Hui Malama I Na Kupuna O Hawai’i Nei did not like the decision made by the NAGPRA Review Committee following the committee’s hearings about the Forbes Cave controversy. Those hearings were held May 9-10, 2003 in St. Paul, Minnesota. The Committee’s decision, while not legally enforceable, carries a great deal of moral weight and might be cited in possible future litigation by the claimants who oppose what Hui Malama did with the artifacts. Since Hui Malama claims the artifacts are now in a cave under its control, and since Hui Malama refuses to return the artifacts to Bishop Museum or to any other neutral place where disputes among the claimants might be resolved, it may be that the only recourse open to the other claimants is litigation to force Hui Malama to give up the artifacts.
Hui Malama wants to strengthen its claim that the artifacts were properly given to Hui Malama, and that Hui Malama has properly repatriated them to the cave, and that the matter is now permanently settled. But the NAGPRA Review Committee report disagreed with Hui Malama’s position. Accordingly, Hui Malama has written to the NAGPRA Review Committee to request reconsideration of its decision based on alleged procedural improprieties.
One of the claimants opposing Hui Malama is La’akea Suganuma, speaking on behalf of the Royal Hawaiian Academy of Traditional Arts. Mr. Suganuma has very kindly provided some of his documents for posting on this webpage, in order that the public might be kept informed about the progress of the dispute and the viewpoint of his organization. No documents have been made available by Hui Malama or any other claimants.
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Royal Hawaiian
Academy of Traditional Arts 835 Ahuwale Street, Honolulu,
Hawaii 96821 * Phone (808)377-5611 * Fax (808)377-5611 August 27, 2004 Tim McKeown, Designated Federal
Officer National Park Service National NAGPRA Program Office 1849 C Street NW, NC350 Washington, D.C. 20240 Re: Request to reconsider the
findings and recommendations of the NAGPRA Review Committee in the Kawaihae Caves Complex
non-repatriation dispute held on May 9-10, 2003 in St. Paul, MN. Dear Sir: This is to address the above
referenced request made by Hui Malama I Na Kupuna O Hawaii Nei and the
Native Hawaiian Advisory Council dba Ke Kia*i, “due to procedural error.” They
allege that the “review committee failed to notify all necessary parties
to this dispute and proceeded to issue a finding without consideration
of all necessary facts.” They further requested “that the review committee
include reconsideration of this issue on the agenda of a future meeting
held in Hawai*i. Briefly, the facts are:
DISPUTE HISTORY SUMMARY There was no procedural error
committed by the involved parties or the Review Committee. All requirements
of the Dispute Resolution Procedure, in effect at the time, were fulfilled.
The amendments regarding notification of all claimants was made after
the issuance of the Review Committee’s finding and recommendations in
this dispute and is not retroactively effective. It is ludicrous to
allege violation of a requirement that was not in existence at the time
the alleged violation took place. All of the thirteen claimants were
aware of the Review Committee’s decision to review this dispute, along
with the date and location of the meeting, and had every opportunity
to participate. There are no published guidelines and/or grounds for
reconsideration that are applicable, and there are no facts that were
not previously submitted. Furthermore, lacking any detailed
rules, requirements or grounds governing the submission of requests
for reconsideration, how can a proper decision be made? What remedial
options are available to the Review Committee, especially when there
are no additional facts to consider? Does the committee have the authority,
in fact, to reverse, rescind, amend or otherwise tamper with the findings
and recommendations of a previous committee? Would the entire dispute
be heard again, further adding to the backlog of reviews already pending
attention by the Review Committee? For all of the stated reasons
and unanswerable questions, we hereby ask that the request for reconsideration
in this matter be denied and that the findings and recommendations of
the duly authorized NAGPRA Review Committee stand, as previously issued.
Please contact me if you have any questions or comments. Me Ke Aloha, L. La*akea Suganuma Authorized Representative Attachments
There
were no procedural errors. The involved parties and the Review Committee
strictly adhered to the guidelines set forth in the Dispute Resolution
Procedures of the Native American Graves Protection & Repatriation
Committee in effect at the time.
All
the necessary facts, and more, were presented to the Review Committee.
There are no other facts.
All
parties were properly notified per procedure. After the completion
of the review, the Review Committee issued its findings and recommendations.
Changes
to the Dispute Resolution Procedure regarding expanding the notification
requirements were made after the Review Committee had acted and its
review was completed.
There
is no provision for changes to the Dispute Resolution Procedure to be
retroactively effective.
There
are no provisions for reconsideration in the Dispute Resolution Procedure
except under IV.G., which allows for the re-submission of the dispute
if the parties fail to reach resolution following notification of the
Review Committee’s finding and recommendations and only if there is
“substantial new information to offer for the Review Committee’s consideration.”
This would not apply, as the parties were able to reach resolution during
the review.
There
are no other provisions and/or defined grounds for reconsideration.
Every
claimant was well aware of the intent of the Review Committee to hear
this dispute and had every opportunity to participate.
The
Royal Hawaiian Academy of Traditional Arts represented the position
of the MAJORITY of the recognized claimants in this matter.
The
next procedural step of the dispute resolution process, submission to
U.S. District Court is available to anyone dissatisfied with the Review
Committee’s actions.
Hui
Malama, the organization now requesting reconsideration, refused to
comply with the recommendations of the Review Committee, and publicly
stated, “because the NAGPRA review committee serves as an advisory board,
the organization (Hui Malama) is not bound by its findings.” (article
attached)
On
February 26, 2000 the Bishop Museum “loaned” the Kawaihae Caves collection
to Hui Malama without permission or agreement of the other three claimants
who were recognized at the time.
Hui
Malama claimed that it had returned the human remains, which they had
previously taken possession of, and the borrowed 83 items to the caves
from which they originated and sealed the entrance. Hui Malama has
consistently refused to honor loan recall demands.
By
November of 2000, there were thirteen recognized claimants, the majority
of which demanded that the museum recover the “loaned” items, only.
In
December of 2000, the museum announced its decision to designate all
thirteen claimants as most appropriate
The
museum suspended their so-called recover effort, at the request of the
claimants, to give them an opportunity to meet and attempt to find resolution.
This was done over the next nine months. Failing this, the museum was
so informed in August of 2001 and asked to resume the recovery, which
their NAGPRA representative said they would.
A
few days later, the museum issued a letter to all claimants, stating
that repatriation had taken place in April of 2001 and that the museum
no longer had any connection to or responsibility in this matter.
After
numerous futile attempts to further discussion with the museum, the
RHATA, on behalf of the majority group of claimants, requested to be
heard by the NAGPRA Review Committee, alleging that proper repatriation
had not taken place since, along with other reasons, the museum had
neither possession of nor control of the subject items at the time it
claimed repatriation had been effected. This was allowed in the May
2003 meeting in St. Paul, MN, wherein the museum, after reviewing the
charges, admitted that they had erred and that proper repatriation had
not taken place.
The
NAGPRA Review Committee found that the repatriation process was flawed
and incomplete; the place and manner of return had not been determined
per regulations, and the museum was responsible for completing the repatriation
process. The committee recommended that the museum renew the consultation
process, recall the loan of the 83 items to Hui Malama, and that all
thirteen claimants be treated in a respectful and equitable manner.