultural traditions on the verge of disappearance—such as voyaging canoe making, kapa (barkcloth) making, ku‘ialua (martial arts), makaloa (native sedge) weaving, the art of chanting, and protocol—were revived through Bishop Museum programs. Sources over the years have shown that these activities at Bishop Museum have helped to foster great pride in Native Hawaiians in their culture. Since its inception, Bishop Museum has been charged with the stewardship of Native Hawaiian culture, a responsibility it takes very seriously. .
Cultural Affiliation
NAGPRA defines “cultural affiliation” to mean -- “that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group.” [11]
NAGPRA provides additional definition to this term by providing that repatriation of items in certain cases is required where a Native Hawaiian organization shows cultural affiliation by –
“a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion.” [12]
Bishop Museum has endeavored to apply these terms to claims for repatriation presented by NHOs. However, the Museum, at times, has not been able to differentiate among claimants in ways that are satisfactory. Applying NAGPRA's definition of "cultural affiliation" to NHOs appears, on its face, to require that they be defined with standards similar to those used in recognizing tribes.
One might conclude from the Act's text that no NHO is culturally affiliated with NAGPRA cultural items from Hawai‘i. This conclusion would note the breaking of the kapu system in 1819 and the rapid metamorphosis of the traditional forms of Hawaiian governance that were maintained through the kapu system into Westernized forms of government and religion. [13] It is difficult to conclude that any existing NHO can be traced to a specific “identifiable earlier group,” other than all Hawaiians existing before traditional practices were discontinued after 1819. Furthermore, the categories of applicable evidence set forth in the Act add little to assist with this challenge. For example, Bishop Museum has in the past found geographical evidence for cultural affiliation of NHOs simply because at least one current-day individual member of an NHO was born on the Hawaiian island from which a cultural item came, or because the NHO has an office on the island. It is a stretch to conclude that this kind of evidence in any way traces the NHO to an identifiable earlier group existing over a century and a half before.
An alternative perspective, however, is to read “shared group identity” broadly. The Museum may conclude that any organization meeting the NHO requirements of purpose, function and expertise in respect to Native Hawaiians has a relationship of shared group identity to the Native Hawaiian people of old (i.e. the “identifiable earlier group”). The evidence for "tracing" this relationship, in this alternative, is evidence of present day engagement in work perpetuating the Native Hawaiian culture generally rather than tracing to tribe-like entities. Pending further comment and review, the Museum adopts this second, inclusive alternative, and concludes that any organization qualifying as an NHO is also culturally affiliated with all Native Hawaiian cultural items.
Cultural Affiliation of Bishop Museum
As a Native Hawaiian organization, Bishop Museum is culturally affiliated with all Native Hawaiian cultural items. The Act requires the Museum to review competing repatriation claims of culturally affiliated NHOs and to determine which requesting party is the most appropriate claimant. [14] The Museum may retain items until such time as the requesting parties agree upon the appropriate claimant or the dispute is otherwise resolved under the NAGPRA regulations or by a court. [15]
As noted above, High Chiefess Pauahi and Queen Emma wanted Bishop Museum to be a place for continuing stewardship of Hawaiian cultural heritage. [16] The original collections included objects that came from High Chiefess Pauahi, Queen Emma and Princess Ruth Ke‘eliko-lani. With support from the administrations of King Kala-kaua and Queen Lili‘uokalani, Bishop Museum took over the collections of the Hawaiian National Museum and Bishop Museum became the principal repository for cultural heritage of the Hawaiian Kingdom, including objects incorporating human remains. [17] The stewardship responsibility of Bishop Museum as a repository has continued under successive forms of government unbroken to the present, and is endorsed by current state law. [18] The Museum’s direct descent from the national repository of the Hawaiian Kingdom establishes its close cultural affiliation to cultural items in the collections. The Museum has vigorously carried on the quest for understanding and preservation of Hawaiian culture begun by King Kala-kaua at the Hawaiian National Museum and the Hale Naua- Society. This quest has addressed the elements of cultural affiliation identified in NAGPRA. From its inception, tFrom its inception, the Museum has collected and studied Hawaiian genealogies, language and folklore, including oral traditions, history, archaeology, and biology as it relates to Hawaiian culture. The Museum’s collections are uniquely comprehensive in that many individual cultural objects can be directly linked to items in the natural history collections, the archives, the oral history collections, the historic image collections. The cultural affiliation of the Museum to these objects is further strengthened by their being associated in the collection records with the expert opinions of well known Native Hawaiian scholars such as Lahilahi Webb and Mary Kawena Pukui. In light of these points, we conclude that Bishop Museum has close cultural affiliation to cultural items as defined by NAGPRA that are in its collections.
We provide the following additional guidance in respect to particular items:
Bishop Museum recognizes the priority of proven lineal descendants in respect to claims for human burial remains and associated funerary objects. This is specified explicitly by NAGPRA for items excavated after enactment of the Act, [19] and the Museum believes that such priority should also be given to repatriation claims. However, it should be noted that the Museum currently does not have possession or control of any Native Hawaiian burial remains or associated funerary objects for which lineal descendants have been ascertained.
The Museum possesses some Native Hawaiian skeletal fragments and is holding other human burial remains temporarily for other NHOs and entities. The Museum will cooperate on an equal basis with other NHOs to secure proper reburial of these fragments, and it will assist other NHOs and entities in the proper handling of human burial remains and associated funerary objects that the Museum currently holds for them.
Bishop Museum has possession and control of objects that incorporate human remains but were generally not considered appropriate for burial in Native Hawaiian culture. These include objects such as containers, drums, bracelets, fishhooks and sashes embedded with teeth; ka-hili or feather staffs with human long bones, and items such as combs and bracelets carved from human bone. Bishop Museum will conserve these objects in its collections and treat them with the great respect and sensitivity that they warrant.
The Museum has possession and control of objects that may have once been buried with human remains and hence may be funerary objects as defined by NAGPRA. Bishop Museum will treat these objects with great respect and sensitivity and will apply applicable provisions of NAGPRA to any requests for repatriation by NHOs, including the Museum itself.
Cultural Patrimony and Sacred Objects
In addition to provisions concerning human remains and funerary objects, NAGPRA sets forth policies for repatriation of objects of "cultural patrimony" and “sacred objects." Hawaiian society has produced many objects of great cultural significance, and many such objects are in Bishop Museum's collections. However, the Museum does not believe that any items of Native Hawaiian society in the collections of Bishop Museum fall within these two categories as defined by the Act.
NAGPRA defines "cultural patrimony" to mean –
"an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group." [20]
The Senate report accompanying NAGPRA legislation provides some guidance on the definition of cultural patrimony:
The Committee intends this term to refer to only those items that have such great importance to an Indian tribe or to the Native Hawaiian culture that they cannot be conveyed, appropriated or transferred by an individual member. Objects of Native American cultural patrimony would include items such as Zuni War Gods, the Wampum belts of the Iroquois, and other objects of a similar character and significance to the Indian tribe as a whole. Senate Report 101-473, September 26, 1990 (“Senate Report”), page 5.
No objects in the Museum’s collections from old Hawai‘i appear to meet this definition, if for no other reason than all objects could in appropriate time and circumstances be conveyed, appropriated or transferred by a ruling chief. [21]
NAGPRA defines "sacred objects" to mean –
"specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents." [22]
Virtually all cultural objects of old Hawai‘i could be said to have religious significance. A central question, however, is whether these objects – those made before Hawaiian religious practices were modified by Liholiho and Ka‘ahumanu in 1819 – are needed for the practice of traditional Hawaiian religion by present day adherents.
Bishop Museum gives priority to preservation and continuation of Hawaiian culture, including research and education on Hawaiian religion practices. We note, however, that the objects of Hawaiian antiquity used in ritual were made new with regularity, and the power which the Hawaiians found in objects old and new was imbued through the complex and demanding rituals of the kapu system. [23] The objects of antiquity are rare and priceless but other objects may be used in any present day religious practices.
Right of Possession
Irrespective of the matters addressed above in this Guidance, NAGPRA does not require repatriation of unassociated funerary objects, objects of cultural patrimony, or sacred objects if a museum has "right of possession." For Bishop Museum, this provision is relevant to NAGPRA review of any funerary objects in the Museum's collections that are not associated with human remains in the Museum’s collections.
Under NAGPRA, the initial burden rests with an NHO to present evidence which, if standing alone, would support a finding that the Museum does not have a right of possession to the objects. [24] If the NHO cannot meet this burden, then Bishop Museum may retain the objects. If the NHO is able to meet this burden, the burden then shifts to Bishop Museum to present evidence to the contrary proving that it does have a right of possession as defined by the Act. [25] If Bishop Museum meets this burden, it may retain the objects. If not, then the Museum must proceed with repatriation unless, as might be the case for the cultural item in question, no NHO is more closely culturally affiliated with the item than is the Museum itself. As has been its practice, the Museum will continue to share information that it has which bears upon the issues of right of possession and cultural affiliation.
NAGPRA defines "right of possession" to mean –
“possession obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of a Native American unassociated funerary object, sacred object or object of cultural patrimony from an Indian tribe or Native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such object is deemed to give right of possession of that object, unless the phrase so defined would, as applied in section 7(c) [of the Act] result in a Fifth Amendment taking by the United States as determined by the United States Claims Court pursuant to 28 U.S.C. 1491 in which event the “right of possession” shall be as provided under otherwise applicable property law. The original acquisition of Native American human remains and associated funerary objects which were excavated, exhumed, or otherwise obtained with full knowledge and consent of the next of kin or the official governing body of the appropriate culturally affiliated Indian tribe or Native Hawaiian organization is deemed to give right of possession to those remains.” [26]
The term is somewhat complexly defined. The Senate and House reports on the bills giving rise to NAGPRA provide same guidance. The House report states –
"The definition of ‘right of possession’ in section 2(13) of the bill was amended to include language providing that nothing in the paragraph is intended to affect the application of relevant State law to the right of ownership of unassociated funerary objects, sacred objects or objects of cultural patrimony. The language was adopted to meet the concerns of the Justice Department about the possibility of a 5th amendment taking of the private property of museums through the application of the terms of the Act.” House Report 101-877, October 15, 1990 (“House Report”) at page 15.
The Senate Report provides more lengthy but consistent comments on the definition (reprinted below). [27] The Senate Report expresses concern that cultural items have sometimes been stolen from tribes and then ended up in museums, or have been illegally removed from Indian burial sites on Federal and tribal lands and sold. The report continues, stating that “[r]eview of the right of possession to a given object is very similar to the transfer of title to other forms of property. The Committee intends this section to operate in a manner that is consistent with general property law i.e., an individual may only acquire the title to property that is held by the transferor.” The Senate Report, unlike the House Report, does not specifically reference concerns about 5th Amendment takings, but the bill that the report accompanies, S. 1980, includes the provision on takings that was enacted in NAGPRA.
In light of the statutory and report language discussed above, Bishop Museum concludes that it has right of possession of unassociated funerary objects in its collections (and, if they existed, of objects of cultural patrimony and sacred objects) if the Museum is the owner under Hawai‘i State law. [28]
If an NHO seeks repatriation of an unassociated funerary object and believes that it is the owner under Hawai‘i State law, the NHO must present evidence to the Museum which, if standing alone, would support a finding that the Museum not the owner. The Museum will then respond as provided by the procedures in the Act described above. [29]
Summary
This Guidance reaches the following fundamental interim and proposed final conclusions:
1. Bishop Museum qualifies as a Native Hawaiian organization (“NHO”) as defined by section 2(11) of NAGPRA.
2. All organizations qualifying as NHOs are also culturally affiliated with Native Hawaiian cultural items as defined by NAGPRA. However the degree of affiliation may vary. In light of its purpose and history as the primary repository of Hawaiian antiquities for safekeeping and cultural access, including in particular the involvement of High Chiefess Pauahi, Queen Emma and other ali`i in its establishment, Bishop Museum has close cultural affiliation to cultural items in its collections.
3. Although Hawaiian culture has produced many items of great cultural and religious value, the Museum holds no objects of cultural patrimony or sacred objects as these terms are defined by section 2(3)(C) and (D) of the Act. To meet the statutory definition, objects of cultural patrimony must have been considered inalienable by any individual, including ruling kings, at the time of alienation. Sacred objects under NAGPRA must be needed by traditional religious leaders for the practice of traditional Native American religions by their present day adherents. Past and present acts and practices do not support the conclusion that any Hawaiian cultural items meet these definitions.
4. Bishop Museum has right of possession of unassociated funerary objects in its collection if the Museum is the owner under Hawai‘i State law. NAGPRA provides a procedure for assertions concerning right of possession and responses by the Museum.
This Guidance was approved by the Board of Directors of Bishop Museum on May 27, 2004.
William Y. Brown
President & Chief Executive Officer
Bishop Museum
[1] Daily Pacific Commercial Advertiser, June 24, 1891.
[2] Public Law 101-601, 25 U.S.C. 3001 et seq.
[3] NAGPRA Section 2(3).
[4] NAGPRA Section 2(7). In particular, the BIA policy, published at 25 CFR §§ 83.1 to 83.12, requires that: [note from website editor Ken Conklin: the following are the 7 mandatory requirements for BIA to give federal recognition to an Indian tribe]
(a) The petitioner has been identified as an American Indian entity on a substantially continuous basis since 1900,
(b) A predominant portion of the petitioning group comprises a distinct community and has existed as a community from historical times until the present,
(c) The petitioner has maintained political influence or authority over its members as an autonomous entity from historical times until the present,
(d) The group must provide a copy of its present governing documents and membership criteria,
(e) The petitioner’s membership consists of individuals who descend from a historical Indian tribe or tribes, which combined and functioned as a single autonomous political entity,
(f) The membership of the petitioning group is composed principally of persons who are not members of any acknowledged North American Indian tribe, and
(g) Neither the petitioner nor its members are the subject of congressional legislation that has expressly terminated or forbidden recognition.
[5] NAGPRA Section 2(10).
[6] Hawaiian Homes Commission Act, 1920, c. 42, 42 Stat. 108 (1921). The current HHC and DHHL were established after statehood in 1959.
[7] OHA was established in 1978 by amendment to the Hawai`i State Constitution, and incorporated in Hawai‘i revised statutes in 1979.
[8] Amendment and Restated Articles of Incorporation of Bishop Museum. Article III, Section 3.1, September 25, 2003.
[9] These points and many others concerning establishment of Bishop Museum are documented in A Museum to Instruct and Delight. 1980. Roger G. Rose. Bernice P. Bishop Museum Special Publication 68. Bishop Museum Press. Honolulu, Hawai‘i.
[10] The Museum’s Web page gives a good, current overview of activities: www.bishopmuseum.org.
[11] NAGPRA Section 2(2).
[12] NAGPRA Section 7(a)(4).
[13] The breaking of the kapu system and rapid change in Hawaiian society are documented by many sources including, for example, David Malo, Hawaiian antiquities or Mooolelo Hawai`i (1951 [1903] Trans. N.B. Emerson. 2d ed. Bishop Museum Special Publication 2), and Gavin Daws, Shoal of Time (1968. University of Hawai‘i Press, Honolulu, Hawai‘i).
[14] NAGPRA Section 7(c).
[15] NAGPRA Section 7(e).
[16] A Museum to Instruct and Delight, Rose, supra.
[17] Notices listing some of these objects were published in the Federal Register on August 1997. They include Li-loa’s sash, the pahu heiau, several ka-hili, carved images, bracelets, and containers.
[18] Hawai‘i Revised Statutes, Volume 1, Sections 6E-6 and 6E-40.
[19] NAGPRA Section 3(a).
[20] NAGPRA Section 2(3)(d).
[21] Diverse literature makes this clear. For example, the war god, Ku-ka-‘ilimoku, of vast significance to Native Hawaiian culture, belonged to Kamehameha. Also, for example, high chief Kalanimoku gave “permission to Lord Byron to visit [a heiau near Kealakekua Bay] and take out any curiosities he chose.” In the Diary of Andrew Bloxam: Naturalist of the “Blonde.” 1925. Bishop Museum Special Publication 10.
[22] NAGPRA Section 2(3)(c).
[23] See, for example, descriptions of the Luakini Temple and Makahiki Festival rituals described in Malo, cited above, and in Kingship and Sacrifice. 1985. Valerio Valeri. University of Chicago Press. Chicago, Illinois.
[24] NAGPRA Section 7(c).
[25] Id.
[26] NAGPRA Section 2(13).
[27] The Senate Report states at page 5 -
"The term ‘right of possession’ refers to the authority by which a museum or agency came into possession of human remains of a Native American, funerary object, sacred object, or object of cultural patrimony. The Committee intends this term to provide a legal framework in which to determine the circumstances by which a museum or agency came into possession of these remains or objects. The Committee has heard from many tribal leader situations where important ceremonial objects have been stolen from the Indian tribe only to reappear later in the collections of a museum. The term ‘right of possession’ will provide a clear standard for determining whether an object was originally acquired with the voluntary consent of an individual or an Indian tribe which had the authority to alienate the object. ‘Right of possession’ also refers to the original acquisition of human remains of a Native American. In order to have the ‘right of possession’ to human remains of a Native American a museum much have originally acquired the remains with the full knowledge and consent of the next of kin of the Indian tribe. The ‘right of possession’ to an object requires that the party have obtained possession of the object with the voluntary consent of an individual who has the authority to alienate possession of the object.”
“The Committee shares the concerns expressed by tribal leaders that museums and agencies have not, until recently, inquired into the circumstances of how an individual came to possess a funerary object, sacred object or object of cultural patrimony. This practice has contributed to the continued growth of a black market in the sale and trade of objects illegally removed from Indian burial sites located on Federal and tribal lands. The Committee intends this definition to provide a standard by which the legal possession of an object may be viewed. Review of the right of possession to a given object is very similar to the transfer of title to other forms of property. The Committee intends this section to operate in a manner that is consistent with general property law i.e., an individual may only acquire the title to property that is held by the transferor.”
[28] The object would be private property of the Museum whose repatriation under NAGPRA would invoke protection of the 5th Amendment. Since no Indian tribe or NHO has authority to give right of possession to a cultural object held by a museum if a 5th Amendment taking would result (see definition of right of possession supra), it follows that no Indian tribe or NHO has authority to take such cultural objects from a museum if a 5th Amendment taking would result. The requirement for “possession obtained with the voluntary consent of an individual or group that had authority of alienation” in the definition of right of possession, read in light of this point and NAGPRA’s legislative history, is then met so long as possession is obtained from an individual or group in a manner consistent with Museum ownership and the Museum is in fact the owner.
[29] NAGPRA Section 7(c).
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