NAGPRA Issues in Hawaii, 2005 (Especially the Controversy Regarding Forbes Cave [Kawaihae Cave]; and Conflict Among Bishop Museum, Hui Malama, and other groups)

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 this present webpage was created as a continuation of it. As before, an index appears at the beginning, and additional topics will be added as events unfold. Readers may then scroll down to find the detailed coverage of each topic.

The main focus is the Forbes Cave controversy, and the on-going conflict among Bishop Museum, Hui Malama, La'akea Suganuma (Royal Hawaiian Academy of Traditional Arts), Abigail Kawananakoa, and other groups of claimants to bones and artifacts from Forbes Cave and from Bishop Museum. However, closely-related topics will also be covered, especially when they involve conflict among Bishop Museum, Hui Malama, and those other groups -- topics such as Kanupa Cave and the Emerson collection, the role of Hui Malama in relation to the island burial councils, etc.

This present webpage covers only the year 2005. For the continuation to year 2006, see:

https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

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LIST OF TOPICS: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfolded during 2005.

(1) On December 30, 2004 State of Hawai'i Legislative Auditor Marion Higa released her report on the state burial councils. The report focused on criticisms of administrative procedures related to the appointment of burial council members, and glitches in the processing of construction permits and related reburial decisions. The lengthy report contains interesting historical and cultural information about Hawaiian burial practices. 2 Newspaper articles and an editorial about the audit report are provided, plus a link to download the full report directly from the state auditor's office. Important excerpt from the Star-Bulletin article: "The audit criticized the state's historic-preservation law for citing the nonprofit Hui Malama I Na Kupuna O Hawaii Nei as an example of an "appropriate organization" that reburies remains and sacred items. "It infers authority and places an official imprimatur on the organization's behavior and practices," the audit said. The auditor's office recommended DLNR seek an amendment to remove Hui Malama from the historic-preservation law. Other reburial organizations accuse Hui Malama of "imposing its own burial protocol on others, despite the fact that Hawaiian burial practices vary from island to island, region to region, and even within families," the audit said.

(2) Meeting of the national NAGPRA REVIEW COMMITTEE scheduled for Honolulu for March 13-15, 2005. Presentations must be arranged in advance; statements and comments may also be submitted.

(3) Group headed by royal descendant and pretender to the throne, Abigail Kawanananakoa, age 78, is stepping into the Forbes Cave and other disputes in opposition to Hui Malama and in support of Bishop Museum and La'akea Suganuma. See also item (8), wherein this group won a federal court decision ordering Hui Malama to return the Forbes Cave artifacts to Bishop Museum.

(4) NAGPRA REVIEW COMMITTEE to hold open meeting at the East West Center, University of Hawai'i, March 13-15, 2005. Meeting agenda available on internet; how to submit testimony and/or request a hearing before the committee. The Advertiser portion of this item is an updated version of item #(2); however, the Star-Bulletin version of this item adds substantial content reviewing the history of various conflicts involving the NAGPRA Review Committee in Hawaiian issues.

(5) A circuit judge in mid-May, 2005 dismissed claims against Wal-Mart for allegedly desecrating human remains during the recent construction of its complex on Keeaumoku Street. Judge Victoria Marks ruled May 15, 2005 that Paulette Kaleikini, who claims a cultural tie with ancestors buried at the site, and Hui Malama I Na Kupuna O Hawaii Nei, an organization that cares for the reburial of native Hawaiian remains, have no right to pursue their monetary claims against the retail giant. Marks ruled that under state law, the two cannot pursue desecration claims because they have no property interest in the land on which the ancestral bones were found. She said the two cannot seek other claims because the state, rather than Wal-Mart, has custody of the bones. Marks also ruled the two could not pursue claims alleging infliction of emotional distress for negligently handling of the remains because they could not prove a direct blood tie. Eventual court decision in Wal-Mart case absolves Wal-Mart of any guilt, but settlement agreement establishes principle that land which has been previously developed cannot be presumed to have no ancient remains. Despite the settlement of this lawsuit, the State Historic Preservation Division in early November, 2005 recommended to the Board of Land and Natural Resources that a fine of $210,000 be imposed on Aki Sinoto Consulting, the archaeological firm, and others, for failing to notify the proper authorities about the inadvertent find of human remains in a timely fashion, moving human remains without permission and failing to examine human skeletal remains in a respectful manner.

(6) Guy Kaulukukui, former head of the Cultural Studies department of Bishop Museum, has filed a lawsuit against the museum, claiming that the museum fired him improperly. Kaulukukui claims the reason he was fired is because he refused to carry out an order that would be illegal under NAGPRA.

(7) Bishop Museum is keeping an artifact from Mo'omomi, Moloka'i because three competing claimants are unable to resolve their dispute over who should own it. Also, the museum has recognized an additional claimant group for the Forbes Cave artifacts.

(8) On Friday, September 2, 2005 Chief U.S. District Judge David Ezra ordered Hui Malama to return the Forbes Cave collection of 83 artifacts to Bishop Museum, so the museum can go forward with the process of resolving the conflicts among 13 claimants regarding who should have possession. The order was requested by Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, two of the 13 claimants; with the support of Bishop Museum. On Wednesday September 7 Chief U.S. District Judge David Ezra issued a 22-page written order that the artifacts must be returned by September 23. Hui Malama filed a request with the 9th Circuit Court of Appeals for a stay of the order pending an appeal they plan to file. The OHA monthly newspaper for September 2005 contained a full page devoted to the controversy, including side by side articles written by opponents Eddie Ayau and La'akea Suganuma regarding how we know what are the wishes of the ancestors regarding the artifacts. The 37-page pdf file of the September 7 motion by Hui Malama contains many legal technicalities (such as the discussion of the legal standards by which such an emergency motion is to be decided), but it also contains many substantive explanations and analyses. That pdf file is available for download at:
https://www.angelfire.com/hi5/bigfiles3/HuiMalMotnEmrgncyStay090705.pdf
On September 14 it was announced that a document has been filed with the 9th Circuit Court by Hui Malama written by the (stone)mason who sealed the cave after the artifacts had (allegedly) been reburied there, swearing that if the cave is re-opened to retrieve the artifacts, the cave might collapse. On September 20 the 9th Circuit Court ordered a stay (delay) in enforcement of Judge Ezra’s order to return the artifacts, until the 9th Circuit can consider the issues and make a ruling. However, the 9th Circuit also ordered an expedited hearing. Hui Malama must file its opening brief by Sept. 30 explaining why Ezra's decision should be overturned. The two Native Hawaiian groups that sought the injunction have until Oct. 21, or 21 days after the court receives the opening brief, to respond. Hui Malama would then have 10 days to reply. The appeals court said the case would be on the calendar during the week of Dec. 5. On October 7 Judge Ezra took the very unusual step of filing a "supplemental order" expressing doubts whether there is a problem of possible cave collapse, indicating that if such a problem exists it can be dealt with, and also noting that Hui Malama has neither revealed where the cave is nor whether all the artifacts are inside that cave. On November 17 it was reported that the Hawai'i Island Burial Council chairman has been contacting members secretly to assemble a majority to get the council to intervene in the court case on the side of Hui Malama; a member of that burial council who supports the Kawananakoa faction has filed a complaint with the Office of Information Practices that the council chairman, by communicating with council members in secret, has violated the state open meeting law. On November 26 the Honolulu Advertiser reported that the 9th Circuit Court has decided not to consider the issue of possible cave collapse, because that issue was not raised during the proceedings in the Honolulu District Court. On December 6 (reported Dec 7) the 9th Circuit Court held oral arguments in San Francisco ragerding the appeal of Judge Ezra's decision. Newspapers reported the 3-judge panel was skeptical and almost hostile toward Hui Malama's position. On December 12 the 9th Circuit Court 3-judge panel unanimously upheld Judge Ezra's ruling ordering Hui Malama to return the 83 artifacts to Bishop Museum; but Hui Malama appeared defiant and also claimed that a majority of the claimants favor keeping the artifacts in the cave until the dispute is settled among themselves (such settlement, of course, would then never happen). On December 19 Judge Ezra demanded that Hui Malama comply with his earlier order, promptly. On December 21 the Star-Bulletin reported Judge Ezra's anger that Hui Malama and its attorney, Alan Murakami, are disrespecting himself and the courts with racist statements saying non-native judges cannot understand Hawaiian culture and that Hawaiian natives as a group are rebelling against U.S. courts. On December 22 Judge Ezra issued an order to Hui Malama officers to show cause why they should not be held in contempt of court, and ordered their appearance in court on Tuesday December 27 at 10 AM. At the noisy, emotional December 27 hearing, Hui Malama head Eddie Ayau was found guilty of contempt of court and ordered to the federal detention center until he or someone else complies with the court order to reveal the exact location of the Forbes artifacts or until those artifacts are actually retrieved. Another man who disrupted the proceedings was given a 5-day jail sentence for his misbehavior in court.

** Section 8 is by far the longest section on this webpage, running approximately page 50 to 205 on a wordprocessor. **

(9) On October 19, 2005 it was reported that a housing subdivision developer has made an inadvertent discovery of more than 20 carved wooden figures (some only partially carved) in a lava tube at "The Shores at Kohanaiki," which is several miles north of Kailua-Kona on the "big island." There were no human remains. Speculation is that the images were carved in the early 1800s; and either it was a workshop for image-carvers who stopped after the ancient religion was overturned in 1819 by Ka'ahumanu, or else it was a warehouse where followers of the old religion hid the images to prevent their destruction by government agents. Cultural expert Malcolm Naea Chun, and others, point out that caves were used for many purposes, and this valuable discovery must not be lost to future generations through destruction or reburial.

(10) Caretaker of Mauna Ala (Royal Mausoleum) "goes public" with complaint that Kunani Nihipali, then head of Hui Malama, "borrowed" two sacred ancient pulo'ulo'u (kapu sticks) guarding the royal crypt, 5 years ago, and has never returned them; and nobody has been able to contact Mr. Nihipali for a very long time. Speculation that the "borrowing" of the pulo'ulo'u was a ruse for actual theft and reburial similar to the way the Forbes Cave artifacts were "borrowed" and "repatriated." However, 2 days after publication of the newspaper article about the missing pul'ulo'u, Kunani Nihipali returned them to the Mauna Ala caretaker.

(11) On December 4, 2005 the Honolulu Advertiser published a "news" article describing how the governments of Greece and Italy are demanding the return of ancient artifacts from the Getty Museum, and that similar efforts are underway concerning other museums. A personal commentary by Vicky Viotti, a member of the Advertiser editorial board, makes a connection between that article and the NAGPRA-related controversies in Hawai'i. Although Viotti does not explicitly say so, the clear implication is that ancient Hawaiian artifacts in museums should be "repatriated" and reburied as Hui Malama demands. A further implication (which Viotti herself might not have thought of) is that the NAGPRA law should be construed to give ethnic Hawaiians as a whole a communal legal standing, comparable to that of a foreign government, to demand the return of artifacts or "national treasures"; and that passing the Akaka bill would allow ethnic Hawaiians to create a governing entity which could speak on behalf of the entire ethnic group and thereby decide any disputes among competing claimants, as in the Forbes Cave controversy.

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** Editorial comment by Ken Conklin: Following are the competing news reports about the audit report: Honolulu Advertiser vs. Star-Bulletin. As always, Advertiser reported Vicki Viotti shows her strong bias in favor of Hui Malama and other radical groups. On Hawaiian sovereignty issues in general, she behaves like an "embedded reporter" inside the independence movement, but also sometimes favors the Akaka bill, and never favors the concept of equality under the law. In this case, Ms. Viotti completely failed to mention the report's strong criticism of Hui Malama. The audit report's criticism of Hui Malama was the main focus of the Star-Bulletin editorial following the news reports.

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The State of Hawai'i Legislative Auditor, Marion Higa, released her report on December 30, 2004. The report is entitled: "Investigation of the Department of Land and Natural Resources' Process for Developing Recommended Candidate Lists for Appointment to the Island Burial Councils." The complete 73-page report has an excellent, detailed table of contents. The full report can be downloaded in pdf format directly from the auditor's office:
http://www.state.hi.us/auditor/Reports/2004/04-15.pdf

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http://starbulletin.com/2004/12/31/news/story11.html
Honolulu Star-Bulletin, Friday, December 31, 2004

State criticized over burial councils

By Mary Vorsino

The state's "disorderly" process of naming candidates to island burial councils needs an overhaul to decrease the number of interim appointments and make participation criteria clear, says a state audit released yesterday. The audit also criticized the state Department of Land and Natural Resources' burial sites program, saying it is understaffed and has hundreds of cases that need to be closed.

The burial councils advise DLNR on unmarked burial sites -- including native Hawaiian iwi (bones) and funerary objects -- that are more than 50 years old. Earlier this year, the Legislature requested an audit to determine whether "questionable administrative practices" involving council appointments amount to deviation from the state's historic-preservation law.

The audit found DLNR did submit a timely list of candidates to Gov. Linda Lingle in December 2002. But she returned it in April 2003, asking for more than two candidates for each seat so she could have a choice on each appointment. The department did not provide a revised list of 2003 candidates until Jan. 20, 2004.

The audit also charged DLNR has shirked its responsibility as an "administrator" of the burial councils program. "The department has failed to satisfy its statutory responsibility to maintain a current inventory of native Hawaiian burial sites and fallen behind in its workload supporting the councils," the audit says.

In a statement yesterday, DLNR Chairman Peter Young said the audit's "findings and each recommendation will be given serious consideration." "We were already aware of many of the issues that were raised in the audit, that went beyond burial councils nominations, and the division was already addressing many of these issues prior to the audit," Young said.

The audit criticized the state's historic-preservation law for citing the nonprofit Hui Malama I Na Kupuna O Hawaii Nei as an example of an "appropriate organization" that reburies remains and sacred items. "It infers authority and places an official imprimatur on the organization's behavior and practices," the audit said.

The auditor's office recommended DLNR seek an amendment to remove Hui Malama from the historic-preservation law. Other reburial organizations accuse Hui Malama of "imposing its own burial protocol on others, despite the fact that Hawaiian burial practices vary from island to island, region to region, and even within families," the audit said.

Edward Ayau, spokesman for Hui Malama, said the group is responsible for the reburial of hundreds of iwi, and the audit should focus "on the work itself, not who does it." "I'm not sure these are informed opinions," he said, referring to other organizations that have raised concerns about Hui Malama. "If Hui Malama hadn't done what it did, these iwi would still be there. ... I believe our ancestors are thankful for our work."

The audit recommends DLNR meet with native Hawaiian groups and community members to agree on protocols for "reflecting Hawaiian oral traditions" related to burial practices. The protocols would provide the basis for criteria to qualify candidates for seats on burial councils.

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http://the.honoluluadvertiser.com/article/2005/Jan/01/ln/ln29p.html
Honolulu Advertiser, Saturday, January 1, 2005

Burial site program needs money and staff, audit says

By Vicki Viotti

The state program that deals with Hawaiian burial sites uncovered during construction suffers from inadequate staffing, inadequate funding and a lack of commitment to get the job done in a timely manner or with enough cultural sensitivity, according to a report by state auditor Marion Higa.

The investigation into the problems began in May, in response to a request by lawmakers to investigate the way members are appointed to the island burial councils, the groups that help direct how Native Hawaiian burials are treated. Hearings on that request had aired allegations that the state Department of Land and Natural Resources, the agency that oversees the burials program, had omitted some candidates from the nomination list without consulting with Hawaiian organizations.

While Higa's report called the appointment process "disorderly" and lacking criteria for nominating council members, it cleared DLNR of those allegations. Instead, the 73-page report dug more deeply into the operation of the 14-year-old state law and the burials program it created.

"When we looked at what the process was like and tried to get at the truth of whether names were omitted, there were larger issues," Higa told The Advertiser. "It was like peeling an onion."

In a prepared statement Thursday, DLNR head Peter Young said the department is "pleased" that the audit dismissed the original allegation and vowed to give its findings about its historic preservation division "serious consideration." "We were already aware of many of the issues that were raised in the audit that went beyond burial councils nominations, and the division was already addressing many of these issues prior to the audit," Young said.

Among the findings in the report:

• The state exhibits "a lack of commitment to the burial councils and the burial sites program," a failing that "foreshadows a collapse of Hawaiian iwi (bones) preservation efforts." That lack takes the form of staffing shortages, which led in one instance to a developer, 1250 Oceanside Partners, funding two positions for the department. That company, developer of the troubled Hokuli'a project on the Big Island, paid $71,000 for the positions. "We question whether it is ethical for a private entity to pay for positions in the department related to the entity's project, particularly while the entity was involved in litigation with the department," Higa said in the report. In another written response, Young said this practice has ended.

• The burial sites program has hundreds of unresolved cases involving human remains, according to the report, which includes a photo of a room in which iwi have been stored. Other bones have been stored at developments or elsewhere: As of July, the caseload includes about 350 sets of human remains awaiting reburial.

• The lines of authority over burials are confusing and can lead to excessive delays for developers, the report states. Among its examples, it cites the case of an unnamed North Shore landowner whose discovery of a partial set of remains has generated 19 months of delays, $45,000 in archaeological and other costs and no resolution to date.

• The state historical and cultural branch keeps insufficient records of potential council candidates and has maintained a sluggish pace in submitting names, according to the report. This is one factor leading to the delays in appointing council members in recent years.

• The state relies too heavily on Western archaeological methods for establishing the nature of the burial and not enough on oral tradition — testimony by Hawaiians about where burials are located. The state needs to reconnect with this oral tradition, according to the report, and could start by convening an 'aha (council). This meeting would enlist Hawaiians to develop burial protocols that would embrace a range of family practices, and to forge criteria for the qualification of burial council members. "Despite the respect for native Hawaiian iwi held by Burial Sites Program employees, the program is inadequately staffed, causing lateness in candidate lists, lack of proper notice of council meetings, an eight-month backlog of council minutes and a disarray of human skeletal remains inventories," the report concluded.

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http://starbulletin.com/2005/01/03/editorial/editorials.html
Honolulu Star-Bulletin, Monday, January 3, 2005

Editorials [ OUR OPINION ]

State should regain role in burial issues

THE ISSUE: The state auditor has called for the overhaul of the state's process of naming candidates for island burial councils.

PROTECTION of ancient burial sites is the duty of the state Department of Land and Natural Resources, but a private organization has claimed much of the responsibility. A state audit blames the improper transfer of responsibility on staff shortages and a "disorderly" process of naming candidates to advisory councils. Changes are needed to assure proper care of the burial sites and sacred items found at those sites.

The impetus for burial protection came from the 1988 unearthing of more than 1,100 human skeletal remains during the construction of the Ritz-Carlton Kapalua Hotel on Maui. Hui Malama I Na Kupuna O Hawaii Nei, a private organization, was immediately formed. The 1990 Legislature enacted a law creating island burial councils to advise DLNR's newly created Historic Preservation Program on burials sites that are at least 50 years old.

Meanwhile, Congress enacted the 1990 Native American Graves Protection and Repatriation Act, or NAGPRA, which authorizes native Hawaiians to repatriate bones and sacred items, returning them to burial sites when appropriate. Hui Malama became the main organization authorized by NAGPRA to do so.

State Auditor Marion Higa notes in her report that the state historic preservation law names Hui Malama "as the only example of an appropriate Hawaiian organization" for reburial of remains and sacred items. She says the group has been "imposing its own burial protocol on others, despite the fact that Hawaiian burial practices vary from island to island, even within families." The audit recommends Hui Malama be removed from the law.

The report notes that Hui Malama's "involvement and practices have been controversial." Some historians disagree with the organization's premise that ancient Hawaiians intended that sacred items be buried alongside their remains. "Caves were simply the safest places for storage of precious goods," maintains Hawaiian historian Herb Kawainui Kane.

A NAGPRA review committee is scheduled to conduct hearings on the dispute in March. Meanwhile, the state should increase its historic program and fill vacancies in island burial councils to regain its intended authority.

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(2) Meeting of the national NAGPRA REVIEW COMMITTEE scheduled for Honolulu for March 13-15, 2005. Presentations must be arranged in advance; statements and comments may also be submitted.

http://the.honoluluadvertiser.com/article/2005/Jan/08/ln/ln31p.html
Honolulu Advertiser, Saturday, January 8, 2005

** Note from website editor Ken Conklin: This article was republished, with some additional information, on March 4, 2005, and that version is also copied in chronological order below. **

Graves protection panel to meet

By Vicki Viotti

A federal panel will take up various conflicts over Native Hawaiian burial artifacts — including a hotly contested reburial of objects in a Kawaihae cave — at meetings set for March 13-15 at the East-West Center.

The panel, officially known as the Native American Graves Protection and Repatriation Review Committee, will convene at 1 p.m. March 13 at the Hawai'i Imin International Conference Center, 1777 East-West Road. The meetings will resume at 8:30 a.m. March 14 and 15, with sessions expected to adjourn about 5 p.m. each day.

The Kawaihae case, in which 83 objects formerly in the Bishop Museum collection were reburied nearly five years ago in a sealed cave, probably is the most high-profile case to be discussed. But other conflicts involving the museum, including the proposed "repatriation" of cultural objects to Moloka'i, also will be on the table.

The committee will hear public comments on other issues, including nominees for a seventh committee member.

Anyone wishing to schedule a presentation before the committee must submit a written request with an abstract of the presentation and contact information. Individuals also may submit written statements for consideration by the Review Committee during the meeting.

Requests and statements may be mailed to: Designated Federal Officer, NAGPRA Review Committee, National Park Service, 1849 C St. NW (2253), Washington, DC 20240. Anything sent by commercial delivery service should be addressed to the National Park Service, 1201 Eye St. NW, 8th floor, Washington, DC 20005.

Because increased security in the Washington area may delay mail delivery, copies also should be faxed to (202) 371-5197.

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http://starbulletin.com/2005/01/10/news/story7.html
Honolulu Star-Bulletin, Monday, January 10, 2005

TEN TO WATCH

Abigail Kawananakoa

Kawananakoa a force in the dispute over Hawaiian artifacts

By Sally Apgar

Abigail Kawananakoa, a wealthy heiress and descendent of King Kalakaua, could live in blissful seclusion working her California ranch and raising more champion quarter horses while indulging her taste for pet philanthropic projects. Instead, Kawananakoa, at the age of 78, is stepping into a big fight.

Kawananakoa is throwing her wealth and support behind those who believe that native Hawaiian artifacts should not rot in caves, but should be protected in climate-controlled museums so that future generations can learn about their heritage.

Her opposition believes, just as fiercely, that ancestors meant for these items to be buried with them in caves.

Observers say her entry is significant because she has the wealth and tenacity to finance a fight over the disposition of priceless artifacts that could end up as costly court battles.

For the past 15 years, one native Hawaiian organization, Hui Malama I Na Kupuna O Hawaii Nei, has dominated the repatriations of human remains and artifacts. Hui Malama has had political backing reaching up to U.S. Sen. Daniel Inouye and supporters that include the Native Hawaiian Legal Corp.

To date, claimants who have disagreed with Hui Malama have had few resources. But now, Kawananakoa has stepped in.

To position herself, Kawananakoa formed Na Lei Alii Kawananakoa in November as a native Hawaiian organization defined under the 1990 Native American Graves and Repatriation Act.

Congress passed NAGPRA to create a process for native Americans and native Hawaiians to repatriate human remains and certain treasured artifacts from museums. Kawananakoa recently submitted Senate testimony criticizing aspects of the law she feels need to be retooled.

Kawananakoa's group includes her close advisers Rubellite Johnson and Edith McKinzie. Johnson, a professor emeritus at the University of Hawaii, is a renowned scholar of Hawaiian culture, language and history. McKinzie, a kumu hula, is an expert in Hawaiian genealogy who authored the two-volume "Hawaiian Genealogies," considered among the most authoritative texts on the subject.

Recently, Kawananakoa's group has staked claims with the Bishop Museum for several artifacts found on Molokai. Hui Malama is also competing for the items. Kawananakoa's group is expected to make more similar claims.

Kawananakoa's group is also backing La'akea Suganuma, a practitioner of ancient Hawaiian martial arts, in his fight over 83 artifacts, once part of the Bishop Museum's collection, that Hui Malama reinterred in Kawaihae Cave on the Big Island in 2002. "It's crucial that she has entered this fight," Suganuma said. "She has a strong sense of duty and obligation for the preservation of our culture for future generations."

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050820/NEWS23/508200345/1001
Honolulu Advertiser, Saturday, August 20, 2005

Kawananakoa seeks transfer of artifacts

By Ken Kobayashi
Advertiser Courts Writer

Two groups — including one headed by Abigail Kawananakoa, an heiress of the Campbell Estate who is descended from Hawaiian royalty — are filing a federal lawsuit demanding that a Native Hawaiian organization return 83 lots of priceless Hawaiian artifacts to Bishop Museum so that they can be properly returned to their rightful claimants.

Kawananakoa is president of Na Lei Alii Kawananakoa, which, along with the Royal Hawaiian Academy of Traditional Arts, submitted the suit at the federal courthouse yesterday. The two groups also submitted a request for a court order seeking the return.

The suit is over a long-standing dispute over artifacts recovered at the Kawaihae Caves on the Big Island in 1905. Known as the Forbes Caves collection, the objects include a female figure carved of wood; two stick 'aumakua; and gourds decorated with human teeth.

Bishop Museum lent those items for a year to Hui Malama I Na Kupuna 'O Hawai'i Nei in 2000, according to the suit. But Hui Malama did not return the items, has refused to do so and apparently buried them in the Kawaihae Cave complex, exposing them to environmental harm and thieves, the suit said.

The lawsuit said the items were wrongfully obtained from the museum under a previous administration in violation of the federal Native Hawaiian Graves Protection and Repatriation Act. The law establishes a process for museums to return cultural items to groups that include Native Hawaiian organizations. "Hui Malama hijacked an important part of Hawai'i's cultural past in a manner that should shock the conscience of this court," the two groups said in documents supporting their request that the items be returned to the museum. The groups are represented by Honolulu attorney George Van Buren.

The suit is against the museum and Hui Malama, a nonprofit group formed for the care of burial remains and associated objects.

But the museum's current president, William Y. Brown, issued a statement yesterday indicating that the institution sympathizes with the two groups. "We agree with the plaintiffs that the Kawaihae repatriation has not been completed and is not final," he said. "We strongly believe that these objects should be recovered and made secure from harm. Once that is done, consultation should continue among all recognized claimants in a manner that is respectful to them all. "We appreciate the frustration of the plaintiffs, and hope that this case can be resolved quickly."

Edward Halealoha Ayau, Hui Malama spokesman, would not comment because he had not read the lawsuit. But Guy Kaulukukui, a former museum employee who oversaw the claims to the artifacts under the federal statute, said the institution complied with "the letter and spirit of the law" in releasing the artifacts to Hui Malama. He said if the museum chose to defend its actions, it would prevail. "I don't know that it will attempt to defend itself very well, given that the landscape has changed," he said.

When it received the artifacts, Hui Malama was one of four groups recognized as a claimants under the federal law. Currently, there are 13 others, including the two filing the lawsuit.

The suit said a review committee, an advisory board to the Department of Interior, twice found that the process of identifying the correct claimants had not been completed. "We have tried every way possible to resolve this matter other than going to court," Kawananakoa said in a statement yesterday. "However, the refusal of Hui Malama to comply with the loan agreement, the review committee's two decisions and the law left us with no choice."

La'akea Suganuma, president of the Royal Hawaiian Academy, said in a statement they're not sure the artifacts are in a cave. "Even if they are, we are very concerned about their condition. It is certain that they have been subjected to deterioration and attack by insects for 5 1/2 years," he said.

The lawsuit and the request for an injunction were submitted to a receptacle at the federal courthouse, which was closed yesterday. The papers will be formally filed on Monday.

A hearing date on the request for the court order will be set after the documents are filed.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050831/NEWS20/508310339/1001/NEWS
Honolulu Advertiser, Wednesday, August 31, 2005

Group defends keeping artifacts

By Ken Kobayashi
Advertiser Courts Writer

A Native Hawaiian group formed to care for Hawaiian burials and funerary objects rightfully obtained 83 priceless lots of Hawaiian artifacts from Bishop Museum and has them in a sealed cave safe from harm, the organization said this week in a response to a lawsuit.

Hui Malama I Na Kupuna 'O Hawai'i Nei and the museum were sued last week by two groups, including one headed by Abigail Kawananakoa. The suit asks for an injunction that would order Hui Malama to return the artifacts to the museum so that they can be given to their rightful claimants.

In the response submitted to the court Monday, Hui Malama said the two groups don't have the legal standing to ask for the court order and asked that the injunction be denied.

But the museum responded that it agrees with the suit and supports the request for the injunction.

U.S. District Judge David Ezra will hear the request Friday in what will be the latest development in the continuing dispute over who should get the artifacts known as the Forbes Caves collection. The artifacts include a female figure carved of wood and gourds decorated with human teeth.

Kawananakoa, a Campbell Estate heiress and a descendent of Hawaiian royalty, is the president of Na Lei Alii Kawananakoa, which filed the suit along with the Royal Hawaiian Academy of Traditional Arts. The two groups and Hui Malama are among 13 that have claims to the artifacts.

The suit alleges Hui Malama improperly obtained the artifacts from the museum in 2000 in violation of the federal Native American Graves Protection and Repatriation Act, which establishes a process for museums to return cultural items to groups, including Native Hawaiian organizations.

In its response filed by Native Hawaiian Legal Corp. lawyers, Hui Malama said the museum consulted Hui Malama and three other claimants — the Office of Hawaiian Affairs, the Department of Hawaiian Home Lands and the Hawaii Island Burial Council — before handing over the artifacts. Nine other groups later filed claims.

The claimants could not agree on a final disposition of the artifacts, but they "agreed to disagree" on that point, Hui Malama said.

Hui Malama said it has refused to return the items to the museum because the group has a claim on the objects and does not have a legal duty to return them.

The group said it is not necessary to give the items to the museum for a determination on which claimants should get the artifacts.

The artifacts were unlawfully taken from the Kawaihae caves on the Big Island in 1905 and purchased by the museum, Hui Malama said. The injunction would again "disturb" a Native Hawaiian burial site in violation of state laws, the group said.

"There is no harm with the items in a sealed cave and no threat of damage with the items lying in their natural state in the burial cave," Hui Malama said.

In its response, Bishop Museum said the Native American Graves Protection and Repatriation Act set up procedures for the return of the artifacts, but a review committee in 2003 found that the process was "flawed and incomplete."

The museum said that in 2000 it "unwittingly" lent the items to Hui Malama "without the knowledge or concurrence" of all claimants.

Hui Malama later sealed the items in the cave, again without the knowledge of the other claimants, the museum said.

The museum disagreed that the rightful claimants could be determined without the return of the artifacts. Until they are returned, the museum cannot complete the consultation process required by federal law, the museum said.

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http://the.honoluluadvertiser.com/article/2005/Mar/04/ln/ln40p.html
The Honolulu Advertiser, Friday, March 4, 2005

Panel to hear disputes over artifacts

By Vicki Viotti

A federal panel will take up conflicts over Native Hawaiian artifacts from a burial cave at Kawaihae, as well as other disputes over the handling of cultural objects, in a three-day public hearing set to convene March 13 at the East-West Center.

The Native American Graves Protection and Repatriation Review Committee will meet from 1 to 5 p.m. on March 13 and 8:30 a.m. to 5 p.m. on March 14 and 15 in the center's Keoni Auditorium.

The first day will involve presentations of evidence by the principal parties in each dispute, with public comment on the second day and committee members deciding on their recommendations before adjourning.

The agenda is available at http://www.cr.nps.gov/nagpra/

The March 13 session will involve three newer complaints filed by the nonprofit organization Hui Malama I Na Kupuna O Hawai'i Nei, which seeks the return to Hawaiian ownership of:

* Three funerary objects from Moloka'i now in the Bishop Museum collection - a rock oyster pendant, a wood image and a cowrie shell.
* Sandstone slabs known as the Kalaina Wawae, still owned by the museum but installed for public viewing at a Moloka'i site.
* Five objects - a female ki'i (figure), a cutting tool, a rock oyster pendant, a konane game board and a gourd - originally from Kawaihae Cave but now in the collection of Hawaii Volcanoes National Park.

The larger Kawaihae case, in which the hui reburied in the cave 83 objects formerly in the museum collection, will be discussed March 14. One of the competing claimants, the Royal Hawaiian Academy of Traditional Arts, brought its complaint about the incident before the committee in September.

Requests and statements may be mailed to: Designated Federal Officer, NAGPRA Review Committee, National Park Service, 1849 C St. NW (2253), Washington, DC 20240. Because increased security in the Washington area may delay mail delivery, copies also should be faxed to (202) 371-5197.

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http://starbulletin.com/2005/03/13/news/story4.html
Honolulu Star-Bulletin, Sunday, March 13, 2005

"Most aboriginal culture has been lost, and what remains is in the Bishop Museum. When it comes to artifacts, not human remains (which should be reburied), they should be available for the public to see."
Dr. Charman Akina
Member of Bishop Museum collections committee

Panel to hear artifacts dispute
A national advisory committee is in town to help settle thorny repatriation issues

By Sally Apgar

A national review committee will spend the next three days in Honolulu hearing testimony to help decide several controversial issues involving the repatriation, ownership and disposition of some highly valued native Hawaiian artifacts.

The review committee has only advisory power in such disputes under the federal Native American Graves Protection and Repatriation Act, which was enacted to set up a procedure for artifacts and human remains in museum collections to be returned to Native American and native Hawaiian claimants.

The three-day hearing, which begins this afternoon at the East-West Center on the University of Hawaii-Manoa campus, will bring together representatives of the Bishop Museum, Hawaii Volcanoes National Park and various native Hawaiian groups who have been at odds over the repatriation of items from the Kawaihae, or Forbes, cave on the Big Island and some artifacts originally found on Molokai. Many of the items are highly prized among some native Hawaiians for the mana, or spiritual power, they are believed to possess.

Of the four disputes that will be heard, Kawaihae is perhaps the most long-standing and bitter.

In February 1990, Bishop Museum crated 83 artifacts from its collection that were collected from Kawaihae cave in 1905 and handed them over to Hui Malama I Na Kupuna O Hawaii Nei, a group founded in 1989 to repatriate human remains and artifacts and rebury them to honor ancestors. The inventory list accompanying the crate labeled the transaction "a one-year loan." The items were never returned despite repeated requests from the museum.

Edward Halealoha Ayau, a spokesperson for Hui Malama, has said the items were reburied. Ayau has repeatedly said the organization never meant to return them, the museum staff knew that and the repatriation is final.

La'akea Suganuma, who represents the Royal Hawaiian Academy of Traditional Arts, questions the "loan" of the Kawaihae cave artifacts.

The dispute with Suganuma's group and the Bishop Museum arose because another 12 claimants said they wanted to review the repatriation, and some of those claimants wanted the items returned. Ayau has repeatedly said that if there is any dispute among the 13 "owners," it should be resolved in court, not by NAGPRA.

The NAGPRA review committee heard the dispute at a meeting in May 2003 in St. Paul, Minn. The committee found in a 6-to-1 decision that the repatriation was "flawed" and "incomplete." It said the museum was still responsible for the repatriation and therefore recommended that it renew the consultation with all claimants, recall the loan and have the items made available to all claimants.

Since the May 2003 decision, the review committee's membership has partly changed, and last fall members voted to rehear the case in Honolulu. The lone dissenting vote in St. Paul, Rosita Worl, is now chairwoman of the review committee. Worl, who was traveling, could not be reached for comment.

Suganuma alleges favoritism among some review committee members. "There are political alignments between Hui Malama and some on the board. People have orchestrated and fabricated reasons for rehearing a case that was already decided, with the intent of reversing the decision. It's a total travesty," Suganuma said.

Ayau could not be reached for comment.

Dr. Charman Akina, a member of the museum's collections committee, said, "Most aboriginal culture has been lost, and what remains is in the Bishop Museum. When it comes to artifacts, not human remains (which should be reburied), they should be available for the public to see." Akina added, "Some of the organizations that have gotten involved with these issues have become more emotional than realistic. And they are not looking at the needs of the general native Hawaiian population." Akina also voiced the opinion that NAGPRA's definitions for different classifications of artifacts that determine repatriation and ownership are useful to Native Americans, who have tribes and tribal governments, but do not fit with native Hawaiian culture.

The review committee will also hear disputes involving:

» Hui Malama and Hawaii Volcanoes National Park over five items from Kawaihae cave that reside in the park's collection. Ayau has said he has written three claims for the items since November 1999 and that they have been ignored. The five items are: a 27-inch-high carved wooden statue of a woman, a konane game board with legs made of carved wooden figures; a cutting tool that incorporates a human collar bone and a shark's tooth; a gourd with a shell stopper and a button. At least one other claimant, Suganuma, has filed a claim for the same items.

» Hui Malama and the Bishop Museum over artifacts found in burial sands of Moomomi Beach on Molokai and later donated to the museum. The items include: a hook-shaped pendant about 5 inches long; a cowrie shell and a kii, an 8-inch stick figure with human face carved in a dark wood. The kii and pendant in particular are considered by some to be imbued with strong spiritual powers. Hui Malama contends that the museum got the items from "grave robbers" and therefore has no legal "right of possession." The museum disagrees.

» Hui Malama and Bishop Museum over footprints in three sandstone blocks that were found on Molokai, put into the museum's collection and then recently restored to the beach and placed in a structure so that they can be viewed. The story of the footprints stems from a prophecy made by a young woman, Kuuna, several hundred years ago. She drew footprints in the sand of square-toed boots and said that foreigners would arrive who make such footprints rather than the barefoot prints of her people. She said the foreigners would hurt Hawaiians. Afraid of her prophecy, people stoned her to death. The museum has retained legal ownership to the footprints, arguing that they are items of "cultural patrimony" under NAGPRA, meaning they belong to all native Hawaiians and not a particular group. The museum argues the items should be on display for the education of current and future generations. Hui Malama claims that current museum director William Brown struck a private agreement with another native Hawaiian group that nullified an earlier NAGPRA finding under the museum's previous administration. Hui Malama claims it has legal ownership.

Hui Malama I Na Kupuna O Hawaii Nei
huimalama.tripod.com

Bishop Museum
www.bishopmuseum.org

U.S. Interior Dept. -NAGPRA
www.cr.nps.gov/nagpra

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http://starbulletin.com/2005/05/18/news/story5.html
Honolulu Star-Bulletin, Wednesday, May 18, 2005

Wal-Mart absolved in bones lawsuit

By Sally Apgar

A circuit judge this week dismissed claims against Wal-Mart for allegedly desecrating human remains during the recent construction of its complex on Keeaumoku Street.

Judge Victoria Marks ruled Monday that Paulette Kaleikini, who claims a cultural tie with ancestors buried at the site, and Hui Malama I Na Kupuna O Hawaii Nei, an organization that cares for the reburial of native Hawaiian remains, have no right to pursue their monetary claims against the retail giant.

Marks ruled that under state law, the two cannot pursue desecration claims because they have no property interest in the land on which the ancestral bones were found. She said the two cannot seek other claims because the state, rather than Wal-Mart, has custody of the bones.

Marks also ruled the two could not pursue claims alleging infliction of emotional distress for negligently handling of the remains because they could not prove a direct blood tie.

Wal-Mart spokeswoman Cynthia Lin was pleased with the decision. She said, "Wal-Mart has made every effort to follow the state's direction, and we remain committed to doing so." Lin said, "We all recognize that this has been a difficult process for all parties involved, but we do hope that the iwi (bones) will have a final place of rest."

Moses Haia, one of the attorneys representing Kaleikini, was disappointed with the ruling. Haia said that they will seek existing claims against the state and city governments. Trial is scheduled for July 18.

Haia said, "Ultimately, we want to make sure a Wal-Mart never happens again," in which bones are desecrated and the city and state do nothing. Haia said Kaleikini may appeal Marks' ruling on the emotional distress claim.

About 44 sets of bones were found on the Wal-Mart site after construction began in December 2002.

There are lingering questions about the ancestry of the bones. While some groups claim they are the bones of native Hawaiians, there is historic evidence that suggests they were multi-ethnic victims of a smallpox epidemic in 1853. Historic records indicate a hospital operated on the site, and the practice at the time was to quickly bury smallpox victims to contain the disease.

In May 2003, Kaleikini and others visited the construction site and claim they saw the bones exposed to the sun in a trench littered with garbage that lay near portable toilets. Kaleikini claims to have seen a stray cat grab a bone.

The suit alleges that officials with Wal-Mart, the state's Historic Preservation Division and the city violated state laws that protect human remains and grave sites.

In a separate action, the attorney general is investigating claims the remains were desecrated when archaeologists glued remains and marked them with permanent markers.

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http://the.honoluluadvertiser.com/article/2005/Jul/19/ln/507190352.html
Honolulu Advertiser, Tuesday, July 19, 2005

State, hui settle suit on Ke'eaumoku remains

By Ken Kobayashi

A tentative settlement has been reached over a lawsuit against the state by a Native Hawaiian group challenging the handling of human remains found at the site of the Ke'eaumoku Street Wal-Mart complex.

Under the agreement, the state's historic preservation division will not say remains aren't affected by new developments, such as Wal-Mart, just because the property was previously developed.

The agreement covers Ho-nolulu's urban corridor from River Street to Kapahulu Avenue and from the ocean to the H-1 Freeway. It also cancels a trial set for this week on the lawsuit by Hui Malama I Na Kupuna O Hawai'i Nei, a nonprofit group that oversees the care of Native Hawaiian remains.

"It's a good start toward trying to ensure that instances like Wal-Mart don't ever occur again," said Moses Haia III, Native Hawaiian Legal Corp. lawyer representing Hui Malama and Paulette Kaleikini.

Deputy Attorney General James Paige said the state is agreeing to the settlement because that's what state officials believe is the right thing to do, although the state isn't conceding that it found no impact on remains in other cases solely because the land was previously developed.

In addition, the state does not have to pay any attorney fees or money damages, Paige said.

The settlement still must be approved in writing by all parties.

Hui Malama filed the lawsuit in 2003 against Wal-Mart, the state and the city. It alleged that they violated the public trust and violated state laws dealing with the protection and preservation of human remains and the desecration of graves.

An archaeologist has determined that remains found at the site may be of people who died in an 1853 smallpox epidemic. More than 60 sets of human remains were found.

Lawyers for Wal-Mart, the city and the state had denied allegations of wrongdoing.

Circuit Judge Victoria Marks earlier threw out the claims against Wal-Mart and the city.

In addition to its store, Wal-Mart also built a Sam's Club on the 10.5 acre property. The stores opened last year.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050722/OPINION01/507220329/1105/OPINION
Honolulu Advertiser, Friday, July 22, 2005, EDITORIAL

Burials accord should affirm wisdom of law

The settlement of a lawsuit over the state's Hawaiian burials law, stemming from the Wal-Mart development controversy, is a welcome easing of tensions that may allow the law to be carried out in the way it was intended.

The law was not passed to erect a wall between developers and Hawaiian families that want to see ancestral burials are treated as respectfully as possible. Rather, it was meant as a blueprint to guide government and builders so that development and Native Hawaiian burials can peacefully coexist.

Unfortunately, that wall went up and now must be dismantled, brick by brick. Very little has been peaceful about the Wal-Mart development, in which dozens of burials have been unearthed and still lay in boxes stored in a trailer off Sheridan Street.

These bones must be reburied as soon as possible. The state should expedite its investigation of alleged desecration by the archaeologists who were working to inventory the remains. Further delay would itself constitute a disrespect to the families that's both needless and counterproductive.

State historic preservation officials have agreed under the court settlement to consider how construction affects burials in urban Honolulu, regardless of whether the parcel in question has been developed before. Clearly, many Native Hawaiians were buried in unmarked graves throughout the area now pegged for major redevelopment projects, and these remains should be given their due.

The preservation office also needs a critical infusion of staff support to handle all the cases that are certain to come to light in Kaka'ako and other areas. And then they should work with developers to bring them through the burials review, which rightly gives a voice to families affected when the earth is turned.

The Wal-Mart case demonstrates how the best and most efficient course is to deal with the burials issue head-on. Trying to avert a clash seems to generate more conflict that, in the end, serves no one's interest.

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http://the.honoluluadvertiser.com/article/2005/Nov/11/ln/FP511110352.html
Honolulu Advertiser, Friday, November 11, 2005

$210,000 penalty sought in iwi case

By Gordon Y.K. Pang

A state historic preservation agency recommends that $210,000 in fines be levied against an archaeological firm and others for tampering with human remains at the construction site of the Ke'eaumoku Street Wal-Mart complex.

Among the infractions cited in an agency report were "writing on a child's skull with indelible red ink, taping a child's teeth to an index card, using duct tape and modeling clay to hold remains together, and writing the words 'Handbag Louis Vuitton' on a paper sack that contained a human hand."

The recommendation is part of a report filed by the State Historic Preservation Division to the Board of Land and Natural Resources, and comes on the heels of an investigation by state attorneys. The board will consider the recommendation at its Nov. 18 meeting.

Besides unauthorized examination and tampering of the iwi, or bones, the report also accuses Aki Sinoto Consulting, the archaeological firm, and others of failing to notify the proper authorities about the inadvertent find of human remains in a timely fashion, moving human remains without permission and failing to examine human skeletal remains in a respectful manner.

Messages left at Sinoto's home and cell phones were not returned.

According to the report, the remains examined in 2003 and 2004 were presumed to be "Native Hawaiians, juvenile remains, including the remains of infants, and remains for which requests for examination had been specifically denied by the state."

Besides the Sinoto firm and principal archaeologist Aki Sinoto, others cited within the 21 counts were Sinoto employees L.J. Moana Lee and Paul Titchenal, the firm of International Archaeological Research Institute Inc., and two of its employees, J. Stephen Athens and Rona Ikehara-Quebral.

Besides the fines, the report recommends that the Sinoto firm's permit to conduct archaeological activities in the state be revoked for the remainder of the year.

Ikehara-Quebral, lead osteologist for the International Archaeological Research Institute, which had been hired as a subcontractor by Sinoto, said she would reserve comment on the specifics of the allegations until she could thoroughly review Historic Preservation's report.

"A quick review reveals it's full of inaccuracies," Ikehara-Quebral said. "And the State Historic Preservation Division, DLNR, continues to misrepresent our work to the public."

She added: "We were instructed by SHPD to inventory every set of human remains from the Wal-Mart site, separate commingled burial remains into individuals and to determine their ethnicity, as required by law, which we did using standards of the profession. We always handled the remains in a respectful manner."

Melanie Chinen, SHPD administrator, said the recommendation was based in large part on a report given to her by the state attorney general's office.

Chinen said the $210,000 in fines recommended by her office is the maximum amount allowed under the law. "There was total disregard for the laws, for the rules, for our warnings that unnecessary handling and examination is considered desecration by many Native Hawaiians," Chinen said. "We're talking about human beings."

Partly in reaction to the Wal-Mart case, Chinen said, state lawmakers last session passed legislation increasing the maximum fine for violating burial laws and rules from $10,000 a day to $25,000 daily.

Regina Keana'aina, whose family was recognized by the O'ahu Island Burial Council as a lineal descendant to iwi in the area, opposes the fines.

"The archaeologists were doing the right thing," she said. "They did not desecrate any of our iwi kupuna at the Wal-Mart site."

Keana'aina, who helped Sinoto and the other archaeologists on a voluntary basis, said some of the personnel at Historic Preservation are unqualified to deal with finds. "I think the state needs to be hiring more qualified people to be running Historic Preservation."

But Paulette Kaleikini, whose family was one of several designated cultural descendants to bones on the site, said she was pleased with Historic Preservation's recommendation. "It's very disturbing what they did, how they desecrated the iwi," Kaleikini said. "They shouldn't be let off the hook so easily." Kaleikini said both Wal-Mart and contractor Dick Pacific Construction, which hired Sinoto, also should bear some responsibility for what happened to the bones.

A lawsuit filed by the Native Hawaiian Legal Corp. on behalf of Kaleikini's family and the nonprofit Hui Malama I Na Kupuna 'O Hawai'i Nei named Wal-Mart, the city and the state as responsible for the mishandling of the iwi. Wal-Mart, however, was dismissed by a Circuit Court judge from that suit. The claim against the state was settled while a judgment in favor of the city is expected to be appealed.

Moses Haia, an attorney with the Native Hawaiian Legal Corp., said proper action by the city planning officials and Historic Preservation also could have prevented the desecration. "This could have been avoided," Haia said.

At least 61 sets of remains have been found on the site. After taking possession of the remains, state officials initially were prepared to rebury them on the site in February. That date was postponed indefinitely after state attorneys began their investigation.

The remains continue to be housed in a trailer on the Wal-Mart site that is secured 24 hours a day. Chinen said when they are reburied could depend on what the Land Board chooses to do with her division's report, and whether one of the sides will appeal that decision.

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http://the.honoluluadvertiser.com/article/2005/Nov/18/br/br04p.html
Honolulu Advertiser, Friday, November 18, 2005

Decision delayed in iwi case

By Gordon Y.K. Pang

A decision on whether an archaeologist and his partners should be fined $210,000 in connection with the alleged tampering of burial remains at the construction site of the Wal-Mart/Sam's Club complex on Ke'eaumoku Street has been postponed, likely until next year.

The Board of Land and Natural Resources today deferred a decision after an attorney for Aki Sinoto Consulting, the International Archaeological Research Institute and individuals involved with the two companies requested a contested case hearing.

Such a hearing allows the different sides in an issue to present more facts and arguments than they would otherwise. A hearing officer will preside over the hearing and will make a recommendation to the Land Board, which will make the final decision.

The state Historic Preservation Division is recommending that the archaeologists be fined $210,000 for tampering with the remains, or iwi, on the site. Among the infractions cited by the agency were "writing on a child's skull with indelible red ink, taping a child's teeth to an index card, using duct tape and modeling clay to hold remains together and writing the words 'Handbag Louis Vuitton' on a paper sack that contained a human hand."

A joint statement issued by the archaeologists yesterday denied the allegations made by the Historic Preservation Division. "We are shocked and dismayed that (the Historic Preservation Division) would make such irresponsible allegations and take an extremely adversarial position against us," the statement said. "We are professionals and carried out our work in the most professional manner possible to insure full compliance with applicable statutes and regulations."

Moses Haia, an attorney for the Native Hawaiian Legal Corp., which represents clients critical of the handling of the remains and had filed a lawsuit as a result, said he was disappointed that people who had shown up this morning to testify on the proposed fines were not allowed to give their statements.

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http://starbulletin.com/2005/11/19/news/story06.html
Honolulu Star-Bulletin, November 19, 2005

Wal-Mart archaeologist to fight claim he desecrated remains

By Sally Apgar

A Honolulu archaeologist who oversaw the construction site of the Keeaumoku Street Wal-Mart complex vowed to fight allegations that he violated state laws regarding burials and desecrated human remains.

The state Historic Preservation Commission has recommended $210,000 in fines, the highest possible under law, against Akihiko Sinoto, of Aki Sinoto Consulting, and other archaeologists involved in the Wal-Mart site for allegedly failing to notify "proper authorities" in a timely fashion when a burial site was inadvertently found during construction that began in 2003.

Sinoto said yesterday that he and the other archaeologists "intend to vigorously defend ourselves" in a state administrative process that could begin next month. The other archaeologists, who worked with him or were subcontracted by him, are Paul Tichenal and L.J. Moana Lee of Honolulu-based International Archaeological Research Institute Inc., and J. Stephen Athens and Rona Ikehara-Quebral of Honolulu.

The commission, which oversees inadvertent discoveries of remains older than 50 years, also alleges that the archaeologists conducted unauthorized physical examination of the remains of children, excessive gluing of skeletal remains and failed to examine human remains "in a respectful manner."

Specifically, the commission report said conduct included "writing on a child's skull with indelible red ink, taping a child's (an infant's) teeth to an index card, using duct tape and modeling clay to hold remains together and writing the words 'Handbag Louis Vuitton' on a paper sack that contained a human hand."

The state noted 21 violations consisting of 17 instances of "unauthorized physical examination of the remains of children and probable native Hawaiians."

Yesterday, the board representing the Department of Land and Natural Resources was scheduled to hear testimony on the case in an administrative proceeding brought by the Historic Preservation Division.

But testimony was deferred after Board of Land and Natural Resources Chairman Peter Young said Sinoto had filed a written request for a contested hearing, a quasi-judicial process to be run by the DLNR. After a closed-door session, Young announced that a hearing officer would be appointed and the matter would be deferred, probably until next month.

"We unequivocally deny allegations made by the state Historic Preservation Division," said Sinoto in a statement, adding that the archaeologists "stand by the professionalism and integrity of our work at the Keeaumoku Wal-Mart site."

Sinoto said that the preservation division "has grossly distorted the facts of the case. Every single charge is without foundation."

Sinoto was hired by the project's general contractor, Dick Pacific Construction.

Paulette Kaleikini, a recognized cultural descendant of the remains at the site, was disappointed that a hearing was not held. "We should have been allowed to give oral testimony today. We took time off from our jobs," she said outside the hearing room yesterday, adding, "The board should have heard what we have to say instead of shutting us down. At this point there is nothing for them to contest."

Moses Haia, an attorney with Native Hawaiian Legal Corp. who represents Kaleikini and Hui Malama I Na Kupuna O Hawaii Nei, an organization that conducts reburials of native Hawaiian remains, said that while he applauds the Historic Preservation Commission "for taking the position it does in the submittal, I am saddened that these remains are now held hostage by the very process that is meant to prevent their disturbance."

The bones are being held at the site, pending reburial.

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(6) Guy Kaulukukui, former head of the Cultural Studies department of Bishop Museum, has filed a lawsuit against the museum, claiming that the museum fired him improperly. Kaulukukui claims the reason he was fires is because he refused to carry out an order that would be illegal under NAGPRA.

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050713/NEWS23/507130344/1173/NEWS
Honolulu Advertiser, Wednesday, July 13, 2005

Museum's former cultural chief files suit, cites remains dispute

By Gordon Y.K. Pang

The former chief of cultural studies at the Bishop Museum has filed suit against the institution, claiming he was fired when he refused to violate federal laws that require the return or "repatriation" of significant burial artifacts.

The suit, filed yesterday in state Circuit Court, raises the question of whether the museum is properly following the Native American Graves Protection and Repatriation Act of 1990.

The purpose of the act, according to its Web site, is to provide "a process for museums and Federal agencies to return certain Native American cultural items — human remains, funerary objects, sacred objects, and objects of cultural patrimony — to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations."

A spokeswoman for the museum said officials had not seen the lawsuit "and can't comment on what it may allege."

Guy Kaulukukui states he was fired from his job as vice president of cultural studies for the museum in January 2004 for refusing to sign off on two letters that would have halted a repatriation that would have given Hui Malama i Na Kupuna o Hawai'i Nei possession of funerary objects from Moloka'i.

According to the lawsuit, the letters were drawn up at the request of museum President Bill Brown and would have reversed the findings of a museum committee — headed by Kaulukukui — that reviewed NAGPRA claims and recommended acceptance of the claim to the Moloka'i objects by Hui Malama.

Brown wanted the process delayed until the museum's NAGPRA process could be reviewed, noting that there was a competing claim to the same objects.

The actions by Brown and the museum in the Moloka'i case are symptomatic of a bigger problem, Kaulukukui said. "I think this is part of a pattern, and it's a pattern of repatriating as little as possible," Kaulukukui told The Advertiser.

The issue has been a subject of debate in recent years. Some believe that while Kaulukukui was in charge of the museum's NAGPRA committee, it released items without adequate review. For example, controversy erupted among Native Hawaiian groups in 2000 when Hui Malama took 83 rare artifacts on loan from the museum and buried them in the Kawaihae Caves on the Big Island.

At the time of Kaulukukui's departure from the museum, Brown said in a statement: "The issues related to repatriation of cultural artifacts and funerary objects are very sensitive, and we take our stewardship role very seriously. At my direction, a very cautious approach to each claim is taken in order to make sure that a Kawaihae Caves situation never again occurs."

Kaulukukui's lawsuit states that in the Moloka'i case Brown "violated the letter and intent" of the federal repatriation act by seeking to delay the repatriation process. Kaulukukui refused to sign the letters "knowing that he was being asked to do an illegal act," the lawsuit states.

The dismissal, the lawsuit states, was "wrongful, done in bad faith, retaliatory in nature and punitive in intent."

Kaulukukui, who was hired by former museum President Donald Duckworth in 1997, seeks reinstatement to his $76,000-a-year post and retroactive pay with interest.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050729/NEWS01/507290378/1001/NEWS
Honolulu Advertiser, Friday, July 29, 2005

Museum keeping artifact in interim

The Bishop Museum has decided to keep a funerary object sought by three competing Hawaiian organizations until the groups settle on the disposition of the artifact, a cowrie shell that the museum acquired after it was unearthed near Mo'omomi, Moloka'i.

Also yesterday, the museum's directors decided to recognize another group as a claimant on the objects that were reburied at Forbes Cave in a controversial Big Island case.

In each case, the board followed the recommendations of a nine-member museum board collections committee.

The claims in both cases fall under the Native American Graves Protection and Repatriation Act of 1990, widely known as NAGPRA, which established a process for museums and federal agencies to return certain cultural items to lineal descendants, culturally affiliated Indian tribes and Native Hawaiian organizations.

"I think it's a fair treatment of the whole business, the back and forth of the arguments of the NAGPRA issues," said Isabella Abbot, co-chairwoman of the collections committee.

In deciding to retain the Moloka'i cowrie shell, the museum board said it could not be determined which of the claims of Hui Malama I Na Kupuna O Hawai'i Nei, Na Lei Alii Kawananakoa or the Royal Hawaiian Academy of Traditional Arts were most appropriate. In a press release, the board said none of the claimants presented evidence showing any of its members are descendants of the person whose remains are thought to have been associated with the cowrie shell.

The Big Island case involves 83 sets of objects from the Kawaihae caves complex, also known as Forbes Cave. Controversy erupted among Native Hawaiian groups in 2000 when Hui Malama took the artifacts on loan from the museum and buried them in the caves.

The recognition of Na Lei Alii Kawananakoa — a group incorporated last year by Campbell Estate heiress Abigail Kawananakoa — gives the organization standing in the ongoing dispute over the objects, including the right to take the matter to court.

Thirteen other groups, including Hui Malama, also have been recognized as culturally affiliated claimants to the objects.

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http://starbulletin.com/2005/07/30/news/story13.html
Honolulu Star-Bulletin, Saturday, July 30, 2005

Museum qualifies group to receive artifacts
There are now 14 groups recognized as claimants

Associated Press

The Bishop Museum's board of directors has recognized Na Lei Alii Kawananakoa as a native Hawaiian organization with rights to claim ancient Hawaiian artifacts known as the Forbes Collection.

The action, announced Thursday, brings to 14 the number of native Hawaiian organizations recognized as culturally affiliated claimants of the objects, the museum said.

Na Lei Alii Kawananakoa's application for recognition was based on cultural affiliation and provided supporting information on kinship and geographic association with the objects, the museum said.

The organization was founded by Abigail Kawananakoa, a wealthy heiress and descendent of King Kalakaua.

The 83 artifacts were first collected in 1905 from Kawaihae Cave on the Big Island.

The items were labeled as being on loan when the museum handed them over to Hui Malama I Na Kupuna O Hawaii Nei in 2000. They were never returned, and Hui Malama has said they have been reburied in the cave.

In other action, the museum said the board was unable to determine which of three competing claims for a cowrie shell found on Molokai was the most appropriate.

The museum acknowledged in December that it was not the rightful owner of the cowrie under the terms of the federal Native American Graves Protection and Repatriation Act.

Hui Malama, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts each based its claim on the assertion of kinship or geographic association with Molokai, the museum said.

None of the three demonstrated that any of its members are descendants of the person whose remains are thought to have been associated with the cowrie, it said.

Under the terms of the Native American Graves Protection and Repatriation Act, the museum said it will retain the cowrie until the three agree upon its disposition or the dispute is otherwise resolved.

=================

** Section 8 is by far the longest section on this webpage, running approximately page 50 to 205 on a wordprocessor. **

http://the.honoluluadvertiser.com/article/2005/Sep/02/br/br03p.html
Honolulu Advertiser, BREAKING NEWS, Posted at 11:53 a.m., Friday, September 2, 2005 [more detailed report the next day]

Judge orders Hui Malama to return burial artifacts

BY KEN KOBAYASHI
Advertiser Courts Writer

Chief U.S. District Judge David Ezra this morning ordered a Native Hawaiian group to return to Bishop Museum 83 priceless lots of Hawaiian artifacts that were buried in a cave on the Big Island.

The return is pending a process to resolve competing claims on the artifacts from Native Hawaiian groups and to determine what should be done with the objects.

Hui Malama I Na Kupuna 'O Hawai'i Nei opposed the order, arguing that the return would once against disturb the sanctity of the artifacts and that they remain safe and secure in a sealed cave.

Ezra said he has no evidence on the condition of the objects and ordered the return to the museum, which would secure the items.

But he made clear the museum cannot not put them on public display while 13 Native Hawaiian organizations sort out what should happen to the artifacts under the federal Native American Graves Protection and Repatriation Act.

Hui Malama lawyers said they will immediately ask the 9th U.S.Circuit Court of Appeals to postpone the enforcement of the judge's ruling.

But it was not clear whether they could file and receive a response from the appeals by this afternoon, when Ezra is scheduled to formally file his decision.

The artifacts, known as the Forbes Caves Collection, include a female figure carved of wood and gourds decorated with human teeth. They were taken from the Big Island burial caves in 1905 and given to the museum. In 2000, the museum said it lent them to Hui Malama, but the group has resisted returning them, saying any transfer would further desecrate the burial site.

The disposition of the items has been a highly controversial issue among Native Hawaiians and others.

Ezra recognized that point.

"There is no way for me to decide this case to make everyone happy," he said. "There is simply no way to do that."

The order was requested by Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, two of the 13 claimants.

Bishop Museum supported the request. LindaLee Farmer, the museum attorney, argued that the items should be returned to ensure that they are safe and secure and available to all claimants pending the outcome of the process.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050903/NEWS23/509030317
Honolulu Advertiser, Saturday, September 3, 2005

Artifacts must be returned, judge decides

By Ken Kobayashi and GORDON Y. K. PANG

A group dedicated to protecting and preserving Native Hawaiian burial sites was ordered by a federal judge yesterday to return to Bishop Museum 83 lots of sacred burial objects that the group said it had placed in a sealed Big Island cave.

But a leader of Hui Malama I Na Kupuna 'O Hawai'i Nei, which has resisted efforts to return the items, said the group planned to appeal the decision by Chief U.S. District Judge David Ezra. The Hui Malama official also said he wasn't sure what the group would do if the appeal fails. "I would hope that a federal court doesn't put Hawaiians in a position of having to violate their own spiritual beliefs and the practices of their kupuna (ancestors)," Hui Malama spokesman Edward Halealoha Ayau said after the court hearing.

He indicated that the group might not be able to return the sacred items. "We do not have the stomach to do something like that, to take from kupuna," he said. "Others may. We don't."

No fewer than 13 separate groups have claims on the priceless artifacts, which include carved-wood statuettes of family gods, or 'aumakua; carved bowls; a human-hair wig; ipu, or gourd objects such as drums and water bottles; tools; and pieces of feather capes.

Their removal from a burial cave on the Big Island in 1905 led to their placement with Bishop Museum, their reburial by Hui Malama and now the court fight among three competing claimants.

Reaction to the latest action, a federal court ruling 100 years after the artifacts were first removed, shows the raw emotions simmering for years surrounding the artifacts.

Even as Hui Malama decried the ruling, other Native Hawaiian groups that made claims to the items applauded Ezra's decision.

"It gives us faith that all claimants will have a say in the repatriation (of the items)," Van Horn Diamond of the Van Horn Diamond 'Ohana said.

In his ruling, Ezra said he recognized he was dealing with a highly emotional issue and indicated he might not issue the order if he could be assured the objects are kept in a safe place. "But I have nothing in front of me that indicates that is the case," the judge said.

He said he wanted to ensure that the objects will be safely stored at the museum pending the outcome of the repatriation process under federal law that would determine the rightfulness of claims by Hui Malama and 12 other Native Hawaiian organizations and what would be done with the items.

The judge pushed back the issuance of his formal written court order until Tuesday to give the parties an opportunity to work out the specific language.

The burial objects are known as the Forbes Collection and were taken from the Kawaihae Caves on the Big Island in 1905.

Hui Malama contends that the items were looted from the cave, then given to the Bishop Museum.

In 2000, the museum lent objects to Hui Malama, which said it returned the items to a Kawaihae cave and sealed the entrance. The group refused to return them, contending that to return them to a museum that accepted stolen items, as Hui Malama sees it, would again desecrate the sanctity of the objects and their ancestors' wishes.

The transfer raised concerns from other Native Hawaiian groups and the refusal to return them led two groups filing a lawsuit seeking the court order.

"This relief (return of the items) is repugnant," Native Hawaiian Legal Corp. lawyer M. Uilani Pau'ole told Ezra at the hearing. Pau'ole, who represents Hui Malama, argued that the items should remain at the sealed cave while the Native Hawaiian groups resolve their claims under the federal Native American Graves Protection and Repatriation Act.

But attorney LindaLee Farmer, who represents the museum, supported the court order. She said the museum's concern is that the items be kept in a secure place and be available to all claimants. "It has been a long and frustrating process, and the museum, too, seeks finality," she told the judge.

Attorney George Van Buren, who represents Na Lei Alii Kawananakoa, one of the two Native Hawaiian groups that sought the court order, said no one claimant should override the process of sorting out the claims. He asked the judge to issue the order to ensure that the process can continue with "dignity, honor, respect and aloha."

Ezra said he recognizes that he can't please everyone. "I have to say this is one of those cases that regardless of how I decide it, there will be significant number of people who are upset and who believe the court has made the wrong decision," he said.

He said he does not agree with Hui Malama that the return would be disturbing an ancient grave site. "This is a reburial, not a burial, and we don't know under what conditions," he said.

The judge said he understands Hui Malama's concerns about the museum, but he said he will not permit the objects to be placed on public display. Ezra said he realizes some are concerned about whether the artifacts are at a particular location, but he said he isn't concerned about locating the site because under his order, the individuals responsible for burying the artifacts must find them. The judge said the case involves "Hawaiians versus Hawaiians" with Hawaiian groups claiming the items. "That's the sad part of this matter," he said.

Ezra's decision was praised by Mel Kalahiki, a representative for Papa Kanaka o Pu'ukohola, one of the claimant organizations. "The artifacts went out the backdoor on a loan while all the organizations were waiting to make a decision on them," Kalahiki said.

As for what should happen now, he said: "I think they should have a group made up of individuals from the organizations go up to the valley and open up the cave and watch the artifacts come out and do the inventory right there." Kalahiki said he did not believe there would be any lingering animosity. "I think everything is going to come out all right" he said. "We're not fighting each other, we're just disagreeing. Everybody has their own idea of what's the right thing to do."

Isabella Abbott, a University of Hawai'i botanist and chairwoman of the museum's collections committee, said the court's decision was only the first step. "We'll put them in a very secure room, and the claimants ... will come look at them, examine them, and decide what they want to do."

La'akea Suganuma, president of Royal Hawaiian Academy of Traditional Arts, the other Native Hawaiian group that asked for the court order, said it was unfortunate the matter had to be turned over the courts. Asked how long the repatriation process will take, he said it's already taken a while to get to this point. "I think we're 5 1/2 years behind time," he said.

Ayau, who sat through the court proceedings, was somber when he emerged from the courthouse. Asked if he might disobey the judge's order and be willing to go to jail for that, he said: "I guess we'll see." He said the case isn't about the group excluding other claimants. "This is about respecting the decisions of our kupuna," he said. He said Ezra was correct when he talked about Native Hawaiian groups fighting each other. "I think he's right," Ayau said. "I think it's sad."

------

PRICELESS OBJECTS AND CONTROVERSY

1905: The David Forbes expedition takes artifacts and human remains from a Big Island burial cave and eventually conveys them to the Bishop Museum.

1990: The Native American Graves Protection and Repatriation Act, the federal law commonly known as NAGPRA, is passed, setting up a process for returning remains, burial objects and other cultural treasures to indigenous groups.

February 2000: The Bishop Museum, while reviewing a NAGPRA claim of the Forbes collection by several groups, lends 83 artifacts to Hui Malama I Na Kupuna 'O Hawai'i Nei. When the museum later asks for the items back, Hui Malama officials refuse and say repatriation had been completed.

May 2003: A NAGPRA review committee finds that the repatriation was "flawed" and that the items need to be returned.

March 2005: The review committee reaffirms its earlier decision, over the objections of Hui Malama.

August 2005: Two groups, including one headed by Abigail Kawananakoa, sue the museum and Hui Malama, seeking the return of the artifacts to the museum so they can be given to their rightful claimants.

September 2005: Federal Judge David Ezra orders the return of the artifacts to the museum so discussions among the claimants can continue.

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http://starbulletin.com/2005/09/03/news/story2.html
Honolulu Star-Bulletin, Saturday, September 3, 2005

Disputed artifacts ordered returned All 14 claimants are to resolve the fate of the reburied items

By Sally Apgar

A federal judge ordered the return yesterday of 83 treasured native Hawaiian artifacts believed to have been secretly reburied in a Big Island cave five years ago.

Chief U.S. District Judge David Ezra ordered Hui Malama I Na Kupuna 'O Hawai'i Nei, a native Hawaiian group, to retrieve the funerary items and bring them "back to a secure location at the Bishop Museum where they will be held in an undisturbed condition until this matter is resolved" among 14 competing native Hawaiian claimants. His order is expected to take effect Tuesday.

Ezra told the court, "The sad thing here is that we have Hawaiians vs. Hawaiians."

Earlier this month, two native Hawaiian claimants filed a lawsuit against Hui Malama and the Bishop Museum demanding return of the items so that the whole group of claimants could have a say in their fate under the Native American Graves and Repatriation Act.

NAGPRA is a federal law that governs repatriation of native Hawaiian and American Indian remains and artifacts. Disputes under NAGPRA are handled by the federal court. The arguments in the lawsuit are based on violations of NAGPRA and the Fifth Amendment property law.

The two claimants are La'akea Suganuma, a practitioner of native Hawaiian martial arts and the president of the Royal Hawaiian Academy of Traditional Arts, and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell estate heiress and descendant of royal Hawaiian blood. The 14 claimants have all been recognized under NAGPRA.

When they filed the lawsuit, Suganuma and Kawananakoa asked for the preliminary injunction demanding the return of the items, which Ezra granted yesterday. They argued that the items had been "improperly loaned" to Hui Malama from the Bishop Museum in February 2000 and that they faced "imminent harm" in Kawaihae Cave (also known as Forbes Cave) due to environmental conditions, insect attack and possible theft.

Suganuma, who has been fighting for the return of the items since 2000, said he was pleased with Ezra's ruling. "We had to go through this step in federal court because of the arrogance and complete disregard for the rest of the claimants," he said.

Edward Halealoha Ayau, a founding member of Hui Malama, said that exhuming the items is desecrating an ancestral burial ground.

Standing outside the court, Ayau said, "I would hope that a federal court would not order someone to violate their spiritual beliefs or violate their kupunas' (ancestors') wishes."

Asked if he would comply with the federal order, Ayau said, "We do not have the stomach to take from our kupuna."

Hui Malama is expected to file an emergency appeal to the 9th U.S. Circuit Court of Appeals to overturn Ezra's order.

LindaLee Farm, an attorney representing Bishop Museum, said, "The museum is pleased. We will set up a place that is safe and secure" to hold the items until the claimants decide on their final resting place. Although identified as a defendant in the case, the museum filed pre-hearing documents that supported the injunction and return of the items.

Ayau has long said his group reburied the items in the cave according to the wishes of ancestors who originally chose to put them there. In the early 1900s, three men, including David Forbes, entered the cave, took the items and eventually sold or donated them to the Bishop Museum. The items include several valuable stick figure aumakua (deified ancestors), a female figure adorned with human hair, and refuse bowls studded with human teeth.

Ayau repeatedly has said Forbes and the others were grave robbers "who committed theft and desecrated the caves." Yesterday, he said he was especially angered the court ordered the items "returned to the very institution involved in the illicit taking."

Ezra addressed the potential defiance of his order, saying, "I will take such action as is necessary to ensure that my orders are complied with."

The judge also assured Hui Malama that the items would not be displayed in the museum and that the group would have equal "rights to assert their claim."

"I intend no whitewash here. There will be no giveaway to any particular entity or organization," Ezra said.

In explaining his decision, Ezra said he had not been assured by Hui Malama in court papers that the items were secure.

Ezra also referred to a "serious and fundamental allegation" in the lawsuit that Hui Malama had violated the NAGPRA process and that the group obtained the items "under false pretenses."

According to the lawsuit, the 83 items were crated up and handed over to Hui Malama on a Saturday in February 2000 when most of the museum staff was not present. The document releasing the items describes it as a "loan" from Feb. 26, 2000, until Feb. 26, 2001. The document also says, "These items are being loaned pending completion of NAGPRA repatriation per request of Hui Malama and Dept. of Hawaiian Home Lands."

Despite repeated requests from the museum, Hui Malama refused to return the items.

At the time of the loan, there were four claimants: Hui Malama, DHHL, the Office of Hawaiian Affairs and the Hawaii Island Burial Council.

In May 2003 a NAGPRA review committee, which gives only advisory opinions, found that the repatriation was "seriously flawed" and therefore not final. Last March, a second review committee meeting in Honolulu upheld the first ruling calling for reclamation of the objects from the cave while the NAGPRA consultation process proceeds.

During the March proceeding, Ayau told the review committee that "the loan was just to facilitate the repatriation" and that neither Hui Malama nor the museum staff had expected the items' return.

The museum's "loan" to Hui Malama was made under the administration of former museum Director Donald Duckworth. Current museum Director Bill Brown testified to the NAGPRA committee that the loan was wrong and that the items should be reclaimed.

Ayau said, "This is not about excluding anyone. It's about honoring the wishes of our kupuna."

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*** COMMENT BY KEN CONKLIN: The newspaper articles of September 8 and 9, below, are reporting on a motion filed September 7 by Hui Malama in the 9th Circuit Court of Appeals for an emergency stay of Judge Ezra's decision of September 2, finalized by a writ issued on September 7, ordering Hui Malama to return the Forbes Cave artifacts to Bishop Museum by September 23. It is interesting that the Native Hawaiian Legal Corporation is representing Hui Malama rather than Kawananakoa. NHLC is funded primarily by hundreds of thousands of dollars per year from the treasury of the State of Hawai'i, funneled through OHA. It's also interesting that Hui Malama has had an extremely close relationship with Senator Dan Inouye ever since Eddie Ayau worked as a staffer for Inouye and helped write the NAGRPA law. And, of course, OHA is pushing the Akaka bill for which Inouye is actually the primary sponsor and advocate (despite the politically correct ploy of putting Senator Akaka's name on it). Thus, once again, wealthy and powerful institutions team up with the federal and state governments, using government money, to oppose the "little people." If the Akaka bill were to pass, the new Akaka tribe would undoubtedly be controlled by these huge institutions and government agencies. The difference would be that the Akaka tribe would have sovereignty, meaning that the decisions of the tribal council would be final and could not be appealed to any state or federal court. ***

The 37-page pdf file of the September 7 motion by Hui Malama contains many legal technicalities (such as the discussion of the legal standards by which such an emergency motion is to be decided), but it also contains many substantive explanations and analyses. That pdf file is available for download at:
https://www.angelfire.com/hi5/bigfiles3/HuiMalMotnEmrgncyStay090705.pdf

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050908/NEWS23/509080336/1001
Honolulu Advertiser, Thursday, September 8, 2005

Sept. 23 deadline for artifacts

By Ken Kobayashi
Advertiser Courts Writer

A federal judge yesterday gave a Native Hawaiian group until Sept. 23 to return to the Bishop Museum 83 priceless burial objects that the organization says it sealed in a Big Island cave five years ago.

But a lawyer for the group said it will immediately ask the 9th U.S. Circuit Court of Appeals to stay the enforcement of U.S. District Judge David Ezra's decision until an appeal by the organization is resolved. Ezra yesterday filed a 22-page court order formalizing an oral ruling Friday that directed Hui Malama I Na Kupuna 'O Hawai'i Nei to return the artifacts.

Ezra's decision is the latest development in the continuing controversy that has pitted Native Hawaiian groups against each other over what should be done with the moepu or funerary objects.

Alan Murakami, lawyer for the Native Hawaiian Legal Corp., which represents Hui Malama, said Ezra's decision goes against "the very core" of the group's religious and spiritual beliefs protected by the First Amendment. "We will have to sit down and pray and come up with a decision," Hui Malama president Charles Kauluwehi Maxwell said in discussing whether the group will comply if it doesn't get relief from Ezra's order.

Known as the Forbes Caves Collection, the items were taken from the Big Island's Kawaihae Caves in 1905 and turned over to the Bishop Museum.

The museum lent the items to Hui Malama in 2000, but the group has since refused to return them, saying they belong in their original resting place and that returning them would again desecrate the burial site.

Two Native Hawaiian groups, Na Lei Alii Kawananakoa and Royal Hawaiian Academy of Traditional Arts, which filed claims to the items, asked for the order. The Bishop Museum supported the request.

In his decision yesterday, Ezra said there are "serious questions" as to whether the federal law governing the disposition of burial objects was violated when Hui Malama received the items and refused to return them. In addition, the risk of harm to the objects also warrants their return to the museum, he said.

The judge also said he is "greatly troubled" by Hui Malama's failure to provide basic information about the whereabouts of the objects or their condition.

The judge directed his order to Hui Malama, its members or anyone who has custody of the items.

He said the members of Hui Malama are not required to participate in the removal, but Hui Malama "bears the burden of either returning the moepu to the Bishop Museum itself, or by causing them to be returned to the museum through other means procured by Hui Malama."

Ezra also said he will ask that federal officials be present to monitor the removal.

"We're pleased," said attorney George Van Buren, who represents Na Lei Alii Kawananakoa. "We believe the judge made the correct decision." Bishop Museum lawyer LindaLee Farm also said they were pleased with the order, which sets a definite timetable to minimize the risk of harm to the objects.

Van Buren declined to speculate about what might happen if Hui Malama does not get relief from the appeals court and does not comply. "I expect everybody to comply with court orders and generally they do, and I think Judge Ezra made it very clear that he expected compliance," Van Buren said. If anyone refuses to comply, the judge's options under federal law could include finding that party in contempt of court, which could include fines and, in extreme cases, jail time.

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http://starbulletin.com/2005/09/08/news/story4.html
Honolulu Star-Bulletin, Thursday, September 8, 2005

U.S. judge issues writ for return of Big Isle artifacts

By Sally Apgar

A federal court judge issued a written order yesterday demanding the return of 83 treasured native Hawaiian artifacts reburied in a Big Island cave, in part because they "are at serious risk of irreparable harm."

Chief U.S. District Judge David Ezra issued a 22-page written order late yesterday that explained in detail the foundation of the same order he made verbally from the bench Friday during a controversial preliminary injunction hearing.

Ezra said the funerary objects, or "moepu," were to be retrieved by Hui Malama I Na Kupuna 'O Hawaii Nei, a group founded in 1989 to repatriate native Hawaiian remains and artifacts.

In his written order, Ezra also questioned the circumstances under which Hui Malama obtained the items from the Bishop Museum on Feb. 26, 2000.

Hui Malama is expected to appeal the decision to the 9th U.S. Circuit Court of Appeals in San Francisco. Attorneys representing Hui Malama could not be reached for comment late yesterday.

Ezra's order yesterday is the result of a federal lawsuit against Hui Malama filed last month by two native Hawaiian claimants to the artifacts. The two groups argued they want the return of the items so that the 14 federally recognized native Hawaiian claimants, including Hui Malama, can consult equally about their fate. The two are suing under Fifth Amendment property rights laws and provisions of the Native American Graves Protection and Repatriation Act, which Congress passed in 1990 to right the wrongs of the past. NAGPRA is a federal law that governs the repatriation of human remains and artifacts.

In his written order, Ezra questioned whether a valid repatriation of the items occurred, a point that might be taken up at trial.

The two plaintiffs are La'akea Suganuma, a practitioner of native Hawaiian martial arts and president of the Royal Academy of Traditional Arts, and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell Estate heir and descendent of royal native Hawaiian blood.

In granting the injunction, Ezra wrote the priceless items "are at serious risk" from environmental harm and possible theft as has occurred at other caves, and "that the interests of justice and the public would best be served by bringing the items back to a secure location at the Bishop Museum" while 14 federally recognized native Hawaiian claimants decided the fate of the items under federal legal procedures.

In his order, Ezra also noted "the court is greatly troubled, in particular, by the failure of defendant Hui Malama to be forthcoming with even the most basic information regarding the whereabouts of the moepu (funerary objects)."

Edward Halealoha Ayau, a founder of Hui Malama, could not be reached for comment last night. Ayau has long said that his group reburied the items in the cave according to the wishes of ancestors who originally chose to place them there.

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http://starbulletin.com/2005/09/09/news/story1.html
Friday, September 9, 2005
** Newspaper's front-page headline **

Group challenges court order on artifacts
Hui Malama says the federal ruling violates its right to freedom of religion

By Sally Apgar

A federal court order demanding the return of 83 artifacts reburied in a Big Island cave five years ago would violate Hui Malama I Na Kupuna 'O Hawaii Nei's constitutional right to freedom of religion, the native Hawaiian group argued yesterday.

Earlier this week, U.S. District Judge David Ezra gave Hui Malama, a group founded in 1989 to repatriate native Hawaiian remains and artifacts, until Sept. 23 to return the burial items, or "moepu." The group reburied the items in Kawaihae in 2000 to honor the wishes of kupuna (ancestors). Ezra ordered the return so that 14 competing native Hawaiian claimants can have equal say in the fate of the items.

Hui Malama filed an emergency appeal of the order with the 9th U.S. Circuit Court of Appeals in San Francisco yesterday, arguing, "There is no safe manner by which to carry out the (U.S.) District Court's order as it would place ... members of Hui Malama in real physical and spiritual danger."

In a declaration filed yesterday supporting their argument, Edward Halealoha Ayau, a founding member of Hui Malama, said that complying with the court order "would inflict spiritual, emotional, religious and emotional injury upon me and members of Hui Malama."

"Specifically, it would be an extreme hewa (wrong) for me or any other Hui Malama member, if ordered, to take part in any effort to enter the Kawaihae burial cave, with two to three known caves, to remove the 83 moepu, as they belong to the kupuna buried therein," and that would harm "the integrity of the afterlife of these kupuna," he said.

It "amounts to stealing from the dead, an action that threatens severe spiritual consequences for anyone involved," Ayau added.

Ezra's order arises from a recent case filed by two other native Hawaiian groups against Hui Malama and the Bishop Museum demanding return of the items so that 14 federally recognized native Hawaiian claimants could be consulted in what to do with the items.

In 1905 three men, including David Forbes, whom Hui Malama refer to as grave robbers, opened the cave and gave the items to the Bishop Museum, an act that Hui Malama considers a desecration that they needed to right. In a controversial 2000 "loan," Hui Malama obtained possession of the items.

There is a sharp split in the claimants' groups over whether the items should be buried in the cave to honor kupuna and allowed to decay, or whether they should be preserved in a hermetically sealed environment for the eyes of future native Hawaiian generations.

The two native Hawaiian groups contesting Hui Malama's claim are represented by La'akea Suganuma, a practitioner of "lua," or "bone-breaking," an ancient form of Hawaiian martial arts, who is also president of the Royal Hawaiian Academy of Traditional Arts; and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell Estate heir and descendent of royal Hawaiian blood.

The 14 competing claimants, including Suganuma, Hui Malama and Kawananakoa, are recognized under the Native American Graves and Repatriation Act, which was passed into law in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts.

When Suganuma and Kawananakoa filed the suit, they asked for a preliminary injunction, demanding the return of the items, saying they were "improperly loaned" to Hui Malama and that they faced "imminent harm" in Kawaihae Caves because of environmental conditions, insect attack and possible theft. Ezra granted the injunction this week.

According to court documents, the 83 items were crated and handed over by museum staff to representatives of Hui Malama on a Saturday in February 2000 with a notation that it was a one-year "loan" until February 2001 and pending the outcome of an ongoing NAGPRA consultation.

Ezra wrote that the museum "breached its own policies in an apparent, but inexplicable, rush to deliver the items to Hui Malama."

In Ezra's order he noted the loan was based on Hui Malama's assurances that all four of the claimants who were recognized at the time agreed to the reburial. Ezra wrote "that premise was false ... because they (the four claimants) did not agree to Hui Malama's ultimate plans."

Aside from spiritual or religious beliefs, Hui Malama has said it does not want to return the items because it would be handing them over to the museum, which they say "acted as a fence for the original grave robbers."

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http://starbulletin.com/2005/09/09/editorial/editorials2.html
Honolulu Star-Bulletin, Friday, September 9, 2005
Editorial

OUR OPINION

Clash over artifacts should be settled

THE ISSUE

A federal judge has ordered the return of Hawaiian artifacts from a Big Island cave to the Bishop Museum.

FAILURE to arrive at a compromise in an unseemly tug of war over sacred Hawaiian artifacts reburied in a Big Island cave has resulted in a judge's decision that they be returned, at least temporarily, to the Bishop Museum. A settlement is possible while the ruling is on appeal and should be sought to avoid the possibility of federal marshals forcing compliance.

U.S. District Judge David Ezra, who has unblemished affinity for Hawaiian welfare, has ordered that 83 items, including several valuable stick figures of deified ancestors, a female figure adorned with human hair and refuse bowls studded with human teeth, be returned to the museum while their ultimate destination is resolved. That will be decided by the court, under terms of the 1991 Native American Graves Protection and Repatriation Act.

A group of Hawaiians called Hui Malama I Na Kupuna 'I Neu [sic!] obtained the items from the museum in February 2000. A document releasing the items called it a "loan" and stated that they would be returned to the museum a year later, but Hui Malama has refused to give them up.

La'akea Sugenuma, president of the Royal Hawaiian Academy of Traditional Arts, and a group founded by Abigail Kawananakoa, a Campbell Estate heiress who traces her ancestry to King Kalakaua, filed the lawsuit against Hui Malama and the museum, which supports the suit. The museum's directors recently recognized Kawananakoa's group as the 14th with rights to claim Hawaiian artifacts for repatriation.

Hui Malama cofounder Edward Halealoha Ayau, a lawyer who was on Senator Inouye's staff when he sponsored the 1991 legislation, left open the question of whether he will defy Ezra's order. "We do not have the stomach to take from our kupuna (ancestors)," he said.

Ezra vowed to "take such action as is necessary to ensure that my orders are complied with."

That collision should be avoided if possible.

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Honolulu Advertiser, Friday, September 9, 2005

Hui Malama wants court to rule on its appeal before acting

By Ken Kobayashi
Advertiser Courts Writer

A Native Hawaiian group is asking the U.S. 9th Circuit Court of Appeals to postpone the enforcement of a federal judge's ruling directing the organization to return to Bishop Museum 83 priceless burial objects.

Hui Malama I Na Kupuna 'O Hawai'i Nei said U.S. District Judge David Ezra's order directing the group to return the items by Sept. 23 would violate the group's free exercise of religion protected by the First Amendment and place the group members in physical and spiritual danger.

"It is an order to steal from the dead," the group said in papers filed with the appeals court this week.

The request asks that the enforcement of the order be postponed pending the outcome of Hui Malama's appeal of Ezra's decision, a process that could take months.

At the request of two other Native Hawaiian groups, Ezra had ruled that the artifacts should be returned to the museum while Native Hawaiian organizations sort out claims to the artifacts and decide what should be done with them.

In his order issued Wednesday, the judge said there are "serious questions" about whether a federal law was violated when Hui Malama got the items from the museum in 2000 and refused to give them back. He also expressed concerns about Hui Malama not providing information about the location of the objects or their condition.

Hui Malama maintains the objects were looted from a Big Island cave in 1905 and turned over to the museum. The group said it returned the items to the cave where they were originally placed, and sealed the entrance.

In a declaration attached to the request, Hui Malama spokesman Edward Halealoha Ayau said it would be wrong for him or any other Hui Malama member to remove the 83 artifacts in the burial cave.

He also said the removal would threaten their safety because of the "physical nature of the interior of the caves and the real threat of collapse of the ceiling and walls."

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The monthly newspaper of the Office of Hawaiian Affairs, "Ka Wai Ola O OHA", published a very valuable full-page article about the dispute between Eddie Ayau for Hui Malama vs. La'akea Suganuma for the Royal Hawaiian Academy of Traditional Arts. The article summarizes the dispute, and then provides side-by-side essays written by the opponents. Those essays are focused primarily on a disagreement over what would be the wishes of the ancestors whose artifacts were buried in the cave. Eddie Ayau takes the position that the objects were buried with the bones of the ancestors, and therefore it is clear that the ancestors wanted the objects to remain in the cave. La'akea Suganuma takes the position that the spirits of the ancestors are alive and remain active in guarding their bones and artifacts; that a burial cave is not discovered by accident; and that it must be the wishes of the ancestors to choose that the artifacts were found in the cave and made available to the modern generation for inspiration and education. The full-page article can be downloaded in pdf format from the OHA website by clicking here:
http://www.oha.org/pdf/kwo05/0509/7.pdf

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*** COMMENT BY KEN CONKLIN: The newspaper articles of September 8 and 9, above, are reporting on a motion filed September 7 by Hui Malama in the 9th Circuit Court of Appeals for an emergency stay of Judge Ezra's decision of September 2, finalized by a writ issued on September 7, ordering Hui Malama to return the Forbes Cave artifacts to Bishop Museum by September 23. It is interesting that the Native Hawaiian Legal Corporation is representing Hui Malama rather than Kawananakoa. NHLC is funded primarily by hundreds of thousands of dollars per year from the treasury of the State of Hawai'i, funneled through OHA. It's also interesting that Hui Malama has had an extremely close relationship with Senator Dan Inouye ever since Eddie Ayau worked as a staffer for Inouye and helped write the NAGRPA law. And, of course, OHA is pushing the Akaka bill for which Inouye is actually the primary sponsor and advocate (despite the politically correct ploy of putting Senator Akaka's name on it). Thus, once again, wealthy and powerful institutions team up with the federal and state governments, using government money, to oppose the "little people." If the Akaka bill were to pass, the new Akaka tribe would undoubtedly be controlled by these huge institutions and government agencies. The difference would be that the Akaka tribe would have sovereignty, meaning that the decisions of the tribal council would be final and could not be appealed to any state or federal court. ***

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Honolulu Advertiser, Wednesday, September 14, 2005

Reopening artifact cave may cause collapse, mason says

By Gordon Y.K. Pang
Advertiser Staff Writer

Reopening a Kawaihae cave to retrieve Hawaiian burial artifacts as ordered by a federal judge could cause the collapse of the Big Island cave, according to a mason who helped seal it.

The mason's statement, filed with the 9th U.S. Circuit Court of Appeals on behalf of the group Hui Malama I Na Kupuna O Hawai'i Nei, came to light yesterday as Hui Malama leaders reaffirmed their vow to resist the court order.

U.S. District Judge David Ezra earlier this month ordered the group to help return to Bishop Museum 83 lots of sacred burial objects that the group said it placed in the cave.

In his ruling, Ezra sided with two of the 13 Native Hawaiian groups that had filed suit arguing that the museum should have possession of the artifacts until the claimants can come to an agreement on their final resting place under the federal Native American Graves Protection and Repatriation Act.

Hui Malama, one of the 13 claimants, has argued that the artifacts were taken illegally from the cave in 1905 and should remain there until the groups resolve their claims.

A declaration filed this week by Kona mason George W.K. Fields III, who resealed the cave, warns that "removal of the security measures at the cave will cause the cave to collapse." Fields, hired to work on the project by Hui Malama, also cited the possible expense of working on a cave that is in a remote area of the Big Island.

"I would not attempt the removal of the cave's security because it would violate my cultural beliefs ... (and) would be cost-prohibitive to ensure safe working conditions, account for extraordinary costs of working at this remote location, and guard against life-threatening conditions posed by the location of the cave," Fields said.

George Van Buren, an attorney of the two groups that sued Hui Malama, yesterday said Fields had not raised safety concerns previously.

Van Buren said Fields' claims will be one of a number of points addressed when his legal team files a response to Hui Malama's request for an appeal, a filing that is expected today.

At a news conference yesterday at the University of Hawai'i-Manoa Center for Hawaiian Studies, Hui Malama leaders vowed to be steadfast in their fight.

Alan Murakami, attorney with the Native Hawaiian Legal Corp., which represents Hui Malama in the case, said the group is hoping to convince the appeals court to set aside Ezra's decision.

Charles Kauluwehi Maxwell Sr., Hui Malama president, said the group will not back down.

"From the cultural standpoint, if all legal means fail and Hui Malama is obligated to follow the ruling of Judge Ezra, we are set in our cultural feelings that we will protect the kupuna (ancestors)," Maxwell said. "That is our job. That is our solemn duty."

The court has ordered Hui Malama "to do the unthinkable," said Hui Malama spokesman Edward Halealoha Ayau. "We won't be a party to a theft of our kupuna."

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http://starbulletin.com/2005/09/14/news/story3.html
Honolulu Star-Bulletin, Wednesday, September 14, 2005

Hui Malama says complying with ruling is not an option

By Sally Apgar

Edward Halealoha Ayau calls a recent federal court order requiring the return of 83 priceless artifacts "a defining moment" for native Hawaiians' spiritual and cultural heritage.

"The choice is made. We must stand and protect our kupuna (ancestors)," said Ayau, who for the last 16 years has worked to repatriate native Hawaiian remains and burial items from museums so they can be reburied to honor the wishes of kupuna.

At a news conference and forum yesterday at the Center for Hawaiian Studies at the University of Hawaii at Manoa, Ayau said: "This is a wake-up call to take care of our ancestors," referring to the federal court case that involves 83 items reburied in 2000 in Kawaihae or "Forbes" cave on the Big Island.

Ayau is a founding member of a controversial group, Hui Malama I Na Kupuna O Hawaii Nei, which was formed in 1988 when, during the construction of the Ritz Carlton on Maui, about 1,100 native Hawaiian remains were found.

Ayau said he would not retrieve the Kawaihae items as ordered earlier this month by U.S. District Judge David Ezra. "We will not be a party to theft from our kupuna," he said.

Despite repeated questions from the media, Ayau did not specifically say that he would go to federal prison rather than comply with Ezra's order to retrieve the items and hand them over to the Bishop Museum so that 13 native Hawaiian claimants to the items can decide their fate.

Last week, Ezra gave Ayau and his group until Sept. 23 to return the burial items, or "moepu," that they reburied in Kawaihae in 2000 to honor the wishes of their kupuna. Two of the 13 recognized claimants filed a federal lawsuit earlier this month asking that the court order the return of the 83 items, so that the competing native Hawaiian claimants can have an equal say on what will happen to the items.

The two are suing under Fifth Amendment property rights laws and provisions of the Native American Graves Protection and Repatriation Act, which Congress passed in 1990 to right the wrongs of the past.

NAGPRA is a federal law that governs the repatriation of human remains and artifacts. In his written order, Ezra questioned whether a valid repatriation of the items occurred.

The two plaintiffs are La'akea Suganuma, a practitioner of native Hawaiian martial arts and the president of the Royal Academy of Traditional Arts, and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell Estate heiress and descendent of royal native Hawaiian blood.

Ayau and others made it clear yesterday that disinterring the items, which do not include the bones of ancestors, would spiritually desecrate the grave in a way that could not be later fixed.

In granting the injunction, Ezra wrote the priceless items "are at serious risk" from environmental harm and possible theft.

Hui Malama filed an emergency appeal of the order with the 9th U.S. Circuit Court of Appeals in San Francisco last week arguing: "There is no safe manner by which to carry out the (U.S.) District Court's order as it would place ... members of Hui Malama in real physical and spiritual danger."

In addition to bark cloth and canoe parts, the items in the cave include several priceless carved wooden ki'i (typically carved as wooden protecting gods for a specific person).

Ayau said he finds himself at odds between his spiritual beliefs to honor and returning iwi (human remains) and moepu (burial objects) to what his group believes is their intended home, according to the wishes of kupuna, and federal laws that govern the processes returning various native Hawaiian items to burial sites. The 83 items do not include any bones or iwi.

Yesterday, Ayau appeared with several high-profile native Hawaiians, including Pualane Kanahele, Charles Maxwell and others to explain Hui Malama's side to reporters and UH students. Ayau said: "The court has ordered us to do the unthinkable ... to steal from our kupuna." Charles Maxwell, a longtime activist, said: "It is against our will, our desire and our First Amendment right to freedom of religion to direct us to the cave to take the moepu. It is against our will; it is against our cultural being."

In 1905, three men, including David Forbes, whom Hui Malama identified as grave robbers, got the items appraised by the Bishop Museum for $472.

"It is illegal to steal from kupuna," said Kaleikoa Kao [sic, Ka’eo], another member of Hui Malama. "Judge Ezra is putting us into a very difficult position: What is the price of the integrity of our culture?"

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Honolulu Advertiser, Thursday, September 15, 2005

Artifacts dispute resolution elusive

By Gordon Y.K. Pang

A group that is seeking to block a court order to return 83 burial artifacts from the Kawaihae Cave on the Big Island can avoid any trauma by letting others do it for them, according to a legal brief filed yesterday by an attorney for the parties seeking return of the items to the Bishop Museum.

The suggestion drew a rebuke from an attorney representing Hui Malama I Na Kupuna 'O Hawai'i Nei, the group fighting to keep the artifacts where they are.

Yesterday, attorney George Van Buren dismissed Hui Malama's key objection that forcing them to go into the cave and return the artifacts to the museum would cause emotional harm to its members and physical harm to the artifacts.

Not only has Hui Malama failed to prove there would be irreparable harm if the artifacts are returned to the museum, but "there is ample precedent in Hawaiian culture for the removal of and transfer of burial items," Van Buren wrote.

What's more, "the members of Hui Malama are not required to subject themselves to the supposed physical and spiritual harm that they perceive," Van Buren wrote. "Others can perform the transfer under the supervision of federal officials."

The proposal angered Alan Murakami, an attorney for the Native Hawaiian Legal Corp., which is representing Hui Malama. "What they're offering to do is immaterial," Murakami said. "That's like saying, 'I don't have to push my baby off a cliff but I can get a someone else to do it, and it's not going to affect me.' "

In 2000, the museum lent the items for a year to Hui Malama, one of 14 Native Hawaiian group who have come forward as claimants to the artifacts. Hui Malama members say the items have been returned to the cave from which they were removed and then sold to the museum in 1905. They have refused requests, at first by the museum and now by a federal court, to send them back to the museum.

Native Hawaiian organizations Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, also among the 14 claimants, sued the museum and Hui Malama, arguing that the artifacts should be in the museum's possession until the claimants can agree on their final resting place.

Van Buren said the two organizations suing for their return "have no hesitation whatsoever in performing the necessary functions."

Murakami said the constitutional right of Hui Malama members to practice their religion is being violated regardless of who removes the artifacts.

In the documents they filed this week, Hui Malama attorneys submitted the testimony of a mason who helped seal the cave. He warned that reopening the site could cause its collapse, endangering the artifacts and those entering the cave.

But Van Buren, in his filing yesterday, questioned why Hui Malama had not previously issued that warning. He said that Hui Malama has been advocating for other artifacts to be repatriated in the cave, which would require it to be reopened.

Murakami said the filings yesterday by his opponents fail to adequately address Hui Malama's point that all of the claimants should be participants in the lawsuit, which has not happened.

Hui Malama's core argument is that repatriation ended with the placement of the artifacts back in the cave, and that any disputes at this point are between the claimants themselves and outside the jurisdiction of the museum or the courts.

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http://starbulletin.com/2005/09/19/news/story1.html
Honolulu Star-Bulletin, Monday, September 19, 2005

"It's been made out that these perspectives are just my own. They're lessons we've been taught from our kupuna, and so it's the perspective of Hui Malama and a lot of other Hawaiians." --Edward Ayau, Director, Hui Malama

Showdown over artifacts unearths spiritual divide

By Sally Apgar

Warring factions of native Hawaiians are headed for a legal showdown in a federal court in San Francisco as early as this week over the fate of 83 treasured items that were reburied five years ago in a Big Island cave.

In preparation for that battle, the two sides filed scores of papers last week with the 9th Circuit Court of Appeals that not only advanced their legal arguments, but gave an insight into the deep spiritual divides between the groups over their interpretations of burial traditions, the uses of ancient caves, the wishes of kupuna (ancestors) and even what it means to be Hawaiian.

The 9th Circuit could decide this week whether to overturn a lower court decision by U.S. District Judge David Ezra on Sept. 7 that demands the return of the native Hawaiian burial items by Friday. Ezra wants them held at the Bishop Museum (but not on public display) until 14 federally recognized native Hawaiian claimants can decide on their final disposition.

One of the opposing native Hawaiian groups, Hui Malama I Na Kupuna 'O Hawaii Nei, said in recent court papers filed with the 9th Circuit that complying with Ezra's order would be "stealing from the dead, an action that threatens severe spiritual consequences for anyone involved." Hui Malama said retrieval would be a desecration that violates the group's First Amendment right to freedom of religion.

The legal war ignited last month when La'akea Suganuma, an expert in the ancient Hawaiian martial practice of lua, or "bone breaking," and Abigail Kawananakoa, a Campbell Estate heiress and descendent of Hawaiian royalty, filed a federal lawsuit against the Bishop Museum and Hui Malama, a group formed in 1988 to repatriate native Hawaiian remains and funerary objects from museums and when they are discovered in places such as construction sites.

Suganuma and Kawananakoa argued that the items were "improperly loaned" when museum staffers, under the former administration of museum director Donald Duckworth, crated them one Saturday morning in February 2000 and handed them to Hui Malama with inventory papers that identified the package as a one-year loan.

Hui Malama, they said, not only "arrogantly" ignored the rights of other native Hawaiian claimants when it reburied the items, but the "loan" violated the museum's own loan polices and the procedures of the Native American Graves Protection and Repatriation Act. NAGPRA is a federal law enacted in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts from museums back to indigenous people.

Edward Halealoha Ayau, Hui Malama's po'o (director), said the group reburied the items in Kawaihae or "Forbes Cave" to honor the wishes of the kupuna who put them there.

Ayau said, "As part of the repatriation process, Bishop Museum first transferred the moepu (funerary objects) to Hui Malama by a loan." Last March, Ayau told a NAGPRA review committee investigating the issue that "the loan was a vehicle to facilitate repatriation" and that neither Hui Malama nor the museum staff involved expected their return.

In court papers also filed last week, Bishop Museum, under the administration of director Bill Brown, supported the retrieval of the items. Brown said the Duckworth administration erred in making the loan.

Hui Malama maintains the repatriation is complete. Last week, it filed statements from two of the four original claimants, the Department of Hawaiian Home Lands and the Hawaii Island Burial Council, supporting Hui Malama's position. The items, they said, should not be taken from the kupuna. DHHL owns the Kawaihae cave lands and controls access. "Our objective is to protect and not further disturb the burial site," DHHL said.

Suganuma and Kawananakoa believe the items are in danger of "imminent harm," an argument they used in the injunction granted by Ezra. The two want the items held safely, but not on public display, until native Hawaiian groups determine their final disposition.

There is a sharp ideological split among the claimants over whether the items should be buried in the cave to honor kupuna, and allowed to decay, or whether they should be placed in an environmentally safe place so that future generations can learn about their past.

Hui Malama believes that the items are moepu that kupuna wanted buried with them, so the group secretly returned them to the "sacred resting place" from which they were stolen. In 1905 three men, including David Forbes, had discovered the items and sold them to the Bishop Museum.

Suganuma and Kawananakoa offered last week to retrieve the items for Hui Malama to spare them any harm.

But Ayau dismissed the offer, saying, "A desecration is a desecration. It does not matter whose hand."

Ayau assured the court that the burial items are secure from theft because the cave was sealed "using reinforced concrete barriers."

Kawananakoa and Suganuma contend that Hui Malama invents practices and beliefs to defend their actions and "wall off" the rest of the Hawaiian community. They say Hui Malama monopolizes repatriations from Bishop Museum or construction sites such as the Wal-Mart complex on Keeaumoku Street, to the exclusion even of families with closer lineal ties to the objects, who should have precedence.

In a statement last week, Kawananakoa said Hui Malama "has been able to falsely assert, under the pretext of so-called Hawaiian traditional belief, the dictates of the kupuna of ancient times and has refused to return the items."

Suganuma, who has fought Hui Malama for more than five years for the return of the items, said in court papers, "Hui Malama's so-called traditional burial practices are modern creations of its founders." Suganuma also said the word moepu is a modern invention.

Ayau said he has not had a chance to read either statement from Suganuma or Kawananakoa so he did not want to comment, but he is aware of their general criticisms.

"It's been made out that these perspectives are just my own," Ayau said. "They're lessons we've been taught from our kupuna, and so it's the perspective of Hui Malama and a lot of other Hawaiians."

Hui Malama and others groups disagree about the use of caves by ancient Hawaiians. Hui Malama believes that most caves are sacred burial sites that contain funerary objects. Suganuma and Kawananakoa say many caves were not burial sites, but rather places to hide sacred objects after Queen Kaahumanu outlawed the Hawaiian religion.

Ayau said that Hui Malama intends to hold more "teach-ins," as it did recently, "so people can for themselves decide what is the truth."

At the teach-in, Charles Maxwell, a founding member of Hui Malama, told how the group was formed when the Ritz Carlton was being built on a 13-acre parcel on Maui. About 800 sets of native Hawaiian remains were found.

Ayau told the audience that the finding was "a wake-up call" that Hawaiians had forgotten their burial practices.

Maxwell explained how Pualani Kanahele, a kumu hula and native practitioner, taught them burial rituals and the proper way to wrap the bones.

Kawananakoa questioned the source of Hui Malama's burial practices, saying, "The ability to receive instructions from the ancient kupuna is mana (authority or power)," and "such mana rests solely with the alii (aristocratic class)."

Referring to Hui Malama members as commoners, or "makaainana," and noting that Kawaihae was an alii burial site, Kawananakoa said, "At no time was the commoner allowed to participate at any stage of the rituals concerning the burial of an aristocrat."

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Honolulu Advertiser, Wednesday, September 21, 2005

Retrieval of artifacts blocked

By Ken Kobayashi and Gordon Y.K. Pang

A federal appeals court yesterday lifted a court order directing a Native Hawaiian group to retrieve 83 priceless burial artifacts from a sealed Big Island cave and return them to the Bishop Museum by Friday.

The 9th U.S. Circuit Court of Appeals decision averts for now a potential confrontation between Hui Malama I Na Kupuna 'O Hawai'i Nei, which wants the objects to remain in the cave, and Chief U.S. District Judge David Ezra, who ordered them returned.

"Fantastic," said Alan Murakami, the Native Hawaiian Legal Corporation lawyer representing Hui Malama. "The first hurdle has been overcome."

Without the appeals court's decision, Hui Malama would be facing "a crisis of conscience" this week, Murakami said.

The appeals court ruled that the artifacts can remain in the cave while Hui Malama appeals Ezra's injunction of Sept. 2 ordering the return to ensure the objects aren't damaged while Native Hawaiian groups determine what should ultimately be done with them.

But the appeals court also ordered an expedited appeal, which could result in a decision as early as December. The appeals process usually takes a year or longer.

Edward Halealoha Ayau, spokesman for Hui Malama, said he and his group are pleased with the decision.

After Ezra's Sept. 2 decision, Ayau said he hoped the federal court would not force Hawaiians to violate their spiritual beliefs by returning the artifacts. "We do not have the stomach to do something like that," he said. Yesterday, he affirmed the group's commitment to "protect the kupuna, their possessions and the integrity of their burial site." "To be successful, we need to ensure the integrity of the burial site is maintained, and we have to be able to stave off any attempt to disturb them," he said.

The leader of one of two Native Hawaiian groups that asked for the return focused on the appeals court order expediting the appeal. "We are gratified by the 9th Circuit Court's decision to expedite the appeal of the injunction order," Abigail Kawananakoa, head of Na Lei Alii Kawananakoa, said in a statement. "The court, by scheduling the hearing on the appeal for the first week of December — which is the earliest possible date — recognizes the importance of this case to the people of Hawai'i." She said her group is pleased the decision will be made "in three months instead of three years."

LindaLee Farm, lawyer for the Bishop Museum, which supported Ezra's order, also said she was pleased the court put the appeal on the "fast track." Farm said she thinks the appeals court ordered an expedited appeal because it recognizes the issue of possible "irreparable harm" to the artifacts.

The appeals court ruling is the latest development in the contentious dispute that has pitted Native Hawaiian groups against one another over the artifacts, which include carved-wood statuettes, a human-hair wig, gourd objects and tools.

The museum handed the artifacts to Hui Malama in 2000. But Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts filed a lawsuit last month asking for the injunction. They argued that the transfer to Hui Malama was not legal and that the group should have returned the items which may now be in jeopardy from insects and environmental elements.

Hui Malama argued that the objects had been stolen from the cave in 1905 and turned over to the museum. The group contended the moepu are now in their original and rightful place, and that to return them would violate First Amendment protection of religious beliefs.

In granting the injunction, Ezra agreed that the items might be at risk and agreed that the two groups raised legal issues about whether Hui Malama can rightfully refuse, under the law, to return the items.

Hui Malama told the appeals court that Ezra's decision was "an order to steal from the dead." Also, the group argued that retrieving the artifacts from the sealed cave could cause the cave to collapse.

Under yesterday's appeals court order, Hui Malama must file its opening brief by Sept. 30 explaining why Ezra's decision should be overturned. The two Native Hawaiian groups that sought the injunction have until Oct. 21, or 21 days after the court receives the opening brief, to respond. Hui Malama would then have 10 days to reply.

The appeals court said the case would be on the calendar during the week of Dec. 5. Farm said the ruling could come shortly after that.

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http://starbulletin.com/2005/09/21/news/story5.html
Honolulu Star-Bulletin, Wednesday, September 21, 2005

Court halts removal of Hawaiian items

By Leila Fujimori

The 9th Circuit Court of Appeals yesterday suspended a federal judge's order to have 83 native Hawaiian objects dug up from a Big Island cave and returned to the Bishop Museum by Friday.

The appeals court will hear arguments on the judge's order in December.

Hui Malama I Na Kupuna 'O Hawaii Nei's attorney, Alan Murakami, said the decision was a great relief to the group. "What would have had to happen would have been really major," he said, adding that it would have been impossible to have removed all the items from what is known as Forbes Cave by Friday.

On Sept. 7, U.S. District Judge David Ezra ordered Hui Malama to return the buried items by Friday. They were to be held by Bishop Museum until 14 native Hawaiian claimants can decide on their disposition.

Hui Malama contends the objects are moepu (funerary objects) and the group must honor the wishes of the kupuna (elders) who put them there. But others contend most items are not funerary items and were kept in a cave for safekeeping and should be returned to the rightful parties.

In 1905, three men, including David Forbes, discovered the items and sold them to the Bishop Museum.

Last month, Laakea Suganuma, an expert in the Hawaiian martial art of lua, or "bone breaking," and Abigail Kawananakoa, a descendant of Hawaiian royalty, filed a federal lawsuit against Bishop Museum and Hui Malama, a group formed in 1988 to repatriate native Hawaiian remains and funerary objects from museums and when discovered elsewhere, such as construction sites.

They said Hui Malama's decision to rebury the objects ignored other native Hawaiian claimants' rights and violated the museum's loan policies and procedures of the Native American Graves Protection and Repatriation Act (a federal law governing the repatriation of native Hawaiian and American Indian remains and artifacts from museums to indigenous peoples).

Suganuma said the 9th Circuit Court's order was not a judgment on "who is right and who is wrong," rather, "it's just buying a couple of months of time. "Perhaps because of the controversial nature of the case, they took a conservative opinion," he said.

Edward Halealoha Ayau, director of Hui Malama, said that while the group is pleased, "what still remains is that there is a pending case that seeks to cause the removal of moepu from the kupuna themselves, and until that case is resolved and any efforts to disturb them, they've lost. "We cannot truly be happy about the situation," he said. "There's a long road ahead."

LindaLee Farm, attorney for Bishop Museum, refrained from commenting on the portion of the order that halted the return of the cave items, but did appreciate that the order expedites the scheduled briefing.

In court papers last week, Bishop Museum supported the retrieval of the items and its director said the museum's previous administration had erred in making the loan.

In a written statement, Kawananakoa said: "We are gratified by the 9th Circuit Court's decision to expedite the appeal of the injunction order. The court's decision to schedule the hearing for the first week of December -- the earliest possible date -- recognizes the importance of this case to the people of Hawaii."

Suganuma stressed the importance of stepped-up security because of the possible danger of a break-in at the cave.

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http://www.courttv.com/news/2005/0923/hawaiian_artifacts_ctv.html
Court TV, September 23, 2005 updated September 28.

What would the ancestors want? A suit over Hawaiian artifacts could decide

Photo caption: Hawaiian artifacts, including a funerary bowl studded with human teeth, are at the center of a legal battle.
Photo from
http://www.courttv.com/graphics/photos/topnews/hawaii/lede/artifacts-insidelede-092605.jpg

By Lisa Sweetingham
Court TV

When an explorer named David Forbes dug up ancient artifacts from a Hawaiian cave 100 years ago and sold them to a Honolulu museum, was it an act of grave robbing, or was he guided by the spiritual wishes of the dead?

That is the deeper question underlying a federal suit funded by a Hawaiian princess and filed against a native Hawaiian organization that reburied the collection of artifacts five years ago in the same Big Island cave where they were first unearthed in 1905.

"It was there for three or 400 years before Mr. Forbes stole it. It's supposed to deteriorate in the burial tomb. That's what it does," said Rev. Charles Kauluwehi Maxwell, president of the board of directors of Hui Malama I Na Kupuna O Hawaii Nei, a native organization that believes the cultural relics should stay in their sacred resting place. "It was not meant for us. For us, we feel it's very bad luck to even touch those items."

But another group, the Royal Academy of Traditional Arts, wants the items retrieved from the cave so that the process of "repatriation," or returning the items to their rightful owners, can continue. Ultimately, they'd like to see the items put on display in a Hawaiian-owned museum "for the people of the world to view."

"I believe, and anybody who thinks in a Hawaiian fashion would know this, I believe the ancestors allowed the items to be discovered," said La'akea Suganuma, the academy's president.

He is suing Hui Malama along with Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, an heiress and royal Hawaiian who is footing the legal bill. They say Hui Malama has violated the Native American Graves Protection and Repatriation Act (NAGPRA) as well as Fifth Amendment property rights laws.

Earlier this month, a federal judge sided with Suganuma and his royal co-plaintiff, and ordered Hui Malama to dig up and return the items by Sept. 23 to the Bernice Pauahi Bishop Museum in Honolulu. Hui Malama filed an emergency appeal, and a stay was granted by the Ninth U.S. Circuit Court of Appeals, allowing the ancient remains to stay in their cavernous tomb until the appeals court makes a final decision. But instead of taking years for the appeals process, which is typical, the court has fast-tracked the case and will make a decision in December.

Some of the items in dispute include funerary pieces, such as a wig made of human hair, a bowl embedded with human teeth, and carved gods that Hui Malama believes were meant to accompany the dead for eternity.

"It is very similar to putting a ring on your grandmother when she dies — jewelry to accompany her into eternity — and then 200, 300 years down the line, someone discovers the objects and takes them off her body," Maxwell said. He and his attorney claim that when Forbes sold the stolen items to the Bishop Museum in 1905, they agreed to keep the illegal sale "under wraps," according to their correspondence.

Hui Malama was formed in 1988 on the heels of a dispute between native Hawaiians and the builders of a Ritz Carlton hotel, which was planned on a burial site. The hotel was eventually constructed inland, away from the ancestral grounds.

In 1990, Congress enacted NAGPRA, which requires museums and federal agencies to return certain Native American, Hawaiian and Alaskan artifacts to the descendants or organizations to which they belong. The act gave Hui Malama legal standing to care for and protect na iwi kupuna, or "ancestral remains." Since then, the group has repatriated and reinterred artifacts returned from more than two dozen museums, including the Smithsonian in Washington, D.C., and the Field Museum in Chicago.

The Bishop Museum loaned the 83 items from the Kawaihae caves collection to Hui Malama in February 2000. Under NAGPRA guidelines, 13 native Hawaiian organizations were found to be culturally affiliated with the items, some after the items had already been reburied.

The museum has since asked for the items to be returned and for the repatriation process to continue.

Abigail Kawananakoa, a descendant of a Hawaiian royal family, is funding the suit.

"They've recognized the so-called princess as a claimant ... unilaterally deciding the repatriation process has to be reopened and renewed, despite two published notices that it is complete," said attorney Alan Murakami of the Native Hawaiian Legal Corporation.

The museum did not return calls for comment.

A NAGPRA review committee also determined that the repatriation process the museum followed was "flawed and remains incomplete." NAGPRA advised the museum to recall its so-called loan, reopen the process and reconsult with all interested parties. The NAGPRA program office did not return calls for comment.

If the appeals court finds that Hui Malama must return the objects, it would mean digging up the buried items from their secret resting place.

"We won't do it. We'll defy the court's order," Maxwell said, adding that he was prepared to defy the Sept. 23 deadline before the stay was granted. "I gathered my family a week ago and told them I might be arrested. I'm 68 years old, and I'm in a wheelchair, but I would be willing to sacrifice myself for my culture."

His attorney contends that forcing the group to dig up the items would be "totally against their fundamental religious cultural beliefs," and a violation of their First Amendment rights.

Not to mention, it could be dangerous. The cave has been sealed and reinforced to protect against future theft, according to Maxwell. "The cave is very unstable. If you move one rock, the entire cave could collapse," he said.

Suganuma claims he has offered to retrieve the items himself, but will leave the matter up to the courts. He believes the outcome is not really in his hands, but is being guided by a higher authority. "What I want to see is the wishes of the ancestors," Suganuma said. "What will be will be — all in its own timing."

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Honolulu Advertiser, Saturday, October 8, 2005

Ezra issues ‘supplement’ critical of Hui Malama

By Gordon Y.K. Pang

U.S. District Judge David Ezra has taken the unusual step of issuing a "supplement" to his ruling in the case involving artifacts at Kawaihae Cave, essentially criticizing the Native Hawaiian organization Hui Malama I Na Kupuna 'O Hawai'i Nei for not raising concerns earlier that the disturbance of the funereal objects could cause destruction of the caves and the objects, also called moepu.

Hui Malama attorneys first raised those concerns in affidavits filed while seeking an appeal to Ezra's original order, which directed the group to retrieve the 83 priceless moepu from the sealed cave. On Sept. 20, the 9th U.S. Circuit Court of Appeals lifted Ezra's order, pending a decision on Hui Malama's appeal.

Two Native Hawaiian organizations filed a lawsuit against Hui Malama and the Bishop Museum, claiming that Hui Malama illegally kept possession of the artifacts after initially borrowing them from the museum. Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts wants the artifacts returned to the museum, pending a final decision by the items' different claimants on their final resting place, a decision that to date has proven elusive. Hui Malama wants the moepu to stay where they are.

Ezra, in his supplemental order dated Thursday, said that if he had been informed about the potential collapse, he still would not have changed his ruling.

Instead, he said, the court "could fashion a remedy which would require, once the exact location of the cave has been disclosed, an appropriate structural engineering review and survey to determine whether in fact damage will occur to the cave in the event the cave is opened, and remedial measures if any could be taken to ameliorate the potential collapse."

Hui Malama, Ezra said, had "refused to specifically identify the location of the cave or if in fact all of the objects that were loaned to them are in fact in the cave."

Hui Malama attorney Alan Murakami said he was puzzled by Ezra's filing and he questioned whether the judge had the jurisdiction to make it. "I'm not sure what he's trying to do," Murakami said. "It sounds like he's reaffirming his order. I don't know what the purpose of that is, especially since we're currently on appeal. I've never seen anything like this while on appeal."

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Honolulu Star-Bulletin, October 8, 2005

Judge reiterates artifact retrieval order
He rejects the new argument that items could be damaged

By Sally Apgar

A federal judge says he would not change his order for retrieval of artifacts from a Big Island cave even though a native Hawaiian group argues that such a move could cause a cave collapse and destroy some of the items.

U.S. District Judge David Ezra weighed in yesterday on a federal lawsuit filed in August by two native Hawaiian organizations that demand 83 items be retrieved from Kawaihae, or Forbes, Cave on the Big Island. The groups want the items held by the Bishop Museum until 14 competing native Hawaiian claimants decide on their disposition.

On Sept. 2, Ezra ordered the native Hawaiian group Hui Malama I Na Kupuna 'O Hawaii Nei to return the 83 items that the group's leaders said they had secretly reburied in the cave in 2001. Hui Malama officials said they had reburied the items to honor the wishes of ancestors just after it took custody of them from the Bishop Museum under terms of a one-year loan.

Hui Malama told Ezra that retrieving the items would desecrate an ancestral burial ground and violate their constitutional rights to the free exercise of religion. Hui Malama has since appealed Ezra's ruling to the 9th U.S. Circuit Court of Appeals in San Francisco, arguing in part that the cave, which was secured from thieves with cement, would collapse if reopened.

Ezra, addressing that point in his supplemental filing yesterday, wrote that Hui Malama in its appeal "for the first time raised the argument that disturbance of the objects in the cave would cause 'potential' destruction of the items through a collapse of the cave in which they are allegedly housed. Defendants have raised this argument despite the fact that, while arguing before this court, they did not affirmatively acknowledge either the exact whereabouts of the cave or the fact that the objects were all definitively located within the cave."

Ezra said it is not clear whether the items are in the cave, so the newly offered threat of a cave collapse has no effect on his decision that the items should be removed.

Alan Murakami, an attorney with Native Hawaiian Legal Corp., which is representing Hui Malama, said he was "puzzled" by Ezra's supplemental order. "I've never seen a lower court act this way once an appeal is taken," Murakami said. "I don't know the purpose."

George Van Buren, an attorney representing Abigail Kawananakoa, representative of one of two native Hawaiian organizations that have demanded the retrieval of the 83 items, said, "We've been concerned, and remained concerned, about the safety of the items, and believe they need to be returned to a safe place."

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http://starbulletin.com/2005/11/17/news/story07.html
Honolulu Star-Bulletin, November 17, 2005

Cave items lawsuit busies burial council
A member alleges back-room politicking before a vote today

By Sally Apgar

A MEMBER of the Hawaii Island Burial Council says the panel's chairman might have violated the state's open-meeting laws by speaking privately to other members about a vote scheduled for today.

In a letter Tuesday to state Deputy Attorney General Vince Kanemoto, who serves as legal counsel to the council, Dutchie Saffrey wrote that within the past week Chairman Charles Young had told her he was calling each member of the council individually to discuss the vote.

Saffrey wrote that Young told her the council's attorney wanted to go into executive session today to discuss the legal ramifications if the council votes in favor of intervening in a federal lawsuit over the fate of 83 artifacts from Kawaihae, or "Forbes," Cave. Saffrey said Young was opposed to an executive session.

Young refused comment yesterday, saying he wanted to see her letter first.

Kanemoto said only that "the Office of Information Practices has primary jurisdiction over complaints of Sunshine Law violations."

Saffrey wrote that from her telephone conversation with Young, "It was clear to me that he was working to line up support for his position that there should be no executive session so that he would have the votes in hand prior to the meeting to take whatever action he wanted regardless of legal advice or what public input occurred at the meeting."

At issue is a vote over the council's intervention into a lawsuit brought by two representatives of native Hawaiian organizations seeking the return of 83 items reburied five years ago in the Big island cave. The two groups want the items returned from the cave so that 14 claimants can examine the items as part of the federal consultation process that oversees the reclamation of native Hawaiian remains and artifacts from museums.

The suit was brought in August by Abigail Kawananakoa, a descendant of Hawaiian royalty, and La'akea Suganuma, president of the Royal Hawaiian Academy of Traditional Arts, against the Bishop Museum and Hui Malama I Na Kupuna O Hawaii Nei (Group Caring for Ancestors of Hawaii), a native Hawaiian organization that repatriates and reburies remains and artifacts.

According to the suit, Hui Malama took the 83 items in February 2000 as a "one-year loan" from Bishop Museum. It reburied them in the cave and has since refused repeated requests to return them.

Kawananakoa and Suganuma, as claimants recognized under federal law, have said they are seeking the return of the items so that all of the claimants have an equal voice in deciding their fate.

On Sept. 7, Chief U.S. District Judge David Ezra ordered Hui Malama to retrieve the items from the cave and bring them "back to a secure location at the Bishop Museum where they will be held in an undisturbed condition" until the 14 competing claimants can decide their disposition.

Hui Malama has a pending appeal of Ezra's order before the 9th Circuit Court of Appeals. In the meantime, at its September meeting, Hui Malama asked the Burial Council to intervene in the suit on its behalf.

Saffrey is at odds with Young in part because Young supports Hui Malama on the issue and she does not.

In a December state auditor's report, the island burial councils, as a group, were criticized for failing to file notices with agendas of their meetings.

Last month, the Honolulu City Council was sued by eight journalism and open-government organizations for violating the state's open-meeting laws when its members met privately to discuss a reorganization plan before coming together for a public vote.

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Honolulu Advertiser, Saturday, November 26, 2005

Court rejects group's cave danger claim

By Ken Kobayashi
Advertiser Courts Writer

A federal appeals court will not consider statements that reopening a sealed Big Island cave to retrieve 83 priceless Hawaiian burial artifacts could cause the cave to collapse.

The 9th U.S. Circuit Court of Appeals on Tuesday ruled that a written sworn statement by a masonry contractor submitted by Hui Malama I Na Kupuna 'O Hawai'i Nei should have been submitted earlier while the case was pending before the trial judge.

Hui Malama has filed an appeal seeking to keep the objects in the cave, but the 9th Circuit agreed with two other Hawaiian groups asking that the artifacts be returned to the Bishop Museum. The court struck the contractor's statement from the record.

Although the ruling favors the two groups, it does not necessarily mean the three-judge appeals-court panel will rule in their favor after it hears legal arguments Dec. 6 in San Francisco.

"I believe it helps our case," said Sherry Broder, lawyer for the two groups, Na Lei Ali'i Kawananakoa and the Royal Hawaiian Academy of Traditional Arts. "The ruling is what we thought was fair and right."

Hui Malama attorneys with the Native Hawaiian Legal Corp. could not be reached for comment yesterday.

U.S. District Judge David Ezra ruled in favor of the two groups Sept. 2. He ordered the return of the artifacts to ensure they are not damaged while Native Hawaiian groups sort out what should be done with them.

Hui Malama maintained that the artifacts had been looted from the cave in 1905. The objects were turned over to the Bishop Museum, which transferred them to Hui Malama in 2000. The group sealed them in the cave and maintains that the artifacts should remain there.

After Ezra issued his ruling, the group submitted to the appeals court a written statement by George Fields III, who said he sealed the cave. He said the reopening would require the removal of a concrete wall at the cave entrance, but the removal would endanger workers because of a "good chance the walls and ceilings of the cave itself could collapse in the process."

Ezra later supplemented his ruling by saying he would not have changed his decision if he had known about the assertions about the cave's potential collapse.

He said he could have ordered a review by an "appropriate" structural engineer to consider whether the reopening would cause any damage. Remedial action could then be taken to minimize any damage, he said.

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Honolulu Advertiser, Wednesday, December 7, 2005

Answers sought on loan, burial of artifacts

By Mike Gordon

A federal appeals court yesterday questioned a Native Hawaiian group's definition of "loan" and whether the group could find the Big Island cave where it buried ancient funeral items if ordered to do so by the court, attorneys involved in the case said.

Hui Malama I Na Kupuna O Hawai'i Nei brought its case to the 9th U.S. Circuit Court of Appeals in San Francisco, claiming that a federal court order in Honolulu in September lacked a factual understanding of the law.

Hui Malama had been ordered by U.S. District Judge David Ezra to return 83 burial items that the group sealed somewhere in the Kawaihae Caves. In 2000, the Bishop Museum loaned the items for a year to Hui Malama, but ever since the group has refused to return them, no matter who was asking.

According to a recording of the hearing, Judge Stephen Trott told Hui Malama attorney Alan Murakami that the group was misusing a law that seeks to protect native rights to cultural objects.

"The case to me gives every appearance, and I mean no disrespect, of your side trying to hijack a process that is supposedly to allow everybody who has a potential claim — and there seems to be many here — to come to the table and sort it out," Trott said.

The court asked tough questions.

"They were scrutinizing us," Murakami said. "There seemed to be a lot of deferral to Judge Ezra's perspective, which we were forced to try and disavow them of. A lot of the provisions he had in his orders are not based on facts."

Murakami said that he tried to persuade the judges to respect the federal law that applies to cases like this — the Native American Graves Protection and Repatriation Act, or NAGPRA for short.

"The whole NAGPRA philosophy is to give native peoples a greater hand into what happens to their objects," Murakami said. "It was a real challenge to try and portray what NAGPRA is all about."

The law provides a process for museums and federal agencies to return certain Native American cultural items — human remains, funerary objects, sacred objects, and objects of cultural patrimony — to lineal descendants, culturally affiliated Indian tribes and Native Hawaiian organizations.

Bishop Museum officials loaned the funeral items to Hui Malama, which signed a loan agreement. But the transfer raised concerns from other Native Hawaiian groups, and the refusal to return them led to two groups filing a lawsuit seeking the court order.

Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts filed a federal lawsuit in August against Hui Malama and Bishop Museum demanding the return of the funeral objects. Ezra ruled that the artifacts should be returned to Bishop Museum while Native Hawaiian organizations sort out claims to the artifacts and decide what should be done with them.

Sherry Broder, the attorney representing the two groups who filed suit, said the judges understood the application of the graves protection act. "They had read all the papers and were familiar with the facts," Broder said. "I thought the questions they asked were very good." Broder said the panel was concerned about the term "loan" as it applied to the documents signed in February 2000 by Hui Malama. "They seemed to think a loan is a loan," she said. "They were concerned that people were saying that a loan was not a loan." Broder said the museum agreed to the loan for the purpose of repatriating the items to Native Hawaiian groups. But once the process was started, additional groups claiming title to the objects came forward, she said.

No fewer than 13 groups have claims on the artifacts, which include carved wooden statuettes of family gods, or 'aumakua; carved bowls; a human-hair wig; gourds decorated with human teeth; tools; and pieces of feather capes. The burial objects are known as the Forbes Collection and were taken from the Kawaihae Caves on the Big Island in 1905.

Hui Malama contends that the items were looted from the cave, then given to the Bishop Museum. The group contends that this means the museum had no right to possess the objects and had to turn them over to a Hawaiian claimant, through a loan or any other means.

"Not all Native Hawaiians agree that these priceless objects are funerary objects, and even if they are, not all Native Hawaiians agree that they should be buried," Broder said.

The panel asked Murakami if Hui Malama could find the items.

"It is not in dispute as to where they are," Murakami said. "But we are not going to say here is a map and X marks the spot, go rob the grave. That has happened before."

LindaLee Farm, the attorney who represented the Bishop Museum yesterday, said the appellate judges were interested in the loan process and the location of the items. "I think it is important to know the location and condition of the items," Farm said. "And that is what Judge Ezra was seeking and he never got from them."

All parties involved said the case was on a fast track and expect a decision soon, possibly in a month or two.

Edward Halealoha Ayau, a spokesman for Hui Malama who attended the hearing, said he thought the judges had a difficult time understanding arguments that "are so deeply cultural." "That is what we are up against," he said. "A Western objectifying of them as priceless rather than the possessions of the dead." Still, Ayau remained optimistic and would pray to his ancestors for help. "If the court rules against us, they rule against them," he said. "It is their burial site that is going to be desecrated against."

LEARN MORE

To download the sound file of the hearing, go to the court site:

http://www.ca9.uscourts.gov

Click on the audio files link on the left; you will be routed to a page where you can enter the case number:

05-16721

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http://starbulletin.com/2005/12/07/news/story04.html
Honolulu Star-Bulletin, December 7, 2005

Appeals court pushes for info on Hawaiian artifacts
At issue is an order for Hui Malama to return reburied items

By Sally Apgar

A panel of three federal judges grilled a native Hawaiian group yesterday about the location, safety and "loan" circumstances of 83 priceless artifacts that they reburied in a Big Island cave five years ago.

At a contentious hearing yesterday in San Francisco, the native Hawaiian group, Hui Malama I Na Kupuna O Hawaii Nei, told the 9th Circuit Court of Appeals that fulfilling a lower federal court order to retrieve the items from Kawaihae Cave, or Forbes Cave, would be a desecration that would violate their "cultural and religious beliefs."

In September, U.S. District Judge David Ezra ordered Hui Malama to retrieve the items, saying the artifacts faced "irreparable harm" from possible theft, environmental conditions and insects. He instructed them to bring the items to the Bishop Museum so that they could be held in climate-controlled safety and away from public view until 14 competing native Hawaiian claimants can decide their fate.

Soon after, Hui Malama appealed Ezra's decision to the higher court. The three-judge panel did not issue a final decision yesterday, but could do so at any time.

Judge Stephen Trott, referring to Ezra's order, said yesterday, "We have a very detailed document from a very experienced trial judge."

According to an audio tape of yesterday's hearing, Trott said that Hui Malama "will have to convince us that he applied an incorrect legal standard, misapprehended the law or relied on clearly erroneous findings of fact."

At one point yesterday, Trott summed up the legal situation, saying "there are numerous, legitimate contenders" for the cave items, and "Judge Ezra was simply trying to preserve the subject of the controversy against the possibility of irreparable harm."

After the hearing, Alan Murakami, an attorney with Native Hawaiian Legal Corp., which is representing Hui Malama, told the Star-Bulletin that "it's really unpredictable how they will (rule)."

Sherry Broder, an attorney representing two native Hawaiian organizations that sued Hui Malama in August demanding return of the items, said "the judges took the matter very seriously and expressed great concern about the safety of the artifacts."

Broder represents Na Lei Alii Kawananakoa and the Royal Academy of Traditional Arts, which are recognized as claimants to the Kawaihae items under the Native American Graves Protection and Repatriation Act.

NAGPRA is a federal law enacted in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts from museums back to indigenous people. NAGPRA provides that when competing claimants cannot resolve issues among themselves, they should enter federal court.

Murakami told the appeals court that the NAGPRA review committee, which has twice recommended the restart of the repatriation process, "took sides and made conclusions of law that clouded this process unnecessarily and, we believe, illegally."

Murakami was questioned intensively about the location of the reburied items because Ezra had used uncertainty about their location as one of his reasons to recall them.

Murakami said Ezra bought the "manufactured contention" of Hui Malama's opponents that "the location is uncertain." He said Ezra "is mistaken" and "made a factual error about the issue" of location.

The judges also questioned Murakami about how Hui Malama obtained the items.

According to court documents, Hui Malama signed a "one-year loan" for the items in February 2000. That loan was the subject of debate during yesterday's proceedings, in part because Hui Malama repeatedly said publicly that it did not intend to return the items because the loan "was a vehicle for repatriation."

Murakami told the court that the items were looted from the cave in 1905 by three grave diggers and that the museum knew it was taking stolen goods. "How can you loan something that was (originally) stolen?" said Murakami.

Broder said Hui Malama's treatment of the loan "sabotaged" the repatriation process.

Near the end of the hearing, Trott seemed to agree, telling Murakami: "The case to me has every appearance of your side trying to hijack a process" designed to "allow everyone, who has a right, to come to the table."

Murakami countered that the court's "view is misinformed," adding, "I hear inflammatory accusations thrown against Hui Malama hoping that one will stick."

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http://starbulletin.com/2005/12/09/editorial/editorial02.html
Honolulu Star-Bulletin, December 9, 2005, Editorial

OUR OPINION

Artifacts dispute divides Hawaiians

THE ISSUE

A dispute about Hawaiian artifacts in a Big Isle cave is before a federal appeals court.

A FEDERAL appeals court appears likely to sustain an order that Hawaiian artifacts taken a century ago from a Big Island cave be returned temporarily to the Bishop Museum until their eventual destination is decided. Hawaiians disagree about whether the artifacts should remain in the cave. Barring any compromise, which is improbable, that larger issue will be decided in court.

Federal Judge David Ezra ordered the return of the artifacts to the museum in September. In arguments before a three-judge panel of the 9th U.S. Circuit Court of Appeals, Judge Stephen Trott said Ezra "was simply trying to preserve the subject of the controversy."

The 83 artifacts were taken from the cave by amateur archaeologist David Forbes in 1905 and sold to the museum two years later. They were transferred in 2000 to Hui Malama I Na Kupuna O Hawaii Nei, a native Hawaiian group, under what was called "a one-year loan."

Edward Halealoha Ayau, a Hui Malama spokesman, has said it was never intended to return the artifacts to the museum. Hui Malama has claimed instead that the loan "was a vehicle for repatriation." That is another way of saying the end justifies the means, hardly a powerful legal argument.

Hawaiians disagree about whether caves were intended as burial sites or as safe places to store precious items before modern locked facilities. Hui Malama is among 13 claimants of the artifacts, and five are Hawaiian groups that want them retrieved. Those include Na Lei Alii Kawananakoa and the Royal Academy of Traditional Arts, plaintiffs in the lawsuit.

The 1990 Native American Graves Protection Act established a review committee but it has no power to resolve disputes. The absence of compromise appears to make a lengthy court battle inevitable.

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Honolulu Advertiser, Tuesday, December 13, 2005

Group spurns ruling on Hawaiian artifacts

By Gordon Y.K. Pang and James Gonser

Officials with a Native Hawaiian group yesterday asserted that they will continue to fight a federal court order requiring them to return 83 priceless burial objects to the Bishop Museum, despite an appeals court ruling affirming that decision.

The decision calls for Hui Malama I Na Kupuna 'O Hawai'i Nei to cooperate with authorities in retrieving artifacts believed to be sealed in a Big Island cave.

"We're going to ask for relief immediately," said Alan Murakami, an attorney with the Native Hawaiian Legal Corp. which is representing Hui Malama. Murakami said he intends to file a motion this week in Honolulu District Court that would halt the order.

After a one-day hearing last week, the San Francisco-based 9th U.S. Circuit Court of Appeals yesterday issued a four-page decision stating it found no abuse of discretion by U.S. District Judge David Ezra, as had been argued by Hui Malama attorneys.

In September, Ezra directed Hui Malama to return the artifacts within 16 days so that claimants to the items, which include Hui Malama and the two Native Hawaiian groups that filed the lawsuit, can sort out what should be done with them.

Hui Malama's appeal of that decision had delayed the countdown imposed by Ezra.

The museum loaned the items to Hui Malama in 2000, but the group since has refused to return them, saying they belong in their original resting place and that returning them would again desecrate the burial site.

Known as the Forbes Collection, the items were taken from the Big Island's Kawaihae Caves in 1905 and turned over to the Bishop Museum. Hui Malama and its supporters say the items were looted from the cave then and that to seek their removal again would go against the group's "cultural and religious beliefs."

Sherry Broder, who represents Na Lei Ali'i Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, the groups that had filed the suit seeking the return of the artifacts, said her clients were pleased with the quick appeals court decision.

"We're glad to see that the Ninth Circuit agreed with Judge Ezra that a loan is a loan," Broder said. "We're committed to the task at hand, which is to go retrieve the artifacts and bring them back."

Broder said she now expects to resume the countdown. "This is a court order and they need to comply."

LindaLee Farm, an attorney for Bishop Museum, said she, too, was pleased with the decision. "We stand ready to assist in the implementation of Judge Ezra's order," she said. The museum, named defendant in the case, has supported the return of the artifacts.

Farm said she believes that Hui Malama has only three days ó until Thursday ó to return the artifacts because the original order by Ezra was issued on Sept. 7 and and a stay was issued by the appeals court Sept. 20. "Thirteen days passed and the order gave them 16 days," she said. "So they get the remaining three days."

But Murakami and Edward Halealoha Ayau, a Hui Malama spokesman, said they have not yet exhausted their legal options. Murakami wants Ezra to look at information, submitted by Hui Malama after the judge's initial ruling, about safety issues involved with entering the Big Island cave. He noted that a masonry contractor has warned that attempted entry could cause the cave to collapse. The appeals court earlier this month did not consider that additional testimony, stating it should have been brought up in earlier proceedings.

"How do you order somebody to put their own safety and life in jeopardy?" Murakami asked. "That's the position we feel we're in. That's what the affidavit (from the contractor) said. People could get hurt. The cave could collapse."

Asked if Hui Malama officials were ready to cooperate with the court or other authorities if not granted that request, Murakami said he had no comment.

Ayau said that the Native American Graves Protection and Repatriation Act Review Committee issued a letter last month clarifying its position that the remains should be left in the cave. "The review committee never required the recovery of the moepu and that the items should be left where they're at," Ayau said.

That assumption was a key basis of the argument made by Broder in her argument and later by Ezra in his decision, Ayau said. But Broder said last night that at least two members of the NAGPRA Review Committee are disputing the language in last month's letter and asked that it be withdrawn. That aside, Broder said, "Judge Ezra made his own independent finding so I don't think it's going to make any difference anyway."

Murakami said Hui Malama is "on the verge" of getting a majority of the original 13 claimants to the artifacts to agree that leaving the items in the cave is the best course of action. He declined to elaborate.

The issue of the Kawaihae Caves artifacts has long been a source of emotional divisiveness among Native Hawaiians and reaction to the 9th Circuit decision was mixed.

Clyde Namu'o, administrator for the Office of Hawaiian Affairs, said the office years ago took the position that the artifacts should be returned. "If that is what the 9th Circuit Court has ruled, we are certainly pleased," Namu'o said. "I'm just pleased (the court) reacted so quickly to the oral arguments."

Van Horn Diamond, of the Van Horn Diamond 'Ohana and former chairman of the O'ahu Island Burial Council, said the items should be returned. "The decision enables us to go forward," Diamond said. "It will set to rest, one way or the other, whether all the items have been buried there or some place else. There have been allegations they have been sold on the black market."

Hawaiian activist Dennis "Bumpy" Kanahele said Bishop Museum officials should go to the cave themselves if they want the artifacts back. "As far as I see it, the job was done when Hui Malama went and put them back in the cave," Kanahele said. "It's like going into Punchbowl (cemetery) and digging up some of the graves over there and figuring out what can be used for study in the future. It's sad." Kanahele said Hui Malama should continue its fight.

Dutchy Saffrey, a member of the Big Island Burial Council, supports the court's decision but is concerned about security at the cave. "Security is essential right now to prevent any entry," Saffrey said. "I'm fearful a whole group of people out there that may go in and open it up. Then we will never know what is there and what is not there. That place should be secured 24 hours a day until Judge Ezra has his people go in there to do that."

Kawaihae Cave is on land under the jurisdiction of the state Department of Hawaiian Home Lands. DHHL Director Micah Kane said his agency will abide by the order of the court.

Kane said the site is in a remote area that is closely monitored. "We're making sure the integrity of the caves is maintained." While there is not an around-the-clock presence, he said, "we do have people checking it."

YESTERDAY'S RULING

A panel of the 9th U.S. Circuit Court of Appeals yesterday affirmed U.S. District Judge David Ezra's September injunction that directed Hui Malama I Na Kupuna o Hawai'i Nei to return artifacts from a Big Island cave to the Bishop Museum.

The three appeals court judges -- Stephen Trott, Thomas G. Nelson and Richard Paez -- said they reviewed whether Ezra committed "abuse of discretion," as Hui Malama claimed, and found none.

"Our review is 'limited and deferential,' " the judges said in a memorandum. "The district court abuses its discretion when it applies an incorrect legal standard, misapprehends the law in its initial assessment of the merits of the case, or relies on clearly erroneous findings of fact."

The judges said Ezra's decision that the interests of justice and the public would best be served by bringing the items back to a secure location at Bishop Museum for the time being "are supported by record and are not clearly erroneous."

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** The Honolulu Advertiser published a URL for its own pdf copy of the decision. That pdf can be found on the Advertiser's website at:
http://the.honoluluadvertiser.com/dailypix/2005/Dec/12/artifactsdecision.pdf

Here is the text from that pdf **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NA LEI ALII KAWANANAKOA, a
Hawaii non profit corporation; ROYAL
HAWAIIAN ACADEMY OF
TRADITIONAL ARTS, a Hawaii non-profit
corporation,
Plaintiffs - Appellees,
v.
HUI MALAMA I NA KUPUNA O
HAWAI‘I NEI, a Hawaii non-profit
corporation,
Defendant - Appellant,
BISHOP MUSEUM, a Hawaii non-profit
corporation,
Defendant - Appellee.
No. 05-16721
D.C. No. CV-05-00540-DAE
MEMORANDUM *
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted December 6, 2005
FILED
DEC 12 2005
CATHY A. CATTERSON, CLERK U.S. COURT OF APPEALS•2
San Francisco, California
Before: TROTT, T.G. NELSON, and PAEZ, Circuit Judges.

Defendant-Appellant Hui Malama I Na Kupuna O Hawai‘i Nei (“Hui
Malama”) appeals an order of the district court granting Plaintiffs Na Lei Alii Kawananakoa and Royal Hawaiian Academy of Traditional Arts’s (collectively “Plaintiffs”) motion for a preliminary injunction. The injunction requires Hui Malama to return certain funerary objects to Defendant-Appellee Bishop Museum, or to cause them to be returned to the museum. We stayed the injunction pending the outcome of this interlocutory appeal. We have jurisdiction pursuant to 28 U.S.C. § 1292 and we affirm the district court and vacate the stay. We review for abuse of discretion a district court’s order granting a preliminary injunction. Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc). Our review is “limited and deferential.” Id.

The district court abuses its discretion when it applies an incorrect legal standard, misapprehends the law in its initial assessment of the merits of the case, or relies on clearly erroneous findings of fact. Caribbean Marine Servs. Co. v. Baldridge, 844 F.2d 668, 673 (9th Cir. 1988). “Absent one of these errors, the district court’s decision will not be reversed merely because the appellate court would have•3 arrived at a different result if it had initially applied the law to the facts of the case.” Id.

“A preliminary injunction is appropriate where plaintiffs demonstrate either: (1) a likelihood of success on the merits and the possibility of irreparable injury;
or
(2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [their] favor.” Sw. Voter, 344 F.3d at 917 (internal quotation omitted) (alteration in original). “The district court must also consider whether the public interest favors issuance of the injunction.” Id.

The district court properly applied this legal standard. In its Order Granting Plaintiffs’ Motion for a Preliminary Injunction, the court found “that Plaintiffs have raised serious questions as to whether a violation of the Native American Graves Protection and Repatriation Act has occurred, and that there is a great risk of irreparable harm to the [funerary objects], tipping the balance of hardships sharply in Plaintiffs’ favor.” The court also concluded “that the interests of justice and the public would be best served by bringing the items back to a secure location at the Bishop Museum during the pendency of this matter.” These findings are supported by the record and are not clearly erroneous. Because the district court neither applied an incorrect legal standard, misapprehended the law, nor relied on•clearly erroneous findings of fact, it did not abuse its discretion in granting the preliminary injunction.

We AFFIRM the district court’s order granting a preliminary injunction. We also VACATE the stay order issued by this court on September 20, 2005.

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http://starbulletin.com/2005/12/13/news/story05.html
Honolulu Star-Bulletin, December 12, 2005

Appeals court upholds ruling against Hui Malama
The organization is given 16 days to return native Hawaiian artifacts to Bishop Museum

By Sally Apgar

The 9th Circuit Court of Appeals has told a native Hawaiian group to return 83 priceless artifacts to Bishop Museum so other claimants may get an opportunity to help decide their final resting place.

In a unanimous vote yesterday, the three-judge panel in San Francisco upheld the Sept. 7 ruling by U.S. District Judge David Ezra, who ordered Hui Malama I Na Kupuna O Hawaii Nei to return the objects, which were buried at Kawaihae, or "Forbes," cave five years ago.

Hui Malama was founded in 1989 to repatriate native Hawaiian bones and artifacts from museums and construction sites, but its practices have come under criticism by other groups.

Ezra ordered the artifacts be secured in a climate-safe environment, away from public view, at the Bishop Museum until the competing claimants resolve their differences.

The appeals court, which heard oral arguments to overturn Ezra's order Dec. 6, gave Hui Malama 16 days to honor the order. However, the order did not specify when the 16-day timetable begins.

"The interests of justice and the public would best be served by bringing the items to a secure location at the Bishop Museum during the pendancy of this matter," the ruling said.

It continued: "These findings are supported by the record and are not clearly erroneous. Because the District Court neither applied an incorrect legal standard, misapprehended the law nor relied on clearly erroneous findings of fact, it did not abuse its discretion in ordering the return of the items."

Hui Malama representatives criticized the decision.

"The judges got it wrong," said Alan Murakami, an attorney with the Native Hawaiian Legal Corp., which represents Hui Malama. "Hui Malama has been forced to deal with this Western legal system for satisfaction of Hawaiian cultural issues," Murakami said, adding that the judges "weren't impressed that the First Amendment rights (to freedom of religion) of Hui Malama would be violated." Murakami was considering strategies to appeal the opinion.

Hui Malama had argued that opening the cave would be a desecration that violates their religion. They also argued that if anyone attempted to open the cave -- reinforced with concrete and steel rebar -- it would collapse. The 9th Circuit threw out the safety issue on the technicality that it had not been argued before Ezra.

Sherry Broder, an attorney representing two native Hawaiian organizations that sued Hui Malama in August demanding return of the items, said yesterday, "It's amazing that we got a decision as fast as we did. I think the panel recognized the importance of implementing Judge Ezra's order as soon as possible to protect these priceless artifacts before they are stolen or degraded by the elements or insects." "The panel really reaffirmed Ezra's order and did not change one word of his previous order," Broder said. Broder represents Na Lei Alii Kawananakoa and the Royal Academy of Traditional Arts, which are federally recognized -- along with Hui Malama and 11 other organizations -- as claimants by the Native American Graves Protection and Repatriation Act.

NAGPRA is a federal law enacted in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts from museums back to indigenous people. NAGPRA allows federal courts to intervene if competing claimants cannot resolve issues among themselves.

In September, Ezra ordered Hui Malama to retrieve the items, saying the artifacts faced "irreparable harm" from possible theft, environmental conditions and insects. He instructed them to bring the items to the Bishop Museum. Ezra's order said that Hui Malama was required to give the exact location of the artifacts. The location has been an issue, and as of late yesterday, Hui Malama had not released its location to Broder.

During oral arguments last week, one appellate judge, Stephen Trott, summed up the legal situation, saying "there are numerous, legitimate contenders" for the cave items, and "Judge Ezra was simply trying to preserve the subject of the controversy against the possibility of irreparable harm."

According to court documents, Hui Malama signed a "one-year loan" for the items in February 2000. That loan has widely been debated, partly because Hui Malama repeatedly said publicly that it did not intend to return the items because the loan "was a vehicle for repatriation."

Broder said that the 9th Circuit panel "agreed with Judge Ezra that a loan is a loan." Murakami told the court that the items were looted from the cave in 1905 by three grave diggers and that the museum knew it was taking stolen goods. "How can you loan something that was (originally) stolen?" said Murakami, who maintains the museum has no control over stolen items.

But Broder said Hui Malama's treatment of the loan "sabotaged" the repatriation process.

Near the end of last week's hearing, Judge Trott seemed to agree, telling Murakami, "The case to me has every appearance of your side trying to hijack a process" designed to "allow everyone, who has a right, to come to the table."

Murakami said yesterday that the "judges also got it wrong with words like 'hijacking the process.'" Murakami said of one legal opponent, "Kawananakoa sat on her rights (to repatriation) for nine years before asserting herself, long after repatriation was completed."

So far, the courts have sided with NAGPRA, which found against Hui Malama and said the repatriation process needs to be redone.

Murakami said the court "doesn't know that the majority of claimants want the items left in place (in the cave). But they will be hearing about that over the next few days."

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051213/OPINION01/512130312/1105/OPINION
Honolulu Advertiser, Tuesday, December 13, 2005, Editorial

It's time to resume burial cave dialogue

The first wrong in the century-old saga of the Forbes Cave artifacts was committed by David Forbes himself, when his expedition removed 83 Hawaiian objects from a Big Island burial cave in 1905.

The federal law protecting native burials was intended to correct such wrongs and give native groups the right to control the placement and treatment of their cultural treasures and burial objects.

But what happened in this case — one group taking advantage over others seeking to claim these items — was not the law's intent. That group, Hui Malama I Na Kupuna O Hawai'i Nei, was given temporary custody of the objects in a 2000 loan and subsequently reburied them without a clear accord among the other claimants.

A panel of the 9th Circuit Court of Appeals evidently understood the law's purpose, which is why the judges upheld an order that will restore at least a measure of fairness to what is always a difficult process.

In their response to oral arguments presented last week, the judges rightly interpreted the hui's action as short-circuiting the federal claims process, even when it's cast as an effort to right the original sin of the Forbes expedition.

The appellate court has lifted a legal barrier so that U.S. District Judge David Ezra can order the objects returned to the Bishop Museum while negotiation resumes over their final disposition.

Should the burial cave at Kawaihae be the final resting place for all of the objects? Some of them? These are the questions that Native Hawaiian organizations must decide, once the objects are kept in a place accessible to all of them.

The federal law, the Native American Graves Protection and Repatriation Act, is applied to Hawaiian claims with some difficulty, because there is no single authority that can speak for Hawaiians.

On the Mainland, claims typically involve individual tribes or even family groups where questions of right of possession are somewhat easier to resolve.

Until such a Hawaiian authority is established — something that federal recognition of Native Hawaiians could enable — the return of cultural objects to their indigenous owners will be fraught with conflict.

Who is the rightful owner? What is the proper disposition of the objects?

Otherwise, finally, government authorities and law enforcement must be vigilant in protecting the burial caves until the objects can be retrieved in a respectful, orderly manner.

There's been enough upheaval over this issue. It's time for calm and aloha to prevail.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051213/COLUMNISTS02/512130345/1120/NEWS
Honolulu Advertiser, Tuesday, December 13, 2005, columnist opinion
** Note: Lee Cataluna is the daughter of Don Cataluna, who is a trustee of the Office of Hawaiian Affairs representing Kaua'i and Ni'ihau. **

Moepu are not for our eyes to see

By Lee Cataluna
Advertiser Columnist

Mai lawe wale i na mea i ho'omoepu 'ia

— Don't want only take things placed with the dead.

That saying is included with the definition of "moepu" in Mary Kawena Pukui and Samuel H. Elbert's "Hawaiian Dictionary." The idea of leaving burial items undisturbed is inherent to the meaning of moepu. They were not meant for our eyes or for our world.

In every culture, not just that of ancient Hawaiians, items left in the resting place of a loved one are sacred.

Can you imagine war medals being dug up from Punchbowl and put on display for school kids to see? The mere suggestion is stomach-turning and ire-provoking. Those medals belong where they are.

The items taken from burial caves in Kawaihae are no different.

These items do not belong to everyone. They don't even belong to all Hawaiians or the keiki of the future. They belong to the people who were buried in that cave. Their direct descendants may have a claim to the pieces, but if their ancestors wanted them to have these things, they probably wouldn't have buried them. They would have passed these pieces down with instructions to keep them in the family.

There are federal laws, and then there's what's right. Hui Malama i na Kupuna o Hawai'i Nei may have acted outside the American structure of property law, but they were acting on a belief of what is pono. Taking belongings from the cave again after they were returned hardly seems pono. Three wrongs don't make a right.

There are federal laws, and then there are the intentions of those who first put those 83 objects in that cave. Those people didn't intend for these things to end up in a museum for all eyes to pay money to see, nor did they intend for the pieces to be handled or studied or argued over in a far-removed time of different values and incomplete understandings.

Who is Hui Malama to decide where moepu rest? It can be argued that Hui Malama did not decide, but only acted on the decision of the ancestors.

There is not this kind of fuss over bones. No family members are fighting over whether Hawaiian bones in far away museums should be reburied. The fight there is with the museums, or the Wal-Mart, and not within the families, and when those bones come home and go back to rest, there is great relief in the 'ohana.

But bones don't have the Western monetary value of "artifacts."

There is a rip current of Hawaiian and Western values here, of Hawaiian and American law. Western values and American law see Western graves as sacred and untouchable, but Hawaiian graves as "priceless archaeological finds."

These items are not finds. They should not have been found. They were hidden and should remain so.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051216/NEWS23/512160365/1173/NEWS
Honolulu Advertiser, Friday, December 16, 2005

Group wants disclosure of artifacts site under seal

By Gordon Y.K. Pang

The head of Hui Malama I Na Kupuna O Hawai'i Nei is signaling an intention to comply with a federal court order requiring disclosure of the location of 83 priceless funerary artifacts the group obtained from the Bishop Museum, but the group wants that information kept sealed from the public.

The Native Hawaiian group, however, will continue to seek relief from the part of the order requiring that it do the actual recovery and return of the artifacts to the museum, according to Alan Murakami, an attorney for the Native Hawaiian Legal Corp. which is representing Hui Malama.

According to documents filed in U.S. District Court yesterday, Hui Malama executive director Edward Halealoha Ayau said he will disclose the location of the artifacts in a written declaration. But Native Hawaiian Legal Corp. attorneys say they want that disclosure to be sealed.

"Given the court's concerns regarding the security and safety of the moepu and the availability to the public of documents filed with the court, sealing of the location of the moepu is warranted to ensure they remain secure pending compliance with the court's order," wrote M. Uilani Pau'ole, a Native Hawaiian Legal Corp. attorney.

Further, she wrote, "Hui Malama believes and fears that if the location of the moepu is not under seal, then any number of unlimited people outside of this action can and may locate the moepu and retrieve, or attempt to locate and retrieve, them improperly and illegally and with severe risk to their personal safety."

The items are believed to be in a cave, or a system of caves, known as Kawaihae Cave on the west coast of the Big Island. The site is believed to be on property owned by the state Department of Hawaiian Home Lands, which has said it will not fight the court order.

Hui Malama has submitted an affidavit from a masonry contractor who warned that attempted entry could cause the cave to collapse.

Bishop Museum loaned the items to Hui Malama in 2000, but the group since has refused to return them, saying they belong in their original resting place and that returning them would again desecrate the burial site.

At least 13 Native Hawaiian groups have sought claim of the artifacts. Two of those groups, Na Lei Ali'i Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, filed the suit seeking the return of the artifacts. The museum, named defendant in the case, has supported the return of the artifacts.

Known as the Forbes Collection, the items were taken from the Kawaihae caves in 1905 and turned over to the museum. Hui Malama and its supporters say the items were looted from the caves then and that to seek their removal again would go against the group's "cultural and religious beliefs."

The 9th U.S. Circuit Court of Appeals this week rejected an appeal by Hui Malama and affirmed U.S. District Judge David Ezra's order that the organization cooperate with authorities in retrieving the artifacts. Hui Malama officials and attorneys are scheduled to hold a press conference today explaining their strategy in the face of the Circuit Court's decision.

Hui Malama continues to maintain that the artifacts should stay where they are, Murakami said. He pointed to the safety issues and a Dec. 2 letter from the Native American Graves Protection and Repatriation Act Review Committee "clarifying" that it did not wish to seek removal of the items from the cave.

Parties seeking the artifacts' return to the museum have sought to discredit the recent NAGPRA letter, pointing out that two committee members said they did not approve it and want it withdrawn.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051217/NEWS23/512170343/1173/NEWS
Honolulu Advertiser, Saturday, December 17, 2005

Rethink order to return artifacts, group asks judge

By Mike Gordon

A Native Hawaiian group fighting to keep 83 ancient funerary objects buried and hidden on the Big Island asked a federal judge yesterday to reconsider an earlier order to return them, saying it has compelling information that needs to be reviewed.

Hui Malama I Na Kupuna O Hawai'i Nei, which lost an appeal to the original order on Monday, stressed two points in its motion: that the sealed cave where the items are buried is too dangerous to open and that a Native American Graves Protection and Repatriation review committee recently stated that the objects should remain buried.

In 2000, Bishop Museum loaned the items to Hui Malama for a year, but ever since the group has refused to return them. The group was ordered in September by U.S. District Judge David Ezra to return the items. The 9th U.S. Circuit Court of Appeals affirmed that decision after pondering it for less than a week.

"We think there are good grounds for Judge Ezra to look at this information and really consider whether or not he truly had the complete picture of whether completing the recovery of the moepu would be practical and reasonably safe and not put Hui Malama or anybody else in danger," said Alan Murakami, an attorney representing Hui Malama.

Ezra's Sept. 7 order had given the group 16 days to return the items, but yesterday Murakami said he was not sure what kind of deadline the group now faced. On Tuesday, Ezra will hold a status hearing on the matter.

The burial objects include carved-wood statuettes of family gods, or 'aumakua; carved bowls; a human-hair wig; gourds decorated with human teeth; tools; and pieces of feather capes.

Known as the Forbes Collection, they were taken from the Kawaihae Caves on the Big Island in 1905. Hui Malama contends that the items were looted from the cave, then given to the Bishop Museum.

Two groups — Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts — filed a federal lawsuit against Hui Malama and the Bishop Museum in August, demanding the objects' return.

Hui Malama's belief that the cave is unsafe was part of an argument rejected last month by the appellate court and also by Ezra. The group said a masonry contractor who sealed the cave at its request believes that reopening it could cause it to collapse.

In his statement, the contractor said opening the cave would require the removal of a concrete wall at the entrance, but that would endanger workers because of a "good chance the walls and ceilings of the cave itself could collapse in the process."

The graves protection act, dubbed NAGPRA by many, provides a process for museums and federal agencies to return certain Native American cultural items — human remains, funerary objects, sacred objects, and objects of cultural patrimony — to lineal descendants, culturally affiliated Indian tribes and Native Hawaiian organizations.

A NAGPRA review committee said in May 2003, and this March, that giving the items to Hui Malama for repatriation was "flawed" and that they needed to be returned.

But in a Dec. 2 letter intended to clarify the committee's stance, a staffer stated that the 2003 "findings and recommendations in no way implies or requires that the Kawaihae materials be removed from their present location."

Sherry Broder, an attorney for two groups who sued for the return of the funerary objects, yesterday said she found the letter puzzling. "It seemed like they were very specific in 2003 and 2005 that the items were to be recalled," Broder said. "I don't understand that letter." Broder said Hui Malama's desire to keep the issue before the federal court was "very unfortunate," in part because the court made its decision swiftly. And she said the courts are clear on what they want. "They need to comply," Broder said. "There are federal court orders against them. It is not what they wanted and I can understand that. They have lost. They need to comply."

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http://starbulletin.com/2005/12/17/news/story04.html
Honolulu Star-Bulletin, December 17, 2005

Hawaiian group says court fails in dispute
Hui Malama believes federal judges do not understand traditions and cannot rule fairly

By Sally Apgar

A native Hawaiian group decried yesterday that "deeply felt cultural issues" involving 83 artifacts reburied on the Big Island are being decided "in a Western court" that has no understanding of Hawaiian traditions.

Pualani Kanahele, a founding member of the group, Hui Malama I Na Kupuna O Hawaii Nei, said the escalating dispute over the artifacts has pitted "Hawaiians against Hawaiians and, sadly, even family against family."

At an emotionally charged press conference held yesterday at the Center for Hawaiian Studies at the University of Hawaii, Hui Malama, a group founded in 1988 to repatriate and rebury Hawaiian bones and artifacts from museums and construction sites, presented its side in an ongoing legal dispute in federal court.

Charles Maxwell, another member of Hui Malama, said, "Federal law does not give Hawaiians justice. It is difficult for Hawaiians to get justice in their own land."

Hui Malama supporters talked passionately about topics ranging from demanding the resignation of Bill Brown, president of the Bishop Museum, who they said started the battle over the Kawaihae cave items, to a unanimous declaration from the directors of Hui Malama that it would no longer "give answers or information" to reporters or editors of the Star-Bulletin "because of past treatment."

Edward Halealoha Ayau of Hui Malama said, "We are in a Western court of law trying to explain to Western-trained judges and lawyers our deeply felt cultural values. We are in an inappropriate forum."

The long-standing dispute over the artifacts spilled into federal court in August when two of the 14 claimants to the artifacts filed a lawsuit asking that the 83 items be retrieved from the cave so that the claimants could review them and decide their final resting place.

On Sept. 7, U.S. District Court Judge David Ezra ordered the physical retrieval of the items so that other claimants could review the artifacts in the course of deciding their final disposition.

Earlier this week, a three-judge panel at the 9th Circuit upheld Ezra's order.

Hui Malama argued against retrieval, saying that retrieving the items would desecrate a sacred burial cave and thereby violate their constitutional right to freedom of religion.

Yesterday, Alan Murakami, an attorney with Native Legal Hawaiian Corp. who is representing Hui Malama, said that he will soon file a motion in Ezra's court "to give a full picture" of the case. Murakami said that there are three issues Ezra needs to understand.

First, he said that a mason who helped bury the items has said that anyone entering the cave will need to use jackhammers to penetrate the cement and rebar securing the cave from grave robbers. The mason, George Fields, said in a court statement that the cave could collapse.

Second, Hui Malama says that it has a majority, or seven of 13 claimants, arguing that the items should not be retrieved from the cave.

However, Campbell Estate heiress Abigail Kawananakoa, one of two claimants filing the lawsuit, says there are 14 claimants, and therefore seven is not a majority, but a deadlock. Kawananakoa was recognized by the Bishop Museum as a claimant.

Hui Malama also intends to argue that the court needs to review new evidence about what a federal committee charged with making recommendations about repatriations has said about the Kawaihae case.

At the press conference, Hawaiian-studies professor Lilikala Kame'eleihiwa said in part the dispute "has to do with the divide between Hawaiians following traditional practices" and those Hawaiians "who are so colonized and Westernized that they no longer know how to take care of their kupuna."

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http://the.honoluluadvertiser.com/article/2005/Dec/20/br/br02p.html
Honolulu Advertiser, breaking news, Posted at 12:15 p.m., Tuesday, December 20, 2005

Judge wants no more delays in return of artifacts

By Gordon Y.K. Pang

A stern U.S. District Judge David Ezra this morning said there will be no further delays in the return of 83 priceless cultural artifacts and ordered that the Native Hawaiian group that borrowed them from the Bishop Museum cooperate in their return.

Ezra denied Hui Malama I Na Kupuna O Hawai'i Nei's request to reconsider his original order to return the objects, stating that its attorneys had no new information to change his mind.

"I will not have your client ignoring a valid and subsisting court order," Ezra told attorney Alan Murakami of the Native Hawaiian Legal Corp., which is representing Hui Malama. The 9th U.S. Circuit Court of Appeals last week reaffirmed Ezra's earlier decision ordering the immediate return of the artifacts.

Ezra ordered Hui Malama to turn over by 4 p.m. tomorrow all information regarding the whereabouts of the artifacts, which Hui Malama officials have stated have been returned to two remote caves along the Kawaihae coast of the Big Island. While Murakami said his understanding was that Hui Malama had turned over what information it has, including the Global Positioning System coordinates of the items, Ezra said what he had seen to date was inadequate.

The judge agreed to Hui Malama's request to not participate actively in the removal of the artifacts. Instead, the group will pay for half the costs associated with their removal. Bishop Museum will pay the other half. He also granted the group's request to keep the exact location of the objects under a court seal.

No immediate time line for the return was discussed. Ezra ordered all parties to submit by next Wednesday a list of three engineers they believe qualified to review the structural integrity of the caves, which Hui Malama officials said have been sealed.

Hui Malama officials fiercely believe the artifacts should stay where they are, pointing out that they were removed from caves in Kawaihae in 1905 by Western archaeologists. Removal of the artifacts from the caves would be culturally insulting and be dangerous to those involved in such an undertaking, they said.

The artifacts have been in dispute for some time. More than a dozen Native Hawaiian organizations, including Hui Malama, are claimants to the artifacts and have been engaged in discussions over the final resting place of the objects. Two of the other groups, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, sued Hui Malama and the museum, seeking that the artifacts be returned to the museum to allow the groups to make a final determination.

A key point of discussion is whether the objects are funerary, or placed with the remains of humans at the time of burial. Hui Malama insists that they are, while its opponents say that has never been established.

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http://starbulletin.com/2005/12/20/news/story04.html
Honolulu Star-Bulletin, December 20, 2005

Displaced artifacts generate legal heat
The fate of rare items occupies a judge and three native groups

By Sally Apgar

Two native Hawaiian groups asked yesterday that another native Hawaiian group be found in violation of a federal court order because it has not returned 83 artifacts from a Big Island cave.

In the latest turn in an increasingly bitter legal battle, lawyers for the two groups said yesterday that Hui Malama I Na Kupuna O Hawai'i Nei, a group founded in the 1980s to rebury native Hawaiian remains and burial items, has "totally failed" to comply with U.S. District Judge David Ezra's order to retrieve the items from Kawaihae or Forbes cave.

"We need to proceed as soon as possible to retrieve the artifacts," said Sherry Broder, the attorney representing the Royal Academy of Traditional Arts and Na Lei Alii Kawananakoa, which was formed by Campbell Estate heiress Abigail Kawananakoa.

Also yesterday, Hui Malama asked Ezra to reconsider his Sept. 7 retrieval order based on new evidence, including information about the location, safety and security of the cave. Hui Malama has repeatedly argued that entering the cave is a desecration that violates its members' constitutional right to religious freedom. They have also said that they secured the cave with concrete and metal rebar and that using a jackhammer would cause the cave to collapse. The group said it reburied the items there in 2001.

Hui Malama said that if the court did not reconsider the order, it wants someone else to do the retrieval.

Hui Malama declined to comment by phone or e-mail. During a news conference Friday, Hui Malama said it would "refuse to provide any information or comments" to the Star-Bulletin "due to past mistreatment" in its coverage of the group's activities.

In their filing yesterday, Kawananakoa and the Royal Academy said "time is of the essence" because of threats of looting and deterioration of the artifacts from environmental conditions and insects. The two said they are willing to retrieve the artifacts and want to go to the cave this week. They asked for federal law enforcement to be present to ensure security. They said Hui Malama's cave collapse claims are vague and that they want a structural engineer, hired at Hui Malama's expense, to assess risks.

Hui Malama has requested federal officials be posted at the cave for security until the issue is resolved. Ezra is scheduled to hold a status conference on the case this morning.

On Sept. 7, Ezra ordered Hui Malama to retrieve the items and turn them over to the Bishop Museum for storage -- away from public view -- so that 14 competing native Hawaiian claimants can review the items and decide their final resting place.

Under Ezra's order, Hui Malama had 16 days or until Sept. 23 to comply. Thirteen days later, Hui Malama appealed to the 9th U.S. Circuit Court of Appeals to overturn the order, and Ezra's order was suspended pending a decision. Last week, the 9th Circuit upheld Ezra's order.

As Broder sees it, Hui Malama had three days remaining under the 16-day order and should have retrieved the items last Thursday.

Another issue is that the cave is on land owned by the Department of Hawaiian Home Lands, which must grant access permission.

Home Lands Commission Chairman Micah Kane said yesterday, "The commission is awaiting clear and final direction from the federal court. We are in the process of reviewing the 9th Circuit decision, and we will comply with the court's order."

In its role as one of the 14 claimants to the items, the Hawaiian Homes Commission is against retrieving the items.

The Office of Hawaiian Affairs issued a statement yesterday saying that as a claimant, it supports retrieval from the cave, particularly because of security concerns.

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http://starbulletin.com/2005/12/20/news/story04.html#jump
Honolulu Star-Bulletin, December 20, 2005

Hui Malama board cuts off Star-Bulletin

By Sally Apgar

The board of directors of Hui Malama I Na Kupuna O Hawai'i Nei has adopted a policy to refuse to provide information or comments to the Honolulu Star-Bulletin because of articles about the organization's handling of Hawaiian artifacts.

Here is its statement:

"The board of directors of Hui Malama I Na Kupuna O Hawai'i Nei hereby adopts the following policy relating to its relationship with the Honolulu Star-Bulletin, its reporters and editors as of Dec. 15, 2005:

"It shall be the policy of Hui Malama I Na Kupuna o Hawai'i Nei to conscientiously refuse to provide any information or comments to reporters or editors of the Honolulu Star-Bulletin due to past mistreatment by Honolulu Star-Bulletin reporters and editors in reporting matters involving this organization and we will only end this policy at such time that the Honolulu Star-Bulletin demonstrates the ability to treat Hui Malama objectively and fairly in its news reporting including terminating the practice of publishing images and pictures of the Kawaihae moepu or any other Hawaiian funerary objects in its publications.

"Adopted unanimously by the board of directors, Dec. 15, 2005."

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051221/NEWS23/512210337/1001
Honolulu Advertiser, Wednesday, December 21, 2005

Hui Malama leader vows to defy judge By Gordon Y.K. Pang

A defiant leader of Hui Malama I Na Kupuna O Hawai'i Nei said yesterday that he will not disclose the exact location of 83 priceless cultural items buried in two caves on the Big Island, despite a court order.

U.S. District Judge David Ezra yesterday ordered Hui Malama to disclose by 4 p.m. today specifically where each of the artifacts is buried.

Edward Halealoha Ayau, Hui Malama executive director, said his organization will submit more information to the court today but did not intend to give specifics. He noted that the items were placed alongside the iwi kupuna, or remains, of Native Hawaiians.

"Our responsibility is not to Judge Ezra, it's to the kupuna," Ayau said.

Asked if the group's response will include the precise location of the items, Ayau said: "Hypothetically, do I know where it is? Yes. Am I realistically going to do it? No."

Ayau added: "He is directing us to be an accomplice to a theft and we will not do it."

Yesterday's order is the latest in a series of disagreements between Ezra and Hui Malama arising from a lawsuit by two Native Hawaiian groups seeking to force the return of the objects. The groups, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, are seeking the return of the artifacts to Bishop Museum, which in 2000 loaned them to Hui Malama.

Last week, the 9th U.S. Circuit Court of Appeals in San Francisco upheld a ruling from Ezra ordering Hui Malama to return the artifacts, and sent the matter back to Ezra's courtroom.

In issuing his order yesterday, Ezra denied Hui Malama's request to reconsider his original order to return the objects, stating he did not believe new information had been presented to change his mind.

"I will not have your client ignoring a valid and subsistent order," Ezra told Alan Murakami of the Native Hawaiian Legal Corp., which represents Hui Malama.

The judge said he was prepared to find Hui Malama officials in contempt, which could lead to fines and, in extreme cases, jail time. "Make no mistake about it, I am not kidding," he said.

During yesterday's hourlong hearing, Ezra repeatedly expressed irritation and frustration with Murakami and Hui Malama for previous responses he viewed as evasive and vague.

"What I want is a lot less talk and a lot more action," he said.

"I have a great deal of sympathy to the views of your clients," he said at another point. "I also have sympathy to the views of others." He then added: "But there will be no more delays, there will be no more maybe here, maybe there; one cave, two caves, maybe three."

Ezra's last reference was to information disclosed by Hui Malama in court documents filed in preparation for yesterday's hearing showing that the artifacts were buried in two caves, not one as originally stated. The same documents also explained that some of the objects may have originally come from a third cave, but that Hui Malama had not been able to locate it.

"Nobody mentioned to me another cave," Ezra said. "This is a court of law, this is not a cat-and-mouse game."

Murakami said his understanding was that Hui Malama had turned over what information it has, including the Global Positioning System coordinates of the items. But Ezra said what he had seen to date was inadequate.

Ezra made two concessions to the organization. He agreed to Hui Malama's request that its members not be ordered to actively participate in the removal of the artifacts. The group must, however, pay for half the costs of their removal. The other half will be paid by Bishop Museum.

The judge also granted the group's request to keep the exact location under a court seal.

Ezra gave no immediate time line for the return of the items. He ordered each of the parties by next Wednesday to submit a list of three engineers who could survey the structural integrity of the caves and offer a risk assessment.

Hui Malama officials fiercely believe the artifacts should stay where they are, pointing out that they were stolen from caves in Kawaihae in 1905 by Western archaeologists. Removal of the artifacts from the caves would be culturally insulting and be dangerous to those involved, they said.

The artifacts have been in dispute for some time. More than a dozen Native Hawaiian organizations, including Hui Malama, are claimants to the artifacts that have been engaged in discussions over their final resting place.

A key point of discussion is whether the objects are funerary, or placed with the remains of humans at the time of burial. Hui Malama insists the objects are funerary while its opponents say that has never been established.

SPECIFIC, PRECISE

Judge Ezra yesterday ordered:

# Hui Malama today to provide a "full and specific inventory of each and every item loaned to it by the Bishop Museum" and "the precise location of each and every item loaned to it by the Bishop Museum." The group must also submit the names and addresses of each person who knows the exact location of any of the items.

# Masonry contractor George W. Field III to file by Dec. 28 an affidavit describing in detail the materials, equipment and process he used to seal one or both of the Big Island caves where Hui Malama said it buried 83 artifacts borrowed from Bishop Museum.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051221/NEWS01/512210338/1001
Honolulu Advertiser, Wednesday, December 21, 2005

Agency criticized for its silence

By Gordon Y.K. Pang

U.S. District Judge David Ezra yesterday criticized the state Department of Hawaiian Home Lands for failing to disclose to the court that the agency has known where on state lands 83 artifacts on loan from the Bishop Museum are buried.

DHHL Director Micah Kane yesterday afternoon confirmed that agency employees know where in two Big Island caves the artifacts are buried. But he said he does not believe his agency did anything wrong and he stressed that it has always intended to cooperate with the court.

Members of Hui Malama I Na Kupuna O Hawai'i Nei, in its most recent filings, said the items are in the Forbes and Mummy caves, believed to be part of what are known as the Kawaihae Caves. Both are on DHHL property.

Ezra said it was "just absolutely outrageous" that agency officials did not make the disclosure to his court.

Kane said the agency's long-stated backing of Hui Malama's position that the items should not be removed from the caves had no bearing on its decision not to voluntarily disclose the location to the court.

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http://starbulletin.com/2005/12/21/news/story03.html
Honolulu Star-Bulletin, December 21, 2005

Punishment threatened if artifacts not returned

By Sally Apgar

A federal court judge said yesterday that if a native Hawaiian group does not comply with his orders to retrieve 83 artifacts from a Big Island cave, he will not only impose "substantial" fines but also jail time.

"No one is above the law, Mr. Murakami, not even your client," said U.S. District Judge David Ezra, addressing Alan Murakami, the attorney for Hui Malama I Na Kupuna O' Hawaii Nei, a group founded in 1989 to rebury native Hawaiian remains and burial items taken from museums and construction sites.

Ezra ordered that by 4 p.m. today, Hui Malama supply precise information about the location of the artifacts, adding that previous information supplied by the group was "grossly inadequate."

Ezra also ordered that each side submit three names of structural engineers by Dec. 28 to assess the risks of cave collapse. Hui Malama has said that when it reburied the items in the cave in 2001, it used concrete and metal rebar to seal the cave against looters -- and that using jackhammers to remove the concrete would cause the cave to collapse.

Murakami also said the artifacts might be reburied not only in Kawaihae, or Forbes, cave, but an additional nearby cave.

"That is the first time I have heard that," said an angry Ezra, who has repeatedly suggested that Hui Malama has tried to hide the location of the artifacts from the court and the two claimants who sued Hui Malama in August. The two groups are represented by La'akea Suganuma of The Royal Academy of Traditional Arts and Abigail Kawananakoa, who founded Na Lei Alii Kawananakoa.

At one point, Murakami said that the Department of Hawaiian Home Lands, a claimant in the case that also owns the land where Kawaihae is found and therefore controls access, has known the location of the cave "for some time" so that it could conduct security.

An outraged Ezra said, "Are you telling me that the state has conspired with your client to hide these objects?"

Although the Hawaiian Homes Commission is a claimant that believes, along with Hui Malama, that the items should not be retrieved from the cave, Ezra said that "as a state agency" it had a duty to give information about the location of caves when a federal court order first went into effect.

DHHL did not return calls for comment.

The dispute started in February 2001, when the Bishop Museum, which had held the items since about 1905, crated them and handed them over to Hui Malama with papers identifying it as a "one-year loan."

Hui Malama reburied the items in the caves to honor the wishes of ancestors, and refused repeated requests to return the items.

In August, Kawananakoa and the Royal Academy filed a lawsuit asking that the items be retrieved from the cave so that the 14 competing claimants could review them and decide their final resting place.

On Sept. 7, Ezra ordered the physical retrieval of the items, to be stored at the Bishop Museum, away from public view, until the claimants could reach a decision about their fate.

Yesterday he said the artifacts would be treated respectfully and not "put in a glass display case for the tourists to view."

Hui Malama argued against retrieval, saying it would desecrate a sacred burial cave -- a violation of their constitutional right to freedom of religion. They appealed to the 9th U.S. Circuit Court of Appeals, which last week upheld Ezra's decision, leading to the proceeding before him yesterday.

Ezra issued an order yesterday that he hoped "showed compassion" and sensitivity to Hui Malama's religious beliefs. For example, since Hui Malama has said that anyone desecrating a cave will be punished, possibly by death, Ezra said that someone else could do the retrieval.

Kawananakoa and the Royal Academy said they were prepared to conduct the retrieval as soon as possible.

"Please pray that our most sacred idols will be returned without further damage," Kawananakoa said.

Also yesterday, Ezra admonished Murakami for statements he and his clients made publicly about the court.

During a news conference last week, the Star-Bulletin reported that the po'o or director of Hui Malama, Edward Halealoha Ayau, said, "We are in a Western court of law trying to explain to Western-trained judges and lawyers our deeply felt cultural values. We are in an inappropriate forum."

Ezra reprimanded Murakami for statements referring to "Western-trained judges, as if some of those, myself included, have no understanding or appreciation" of Hawaiian laws and traditions.

Glaring at Murakami, Ezra said, "I trust your comment wasn't racial. But if you were saying that Caucasian judges cannot understand Hawaiian laws, then I think your comments border on sanctionable."

Ezra also admonished Murakami for other public Hui Malama statements characterizing the dispute as one between "Hawaiians and the federal court."

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051222/NEWS23/512220349/1173/NEWS
Honolulu Advertiser, Thursday, December 22, 2005

Hawaiian group to disobey judge

By Gordon Y.K. Pang

Leaders of the Native Hawaiian group Hui Malama I Na Kupuna O Hawai'i Nei said yesterday they stand ready to face jail or other punishment by not complying with a federal court order that demands they disclose the exact whereabouts of 83 priceless cultural objects.

Upholding the convictions and beliefs passed on to them is their foremost priority, they said.

"I'm ready, my family's ready," said Kahu Charles Kauluwehi Maxwell Sr., president of Hui Malama. "They're not happy, but they know I gotta do this and they support me."

The group borrowed the items from the Bishop Museum in 2000 but never returned them. Instead, they said, the items have been placed in two Big Island caves at or near where they were taken by a Western archaeologist in 1905.

Two other Native Hawaiian groups sued Hui Malama and the museum for the return of the objects.

U.S. District Judge David Ezra on Tuesday set a deadline of 4 p.m. yesterday for the organization to provide the exact locations of the items and the names of all individuals who knew of the locations. Four Hui Malama board members, including Maxwell and its executive director, responded by filing declarations stating that they are declining to comply with the demands despite a threat of contempt of court, which could bring Hui Malama members jail time, fines or both.

Maxwell said that if asked by the court, "I will present myself to be arrested." "I'm going to be 68 next year. I'm not healthy," he said. "But my conviction to my culture is strong and it's inbred from when I was a little boy. If that is breaking the law, then I will have to break it every day to protect my culture."

Hui Malama executive director Edward Halealoha Ayau, in his declaration, said that Hui Malama board members on Tuesday voted to "not disclose the names of those who took part in the reinterment of iwi kupuna and moepu and the precise location of each of the moepu within each of the two Kawaihae burial caves."

The purpose of such disclosure would lead to their removal, the statement said, "and would be contrary to our religious/cultural beliefs relating to the care of the ancestral dead and their possessions, as protected by the Free Exercise clause of the First Amendment of the United States Constitution."

Removal of the items would result in kaumaha, or "spiritual heaviness," for Hui Malama members and "anger from the kupuna," the declaration said. From Hui Malama's standpoint, the statement said, "the pending District Court order amounts to stealing from the dead, an action that threatens severe spiritual consequences for anyone involved."

The statement recounts the removal of items from a burial cave in Kealakekua "and the lives that were taken of a result of that disturbance," including that of Prince Edward Albert and King Kamehameha IV himself. "I firmly believe disclosure of the information called for by the order would endanger our well-being in a similar fashion," the declaration said.

Alan Murakami, an attorney for the Native Hawaiian Legal Corp., said it would be wrong to characterize Hui Malama's non-compliance as defiance. "They're clearly not trying to thumb their noses at Judge Ezra," he said. "I think they are just people who are caught in a bind that is between their religious convictions and what Judge Ezra wants them to reveal."

Besides the declarations by Maxwell, Ayau, William Aila, Pualani Kanaka'ole Kanahele and Antoinette Freitas, the Native Hawaiian Legal Corp. yesterday submitted, under seal, a listing of the items handed to them by Bishop Museum at the time of the loan, Murakami said. That list presumably shows where each of items came from and under what circumstances.

Hui Malama has also submitted the Geographic Positioning System coordinates to the Forbes Cave entrance.

A spokesperson for Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts said the two groups had no comment regarding yesterday's submittals.

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http://starbulletin.com/2005/12/22/news/story04.html
Honolulu Star-Bulletin, December 22, 2005

Hui Malama leader stays firm on defiance
A deadline passes without the group revealing artifact sites

By Sally Apgar

The leader of a native Hawaiian group said yesterday he would defy a federal court order and risk prison rather than violate his religious beliefs by identifying the precise location of artifacts inside two Big Island caves.

In a written declaration filed late yesterday with the U.S. District Court, Edward Halealoha Ayau, the po'o (director) of Hui Malama I Na Kupuna O Hawaii Nei, said his group is caretaker of the artifacts, believed to be funerary items, that the group reburied in secret religious ceremonies within Kawaihae (also known as Forbes) Cave and the Mummy Cave in 2001.

Ayau's court statement said, "Our beliefs teach us that those of us who fail to protect or seek to disturb these particular iwi kupuna (ancestral bones) and moepu (burial objects) are moving toward danger, and invite death thereby."

Hui Malama has repeatedly told the federal court that retrieving the items would be a desecration under members' religion, which views retrieving or giving anyone else information to locate the items as "stealing from the dead, an action that threatens severe spiritual consequences for anyone involved."

Hui Malama has argued unsuccessfully in the U.S. District Court in Hawaii and the 9th U.S. Circuit Court of Appeals that fulfilling the court order would violate its constitutional right to freedom of religion.

Hui Malama was founded in 1989 to rebury native Hawaiian remains and burial objects from museums and construction sites.

On Tuesday, U.S. District Judge David Ezra gave Hui Malama until 4 p.m. yesterday to give the court, under seal, specific locations of each of the 83 items in question which do not include iwi. Ezra said that noncompliance would result in substantial fines and even imprisonment.

In deference to Hui Malama's religious beliefs, Ezra said that someone else could retrieve the items. However, Hui Malama said there would be no difference in spiritual consequences if someone else performed the task.

Ayau's declaration strongly suggests that while he provided GPS coordinates for Kawaihae Cave and a description of Mummy Cave, he refused to give the specific detail Ezra ordered and therefore is likely in violation of Ezra's order.

Ayau's declaration said that on Tuesday, the day Ezra issued his order, the group held an emergency vote and decided they would neither disclose the specific locations nor the names of those involved in the ceremonial reburials in the "darkest of darkness" in the caves, presumably so those individuals could not be subpoenaed for the information.

"If the caves are penetrated and looted, the integrity of the moe loa (eternal rest) of the iwi kupuna buried in those caves would be violated, a consequence of great cultural and religious harm to all those who have assumed the responsibility of protecting the iwi kupuna and moepu, which our ancestors long ago committed to these eternal resting places," Ayau said in his court statement.

Ayau and even members of Hui Malama's board of directors could face imprisonment.

Ayau could not be reached for comment yesterday. Last Thursday, Hui Malama announced that it would no longer communicate with the Star-Bulletin due to "past mistreatment" in the coverage of the group's activities.

Ezra's order stems from a long-standing dispute between Hui Malama and two other native Hawaiian groups represented by La'akea Suganuma of the Royal Academy of Traditional Arts and Campbell Estate heiress Abigail Kawananakoa, who founded Na Lei Alii Kawananakoa.

The two groups sued Hui Malama last August, saying that it took the 83 items from the Bishop Museum under the terms of "a one-year loan" and reburied them in two of the three caves from which they were stolen in 1905 before ending up at the Bishop Museum. Suganuma and Kawananakoa said that Hui Malama violated the rights of other native Hawaiian claimants, which now number 14, when it reburied the items.

Suganuma and Kawananakoa could not be reached for comment.

In another issue relating to the case, Hui Malama told Ezra earlier this week that the Department of Hawaiian Home Lands, which owns the land where the caves are located, has known their location for years so that it could conduct security checks.

The Hawaiian Homes Commission is a claimant to the 83 artifacts and as such has agreed with Hui Malama that the burial site should not be disturbed. However, as a state agency, it has indicated it will comply with any federal court orders demanding access to the caves.

In court Tuesday, Ezra indicated he would likely contact the commission for further information.

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** Excerpt from beginning of new webpage by Ken Conklin: **
https://www.angelfire.com/hi5/bigfiles3/Forbes122205.html

Forbes Cave Controversy (12/22/05) -- A Nexus of Religion, Politics, and Law

Ancient Hawaiian religious and cultural artifacts originally found in caves near human bones were removed by explorers and ended up in Bishop Museum. Here are some questions at the core of the Forbes Cave controversy (and the ka'ai, Kanupa cave, and others).

Should those artifacts be returned to those caves, never to be seen again? Were burial caves also used for safe-keeping of non-funerary valuables during times of social upheaval, such as when the ancient religion was abolished and the heiau and idols were burned by order of the King? Were the Forbes artifacts actually buried with the dead ancestors, perhaps as part of their personal property or perhaps to accompany them on their journey to the next world (in the way a wedding ring, rosary, or family photo might today be placed in a casket before burial)? Does that matter? Do ancient artifacts today have a historic or cultural value so great that keeping them available for study and inspiration of future generations outweighs the decisions of the ancestors who placed them in the cave? Could it be that if the ancestors were able to see today's circumstances their wishes might be to make those artifacts available? Is it possible the spirits of the ancestors still live, have current wishes, and actually helped explorers or modern descendants to find the artifacts and make them available? Who has the right to speak on behalf of the ancestors? Who has the right to make decisions about these matters (regardless of who speaks for the ancestors, and regardless of whatever they might say)?

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http://the.honoluluadvertiser.com/article/2005/Dec/22/br/br06p.html
Honolulu Advertiser, breaking news posted at 12:19 p.m., Thursday, December 22, 2005

Judge to weigh Hui Malama contempt issue

By Gordon Y.K. Pang

U.S. District Judge David Ezra today issued a court order requiring Hui Malama Na Kupuna O Hawai'i Nei's executive director and board members to appear before him on Tuesday and explain why he should not order them jailed or fined.

Ezra had given the nonprofit Native Hawaiian organization until 4 p.m. yesterday to disclose the exact locations of 83 priceless cultural objects it had borrowed from Bishop Museum in 2000 and has not returned. Hui Malama members said the items are buried in two remote Big Island caves from where they were taken in 1905 by western archaeologists.

Two other Native Hawaiian organizations, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, sued Hui Malama and the museum seeking the return of the artifacts until claimants to the items can agree on where they should go.

Hui Malama members, rather than disclose the exact location of the objects, on Thursday issued declarations explaining that their religious and cultural beliefs bar them from revealing the exact whereabouts. Attorneys for the organization have objected strenuously to the removal of the items on the grounds that doing so would be offensive and tantamount to stealing.

In today's four-page order, Ezra made it clear he found Hui Malama's response non-compliant with his order "since it did not include the precise locations of each and every item loaned to it by the Bishop Museum as described in the order, or the names and addresses of each person who has knowledge of the exact location of any of the items."

He ordered Hui Malama executive director Edward Halealoha Ayau and board members Pualani Kanaka'ole Kanahele, Kahu Charles Kauluwehi Maxwell Sr., William Aila and Antoinette Freitas to appear before him at 10 a.m. Tuesday "to show cause why they should not be held in contempt of court for failing to comply with this Court's Order Settling Compliance Dates."

Alan Murakami, an attorney with the Native Hawaiian Legal Corp. which is representing Hui Malama, said Tuesday's hearing will be "certainly one of those defining moments because this is where the rubber hits the road."

He added: "The judge is going to determine if my clients' religious beliefs are deserving of constitutional protection."

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** As part of the above article, Honolulu Advertiser published a link to a 4-page pdf file containing Judge Ezra's order to Hui Malama officers to show cause why they should not be held in contempt of court; and ordering their appearance in court on Tuesday December 27 at 10 AM. That pdf can be downloaded from:

http://the.honoluluadvertiser.com/dailypix/2005/Dec/22/courtorder.pdf

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051223/NEWS23/512230374/1001
Honolulu Advertiser, Friday, December 23, 2005

Hui Malama gets new court date

By Gordon Y.K. Pang

Before a judge decides whether they should be jailed, fined or both, members of Hui Malama I Na Kupuna O Hawai'i Nei will have a chance to explain why they are refusing to follow a federal court order.

U.S. District Judge David Ezra had given Hui Malama until 4 p.m. Wednesday to disclose the locations of 83 priceless cultural objects believed to be buried in two remote Big Island caves. The nonprofit Native Hawaiian organization borrowed the objects from Bishop Museum in 2000 and has not returned them.

Ezra yesterday ordered Hui Malama's executive director Edward Halealoha Ayau and its board of directors to appear in his courtroom on Tuesday. Ayau said he and the others will appear in court and "show cause why we should not be held in contempt. It's up to him to decide whether what we're saying is contemptuous or not."

Meanwhile, Na Lei Alii Kawananakoa, one of the two Native Hawaiian groups that first challenged Hui Malama's actions, broke several days of silence by criticizing Hui Malama for its "history of misleading and evasive statements." Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts sued Hui Malama and the museum seeking the return of the artifacts until claimants to the items can agree on where they should go.

Rather than disclosing the locations of the objects, Hui Malama members Wednesday issued declarations explaining that their religious and cultural beliefs bar them from revealing the exact whereabouts.

In yesterday's four-page order, Ezra made it clear he found Hui Malama's response noncompliant with his order "since it did not include the precise locations of each and every item loaned to it by the Bishop Museum as described in the order, or the names and addresses of each person who has knowledge of the exact location of any of the items."

He ordered Ayau and Hui Malama board members Pualani Kanaka'ole Kanahele, Kahu Charles Kauluwehi Maxwell Sr., William Aila and Antoinette Freitas to appear before him at 10 a.m. Tuesday "to show cause why they should not be held in contempt of court for failing to comply with this Court's Order Settling Compliance Dates."

Ayau yesterday repeated Hui Malama's position that removal of the items would be tantamount to stealing, in addition to being offensive and a disturbance to the "moe loa," or eternal rest, of those buried in the caves. The objects, known as the Forbes Collection, were taken from the Big Island in 1905 by Western archaeologists.

On Tuesday, Ayau said, Ezra "went out of his way to say he was not going to force Hui Malama to violate its First Amendment rights but in the very next breath orders us to disclose information that would cause us to violate our First Amendment rights." Hui Malama is not seeking to show disrespect against either Ezra or the court, he said. The group simply believes its first obligation is to its ancestors, not to the court, he said.

Ayau also reiterated that he stands ready to go to jail for contempt if the judge orders it. "If that's what court decides is our penalty ... then that's what's going to happen," he said.

Alan Murakami, an attorney with the Native Hawaiian Legal Corp., which is representing Hui Malama, said Tuesday's hearing will be significant. "The judge is going to determine if my clients' religious beliefs are deserving of constitutional protection," he said.

Na Lei Alii Kawananakoa, a group headed by Abigail Kawananakoa, said there was a "troubling revelation" in Hui Malama's findings last Friday that the objects are in two caves rather than in one as previously stated, and that the objects are not secure.

Murakami said Hui Malama had always referred generally to the Kawaihae Cave complex, which included both the Forbes and Mummy caves that were disclosed last week. He said Hui Malama believes that the caves are sealed and secure.

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http://starbulletin.com/2005/12/23/news/story06.html
Honolulu Star-Bulletin, December 23, 2005

Explanation sought for Hui Malama acts
Members of its board must appear in court or face fines and jail

By Sally Apgar

U.S. District Judge David Ezra said yesterday that a native Hawaiian group violated his court order when it did not meet a Wednesday deadline to provide the specific location of 83 artifacts the group reburied in a Big Island cave.

Members of the board of directors of Hui Malama I Na Kupuna O Hawaii Nei must appear before him on Tuesday at a 9 a.m. hearing to explain their actions.

Ezra's order said Hui Malama failed to comply because "it did not include the precise location of each and every item loaned to it by the Bishop Museum as described in the order or names and addresses of each person who has knowledge of the exact location of any of the items."

Hui Malama was founded in 1989 to rebury native Hawaiian remains and burial artifacts from museums and construction sites. Its attorney, Alan Murakami, said, "It doesn't sound like this will be a very good Christmas with this uncertainty hanging over everyone's head."

Ezra said that noncompliance with the 4 p.m. Wednesday deadline would result in substantial fines and even imprisonment.

Hui Malama's spokesman, Edward Halealoha Ayau, could not be reached for comment yesterday. Last Thursday, Hui Malama said it would not speak to the Star-Bulletin due to "past mistreatment" in the coverage of the group's activities.

Ezra's order stems from a long-standing legal dispute between Hui Malama and two other native Hawaiian groups, represented by La'akea Suganuma of the Royal Academy of Traditional Arts and Campbell Estate heiress Abigail Kawananakoa, who founded Na Lei Alii Kawananakoa.

Late yesterday, Suganuma and Kawananakoa issued a statement that said: "Judge Ezra is giving Hui Malama every opportunity to provide the required information despite its history of misleading and evasive statements to the court and Hawaiian community.

Most troubling is the revelation only last Friday that artifacts were put in more than one cave, and that, contrary to prior statements, they are not secure."

The statement said Hui Malama was "willing to hijack Hawaiian culture and history in their desperate effort to avoid accounting for the treasures that were loaned to them."

Suganuma and Kawananakoa also sharply disagree with Hui Malama's strongly held belief that the artifacts needed to be reburied in the caves from which they were taken in 1905 because they were funerary items that ancestors chose to have buried with them.

"Important cultural artifacts were stored in caves to protect them from destruction and loss. They were being preserved for future generations, not to be buried and lost forever or stolen and sold on the black market," they said.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051224/OPINION01/512240324/1104
Honolulu Advertiser, Saturday, December 24, 2005, EDITORIAL

Keep artifacts safe until court hearing

Members of a Hawaiian hui and their attorneys have their work cut out for them. And so do federal and state authorities.

By Tuesday, which is when U.S. District Judge David Ezra will next take up the matter of the 83 Hawaiian artifacts reportedly buried in a pair of Kawaihae caves, they will have to convince the judge that religious considerations prevent them from complying with a court order to list the buried objects' precise locations.

That's a tall order, considering that Ezra already seems disinclined to accept that reason. He already has excused Hui Malama I Na Kupuna O Hawai'i Nei from actively participating in the objects' removal; their attorney will have to persuade the judge that turning over a list is tantamount to participation and that there are bona fide religious precepts at issue.

While members try to make their case, the caves will be vulnerable to trespassers in the intervening days. It's crucial that the security of the area be maintained. Both federal and state officials, including those from the Department of Hawaiian Home Lands, must cooperate in a sustained program of patrols.

The fate of the cultural objects has been a painful, divisive issue for almost a decade. The resolution of this question should be at hand, but there's likely to be more conflict before it's over. Until the smoke clears, steps must be taken to keep them safe.

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http://www.hawaiiankingdom.info/C259362623/E20051223142150/index.html

Hui Malama requesting declarations from cultural practitioners

From: Nicole Mehanaokala Hind
Sent: Thursday, December 22, 2005 9:00 PM
Subject: Kakoo for Hui Malama I na Kupuna O Hawaii Nei

Aloha mai kakou e na oiwi,

I am writing to inform you of how you may support the efforts to malama the iwi kupuna and na mea i hoomoepuia ma ke kulaiwi o Kawaihae and the members of Hui Malama I na Kupuna o Hawaii Nei.

As you all may have witnessed through the media, Federal District Court Judge David Alan Ezra has ordered a hearing on TUESDAY NOVEMBER 27 AT 10 AM to hear why members of Hui Malama have defied his order to release information of the exact site of 83 moepu within the Kawaihae caves and the names and addresses of those who ceremonial reinterred the moepu.

The judge already has in his possession the GPS coordinates of the caves, along with knowledge of federal and state agents who are fully aware of the cave locations due to previous site visits.

He is insisting that Hui Malama commit the final act of desecration of the burial sites and draw a picture for him identifying the moepu and exactly where everything is within the caves.

The attorney at Native Hawaiian Legal Corporation who is handling this case, Ui Pauole, is requesting declarations from cultural practitioners who's belief it is that what the court is ordering goes against the native Hawaiian cultural understanding of manao such as "mai kaulai ka iwi i ka la".

A declaration is a simple statement of kakoo for the practices of Hui Malama I Na Kupuna o Hawaii Nei and an added paragraph of your area of cultural understanding and expertise (i.e. Kumu Hula, Kanaka Kalai, Olohe, Kumu Olelo Hawaii, Kumu Ike Hawaii, Kumu Moolelo Hawaii, etc).

The judge has openly threatened the arrest of Edward Halealoha Ayau, Esq. (Molokai), Kumu Hula Pualani Kanahele Kanakaole, PhD. (Hawaii), Kahu Charles Maxwell (Maui), William Aila (Oahu), Konia Freitas (Oahu). We believe he will follow through with his threat and our kupuna and their haumana who have taken on the kuleana that many of us have neglected, will be jailed like common criminals. I may be mistaken but this may be the first time cultural practitioners will be jailed by Federal agents for practicing their culture.

Please contact Ui Pauole at 521-2302 for declarations. We are having a planning meeting on Monday for Tuesdays protest.

Please disseminate information to your haumana and for our neighbor island practitioners who may fly in, we will have people who can pick you up from the airport, just let me know ahead of time.

Ai pohaku,
mehanaokala

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http://starbulletin.com/2005/12/26/editorial/editorial01.html
Honolulu Star-Bulletin, December 26, 2005, EDITORIAL

OUR OPINION

Artifact claimants should settle dispute

THE ISSUE
A federal judge has called a Hawaiian group to court to explain why it has not provided the locations of artifacts.

HOPES of resolving a bitter dispute among claimants of 83 Hawaiian artifacts appear dismal as the group possessing the objects has refused to comply with a federal court's order to reveal where they are.

With the group, Hui Malama I Na Kupuna O Hawaii Nei, on the brink of judicial sanctions, a compromise that respects Hawaiian tradition would be appropriate.

Failing that, the court will have no choice but to impose penalties because the claims of others deserve consideration equal to Hui Malama's.

U.S. District Judge David Ezra has directed Hui Malama's leaders to explain in court tomorrow why they have not provided the specific locations of the artifacts. Failure will result in fines and even imprisonment, the judge has warned.

Two of the 14 claimants filed suit to have the items retrieved from a cave or caves on the Big Island where Hui Malama put them after they were supposedly loaned to the group by the Bishop Museum. Na Lei Alii Kawananakoa and The Royal Academy of Traditional Arts want to review the artifacts so that an appropriate resting place can be determined.

Hui Malama says retrieval would be a desecration and runs counter to its members' religious beliefs, a concept its leaders contend is beyond the court's comprehension.

In arguing that the court, as a Western construct, cannot understand Hawaiian cultural values or traditions, Hui Malama disregards the fact that the laws it has used to its advantage and that compel return of the artifacts are also Western, and that those who are being refused access to the artifacts are fellow Hawaiians.

Indeed, it is the court that is attempting to facilitate and mediate among claimants and has bent over backward to deal with the issue with cultural sensitivity. Absent any other entity, either Hawaiian or Western, to reconcile conflicts, Hui Malama's challengers have no recourse but the courts.

The dispute serves to divide the Hawaiian community. Hui Malama and other claimants can surely find another way to settle their differences. If not, the acrimony will escalate further, something none can sustain.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051227/NEWS01/512270309/1001
Honolulu Advertiser, Tuesday, December 27, 2005

Groups blast Hui Malama

By Lynda Arakawa

On the eve of a critical federal court hearing, four claimants to 83 Hawaiian cultural objects yesterday harshly criticized Hui Malama I Na Kupuna O Hawai'i Nei, which has refused to disclose the items' whereabouts.

"We condemn the shameful, un-Hawaiian behavior of Hui Malama," said Cy Kamuela Harris of Kekumano 'Ohana, reading a statement also on behalf of Keohokalole 'Ohana, Van Horn Diamond 'Ohana and Na Papa Kanaka o Pu'ukohola Heiau.

"This is not a cultural issue. It is a legal struggle for fairness and equality for all Hawaiians, and to restore those legal rights that were violated by Hui Malama," Harris said. "... This is a fight between Hawaiians resulting from Hui Malama's mistaken attitude that it has the authority to make decisions for all Hawaiians and then shove it down our throats."

Hui Malama executive director Edward Halealoha Ayau defended the organization and said the groups in yesterday's news conference became involved as claimants after the items had been reburied and that the consultation process on the case had been going on for seven years.

The statements came a day before members of Hui Malama are scheduled to appear before U.S. District Judge David Ezra to explain why they are refusing to follow his order to disclose the locations of the objects. Hui Malama borrowed the objects from Bishop Museum in 2000 and never returned them. The group said the items, known as the Forbes Collection, have been placed in two Big Island caves at or near where they were taken by westerners in 1905.

Hui Malama members have said their religious and cultural beliefs bar them from revealing the exact whereabouts.

The claimants at yesterday's news conference said they support the efforts of Hawaiian groups Na Lei Ali'i Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, which sued Hui Malama to force the return of the objects until claimants can agree on where they should go.

The groups also said it applauds "Judge Ezra's fairness and implore him to protect our rights." The groups yesterday accused Hui Malama of not cooperating with other claimants in the matter and said the artifacts should be removed and preserved to prevent them from being stolen. Each of the claimants have the right to inspect and classify the objects and provide their opinion on what to do with them, said Van Horn Diamond. "The families may have their own spirituality and their own traditions to evaluate and ... to determine whether they should be repatriated or not and to whom," he said.

The Native Hawaiian Legal Corp., which represents Hui Malama, has said the organization believes the caves are sealed and secure. Ayau said Hui Malama believes the caves are the proper places for the objects. "If it doesn't bother them that the graves of these kupuna will be disturbed in order to remove their possessions, the moepu, then I think that's very indicative of the mindset of these organizations," Ayau said of the groups at yesterday's news conference. "Even if we were wrong, if Hui Malama's wrong in what we did, the result is we put them back where the ancestors put them. If these folks are wrong and say put them in Bishop Museum, well then, they put them somewhere the ancestors did not want them to be." Ayau said he respects others' right to be critical and noted that Hui Malama has been repatriating Hawaiian remains for 16 years.

Harris called Hui Malama "first and foremost a business entity that was formed to take advantage of monies available as the result of NAGPRA (Native American Graves Protection and Repatriation Act)."

Alan Murakami, litigation director for the Native Hawaiian Legal Corp., said Hui Malama is a nonprofit group. "Mr. Ayau is not being paid," Murakami said. "None of the board members are being paid. They have no assets to speak of — they have a computer system, I think. We are talking about a grassroots nonprofit entity that have dedicated themselves for 16 years of work."

Ayau questioned whether Na Papa supports the return of the cultural objects and said its president, Ma'ulili Dickson, made a written statement Dec. 2 that any grave artifacts be left in place until the parties involved reach an agreement.

Mel Kalahiki, who said he is a royal adviser of Na Papa, yesterday said that statement was inaccurate and was made without consultation with him or the group's council of chiefs. Dickson could not be reached for comment yesterday.

Hui Malama also doesn't recognize Na Lei Ali'i Kawananakoa as a claimant.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051227/OPINION02/512270333/1108/OPINION
Honolulu Advertiser, December 27, 2005, Letter to Editor

HUI MALAMA DOES NOT OWN MOEPU; THEY BELONG TO ALL

Regarding Lee Cataluna's Dec. 13 column on moepu: I find the spreading of misinformation about Hawaiian culture to be insensitive to the rest of the Hawaiian community who do know and care about our culture.

Let's look at the facts. First, who started all this? Hui Malama. They decided for everyone. Moepu is a word created by Hui Malama, along with a list of other words they use in their mumbo-jumbo, so-called rituals.

In my dictionary, the proper word is moepu'u, a noun that is totally different from the meaning Lee Cataluna gives a verb. And her argument seems to favor and justify breaking the law because it's "pono." It is one-sided, and encouraging this kind of behavior is irresponsible.

I find it hard to compare a religious icon to a combat medal — two very different objects and intentions. A better comparison would have been an Egyptian tomb. Would the Egyptian people put the treasures of their culture in a position to be stolen?

The Hawaiian term for this is hana 'ino. This is mistreatment of sacred objects and iwi. These were treasures of our culture, and they belong to all the people of Hawai'i, including the future generations, to look upon these things and judge for themselves what is the spirituality of the Hawaiians.

The point, however, and the judge agrees, is that Hui Malama does not own these things, and a loan is just that, which makes their actions and admitted intentions theft. So they stole them to make it pono?

The insinuation that the claimants are want of money for these precious objects and not the iwi is very insulting to the families who followed the process and put their genealogies on the line, only to be denied our rights by this organization. To say or imply that our iwi don't have the same value as the artifacts is hewa.

You would not let a mortician bury your family the way the mortician wants. Nor would you allow the taking of your kupuna's bones to be hidden where you may never find or visit them again, even under the guise of doing the wishes of the ancestors.

These iwi were not related to Hui Malama, nor are they the ancestors of Hui Malama. They took the family right of burying our ancestors away. That is not even common decency.

Cy Kamuela Harris
Kekumano Ohana

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http://the.honoluluadvertiser.com/article/2005/Dec/27/br/br02p.html
Honolulu Advertiser, Breaking news, Posted at 11:37 a.m., Tuesday, December 27, 2005

Hui Malama executive director ordered into custody

Edward Halealoha Ayau, executive director of Hui Malama I Na Kupuna O Hawai'i Nei, was ordered into federal custody this morning until the exact whereabouts of 83 Hawaiian cultural artifacts are revealed.

U.S. District Court Judge David Ezra today ruled that Ayau would remain in custody until he or others provide the court with the exact location of all the objects, which have been placed in two Big Island caves at or near where they were taken by Westerners in 1905. Ezra said Ayau would also be released if the artifacts are somehow retrieved.

In a separate action, an unidentified man was ordered into custody for five days for disrupting the court during a hearing before Ezra. It was not known if the man is a member of Hui Malama.

The hearing was ordered last week to give members of Hui Malama a chance to explain why they are refusing to follow his order to disclose the locations of the objects.

Hui Malama borrowed the objects from Bishop Museum in 2000 and never returned them.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051228/NEWS23/512280345/1001
Honolulu Advertiser, Wednesday, December 28, 2005

Group defies artifacts order

By Gordon Y.K. Pang

The leader of a Native Hawaiian organization yesterday was ordered jailed by U.S. District Judge David Ezra until the precise whereabouts of 83 priceless cultural artifacts are disclosed or the items are recovered.

Edward Halealoha Ayau, executive director of Hui Malama I Na Kupuna O Hawai'i Nei and other Hui Malama officials have said the items are buried in caves in Honokahua Gulch on the Kohala side of the Big Island. They maintain that providing specifics would violate their Native Hawaiian religious beliefs.

In a packed and emotionally charged courtroom, Ayau was found by Ezra to be in contempt of court and ordered incarcerated at the Federal Detention Center near Honolulu International Airport until he discloses the objects' locations, someone else discloses the locations or the objects are located and taken back to Bishop Museum.

Hui Malama borrowed the objects from the museum in 2000 and never returned them. The group said the items, known as the Forbes Cave collection, have been placed in the vicinity of where they were taken by Westerners in 1905.

Two other Native Hawaiian organizations, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, sued the museum and Hui Malama to force their return. Hui Malama officials have refused and said it would be sacrilegious to return them or participate in their removal.

William Aila, a Hui Malama board member, predicted that Ayau's imprisonment will spur supporters to express their unhappiness with the action and thereby prove that they represent the views of a majority of Native Hawaiians.

"What you will see in the upcoming days is more Hawaiian groups coming out in support of Hui Malama and the cultural position that you're not supposed to disturb iwi kupuna (bones) and their moepu (burial artifacts)," Aila said.

Aila is one of three Hui Malama board members Ezra said also are in contempt. The judge said he would deal with their cases later, noting that it was Ayau who was Hui Malama's leader and clearly had the most knowledge about the objects' whereabouts. The others are Pualani Kanaka'ole Kanahele and Antoinette Freitas.

Kahu Charles Kauluwehi Maxwell Sr., president of the organization, also had been ordered to appear yesterday but was in the hospital with a heart ailment and unable to attend the proceeding.

Aila noted that more than 200 Hui Malama supporters, led by the 'Ilio'ulaokalani Coalition and faculty from the University of Hawai'i at Manoa's Center for Hawaiian Studies, gathered at the steps of the Federal Building yesterday and packed Ezra's courtroom.

"The judge, in his decision, is going to cause Hawaiians to come to grips with their cultural responsibilities," Aila said. Hui Malama leaders are talking about possible vigils and demonstrations but definitive plans have not been set, he said.

Maxwell, from his bed at Maui Hospital, called yesterday "a black day for the Native Hawaiian people."

Sherry Broder, an attorney for Hui Malama opponents, said she was disappointed that Ayau and his group did not do as the judge had asked. "We're quite worried," she said, noting that recent admissions by Hui Malama about the artifacts going into two caves, rather than one as originally believed, and the possibility that one of the caves was not sealed securely, troubles her clients.

Ezra said yesterday — and during a hearing last week — that he was trying to be sensitive to Hui Malama's religious convictions and stated he was a longtime student of Hawaiian culture.

Maxwell called Ezra's claims "ridiculous."

"How can a haole judge who has not worked with us, who does not know the spiritual and cultural things, throw a comment like that," he said. "That is totally uncalled for."

But Cy Kamuela Harris, a member of the Kekumano 'Ohana which is also a claimant to the objects, said Hui Malama officials are wrong in proclaiming their views are right while dismissing those of others.

"Not all knowledge comes from one school," Harris said.

Harris, a follower of the Temple of Lono, said his cultural and religious teachers have taught him that the objects are artifacts that should be displayed publicly and not sealed in a cave.

Harris said it was Hui Malama's leaders who came up with the notion of repatriation of artifacts. "They're making it all up as they go along," he said.

Harris' views echoed those of Ezra's, who said at one point that Hui Malama "does not have a corner on the Native Hawaiian religion."

The emotions in Ezra's courtroom were so charged that at one point, Kanahele stood up from where she sat in the audience, said to those nearby, "I'm not going to sit and listen to this crap," and began to walk out of the gallery.

When others began to follow her, Ezra said he was almost finished and asked that the audience wait until he was done. When about 50 people continued toward the exit, he told the approximately 20 federal marshals and state sheriffs to clear the courtroom of all present except members of the media and parties to the lawsuit.

A man from the audience then shouted something in Hawaiian and Ezra immediately asked that he be detained and held in contempt. The man, identified by Hui Malama supporters as Kihei Nahale'a of the Big Island, was later sentenced by Ezra to five days in jail.

Ayau, in a black dress shirt, black pants and black shoes, repeatedly turned his chair sideways and looked away from Ezra as he spoke. He did, however, look at the judge when spoken to directly.

Asked by Ezra if he was ready to go to jail, Ayau said: "I would be honored."

Ezra repeatedly said that he empathized with the views of Hui Malama's members but that their lack of cooperation with what now amounted to the wishes of the 9th U.S. Circuit Court of Appeals left him no choice.

"Your clients are deserving of their religious beliefs but no more so than the religious beliefs of others," Ezra told Alan Murakami, an attorney for the Native Hawaiian Legal Corp., which is representing Hui Malama.

Ezra said he is ordering U.S. Magistrate Kevin Chang to assist him as a designated court master, although it was unclear at the end of yesterday exactly what his duties will be.

Ayau was escorted out of the courtroom without handcuffs.

Outside the courtroom, Hui Malama supporters continued to chant and pray.

But at least one person in the crowd was opposed to Hui Malama's views and believes there are many others like her.

Nanette Napoleon of Kailua said it is "just plain silly" for Hui Malama supporters to suggest there is only one interpretation of what constitutes the Native Hawaiian religion.

"They set these rigid, unyielding, dogmatic rules that they expect everybody else in the Hawaiian community to follow," she said. "And they have absolutely no tolerance for any other point of view and to me that is so un-Hawaiian and so un-pono it makes my heart break."

TIME LINE

Recent events in the case of Native Hawaiian artifacts:

August: Two Native Hawaiian groups, Na Lei Alii Kawananakoa and the Hawaiian Academy of Traditional Arts, sue the Bishop Museum and Hui Malama I Na Kupuna 'O Hawai'i Nei, seeking return of artifacts Hui Malama borrowed from the museum then buried in Big Island caves. At least 13 groups are seeking possession of the artifacts, which range from carved wooden statuettes of family gods, or 'aumakua, to tools and pieces of feather capes.

Sept. 2: Federal District Judge David Ezra orders the return of the artifacts to the museum so discussions among the claimants can continue.

Sept. 5: Ezra sets a Sept. 23 deadline for return of the artifacts. Ezra questions whether federal law governing the disposition of cultural objects was violated when Hui Malama received and subsequently declined to return the items.

Sept. 20: The 9th U.S. Circuit Court of Appeals lifts the court order directing retrieval of the artifacts, ruling they may remain in the caves while Hui Malama appeals Ezra’s injunction.

Dec. 12: The appeals court affirms Ezra’s September injunction calling for the return of the artifacts.

Dec. 20: Ezra sets a Dec. 21 deadline for Hui Malama to pinpoint where each artifact is buried. The judge agrees to a request that Hui Malama members may refrain from actively participating in the removal of artifacts. The group must, however, pay for half the costs of removal while the Bishop Museum covers the rest. And the judge grants a request to keep the exact location under a court seal. The parties are directed by Dec. 28 to submit a list of three engineers who could survey the structural integrity of the caves and offer risk assessment.

Dec. 22: Ezra orders Hui Malama’s executive director Edward Halealoha Ayau and board of directors to appear before him Dec. 27 to show cause as to why they should not be held in contempt of court for failing to comply with the terms of the Dec. 21 deadline.

Dec. 27: Hui Malama’s Ayau is ordered into federal custody until the exact whereabouts of the cultural artifacts are revealed. spacer spacer

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051228/OPINION01/512280332/1105/OPINION
Honolulu Advertiser, Wednesday, December 28, 2005, EDITORIAL

Artifacts opponents must seek solution

Federal Judge David Ezra, in what seemed to be a passing remark, may have suggested an incremental step toward accord in the divisive case of 83 buried Hawaiian artifacts.

In the cacophony that erupted over yesterday's climactic hearing on the fate of the objects, this ray of hope seems thin indeed, but it's one worth exploring.

Admittedly, agreement seems elusive in a case that involves such difficult questions about correct cultural behavior. All the same, Ezra has proposed that a third party be found, one acceptable by all sides in this contentious dispute, to take custody of the artifacts in the case until their disposition is finally settled.

Otherwise the objects that the organization Hui Malama I Na Kupuna O Hawai'i Nei reburied at Kawaihae five years ago will be passed back to the custody of the Bishop Museum, which is charged with overseeing the repatriation of the 83 items to the Native Hawaiian community.

This is not an ideal circumstance. The museum, after all, is a party to the case, and an enormous gulf of distrust exists between the hui and the Hawaiian groups that back the museum, believing the hui's action left others out in the cold.

Yesterday, the hui's leader, Edward Halealoha Ayau, went to prison rather than obey Ezra's order to disclose the precise location of the objects. The hui and its supporters may view that as a heroic act, but it's really the culmination of a tragic mistake.

Hui Malama assumed an authority it did not possess when it moved for the untimely reburial of the objects along with human remains; the whole case might have been settled, ultimately with less indignity to the burials, if the cultural question — should the objects go back to the cave? — had been fully resolved.

If this dispute is ever to resume that course, some kind of middle ground must be found.

It's difficult to imagine what third party would satisfy all combatants — even the Office of Hawaiian Affairs, traditionally a caretaker agency, has been a competing claimant for the artifacts.

But finding accommodation and moving toward resolution should be everyone's focus now, rather than continued and pointless demonstrations of civil disobedience. The hui's decision to withhold its guidance serves nobody's interests and cripples its future standing as an organization able to advocate for burial protection.

The court certainly can search for the objects without further details or maps, but the retrieval will be far less disruptive to burial caves if the hui provides the guidance Ezra has ordered.

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http://starbulletin.com/2005/12/28/news/story01.html
Honolulu Star-Bulletin, December 28, 2005

Hui Malama leader in jail for 'indeterminate amount of time'
The group refuses to reveal the location of artifacts during an emotional hearing

By Sally Apgar

DRESSED all in black with his hair cascading over his shoulders framing his tattooed cheek, Edward Halealoha Ayau left a federal courtroom yesterday flanked by U.S. marshals. He was sentenced to "an indeterminate amount of time" in prison for violating a court order to identify specific locations within Big Island caves where he reburied 83 native Hawaiian artifacts.

"Mr. Ayau, you have backed this court into a corner and forced its hand," said U.S. District Judge David Ezra, adding, "I didn't want to do this."

Ezra said Ayau would be held until either he or others who helped him rebury the objects with secret rites identified their location to the court or until other native Hawaiians, with the help of structural engineers and perhaps other professionals, located them and retrieved them.

At one of several dramatic points during the hearing, Ezra asked the directors of Hui Malama I Na Kupuna Hawaii O Nei to stand before him and answer whether they would give him the location of the items or the names of people who were present at the ritual reburial. In their own words, they each refused.

When told he could face prison, Ayau answered: "I would be honored."

Ezra said he had no choice because Hui Malama, a group founded in 1989 to reclaim native Hawaiian bones and burial objects from museums and construction sites, has supplied only "duplicitous statements" and "insufficient information" to the court as to the locations.

Ezra said this case is about native Hawaiians versus native Hawaiians and not native Hawaiians versus the federal court. "This forum is simply the place for this dispute to take place," Ezra said.

The long-standing argument entered the federal court system in August, when a federal lawsuit was filed against Hui Malama by two claimants of the Kawaihae items: La'akea Suganuma of the Royal Academy of Traditional Arts and wealthy Campbell Estate heiress Abigail Kawananakoa of Na Lei Alii Kawananakoa.

"He brought this upon himself," Suganuma said yesterday. "The judge bent over backward to accommodate him and he is stealing the truth."

Speaking of Ayau, Suganuma said: "He wants to be a martyr. But he has an agenda, and there is more than appears on the surface. If and when we recover the items, we will know more."

Ezra discussed how all sides in the dispute have strongly held religious beliefs that severely counter one another. He likened the ardent belief and the resulting divisiveness to other religious differences, such as those in the Middle East, where he said some feel compelled to strap bombs to themselves in the name of their beliefs and that others find those beliefs abhorrent.

His point was that in such rigidly opposing religious battles, under American law, no one group is right.

"Unfortunately, like any religion, there are those who believe differently," Ezra said.

He noted that while Hui Malama believes the artifacts are burial objects that ancestors wanted buried with them, which are wishes they honored, others believe they are not such items. They say they were common religious items that could be openly displayed until 1819 and the end of the traditional Hawaiian religion, which meant that many such items were hidden in caves for safekeeping so they would not be destroyed by mobs.

Ezra said: "Unfortunately, Hui Malama has taken it upon itself to determine their way is the right way, the only way. We don't tolerate that in our country."

Yesterday's proceeding, which was attended by more than 100 Hui Malama supporters and about 20 plainclothes marshals, erupted into shouting, chanting and raised fists when it was clear that Ayau and Hui Malama were losing.

Kihei Nahaleo from the Big Island was chanting and stopped. Then he glared at Ezra, shouted and angrily raised his fist, and Ezra commanded marshals to "seize that man."

He was taken into custody and sentenced to five days in jail after Ezra told him that disrupting a federal courtroom in that manner could have resulted in one year in prison.

Yesterday's court proceeding showed how strongly different native Hawaiian groups feel about the fate of the 83 artifacts that were taken from Kawaihae or Forbes Cave in 1905 and then placed with the Bishop Museum.

On Sept. 7, Ezra ordered that the items be retrieved from the caves on the Big Island so that 14 native Hawaiian groups can review them and have an equal voice about their final disposition. The groups have staked claims under a federal law called the Native American Graves Protection and Repatriation Act.

Ezra has ordered the items be returned to a secured place, away from public view, at the Bishop Museum, which received the stolen items from David Forbes and two associates who entered the caves in 1905.

Ezra, acknowledging the original 1905 grave robbery, said yesterday he hoped there could be a third secure place agreed on for the items but that for now he had only the museum.

Ezra faced a challenging hearing. As he tried to invoke fines, a young man began to clap and chant. Ezra ordered him out of the courtroom.

Moments after Ezra made Ayau's prison fate clear, Pualani Kanahele, a renowned kumu hula from the Big Island and Ayau mentor, stood up from her second-row seat and loudly said, "I will not sit and hear this crap."

As Kanahele stomped out, cursing Kawananakoa, others followed.

Ezra, trying to maintain order, politely asked that they wait for the end of the hearing. When the crowd, with angry faces and fists raised, continued to make noise, he asked the plainclothes marshals to "clear the courtroom."

He then tried to proceed as loud chants, crying and mournful songs echoed into the courtroom from the marble hallway, making it difficult to hear in the court.

He asked Alan Murakami, attorney for Hui Malama, if he had a hand in orchestrating the dramatic display in the court. Murakami said it was "spontaneous."

Ezra said: "I could see signals. It was well planned and orchestrated. I could see the hand signals, and the press, sitting in the front row, could not see behind them."

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http://www.hawaiireporter.com/story.aspx?2bbca194-ed40-4fa5-9621-442270beb8db
Hawaii Reporter, December 28, 2005

Forbes Cave Controversy - A Nexus of Religion, Politics, and Law

By Kenneth R. Conklin

Note also that the same questions can be raised about bones as about artifacts. Bones are of interest primarily to anthropologists or scientists for studies conducted out of public view. Scientific results may be of great interest to the public on fundamental issues regarding ancient migrations, origins of today's people, who arrived first, etc. (remember the ongoing controversy over Kenewick Man). Artifacts are of great interest to ethnic groups regarding ancestral pride, and to the general public regarding respect and appreciation for ancient cultures that are part of the modern heritage for us all. Artifacts can be studied scientifically in laboratories, like bones. Bones themselves need not be publicly displayed in order for scientific information about them to have an effect on public opinion; but artifacts must be placed on public display to make full use of their potential for education and pride in cultural heritage.

Ethnic Hawaiians have a special kuleana (interest, right, and responsibility) for ancient Hawaiian bones and artifacts; but all of us share that kuleana to appreciate and be inspired by the heritage at the core of our shared multicultural society. If the past is buried with the intent to allow it to rot until all has disintegrated and returned to the earth, our heritage and inspiration for future generations will rot along with it.

During the period of chaos in Baghdad following the U.S. military victory it was feared that thousands of artifacts from the dawn of civilization had been looted from the national museum, thereby looting the world's cultural heritage.

We all remember the artifacts from King Tut's tomb. Suppose that tomb had never been explored because some Egyptian zealots loyal to the cult of Ahman Ra had prevented it. Or suppose that after Tut's artifacts were on display in a museum a small group of Egyptians had outright looted them, or used a legal loophole to "borrow" them and return them to the tomb, sealing them inside forever (or perhaps selling them on the black market).

Bishop Museum has been looted repeatedly by cultural/religious zealots.

(1) In the case of the kaai, the looting was done by outright theft in the dark of night. The kaai are two 400-500-year-old woven sennit baskets in the shape of a human, containing bones of major Hawaii Island chiefs Liloa and Lonoikamakahiki. The kaai had been taken from a heiau on Hawaii Island in 1820 (to save them from the destruction of the heiau) to be placed in a burial crypt at (an earlier) Iolani Palace. Later, when the new Royal Mausoleum was built on Nuuanu Ave., the bones of royalty, and the kaai, were moved there in 1865. In 1918, before the royal bones were moved again from the first mausoleum crypt (now a chapel) to a new crypt, the kaai were placed in Bishop Museum by Prince Jonah Kuhio Kalanianaole because of their great historical value. All these things were done by Hawaiian alii. Yet a few cultural/religious zealots in 1994 decided they are more knowledgeable and righteous about the kaai than the alii were during the Kingdom. Unproved rumors are that the theft was done by members or friends of Hui Malama, with help from a museum employee to circumvent museum security; and that the kaai were reburied in Waipio Valley.

(2) In the case of Kanupa Cave, artifacts from the Emerson collection of 1858 were "liberated" openly from Bishop Museum by Hui Malama using the NAGPRA law. Either the artifacts were buried in the cave as promised, and then the cave was later burglarized; or else the artifacts were never buried there. Either way, those artifacts ended up for sale in a shady, secret antiquities market, possibly for money to buy drugs, until federal authorities investigated and confiscated the objects.

(3) The Forbes Cave collection of 83 priceless artifacts was looted from Bishop Museum through a shady deal whereby some museum employees "loaned" Hui Malama the Forbes artifacts under cover of the NAGPRA law for what everyone knew was the purpose of permanently reburying them; despite the fact that other Hawaiian cultural groups were actively asserting their rights under NAGPRA to possess the artifacts to keep them available for future generations. Some observers wonder whether the Forbes artifacts have been sold already, or whether they might be hidden in someone's house to wait a few years until the controversy dies down before trying to "fence" them.

There is a federal law requiring that ancient bones, funerary objects associated with bones, and artifacts at the core of a culture's patrimony, held in museums, must be returned to individual lineal descendants or to a tribal or native cultural organization. The law is NAGPRA -- Native American Graves Protection and Repatriation Act. When more than one person or organization claims bones or artifacts, the museum is obligated to keep ownership until those claimants settle their differences.

Hui Malama claims to know what the ancestors want, and claims the right to represent all Hawaiians regarding bones and artifacts. Truly indigenous groups, and most Indian tribes, are small, cohesive, and culturally monolithic. That makes it reasonable for a chief or tribal council to speak on behalf of the entire group. But there are more than 400,000 ethnic Hawaiians, of many conflicting religious beliefs, scattered geographically, and thoroughly assimilated into a wide variety of non-native cultural practices. It is extremely mahaoi (rude; disrespectful) for any individual or group of officials to claim to speak on behalf of all 400,000.

Some say that passing the Akaka bill would solve the problem, because Hawaiians could then elect leaders authorized to speak for them. But in reality the leaders of the Akaka tribe would be the most powerful institutionally connected people who already abuse and intimidate rank-and-file Hawaiians -- people like the OHA trustees, executives of Bishop Estate (Kamehameha Schools), DHHL officials, etc. The difference between an Akaka tribe and the current situation is that the Akaka tribe would have "sovereignty," meaning that its leaders can make whatever outrageous decisions they wish, and engage in major corruption, knowing that nothing can be challenged in state or federal courts.

There is no consensus among today's ethnic Hawaiians regarding religion; but the dominant viewpoint is Christianity coupled with respect for the ancient religion. Some occasionally participate in reconstituted approximations of ancient rituals. "Traditional practitioners" are a very small minority who choose those portions of ancient religion they like, while (hopefully) setting aside very important ancient observances such as human sacrifice and the death penalty for any woman who eats a coconut or banana. Hui Malama claims some of the Forbes artifacts (and bones) contain living spirits, or at least that the spirits enter the artifacts when summoned through secret rituals. But anyone who believes that must also believe that the spirits of the ancestors can speak to today's descendants or can influence ongoing events for the purpose of helping bones or artifacts to be discovered and used for the benefit of current and future generations.

Let's remember that the ancient Hawaiian religion was overthrown by native leadership including Liholiho Kamehameha II, Kaahumanu, and high priest Hewahewa. They were indeed authorized to speak on behalf of all Hawaiians in a way nobody can today. They gave the order to destroy the heiau and burn the idols in 1819, many months before the Christian missionaries arrived. Some diehard traditionalists launched a civil war in defense of the old religion, until they were wiped out in the Battle of Kuamoo. Today we once again have a small minority of diehard traditionalists -- the leaders of Hui Malama -- who are declaring war against other Hawaiians and against the federal courts. Hui Malama has a valuable service to perform, to work with the various island burial councils to give respectful reburial to bones inadvertently discovered during storms or construction projects. But they must not be allowed to destroy the cultural patrimony.

My mother's brother Bob recently died. He and my mother always loved a candy known as Necco wafers. At the open-casket funeral, one of Bob's daughters handed my mother a roll of Neccos and suggested she put it into the casket to be buried with Bob. Mom asked "Really?" and then she placed it next to his head. Thirty years from now, if it is discovered that Necco wafers deteriorate until after 25 years their disintegrated powder cures cancer, I will have no hesitation giving permission to dig up my Uncle Bob so the Necco powder can be given to whomever needs it. Today Hawaiians, and others, are afflicted with the cancer of drug abuse and social dysfunction. Ancient artifacts can help cure that cancer by reminding us about a spirituality that lies at the core of what makes Hawaii a special place, and by giving pride and inspiration to future generations.

All Hawaii owes a debt of gratitude to Princess Abigail Kawananakoa, Kumu Rubellite Kawena Kinney Johnson, Laakea Suganuma (Royal Hawaiian Academy of Traditional Arts), and others who have courageously resisted public and private bullying from Hui Malama (with strong ties to Sen. Inouye), "Uncle" Charlie Maxwell, the Native Hawaiian Legal Corporation, etc. Kawananakoa, Suganuma, and colleagues are currently using the federal courts to defend Hawaii's cultural patrimony against the ravages of Hui Malama. They would not be able to use the federal courts if the Akaka bill passes, because the Akaka tribe would have sovereign immunity and its leaders could give Hui Malama free rein with impunity.

References

An expanded version of this article can be found at: http://tinyurl.com/b6og4

The kaai, two woven sennit baskets more than 400 years old containing the bones of high chiefs Liloa and Lonoikamakahiki, were stolen from Bishop Museum. http://tinyurl.com/a3gfh

Artifacts from the Emerson collection, from Kanupa cave, were "liberated" from Bishop Museum and Peabody Essex Museum in Salem, Mass. by Hui Malama through official legal processes under NAGPRA. Hui Malama claimed to have reburied the artifacts in Kanupa cave and sealed the entrance. But less than 9 months later, the artifacts were found to be for sale on the black market, and the cave entrance was found to be open and unprotected. http://tinyurl.com/bge8c

Large Web page about the Forbes Cave controversy, including hundreds of pages of news reports covering several years, and some documents filed with the national NAGPRA review committee http://tinyurl.com/82xqp

Very large webpage covering NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawaii, with many subpages covering -- Mokapu, Honokahua, Bishop Museum Kaai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization http://tinyurl.com/yt7se

NAGPRA-related news in Hawaii for 2005, including over 100 pages of news reports about the Forbes Cave controversy during this year alone. http://tinyurl.com/52brs

What's wrong with the Akaka bill? http://tinyurl.com/5jp5r

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051229/NEWS23/512290323/1173/NEWS
Honolulu Advertiser, Thursday, December 29, 2005

Contractor files details on sealing cave for hui

By Gordon Y.K. Pang

A masonry contractor yesterday filed a sealed affidavit in federal court that details how he sealed shut a cave in Kawaihae believed to house priceless cultural objects placed there by Hui Malama I Na Kupuna 'O Hawai'i Nei.

Alan Murakami, a Hui Malama attorney, said the Native Hawaiian organization chose to keep the filing shielded from the public because "certain facts disclosed might show where the locations of the various items are and the court has agreed with us that kind of information can be put under seal."

Hui Malama leaders said 83 objects loaned to the group by the Bishop Museum in 2000 were placed in two caves in what's known as the Kawaihae Caves complex. George W. Field III headed up the sealing of Forbes Cave with concrete and steel. The other, Murakami said, also was sealed although he has declined to say how.

One hundred years ago, the objects, known as the Forbes Collection, were removed from Big Island caves by Westerners and eventually conveyed to the museum. Hui Malama members maintain that the objects were looted and that the group has now returned them to their proper place.

Two other Native Hawaiian organizations sued Bishop Museum and Hui Malama in August for the return of the objects, noting that they and a number of other groups were in the process of deciding what should happen with the items when they were taken from the museum.

U.S. District Judge David Ezra had set yesterday as the deadline for Field to submit details about the materials, equipment and process he used to seal a cave at the behest of Hui Malama.

Deputy Attorney General Lisa Ginoza said yesterday that the investigative division of that state office is providing security for the caves, which are on lands owned by the state Department of Hawaiian Home Lands. She declined to provide specifics.

As recently as two weeks ago, DHHL Director Micah Kane said members of his staff were in charge of security at the site.

On Tuesday, Hui Malama executive director Edward Halealoha Ayau was ordered jailed for contempt of court for failing to disclose the precise locations of the objects. Ezra said he will stay in custody until he or others make such disclosure, or when all the items are returned to the museum.

Hui Malama officials say it would go against their religion to disclose information that would lead to the removal of what they consider to be funerary objects from burial sites. Their opponents counter that Hui Malama's view of Native Hawaiian religion is not the only one and that there are other options for the objects' final resting place.

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http://starbulletin.com/2005/12/29/editorial/commentary.html
Honolulu Star-Bulletin, December 29, 2005

Gathering Place

by Nanette Naioma Napoleon [formerly known as Nanette Napoleon Purnell]

A sad day in Hawai'i Nei

The arrest of Hui Malama's leader was the unfortunate result of the group's bullying and disregard for the rights of other Hawaiians WHEN I heard the news Tuesday that Judge David Ezra sentenced Eddie Ayau of Hui Malama I Na Kupuna 'O Hawai'i Nei to jail for not disclosing the location of the Forbes Cave items, I could not say that I was happy at the outcome, even though I am a staunch opponent of the Hui and its stand against returning these items. It was a victory for the claimants and other supporters like me, but a very shallow one indeed.

I agree with the Hui that it is a very sad day when we Hawaiians must air our differences in a western court of law, but it was because Hui Malama members took it upon themselves to steal the items through a bogus loan agreement with Bishop Museum, without the consent of the other Hawaiian claimants with whom they were negotiating, that it has come to this.

It is all so ironic that the Hui was instrumental in developing the federal Native American Graves Protection and Repatriation Act (NAGPRA) -- adopted in 1990 and which governs the repatriation of indigenous human remains and certain other artifacts -- but is now taking a stand against it because other claimants happen to disagree with the Hui's dogmatic and non-negotiable position. In the same breath that Hui members condemned the western court system, they cried foul that their constitutional rights have been violated. What hypocrisy.

BESIDES being saddened by the entire affair, I am also mad because they seem to think that all of our ancestors -- theirs, mine and everybody else's -- support only them and nobody else in this issue. I was appalled to hear someone from the Hui at the court house call out to the kupuna to "descend" from the spirit world and do harm to the "those evil people" who stand against them. I was equally appalled to hear the word hewa, which means offensive, sinful and wicked, directed at the opposing claimants. Their mean-spirited and hateful feelings toward other Hawaiians are totally unwarranted and undignified.

This is the same uncompromising attitude that has made them so difficult to work with and so disliked by a large part of the Hawaiian community. Unlike many Hui Malama members, I wish no person with whom I disagree any physical or spiritual harm, and I do not think them hewa. I vehemently disagree with some, not all, of their beliefs and methods, but I strongly respect their right to have a different point of view, as I greatly respect other Hawaiians who are willing to step forward and take responsibility for na iwi and other cultural items, even though their beliefs and methods might differ from my own.

As they did at the court house, Hui Malama frequently recites the following prayer (which is available on their Web site at http://huimalama.tripod.com): "E homai ka 'ike (grant us knowledge), e homai ka ikaika (grant us strength), e homai ka akamai (grant us intelligence), e homai ka maopopo pono (grant us righteous understanding), e homai ka 'ike papalua (grant us visions and avenues of communication with the other side), e homai ka mana (grant us positive energy). I ask you, where has their "righteous understanding" and "avenues of communications" been in regards to the views of the opposing claimants? Where has their "positive energy" been?

IN MOST disputes, including the Forbes Cave case, they have been very closed minded, not understanding and very much unwilling to develop open lines of communications with others who do not agree with them, not just non-Hawaiians, but Hawaiians as well.

While they state that all Hawaiians have a kuleana (responsibility) to care for our kupuna (ancestors) in order for our lives to be "pono," and that they will "defer to wishes of identified lineal descendants and the 'ohana (family)," time after time after time they have insulted those who have come forward as being "ignorant," "un-Hawaiian" and "un-spiritual." Gee, let me see, where have we heard these epithets before?

Furthermore, Ayau writes in an essay titled, "Rooted in Native Soil" (which is also on their Web site), that they expect to be treated as "partners, as natives, as human beings," and that others should "follow the NAGPRA law" as they do. With the Forbes Cave case, they have chosen to do precisely the opposite; they totally disregard NAGPRA and the negotiation process it mandates, which they themselves helped to develop, by taking the objects without the authority of the Burial Council and the other claimants, stating that they have been given this authority, exclusively, by the kupuna. Ayau also states that "in sharing aloha or going to war, we maintain a balanced perspective." Yeah right. The only perspective they will accept is their own. Period. End of story.

I APPLAUD Hui Malama members for their ability to rally their troops, which out-numbered the claimants and other supporters like me at the court house. But this is not a true indication of the depth of their opposition. Typically, other claimants do not belong to a large hui of people with group e-mail lists and years of savvy media experience. Instead, they are mostly individual families or very small groups who have heard Hui Malama's call and are willing, for the first time, to take responsibility for the iwi in their ancestral geographic area or of their direct bloodline.

Hui Malama is not, I repeat, is not the one and only "true" voice in this debate.

Time after time during the last 15 years, members of Hui Malama have put down, bullied and even cursed many of these sincere and humble people, even as they preach the party line that they encourage all Hawaiians to get involved in the repatriation process. Many Hawaiians have been deeply wounded by the Hui's lack of respect for other beliefs and protocols which, historically, are varied by family and district differences. Like many of our cultural practices, there is often more than one way of doing things.

I am tired of hearing Hui members lie to the public when they say that all opposing parties want to destroy the iwi or keep them in museums, which is so far from the truth as to be ridiculous. It appears that they will never acknowledge the fact that many of us want the same thing as they do, which is to return the iwi to their original burial sites, or as close to that as possible, with our differences being mostly about cultural and religious protocols associated with such reburials, and whether non-burial items should be reburied.

In 1993, I quit my appointed position as an inaugural member of the Island of O'ahu Burial Council because of the blatant disregard and disrespect that Hui members showed myself and others on the council. Since then I have talked with many sitting and former council members, and others who have had dealings with them, who have told me they have experienced the very same thing.

TO THE members of Hui Malama, Eddie Ayau has now become a martyr of heroic proportions. I hope that the rest of the Hawaiian community will not be swayed by this and will take the time to listen carefully to other points of view, of which there are many. Hui Malama is not, I repeat, is not the one and only "true" voice in this debate, supported by all of our ancestors, our 'aumakua, our gods, and the majority of the Hawaiian community, as it so fervently declares.

Up to now, those of us in opposition to the Hui have not been able to counter their underhanded tactics and vicious public and private attacks. I'm grateful to the groups and individuals who had the courage to stand up to them at the risk of being cursed and dammed as the villains. I am also thankful that the courts have seen through the Hui's bombastic rhetoric to allow others to be heard. I hope that this sets a clear precedence for all future negotiations. It shall no longer be the Hui Malama way or the highway.

Nanette Naioma Napoleon, a writer and researcher, is director of the Hawaii Cemetery Research Project, an effort to catalogue information from headstones in Oahu cemeteries.

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http://the.honoluluadvertiser.com/article/2005/Dec/30/ln/FP512300357.html
Honolulu Advertiser, Friday, December 30, 2005

Group key in fight for repatriation

By Lee Cataluna

Who is Hui Malama to make decisions for all Hawaiians?

That question has been flipped around quite a bit lately.

The question is asked as if to insinuate that this group showed up unannounced one day. As if it was just a bunch of guys who got together and made up club rules.

Hui Malama I Na Kupuna 'O Hawai'i Nei is the go-to organization for the repatriation of Native Hawaiian remains and burial objects.

The federal government said so.

Hui Malama I Na Kupuna 'O Hawai'i Nei is recognized by the U.S. government as an organization with legal standing for repatriation and reburial, as well as consultation on such matters.

Moreover, Hui Malama played an integral part in getting Native Hawaiian burials and artifacts included in the Native American Grave Protection and Repatriation Act of 1990.

If not for Hui Malama, hundreds of Native Hawaiian remains would still be in cold drawers in museums across the country instead of resting in the sands of their home. Hui Malama brought the bones back to Hawai'i and worked with community burial councils to ensure proper reinterment.

Hui Malama members did the wrangling with the museums. They flew to far corners and secured the bones and escorted them back on airplanes. Group members, volunteers, took on this emotional, somber responsibility.

It began with the Ritz Carlton on Maui. In 1988, the remains of more than a thousand Native Hawaiians were dug up to build the hotel. Native Hawaiians and supporters lodged a successful fight to have the bones returned to their original resting place in perpetuity and have the hotel site moved inland, away from the burials. Hui Malama grew out of the resolve to not let that kind of desecration happen again.

There are other questions that should be asked instead, such as who are these other groups who claim rights to the burial objects taken from Forbes Cave and what was Bishop Museum doing issuing a "loan" for these pieces? There must have been some complicity on that end.

On Tuesday, supporters of Hui Malama gathered outside the federal courthouse. Several Hawaiian scholars were there, as well as students of Hawaiian language and culture.

Among them was a young woman holding her baby. She wasn't there to argue for the retrieval of the objects so her keiki could see them on some future school excursion. She wanted the objects left with the bones of the ancestors. She held her baby and she chanted her support for Hui Malama.

Respect the kupuna. Take care of the keiki. Some believe that those two things are one and the same, that they are accomplished with a single act, and that the future is best served by righting the wrong done when the burial cave was first violated by Forbes.

-----------------------

This present webpage covers only the year 2005. For the continuation to year 2006, see:

https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

=================

http://starbulletin.com/2005/10/19/news/story01.html
Honolulu Star-Bulletin, October 19, s005

Artifacts found in lava tube
A developer comes across carved wooden figures on the Big Isle that likely date to the early 1800s

By Sally Apgar

The developer of a luxury golf and residential project on the Big Island recently discovered "a significant archaeological" find when construction equipment accidentally breached a lava tube, according to documents obtained by the Star-Bulletin.

Sources with knowledge of what was found on Sept. 21 said there are more than 20 carved wooden images, standing between 3- and 4-feet tall. The carved wooden images were described as being in various stages of completion, with some expertly finished. Two upright carved stones were also discovered, according to the sources, who all spoke on condition of anonymity.

No human remains were found inside the lava tube, according to a Sept. 27 letter from Melanie Chinen, administrator for the state Historic Preservation Division, to Dennis Frost of Rutter Development Corp. of Irvine, Calif.

It is unclear whether the images are ki'i, or carved images that were made as personal gods. Sources said the objects date back to the 1800s and might have been carved in the 1840s, about 20 years after Chiefess Kaahumanu outlawed the Hawaiian religion and the practice of using ki'i.

For several weeks, the state Historic Preservation Division, Rutter and landowner Kennedy-Wilson International have tried to keep the discovery confidential, partly because they want the site secured from looters.

They have each declined to answer repeated Star-Bulletin inquiries about the find at "The Shores at Kohanaiki," which is several miles north of Kailua-Kona. The 450-acre property is the future site of a championship golf course and about 500 luxury homes.

Community groups long fought the development and finally relented, in part, when Rutter agreed to provide a 128-acre public coastal park with 120 parking stalls and a beach facility with snack bar, restrooms and showers.

Paul Rosendahl, an archaeologist hired by Rutter, told the Star-Bulletin last week that the lava tube has been resealed and 24-hour security is in place. All construction work was stopped in the immediate area when the find was made and has not resumed.

Rosendahl said that in deference to families with ties to the site he would not comment on what was found. "We are following the administrative rules for dealing with an inadvertent discovery like this and are consulting with members of the appropriate ethnic groups." Referring to families and kupuna with ties to the site, Rosendahl said, "I put their concerns before anyone else's."

Rutter notified the Historic Preservation Division when it found the images and state staff inspected the site. But since no human remains were found along with the images, Rosendahl said the developer, under his interpretation of state law, has the right to determine the disposition of the artifacts. Rosendahl said they are consulting with kupuna who have ties to Kohanaiki to further identify the images and collect information needed in deciding their fate. He is also working with MaryAnne Maigret, the Hawaii Island archaeologist for the Historic Preservation Division.

In an Oct. 10 letter to Chinen, Rosendahl referred to state law and wrote that Rutter "as the owner of a historic property located on private property and lacking in any human skeletal remains asserts its right to assume the leading role in determining the appropriate protection, treatment and ultimate disposition of the site and its contents."

In the same letter, he challenged Chinen, saying that contrary to her Sept. 27 letter, the Historic Preservation Division "does not have any authority to make unilateral decisions regarding the site."

Rosendahl wrote that Rutter "will continue to assert its sole right to control access and determine in consultation with the professional staff" of the Big Island office of Historic Preservation "who will be, and under what conditions, granted access to the site." He also said that Rutter "wishes to maintain a low profile with regard to the site for now as the best protection for the site."

Van Horn Diamond, former chairman of the Oahu Island Burial Council, said, "This is the way the law is written. I don't think that the developer is trying to deny the Hawaiian community participation in this." "I hope they make the right overtures to get cultural input from Hawaiians and they can do that by finding the lineal descendants" with ties to the site, Diamond said.

The finding has been whispered about on the Big Island for weeks.

Herb Kane, an artist and historian who lives on the Big Island, was intrigued that so many carvings were found in one place. He offered two possible reasons that the carvings were found in a group without human remains.

First, he said that after Kaahumanu outlawed the Hawaiian religion in about 1819, some families hid their ki'i in caves to safeguard them from being destroyed by gangs "who made bonfires of ki'i." He said the site could be where several families or even a village hid their ki'i. He said if the images have a worn patina from being handled, that would suggest they were someone's ki'i.

Another theory is that this was a storage area for one or more expert carvers. He said that after 1820 a whole class of trained wood carvers found they had lost their market.

However, Kane said, sailing ships from Europe came into port seeking such carved images to fill museums in their home countries and the craftsman, according to a captain's diary at the time, began selling carved images.

Kane said lave tube could also have been the simple storage place for several craftsmen.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051020/NEWS23/510200355/1173/NEWS
Honolulu Advertiser, Thursday, October 20, 2005

Debate builds over new archaeological discovery

By Gordon Y.K. Pang

A "significant archaeological find" — that included carved wooden images — in a lava tube on the construction site of a Kona luxury home project is causing a buzz on the Big Island despite attempts to keep the discovery under wraps.

On Sept. 21, equipment accidentally punctured a lava tube on the construction site of The Shores of Kohanaiki, according to a Sept. 27 letter from state Historic Preservation Division Administrator Melanie Chinen to Dennis Frost of Rutter Development Co., which is heading the project.

While no human remains were "documented," Chinen said in her letter, "we believe a significant archaeological site is located within the tube."

Chinen yesterday declined to discuss the project, citing a request for confidentiality made by the landowner.

Paul Rosendahl, a Hilo, Hawai'i-based archaeologist hired by California-based Rutter Development Corp., said an unspecified number of artifacts of an indeterminate age were located in the lava tube at the construction site of the 500-home project between Keahole Airport and Kailua, Kona.

Rosendahl declined to give details of what was found.

"It's impressive, I will tell you that," he said. In 37 years as an archaeologist in Hawai'i, he said, "I have never seen anything like this." He said the artifacts were at least 50 years old and "likely" more than 100 years old.

After talking to Chinen's office, the landowner has sealed the cave temporarily and kept it under around-the-clock monitoring. Work in the immediate vicinity of the cave has ceased, although construction continues elsewhere on the 450-acre site.

In cases in which human remains are found, the final disposition is made by the state, Rosendahl said, but in cases where there are no human remains, the landowner "takes the lead."

Before making a final determination, Rutter and partner Kennedy-Wilson International want to consult with the state and interested parties he described as "kupuna who are kama'aina to Kohanaiki and adjacent lands."

The landowner wanted to keep information about the site confidential both to protect it and to adhere to the wishes of elders in the area who "felt this was a private matter (and that) these things were hidden and meant to stay hidden."

Hawai'i County Councilman Angel Pilago, who represents North Kona, disagreed with Rosendahl and criticized both the landowner and the Historic Preservation Division for keeping the matter private. "I think it's much more than a lineal descendancy issue," he said. "I firmly believe it's cultural and intellectual property, and that remains in the purview of the general Hawaiian community."

While the company may have a legal right to withhold the information, the public should know what is buried there, said Pilago, who has had a history with the Kohanaiki site, having been a plaintiff in a landmark 1995 Hawai'i Supreme Court decision that affirmed Native Hawaiian gathering and cultural rights on the coastal development and, ultimately, all private property. Pilago said he does not trust either the Historic Preservation Division or Rutter and wants the county to be more involved.

But Hawai'i County Planning Director Chris Yuen said that, to date, he has seen nothing nefarious in the actions of Rutter or Historic Preservation. "My guess is that both SHPD and the majority of the Hawaiian community will say it should be kept in place and sealed up so it can't be disturbed," Yuen said. "And the county would be fine with that."

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051025/NEWS0101/510250314/1003/NEWS
Honolulu Advertiser, Tuesday, October 25, 2005

Hawaiian groups want say on artifacts

By Kevin Dayton
Advertiser Big Island Bureau

HILO, Hawai'i — Three West Hawai'i community groups alleged yesterday that secrecy surrounding a major archeological find at a construction site at Kohanaiki violates an agreement the developer made with the county and others to allow the luxury home project to go forward.

In a written statement released yesterday, the groups Kohanaiki 'Ohana, Pono I Ke Kanawai, and Na Keiki He'e Nalu O Hawai'i said they want to be included in the discussions on what will happen to artifacts found in a punctured lava tube on the construction site.

The groups warned of possible lawsuits or protests if Rutter Development Co. of California does not explain its actions, and urged the company to make a public statement by Thursday "to prevent confrontation." "This week we were informed by local and outside island groups of plans and intent to conduct acts of civil disobedience against the developer," the groups said in a joint statement.

Dennis Frost, project manager for Rutter, said he had not seen the statement, and declined to comment on it.

In their written statement, the groups said they had confirmed that artifacts found on the site of a project called The Shores of Kohanaiki included more than 20 ancient god images that stand 3 to 4 feet tall, and were found in the cave on Sept. 21.

"Rutter, with their consultants and advisors are wrong to see our ki'i (image or statue) as their property, and that only they, will decide what's best for and when to exclude the Hawaiian people," the statement said. "We challenge their assertion, and remind them that Gods do not belong to individuals, they belong to the community whose values and practices they represent. They are the cultural and intellectual property of a social group, and the society that the sacred icons symbolize and represents have the right to determine the care and disposition of their god-forms," the statement said.

Paul Rosendahl, the Hilo-based contract archeologist hired by the developer, said consultations about the objects in the cave have begun with a group of six to eight Hawaiians with family and residential ties to the property, which is near a surf spot known as "Pine Trees," between Kailua village and the Kona airport.

Rosendahl said the area where the artifacts were found was not used for burials, but described it as "a very significant site." The developer has resealed the cave and posted security, and is following state administrative rules that govern inadvertent archeological finds in caves, he said.

Those state rules prohibit the state from releasing information about the find without the permission of the land owner. Rosendahl said the developer has withheld information from the public to protect the artifacts, but has shared information with the state and with Hawaiians with historic family ties to the land.

"Rutter views themselves basically as custodians of this site to protect it until it's been decided what should happen with it," Rosendahl said. Rosendahl said he does not agree that the confidential process the developer is following violates the 2003 "Good Faith Agreement" that settled a number of other public access and shoreline issues, and required the owners to create a 109-acre public park.

The agreement requires the developer to advise the state, the county and a "designated representative" of the community about any surprise archeological finds, and then consult with all of them to determine what should be done about the find.

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http://starbulletin.com/2005/10/25/news/story07.html
Honolulu Star-Bulletin, October 25, 2005

3 cultural groups want a voice in disposition of wooden icons

By Rod Thompson

KAILUA-KONA » Three West Hawaii cultural and community groups are warning of unspecified "civil action" against a residential and golf development at Kohanaiki, North Kona, where old Hawaiian wooden images were found in a lava tube cave in September.

Kohanaiki Ohana, Pono I Ke Kanawai and Na Keiki Hee Nalu O Hawaii expressed anger at the "willful exclusion of interested parties" who were not consulted when the images were found.

"This week, we were informed by local and outside island groups of plans and intent to conduct acts of civil disobedience against the development," the groups said in a statement. The groups said they hope to avoid confrontation, "but we will not interfere, intervene nor be responsible for any civil action by others after Thursday, Oct. 27, 2005." They asked for "resolution" by then. The three groups "may seek legal remedy," they said.

More than 20 images, believed to be kii, or carved images of gods, were found on the 450-acre property north of Kailua-Kona, where the Shores at Kohanaiki is being created by two California companies, Rutter Development Corp. and Kennedy-Wilson International.

Some of the images were finished objects, while others were incomplete, according to sources familiar with them. Probably dating from the first half of the 19th century, they might be religious images hidden when the old Hawaiian religion was overthrown or commercial objects created for sale to foreign sailors, said Hawaiian historian Herb Kane.

No human bones were found in the lava tube, said the development's archaeological consultant, Paul Rosendahl.

The fact that this is not a burial site and was accidentally discovered gives the landowner the legal right to determine how to dispose of the artifacts, Rosendahl said. The developers see themselves as custodians of the objects while they work with people with specific family links to the area, he said.

The three groups stated, "Gods do not belong to individuals; they belong to the community whose values and practices they represent. They are the cultural and intellectual property of a social group."

Rosendahl said the developers are not obliged to turn the images over to any particular group that makes a claim. The developers are working with "those with the strongest genealogical and residential ties," he said.

The groups accused the developers of violating a 2003 "good faith agreement" that requires consultation with community groups in case of discoveries.

But Rosendahl said that refers only to a 109-acre shoreline area being developed as a park. A state cave protection law allows landowners to keep cave information confidential to protect it, he said. The lava tube has been sealed, Rosendahl said.

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http://www.westhawaiitoday.com/articles/2005/10/25/local/local02.txt
West Hawaii Today (Kona), Tuesday, October 25, 2005

Group demands answers on find -- civil disobedience a possibility

by Bobby Command

A group of Native Hawaiian organizations has issued an ultimatum demanding a developer explain why it failed to disclose the discovery of religious objects on property it is developing in Kailua-Kona.

The developer was also warned that acts of civil disobedience by other groups and individuals may occur as a result.

Rutter Development, however, said it has adhered to proper procedures and protocols following the Sept. 21 inadvertent find at the Shores at Kohanaiki site of more than 20 ancient tiki, or kii, and will ultimately involve the community in their disposition.

In addition, the mayor said everyone involved is trying to do the right thing but the situation is so sensitive it is easy to see how a misunderstanding could come about. Mayor Harry Kim said he has called a meeting of those involved in the issue and is confident of a resolution.

Kohanaiki Ohana, Pono I Ke Kanawai, and Na Keiki Hee Nalu O Hawaii released a joint statement Monday giving Rutter Development until Thursday afternoon to issue a public explanation of their actions following what the group calls a cover-up of an inadvertent discovery of the idols, which are three to four feet in height.

"This timeline is urgent to prevent confrontation," according to a press release by Kohanaiki Ohana. "This week we were informed by local and outside island groups of plans and intent to conduct acts of civil disobedience against the developer."

The groups said they found out on Oct. 8 of a significant inadvertent discovery at Kohanaiki. According to the press release, communications and discussions between Rutter, the state and Hawaii County, "may have resulted in a conspiracy to defraud the Hawaiian community and keep secret a significant archeological find that represents the values and beliefs of our people."

The group said it was "deeply disturbed by circumstances stemming from discovery, disposition, and willful exclusion of interested parties who should have been consulted upon discovery of significant Hawaiian cultural and intellectual objects."

Mike Eadie of Rutter Development said from the company's office in Irvine, Calif., that Rutter followed the letter of the law when it discovered the idols. "We observed state and county procedures as well as the good-faith agreement and notified the proper authorities," he said. "We sealed it as soon as we found it. There are certain conditions and procedures that we must follow before we get the community involved."

According to the press release, the group discovered that conversations and communications between the developer, state, and county administrative agencies advised the developer of their privilege to invoke confidentiality. "In other words, to keep the find secret from the Hawaiian people. That action, though legal, was wrong."

Kim said the controversy is odd because everyone involved is trying to do the right thing. "The difference here, some people felt this was such a significant find that decisions were made by individuals without the inclusion of others," he said. "There is no basis for any other accusation," said Kim, who added that he found out about the find by reading West Hawaii Today. "And I don't mean to demean this, because this is special and sensitive."

The group, who labeled Rutter as "devious, insensitive, and disrespectful," said the developer should not consider the tiki their property, nor should it be the only ones to decide the fate of the items. "We challenge their assertion and remind them that gods do not belong to individuals, they belong to the community whose values and practices they represent."

But Eadie said Rutter is not trying to hide anything. "Kohanaiki has been in such a spotlight," said Eadie. "We believe we are acting in the spirit in which this whole thing came together."

Rutter Development, Kohanaiki Ohana and Na Keiki Hee Nalu O Hawaii endorsed an August 2003 good-faith agreement which includes notification and consultation with community members when such discoveries were made. "We feel that agreement is now abrogated by Rutter Development's decision for confidentiality that excludes and denies our inclusion and involvement," the release said. "Our organizations, with the inclusion of Pono I Ke Kanawai, urges Rutter Development and Hawaii County to include us in their discussions to try to avert future complications."

While the group said it hopes to avoid confrontation and does not condone acts of violence, it also said it would not interfere, intervene, nor be responsible for any civil action by others after Thursday.

The release also said the groups may seek a legal remedy to further clarify protocol, disposition, and curatorship of Hawaiian cultural and intellectual property, and may invite other local, national and international culturally based organizations to join them.

Kim said he has contacted all the major parties who have agreed to meet and discuss the situation. "Everyone is on the same page," said Kim. "I don't think we'll have much of a problem."

Shores at Kohanaiki is a 500-lot golf course community and shoreline park under construction four miles north of Kailua-Kona.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051027/NEWS01/510270361/1190/NEWS
Honolulu Advertiser, Thursday, October 27, 2005

OHA cites stake in Kona artifacts

By Gordon Y.K. Pang

The state Office of Hawaiian Affairs says it also wants to be in the loop and have a say in what happens with more than 20 significant artifacts found at a North Kona construction site last month.

"OHA is obligated to work towards the betterment of native Hawaiians and Hawaiians, and to serve the needs and interests of a wide and diverse beneficiary group (and) must also ensure that other agencies, on the state and county levels, uphold their constitutionally, statutorily and judicially mandated obligations to the native Hawaiian and Hawaiian people," administrator Clyde Namu'o said in a letter to Rutter Development Inc., which is developing the Shores of Kohanaiki between Keahole Airport and Kailua town.

After reviewing news stories about the artifacts, "it is becoming clear that OHA should be officially and formally notified of this discovery and consulted with regards to the interests of our beneficiaries," Namu'o said.

Archaeologist Paul Rosendahl, who is helping developers with the project, could not be reached for comment late yesterday. He previously said that after consultation with the state Historic Preservation Division, the cave has been sealed temporarily while a final plan is discussed with state officials and Native Hawaiians from the area.

"OHA is concerned regarding any discovery of historic properties, especially when they are native Hawaiian in origin and of apparent cultural significance," Namu'o said.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051031/OPINION03/510310310/1110/OPINION
Honolulu Advertiser, Monday, October 31, 2005
COMMENTARY

Caves were used for more than just burials

By Malcolm Näea Chun

There is more significance to the recent accidental discovery of traditionally carved images at Kohanaiki on the Big Island than what had been reported.

The fact that those objects have survived nearly 200 years, the prospect of information that they may give to Native Hawaiian artists and carvers, and the immense cultural and historical value they may add to a very difficult period of our history does overshadow the other obvious fact: Caves and other natural shelters were used for other purposes than the burial of human remains.

The implications of that physical "discovery" at Kohanaiki reinforces the persistent claims of Native Hawaiian traditionalists that questions the arbitrary theory of caves and other natural shelters being used only for permanent burials. It also challenges present laws that seek Native Hawaiian community input toward the disposition of such cultural objects because those laws were based only upon the reparation of burial sites and practices found in the United States.

The depository function of such caves was described by the 19th-century Native Hawaiian historian Samuel Manaiakalani Kamakau in an article written for the Hawaiian newspaper Ku'oko'a in November 1865. He wrote in Hawaiian concerning Hi'ilawe Falls in the back of Waipi'o Valley on the island of Hawai'i: "A ma kona kumu e haule ai ilalo, he ana huna, malaila i waiho ai na auhau o na'Lii Kaulana ... " and I translate: "And at its base where it falls is a hidden cave, there the treasures or tribute of the famous chiefs were deposited/placed or left."

Kamakau does not use the word "kanu" or "to bury," and my first choice is "deposit" because "waiho" is used in such words as "hale waihona puke" as when one deposits a check in a bank. Any of the other choices also indicate a temporary or transitory nature of the action to "waiho" and do not imply a state of permanence.

This seriously questions the theory that the Forbes or Kanupa cave in Kohala had only a single purpose rather than being multi-purposed.

It also points out to the state of the moment starting in late 1819 when the chief priest Hewahewa torched his own luakini or temple at 'Ahu'ena, Kailua, Kona, signaling the end of traditional temple-image worship in the Islands with the consent of the king, Liholiho, and later continued by the regent Ka'ahumanu.

Many, not all, religious objects were burned or given away, but it appears the smaller ones were quickly sequestered away in secure hidden places such as caves and other natural shelters in the hopes that the traditional religion would be restored.

That dream ended at the battle of Kuamo'o and the defeat of Liholiho's cousin Kekua-okalani. The priest-led temple worship of images was not restored and completely ended as spoken by the highest-ranking chiefess of the Islands, Keopuolani, when she said to Kekuaokalani, "Mo ka piko!" ("The umbilical cord [our relationship] is severed!"). There is finality in those words.

The hidden treasures of the chiefs were left with the intent for future use from being destroyed by the fires of religious zealots, and today that intent is still endangered by zealotry and ignorance. In this regard, the find at Kohanaiki has tremendous significance and the voice of our ancestors.

Malcolm Naea Chun is a cultural specialist for the University of Hawai'i's College of Education and lives in East Honolulu.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051031/OPINION02/510310321/1108/LETTERS
Honolulu Advertiser, Monday, October 31, 2005
Letters to the Editor

BIG ISLAND LAVA TUBE ARTIFACTS ARE LEGACY FOR ALL HAWAIIANS

I understand a developer building homes in Koloko accidentally punctured a lava tube containing an impressive collection of artifacts. This happened on Sept. 21, but was not known to the majority of Hawaiians and the public until The Advertiser published an article on Oct. 20. According to the article, the developer was counseled to temporarily seal the cave and told that "these things were hidden and meant to stay hidden."

It appears the landowner and the Historic Preservation Division (Hawai'i Island) tried to keep this event secret from the public and all Hawaiians. The landowner/developer has claimed these artifacts and is seeking counsel on what to do.

By now, we should all know that the landowner, the Historic Preservation Division and Hawai'i County do not own these artifacts. They belong to the Hawaiian people. These artifacts represent the cultural legacy of traditional Hawaiians, a legacy that was hidden in times of conflict so that it would be preserved for future generations.

Hidden in darkness for ages, the time has come for these artifacts to reveal their cultural legacy. Why else would they show themselves? Many generations of Hawaiians seek knowledge of their cultural foundation and lineage. They want to know what Hawaiians were like before Western influence. These artifacts hold the key to that legacy.

In truth, this legacy is not meant for those who would keep these artifacts for themselves, who would seek to control them for their own benefit. And this legacy is not meant for those who are afraid and cannot step into the light. It is meant for those who want to know more about their lineage and traditional culture, to know more about what is "Hawaiian." Clive Cabral
Pearl City

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http://starbulletin.com/2005/10/30/news/story01.html
Honolulu Star-Bulletin, October 30, 2005

Mausoleum fears theft of treasures
The caretaker says a Hawaiian group has reneged on a loan

By Sally Apgar

Two sacred staffs topped with golden orbs that for more than 113 years watched over the crypt of the royal line of Kamehameha are missing and believed stolen, according to the caretaker of the Royal Mausoleum known as Mauna 'Ala.

In interviews last week, William Kaihe'ekai Mai'oho, the "kahu," or caretaker, of the Royal Mausoleum in Nuuanu Valley, said he stood on sacred ground of the high chiefs, or, "ali'i," and looked straight into the eyes of another Hawaiian who asked to borrow the pair of "pulo'ulo'u." Mai'oho said he "made a good-faith loan."

That was five years ago and they have never been returned.

Mai'oho said that Kunani Nihipali, then po'o, or director, of Hui Malama I Na Kupuna 'O Hawaii Nei, a controversial group that repatriates native Hawaiian remains and burial objects from museums, wanted to borrow the pulo'ulo'u to guard over bones from Kamehameha lands that their group had reclaimed from the Bishop Museum for proper reburial.

Mai'oho said Nihipali promised to return the pulo'ulo'u to Mauna 'Ala after the bones were reinterred.

"I took his word that he would return them," said Mai'oho, the sixth generation of his family to serve as kahu at Mauna 'Ala. "I told him I wanted them returned because Mauna 'Ala is where they belong."

Mai'oho said he doesn't know if the bones were ever reburied but that he has never seen or heard from Nihipali despite repeated efforts to contact him. In late 2004, Nihipali left Hui Malama and Eddie Halealoha Ayau, a founding member and spokesman of the group, became po'o.

"It is my responsibility to bring the pulo'ulo'u home. I took them at their word. I accept my responsibility that I let them go from Mauna 'Ala. But I never thought they had any hidden agenda. I can see now they had an underlying agenda."

Ayau did not return calls to his Molokai home. Mai'oho and others said that Ayau was often present during visits concerning the restoration. "This isn't a police matter. It would be very un-Hawaiian for me to go to the police," said Mai'oho, a soft-spoken man who was groomed from early childhood by his grandparents to assume the responsibility of kahu. He is descended from two chiefs hand-picked by Kamehameha I (who is not buried at Mauna 'Ala) to hide his bones after his death from enemies who would want to use the "mana," or spiritual power, from his bones.

"This is not just about stolen items," said Mai'oho, "This is on a much larger, spiritual scale. And I try, but I cannot understand why they did it."

Sitting outside of his small, one-story home on the grounds of Mauna 'Ala last week, Mai'oho said: "It is my responsibility to bring the pulo'ulo'u home. I took them at their word. I accept my responsibility that I let them go from Mauna 'Ala. But I never thought they had any hidden agenda. I can see now they had an underlying agenda."

Mai'oho said that each year he makes several inquiries after Nihipali, but has never heard from him. Even though the loan was made to Hui Malama as a group, Mai'oho said: "This is between Kunani and myself. I want to deal with him directly because it is who I handed the sacred objects to."

The Star-Bulletin has made repeated unsuccessful attempts to reach Nihipali in Hawaii and on the West Coast, where he is believed to be living or traveling. The Star-Bulletin has also tried reaching Nihipali and Ayau through the Native Hawaiian Legal Corp., which represents Hui Malama and was informed of the missing pulo'ulo'u.

Mai'oho said he decided to go public about the loan and alleged theft because in recent weeks he has heard that Hui Malama buried them in a cave.

"I am afraid to say that I don't think they ever intended to return them," said Mai'oho.

Mai'oho said that in 1999 or 2000, the Charles Reed Bishop Trust, which oversees Mauna 'Ala, agreed to restore the two deteriorating Kamehameha pulo'ulo'u, which were made from an iron staff and a copper orb covered in gold and placed with the crypt in 1887.

In ancient Hawaiian culture, pulo'ulo'u were a symbol that royalty was present, according to Mai'oho and other experts. They were carried at the front of royal processions. They were found in pairs outside of a royal house. And if royals decided to take a swim, pulo'ulo'u would be planted in the nearby sand to warn others away.

Typically, pulo'ulo'u contained in the staff or the orb the relics -- bones, teeth or hair -- of ancestral chiefs who watched over the living chiefs or chiefesses. The pulo'ulo'u are believed to hold strong mana. In front of a chief's house, they were sometimes crossed, which forbade entrance to others unless the person chanted their genealogy and business and was permitted entrance. If the pulo'ulo'u were upright, a person could pass through.

The pulo'ulo'u that stand, upright and uncrossed, before the crypts of the royal families at Mauna 'Ala are symbolic, and do not contain relics, but are believed to have strong mana, said Mai'oho.

Several appraisers contacted by the Star-Bulletin said it is almost impossible to estimate a commercial price for the pulo'ulo'u because few if any have ever been sold and they are such a rare, one-of-a-kind item.

In about 2000, Nihipali and George "Billy" Fields, a Big Island mason who often does work for Hui Malama, were hired for the restoration of the pulo'ulo'u, according to Mai'oho and Lurline Naone- Salvador, who worked for 29 years at Kamehameha Schools and has worked closely on restorations at Mauna 'Ala.

Naone-Salvador confirmed Mai'oho's statement that Nihipali and Fields said the originals were too badly deteriorated to be refurbished and a new pair should be made. The day they installed the new ones at the crypt, Nihipali asked to borrow the old ones.

Mai'oho said Nihipali explained how Hui Malama had taken possession of ancestral bones from the Bishop Museum and that they were stored at his Pupukea home until they could be properly reinterred. He said some of the bones were from Kamehameha lands and that he wanted the pulo'ulo'u to guard over them.

"I loaned them because there was a connection with Kamehameha," said Mai'oho. "But I told him I wanted them back because they belong here and I would either find someone to refurbish them or I would bury them behind the Kamehameha crypt."

Naone-Salvador agreed with Mai'oho, "It was definitely a loan."

"If they put the pulo'ulo'u in a cave, it is like blasphemy," she added.

Naone-Salvador said that in late 2000, she visited Nihipali at his Pupukea home. She said that behind his house he had built a wooden shed lined with shelves that held the bones repatriated from the Bishop Museum. When she opened the door of the shed, she said, "I saw the pulo'ulo'u with my own eyes.

"When I saw the pulo'ulo'u, I said: 'Why are they still here? Why are they not back at Mauna 'Ala?'

"It wasn't like a confrontational conversation with Kunani. It was casual. And Kunani said he had them until the iwi (bones) were buried."

Not long after, Naone-Salvador said she had a falling out with Hui Malama. "It has to come back because it is meant to be here. And if it can't be used, it should be buried here and not removed," she said.

Fields also told the Star-Bulletin that "Hui Malama borrowed (the pulo'ulo'u)."

"And it's like Kunani just vanished,' he added.

Fields noted that he is not a member of Hui Malama. "I am just a hired gun."

In a recent affidavit he filed in a federal lawsuit over the disposition of items from Forbes or Kawaihae cave, Fields testified that he has performed "various masonry, welding and construction work in conjunction with over 50 repatriations" that Hui Malama has conducted to rebury native Hawaiian remains and burial objects since 1990.

Mai'oho said the way Nihipali borrowed and never returned the pulo'ulo'u is similar to his understanding of how Ayau allegedly borrowed 83 sacred artifacts known as the "Forbes collection" from the Bishop Museum as a "one-year loan" in February 2000. The items, originally taken from the Kawaihae or Forbes Cave on the Big island, were not returned.

Ayau has said the items were resealed in Kawaihae. He has repeatedly defended Hui Malama's actions, saying that the items were originally stolen from the ancestors in 1905 by David Forbes and two others, and that the museum knew that it was buying stolen goods. Ayau has repeatedly said Hui Malama reburied the items to honor ancestors and right the wrongs of the 1905 theft.

Hui Malama also claims that the Kawaihae items were properly repatriated under the Native American Graves Protection and Repatriation Act, a federal law that governs the reclamation of native Hawaiian and American Indian remains and artifacts from museums. Some of the other 13 claimants to the Forbes items say they did not get a fair voice in the disposition of the items when Hui Malama reburied them.

Last March, the NAGPRA Review Committee came to Honolulu to hear testimony on the case. When asked by the committee what he thought a loan meant, Ayau told them, "It was a vehicle for repatriation."

He also told the committee that neither Hui Malama nor the museum staff expected the items returned. The committee, which has only advisory power, ruled the repatriation was "seriously flawed."

Today, Kawaihae cave is at the center of a federal lawsuit that seeks the retrieval of the 83 items so that 14 native Hawaiian claimants may have a voice in their final disposition. The suit was bought by two claimants: La'akea Suganuma, a practitioner of lua, which is a form of ancient Hawaiian martial arts, and Abigail Kawananakoa, a Campbell Estate heiress and descendent of the royal Kalakaua line. The two argued that Hui Malama disregarded the rights of other claimants when they reburied the items.

Suganuma, who has long been at odds with Hui Malama, said that if the taking of the pulo'ulo'u is true, it "is the height of arrogance. This is total disrespect for the culture and the ali'i to just take these things. It is so disrespectful."

Mai'oho compared his loan to Hui Malama to the Bishop Museum's loan of the Forbes items: "It's what Hui Malama did at the Bishop Museum with the Forbes cave items. But to come and do the same thing at Mauna 'Ala, I just don't understand."

"This is far worse than taking from the Bishop Museum," he added.

Mai'oho said that when someone crosses the threshold of the gold-tipped gates of Mauna 'Ala, they come onto 3.5 acres of royal land under the Hawaiian flag. He said the Western world and its laws and customs are left behind on Nuuanu Avenue and that Hawaiians can relate to one another completely on Hawaiian terms.

"If you are Hawaiian, your word is life and death, especially here," said Mai'oho. "Here, on Mauna 'Ala, we can be completely Hawaiian with one another."

He noted that everything that is of Mauna 'Ala belongs there, including the pulo'ulo'u.

"Even the dirt is consecrated here," he said. "It is blessed and it isn't taken from here."

** Note from Ken Conklin: For extensive information about Mauna Ala, focusing on the claim that the land there was never transferred to the United States and remains sovereign territory of the Kingdom of Hawai'i, see:
https://www.angelfire.com/hi5/bigfiles2/MaunaAlaMidweekMay2004.html

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On November 1, 2005 The Honolulu Star Bulletin published a cartoon (right) by "Corky" showing the famous statue of Kamehameha The Great missing ("borrowed") from its pedestal in front of Ali'iolani Hale.
http://starbulletin.com/2005/11/01/news/corky.jpg
The photo on the left shows the statue as it really exists.

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http://starbulletin.com/2005/11/03/news/story02.html
Honolulu Star-Bulletin, November 3, 2005

Hawaiian staffs are returned to crypt
The Royal Mausoleum regains its two prized 19th-century artifacts

By Sally Apgar

The Royal Mausoleum has welcomed back two sacred staffs that were borrowed five years ago, never returned and believed stolen, according to the mausoleum caretaker.

"I am just so grateful that they are back at Mauna Ala where they belong," said William Kaihe'ekai Mai'oho, the sixth generation of his family to serve as kahu, or caretaker, of the Royal Mausoleum in Nuuanu Valley. The 3.5-acre site is considered sacred by many Hawaiians as the final resting place of most of the high chiefs of royal families.

The staffs topped with golden orbs had watched over the crypt of the royal line of Kamehameha for more than 113 years.

In a Sunday article in the Star-Bulletin, Mai'oho said that in 2000 he made a "good-faith loan" of the staffs, or pulo'ulo'u, to Kunani Nihipali, who was then the po'o, or director, of Hui Malama I Na Kupuna 'O Hawaii Nei, a controversial group that repatriates native Hawaiian remains and funerary objects from museums and protects native Hawaiian grave sites.

After five years of inquiring after Nihipali and the missing pulo'ulo'u, Mai'oho "reluctantly" told the Star-Bulletin last week that he believed they were stolen.

In an interview yesterday, Mai'oho said that early Tuesday afternoon, Nihipali brought the pulo'ulo'u back to Mauna Loa. He said the staffs were wrapped in heavy clear plastic bound with gray duct tape and wrapped in movers' quilts. He showed the pair to the Star-Bulletin where they stand in his house on the grounds of Mauna Ala, until he can find someone to restore them.

Nihipali could not be reached for comment.

Mai'oho said that Nihipali told him he did not like the Star-Bulletin story and that many people who had read it had contacted him. Mai'oho said Nihipali told him it was all a "misunderstanding" and that he did not agree with Mai'oho's recollection of the loan. According to Mai'oho, Nihipali said that the agreement was he would store the pulo'ulo'u at his home until they could find someone to restore them.

Mai'oho said he asked Nihipali to sit down and discuss the differences in their memories with the Star-Bulletin but that Nihipali declined.

Charles Maxwell, president of Hui Malama, said yesterday that the Star-Bulletin story was "all innuendo that was not substantiated by fact." "Your article was like saying that Elvis Presley is buried in Forbes Cave," Maxwell said, referring to a famous burial cave on the Big Island. "Of course, we are very happy that they (the pulo'ulo'u) are back," he added.

Last week, Mai'oho told the Star-Bulletin that in 1999 or 2000, Nihipali and George "Billy" Fields, a Big Island mason who has done about 50 projects with Hui Malama, were consulted about restoring the pulo'ulo'u, which had stood in front of the crypt as a guardian and symbol of royal presence since 1887.

Mai'oho told the Star-Bulletin that the two said the pulo'ulo'u could not be repaired and that it would be easier and cheaper to make new ones. The day they installed the new pair, Mai'oho said Nihipali asked to borrow the original pair.

Mai'oho said Nihipali told him that Hui Malama had reclaimed ancestral bones from the Bishop Museum that had been taken from Kamehameha lands and not yet been properly reinterred and that he wanted the pulo'ulo'u to watch over the bones until they were reburied.

Mai'oho said he "loaned" the pulo'ulo'u to Nihipali because "of the connection with the Kamehamehas." Mai'oho said, "I took his word that he would return them. I told him that I wanted them returned to Mauna Ala because that is where they belong."

He noted that nothing from Mauna Ala, including the dirt, ever leaves because it is sacred and belongs there.

Mai'oho said that each year he has made inquiries after Nihipali but has been unable to track him down. He said he did not want to go to the police because it was a matter between him and Nihipali. He told the Star-Bulletin about the matter last week after hearing rumors that the pulo'ulo'u had been buried in a cave and that he might never get them back.

"Only two days after the story ran, the pulo'ulo'u are back at Mauna Ala where they belong," Mai'oho said.

La'akea Suganuma, a practitioner of Hawaiian martial arts and a critic of Hui Malama who is suing them over items from Forbes Cave, said, "I am glad they are home again. ... I think the community is happy."

Lurline Naone-Salvador, who worked for Kamehameha Schools for 29 years and through her work with the Charles Reed Bishop Trust worked closely with Mai'oho on restorations at Mauna Ala, including the Kamehameha pulo'ulo'u, affirmed Mai'oho's version of the loan. "It was definitely a loan," she said.

She said that in 2000 she visited Nihipali at his Pupukea house and saw a wooden shed behind his house that was specifically built with shelves to hold the bones. She said that when she opened the door to the shed, "I saw the pulo'ulo'u with my own eyes." She said that Nihipali told her they were a loan until the bones were reburied.

Fields also told the Star-Bulletin last week that his understanding was that it was a loan. Fields said that he was not a member of Hui Malama. "I don't understand the political rhetoric. I am just a builder," Fields said last week.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051103/NEWS23/511030350/1173/NEWS
Honolulu Advertiser, Thursday, November 3, 2005

Missing sacred staffs returned to mausoleum

By Peter Boylan

Two sacred staffs that have stood over the crypts of Hawaiian royalty for 113 years were returned last week to the Royal Mausoleum in Nu'uanu Valley, the mausoleum's caretaker said last night.

William Kaihe'ekai Mai'oho said the staffs were returned to the mausoleum, known as Mauna Ala, after a five-year absence. He declined to say where the staffs had been or to provide other details. "People came to me and said they were placed in a cave, and that's when I got concerned," he said. "They were returned, that's the main thing. That's the only thing."

In ancient Hawaiian culture the staffs, or pulo'ulo'u, symbolized the presence of royalty, according to experts. They were carried at the front of royal processions and were found in pairs outside of a royal house. If royals decided to take a swim, pulo'ulo'u would be planted nearby to warn others away.

Typically, relics — such as bones, teeth or hair — of ancestral chiefs who watched over the living chiefs or chiefesses were stored in the orb of the pulo'ulo'u, which had strong mana, or spiritual power.

Mai'oho has said the pulo'ulo'u that stand before the crypts at Mauna Ala are symbolic and do not contain relics. But, he said, they have strong mana.

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(11) ** Note from Ken Conklin: The Honolulu Advertiser has consistently supported Hawaiian sovereignty activism. Reporter Vicki Viotti covered the ethnic Hawaiian "beat" for several years, until she was promoted to the editorial board. In the dispute among Hui Malama, other Forbes Cave claimants, and Bishop Museum, Viotti's news reports were always clearly biased in favor of Hui Malama. Therefore it is no surprise that on Sunday December 4, 2005 the Advertiser chose to publish a lengthy "news" article about the difficulties the Getty Museum (California) and other museums are having with lawsuits from foreign governments demanding the return of undocumented or "stolen" antiquities. And, just in case readers might not "get it" without help, it's also no surprise that Vicki Viotti published a personal commentary on the same page and directly below that article, linking the "news" article with ongoing NAGPRA controversies in Hawai'i. Below are both the article and the commentary. Although Viotti does not explicitly say so, the clear implication is that ancient Hawaiian artifacts in museums should be "repatriated" and reburied as Hui Malama demands. A further implication (which Viotti herself might not have thought of) is that the NAGPRA law should be construed to give ethnic Hawaiians as a whole a communal legal standing, comparable to that of a foreign government, to demand the return of artifacts or "national treasures", and that passing the Akaka bill would allow ethnic Hawaiians to create a governing entity which could speak on behalf of the entire ethnic group and thereby decide any disputes among competing claimants, as in the Forbes Cave controversy. Using the Akaka tribal council to resolve disputes among ethnic Hawaiians so that the tribe as a whole can speak with one voice would seem to be a great advantage for ethnic Hawaiians. The problem is that a tribal council can make decisions in any way it chooses, without "due process of law" or the protections of the U.S. Constitution. Individuals treated unfairly cannot complain to state or federal courts because tribes have "sovereign immunity." And tribal councils are often corrupt, giving priority to powerful and politically radical leaders whom individual tribal members fear to oppose, lest they lose land or money or even get expelled from the tribe. **

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051204/OPINION03/512040312/1110/OPINION
Honolulu Advertiser, Sunday, December 4, 2005

Art deal or art steal?

by Malcolm Bell III (Professor of Art History, University of Virginia; and Vice President for Professional Responsibilities at the Archeological Institute of America)

Paolo Ferri, an Italian prosecutor who is investigating the purchases of antiquities by major American museums, has hit hardest at the J. Paul Getty Museum in Malibu, Calif., which in recent decades rapidly built up an impressive collection of Greek and Roman art.

The Getty's troubles — compounded last month by legal action from Greece for the recovery of four works — offer a useful lesson for museums and collectors. But it is unfortunate that a chief target of the prosecution is the Getty curator who has done the most to clean up the practices of her institution in this murky trade, Marion True.

According to the Italian court, for two decades before 1995 the Getty bought many previously unknown antiquities that had been looted from archaeological sites. Such works were laundered by the antiquities market, and consequently almost nothing is known (at least by the public) about where they came from or what purposes they served.

Some of these are among the most important discoveries of the period, and the loss of information about their origins is painful. The Getty's controversial "Morgantina Aphrodite" is an extremely rare example of the sort of cult statue that once stood within a Greek temple. While, as some have asserted, this remarkable work may come from Morgantina (a site in Sicily where I serve as co-director of excavations), no proof of its origin is known, and its subject is just as uncertain. The market destroyed the evidence.

For this and countless works, many questions remain unanswered: Where were they found? What artists and patrons conceived them? When were they used? Most such works of art were clumsily excavated at night (the Aphrodite was badly damaged in the process, as must have been the spot from which it was taken), then absorbed into the art market stripped of their earlier history, including any record of ownership in antiquity — just the sort of information about provenance that museums are expected to go to lengths to preserve.

The recent revelations about the Getty's dubious purchases are old news to archaeologists who worked at classical sites in the Mediterranean in the 1980s and early 1990s; we regarded the museum as a powerful stimulus to the illegal market. For the past decade, however, the Getty has prohibited the purchase or acceptance as a gift of any work whose existence is not documented before 1995.

Undocumented antiquities are very likely to have been pillaged. By adopting a concrete date before which the object had to be known, the Getty has distanced itself from the illicit market, and the distance will increase with time.

The pre-1995 publication rule is vital because dealers often have invented fake pedigrees for the works they sell. The Getty's present acquisitions policy is owed to True, its former curator of Greek and Roman antiquities. The Getty policy is arguably the strongest of any major American museum, and as far as we know, it has not been violated.

Other museums, including the Metropolitan Museum of Art, the Museum of Fine Arts in Boston and several major university collections (Princeton's and Harvard's among them), instead follow the policy adopted by the Association of Art Museum Directors, which allows the purchase of undocumented antiquities if the museum believes acquisition is justified. The problem here is that objects newly on the market with no known history are almost certain to have been recently pillaged. If dealers revealed the origins of such works they could not possibly be sold. Photographs seized in a 1995 police raid on the warehouse of one dealer, Giacomo Medici (who already has been convicted through the efforts of Ferri) show Italian soil still clinging to vases now in American collections, including the Metropolitan. Most archaeologists, of course, would prefer an acquisitions policy that is even stronger than the Getty's — one that would require proof that the object was documented much earlier than 1995. Some advocate the symbolic date of 1970, when the UNESCO convention on illicit trade in cultural property was approved. A more rigorous choice would be the date of the relevant legislation protecting antiquities in the country of origin (in the case of Italy, June 1, 1939). Either way, choosing a date is essential.

The pillaging of the human past is a problem the world over, hardly limited to the Mediterranean. To reduce it, all countries that have antiquities at risk should police their historical sites effectively and create programs that teach citizens the value and community importance of local remains. The international trade can also be discouraged by import bans. The UNESCO convention allows the United States to sign bilateral agreements with countries where pillaging is rampant, banning entire categories of objects at risk. Nine such agreements are now in force with countries in Central and South America, Africa, the Mediterranean and Asia. (The agreement with Italy is up for renewal.)

In the end, however, the law can do only so much, and as legitimate custodians of human achievement, the museums should adopt higher standards in building collections, cutting their ties with the illegal trade.

Ferri's outrage at the looting of Italy's heritage is justified. By laying bare the archives and warehouses of major dealers, he has revealed corruption at the core of the market.

But in prosecuting Marion True, he has used decades-old evidence against a curator who brought needed reform to the Getty Museum, and I can only hope the Italian courts recognize the good she has done.

If there is one major lesson to be learned from Ferri's investigations, it is that collectors and museums, in America and around the world, must take into account not just the aesthetic value of the objects they acquire but also the ethical and legal consequences of their acquisition policies.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20051204/OPINION03/512040313/1110/OPINION
Honolulu Advertiser, Sunday, December 4, 2005

COMMENTARY

In Hawai'i, illicit trade persists despite efforts to protect ancient burials

By Vicki Viotti

The theft and sale of antiquities has become a potent issue in parts of the world other than Italy, shaped in each case by circumstances distinct from those now affecting California's J. Paul Getty Museum.

This week, the government of Peru warned Yale University that it will be sued unless the institution returns artifacts excavated nearly a century ago from the ancient ruins of Machu Picchu.

Famed U.S. explorer Hiram Bingham (who was from Hawai'i by the way) exported nearly 5,000 objects and remains with government permission following his 1911, 1912 and 1914 excavations, but never returned them by the 1916 deadline.

In Hawai'i, the movement to reclaim cultural treasures, burial remains and the possessions placed with the bones arose long after most of these objects ended up in museums and other collections, largely as a result of looting.

The movement was enabled by the Native American Graves Protection and Repatriation Act, as well as Hawai'i statutes aimed at according respect to Native Hawaiian burials encountered during urban developments where villages once stood.

However, the financial lure of the illicit trade persists. A recent documentary by private investigator and former broadcast journalist Matt Levi and filmmaker Edgy Lee argued for a link between the crystal methamphetamine drug epidemic and thefts of artifacts from Hawaiian burial sites.

And last year, burial objects surfaced on the Big Island market, objects that had been repatriated under the federal law. An investigation ensued but 16 months later, no charges have resulted.

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This present webpage covers only the year 2005. For the continuation to year 2006, see:

https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

You may now

GO BACK TO: NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawai'i -- Mokapu, Honokahua, Bishop Museum Ka'ai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization

GO BACK TO OTHER TOPICS ON THIS WEBSITE

Email: ken_conklin@yahoo.com