NAGPRA Issues in Hawaii, 2006 (Especially the Controversy Regarding Forbes Cave [Kawaihae Cave])

The Forbes cave controversy up until the NAGPRA Review Committee hearing in St. Paul, Minnesota, May 9-11, 2003 was originally described and documented at:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html

The conflict among Bishop Museum, Hui Malama, and several competing groups of claimants became so complex and contentious that the controversy was the primary focus of the semiannual national meeting of the NAGPRA Review Committee meeting in St. Paul, Minnesota May 9-11, 2003. A webpage was created to cover that meeting and followup events related to it. But the Forbes Cave controversy became increasingly complex and contentious, leading to public awareness of other related issues. By the end of 2004, the webpage focusing on the NAGPRA Review Committee meeting and its aftermath had become exceedingly large, at more than 250 pages with an index of 22 topics at the top. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

That large webpage became so difficult to use that it was stopped on December 29, 2004; and a new webpage was created to collect news reports for NAGPRA issues in Hawai'i during year 2005. An index for 2005 appears at the beginning, and readers may then scroll down to find the detailed coverage of each topic. For coverage of NAGPRA issues in Hawai'i in 2005 (about 250 pages), see:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 another new webpage has been created, below. 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.

For events in 2007, please go to
https://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html

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LIST OF TOPICS FOR 2006: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfold during 2006.

(1) Forbes Cave controversy: Supporters and opponents of Hui Malama publish conflicting views as Eddie Ayau remains in prison. Opinion essays for and against Hui Malama. Jan 4: A federal judge has named Applied Technology Corp. as the structural engineering firm that will examine the Forbes Cave on the Big Island. Jan 5 UH Center for Hawaiian Studies chairman criticizes Judge Ezra; Jan 18 Ezra released Ayau on home detention (Molokai) and set up Hawaiian ethnic-based mediation (ho'oponopono); Jan 20 Federal Bar Association replies in defense of Ezra; April 28 Ezra says mediation was unsuccessful and orders engineering firm to begin assessing stability of cave to prepare for future entry and recovery of artifacts. Advertiser article on May 21 reviews the background of the dispute and historical/philosophical disagreements. In mid-June, Bishop Museum filed a cross-complaint against Hui Malama demanding return of the artifacts and reimbursement for expenses the museum is incurring in relation to this case. On September 5, 2006 a TV station reported that the 83 artifacts from Forbes Cave had been quietly returned to Bishop Museum the previous week., although it was unclear how that was accomplished. On September 7 La'akea Suganuma, a plaintiff who had long demanded the return of the artifacts, sent an e-mail to his supporters confirming the news. On December 8 it was reported that a settlement was formally agreed upon, whereby Bishop Museum will pay $183,333.82 of the costs of returning the artifacts from the cave to the museum, and Hui Malama will pay $146,667.16 (But Hui Malama is crying "poor" and says it doesn't know where it will get the money).

** NOTE: APPROXIMATELY 100 PAGES = 2/3 OF THIS WEBPAGE IS DEVOTED TO TOPIC #1 BECAUSE THERE ARE SO MANY NEWS REPORTS. SCROLL DOWN TO FIND THE REMAINING TOPICS AS SHOWN IN THIS INDEX.

(2) 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. On February 26, 2006 the Kona newspaper ran a major story describing cooperation between local Hawaiians and the developer, including a report on what was seen in the cave.

(3) Artifacts originally taken from Kanupa Cave almost a century ago had gone to Bishop Museum and to the Peabody Essex Museum in Salem, Mass. Under the NAGPRA law these items were repatriated to four Native Hawaiian groups, and had allegedly been reburied in Kanupa Cave in 2003. But in 2004 federal investigators responded to a report that a collector had discovered some of those items for sale in a shop in Kona. On March 17, 2006 it was reported that a Hawaii Island man has been arrested. On March 24, 2006 Daniel W. Taylor, 39, pled guilty to conspiring with co-defendant John Carta to take the artifacts from the Kanupa Cave in June 2004. Taylor is the first person ever to be convicted in Hawai'i under the 1990 NAGPRA law, according to the Honolulu Advertiser report of March 25. John Carta pled guilty on May 26 to conspiring and actually entering the cave and removing artifacts, and will be sentenced on September 8.

(4) Five cultural items that have been held for a long time by Hawai'i Volcanos National Park, and that were once part of the Forbes Cave collection, have been designated "unassociated funerary items" by park officials, paving the way for Native Hawaiian organizations to determine what to do with them. The items belong to the same collection as 83 cultural objects that have been at the center of a long-standing dispute between Bishop Museum and several Native Hawaiian groups.

(5) 11 sets of ancient Hawaiian burial remains were found in March 2006 during a major commercial and residential renovation planned for the Ward Centers complex in Kaka'ako. The O'ahu Island Burial Council heard from two families claiming to be "cultural descendants" of Hawaiians who formerly lived in that area, and who want the bones to stay exactly where they were found on the construction site. But landowner/developer General Growth Properties Inc. submitted a detailed burial plan to relocate the remains to a different part of the project site. The $100 million-plus expansion plan for the Ward Village Shops includes a Whole Foods Market, an upscale supermarket, a 17-story rental apartment building, assorted retail shops and a seven-story parking complex. On September 14 it was reported that the O'ahu Island Burial Council voted 6-4 that the bones can be moved; but more delays are expected.

(6) Bishop Museum president and CEO William Brown has announced his resignation. He will be moving to Philadelphia where he will join his family and become president of the Academy of Natural Sciences on Feb. 1. Star-Bulletin reminds that "a few Hawaiian activists called for Brown's resignation in 2004, when the museum proclaimed itself a native Hawaiian organization that could act as a claimant for sacred and funerary objects on a par with 130 recognized native Hawaiian groups." ... "Well, good riddance," said Charles Kauluwehi Maxwell, president of the native Hawaiian group Hui Malama I Na Kupuna O' Hawaii Nei, upon learning of Brown's departure. "I think Bill Brown did so much damage to the image of the Bishop Museum, it's irreparable. He lacked spirituality and common sense when it came to native Hawaiians," Maxwell said. "He has a Western mind, and he can never transcend into Hawaiian thinking."

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060101/OPINION03/601010308/1110/OPINION
Honolulu Advertiser, January 1, 2006

COMMENTARY

Why Eddie Ayau must be released

By the Nation of Hawai'i, Pu'uhonua 'O Waimanalo Village and the Native Hawaiian Advisory Council

We are three of the 13 claimants (for items stolen from the "Forbes" caves on the Big Island and then sold to Bishop Museum) who are officially recognized by the Native American Graves Protection and Repatriation Act.

We are also part of the majority of seven claimants who oppose the removal of the moepu (artifacts) from the caves which would would result in a second desecration.

The other recognized claimants who oppose removal of the moepu are: Hui Malama I Na Kupuna O Hawai'i Nei. State Department of Hawaiian Home Lands. Hawai'i Island Burial Council. Na Papa Kanaka 'O Kohola Heiau.

The argument that the moepu should be on display or studied is spurious at best as they have already been heavily documented by the Bishop Museum for 95 years since the original desecration and theft in 1905.

There's more than enough information about these moepu. NAGPRA does not require (or allow for) a disruption of a repatriation in order to study or display items that were buried with our ancestors and placed with them as funerary objects. La'akea Suganuma and Na Lei Ali'i Kawananakoa claim that to have effective consultation, the claimants must physically view the moepu. Suganuma previously agreed and promised to forgo recovery.

On Dec. 6, 2000, Suganuma agreed that repatriation was complete. On Dec. 9, 2000, he, as our appointed spokesperson, communicated our collective decision to the Bishop Museum to defer recovery of the moepu until we all agreed on final disposition. Suganuma authored the "Document of Truth" in August 2001, informing the Bishop Museum that we agreed to disagree, to respect one another and to leave what happens to the moepu to "greater and higher powers."

No one thought he meant the western court system. We are deeply distressed that he has now filed this lawsuit and put this matter into federal court rather than where it belongs, among the claimants in a culturally appropriate setting.

Suganuma is the only one of the 13 official claimants who has stepped forth in court to officially complain about the consultation and repatriation process. He was not one of the original four claimants when the moepu were reinterred in February 2000.

None of the original three parties, OHA, DHHL or the Hawai'i Island Burial Council has joined this law suit.

In 1996, Abigail Kawanana-koa is identified by the museum as a party that it consulted. Kawananakoa never participated in any of the consultations or meetings with the other claimant/ owners. Kawananakoa's organization, Na Lei Ali'i Kawananakoa, was incorporated on Sept. 27, 2004, eight years after the official consultation. Na Lei is not a recognized claimant in this matter.

Under NAGPRA, neither Abigail Kawananakoa nor Na Lei has standing to complain or lay claim to the moepu.

William Brown, the Bishop Museum's director and the key orchestrator of Kawananakoa's involvement, belatedly fast-tracked and recognized Na Lei, contrary to the advice of his own staff and in a total reversal of the Bishop Museum's acknowledgement of a completed repatriation. Brown, in effect, is attempting to "restart" repatriation by "recognizing" Na Lei as a 14th claimant, four years after repatriation ended.

One can only speculate as to how many more groups Brown would allow in as claimants in order to potentially orchestrate a result that finds the moepu back with the museum, a participant in the original theft as an enthusiastic buyer of what it knew to be stolen burial items.

Repatriation is complete, and the official claimants already were determined.

To permit this repatriation to be re-opened and the moepu disturbed four years after it was completed places a pall on all repatriations. No iwi kupuna (bones of the ancestors) or moepu would be safe nationwide in the future.

NAGPRA never intended this result. Although NAGPRA provided for a timely challenge within 30 days of its official notice listing eligible claimants, none was received and repatriation was complete. It should never have been reopened.

We, as well as the other claimant organizations, had to be carefully scrutinized to qualify through our mo'oku'auhau (genealogy). There is no public evidence that Na Lei went through this same process to qualify. NAGPRA requires an opportunity for public comment; we, as claimants, were never permitted that opportunity. Who is Na Lei? Who is its board?

No court should imprison Edward Halealoha Ayau indefinitely to force him to reveal information that would lead to a second desecration and violate his religious beliefs. The court wrongly ignored or refused to consider the submissions from 26 scholars and cultural practitioners who agree with Ayau's principled stand. The court rejected those statements as untimely.

In balancing the physical and religious freedom of Ayau, especially in light of the pace and timing of this latest court proceeding, the court should not have refused to consider such evidence before imprisoning Ayau.

Prevent the second desecration. Repatriation is complete. Free Eddie Halealoha Ayau.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060101/OPINION03/601010307/1110/OPINION
Honolulu Advertiser, Sunday, January 1, 2006

COMMENTARY

Defiant hui leader is no hero

By Nanette Naioma Napoleon [formerly Nanette Napoleon Purnell]

It was clear on Tuesday morning when federal Judge David Ezra sentenced Eddie Ayau of Hui Malama I Na Kupuna O Hawai'i Nei to jail for failure to disclose the burial sites of the Forbes Caves items that his supporters now see him as both a hero and martyr. They liken him to George Helm who in 1977 disappeared at sea while spearheading the occupation of Kaho'olawe in protest to the continued Navy bombing of the island.

Similarly, they are now using the famous phrase "Eddie Would Go," not in reference to famed surfer and lifeguard Eddie Aikau, who lost his life at sea while attempting to get help for the stranded crew of the Hokule'a in 1978, but in reference to Eddie Ayau's willingness to go to jail for his so-called "noble" convictions.

I'm sorry, but I just don't see it that way. To me, Ayau is nothing more than a bully with a law degree and a zealot's heart who has insulted, belittled and disrespected almost all of the NAGPRA (remains) claimants who have disagreed with Hui Malama's unyielding dogma on repatriation issues over the last 15 years.

I feel this way because I was one of the appointed members of the inaugural Island of O'ahu Burial Council in the early 1990s, and I ended up quitting the group because he and other members of the hui were so dictatorial and uncompromising in their attitude to me, other members of the council, and claimants who came before the council.

Since that time, I have kept abreast of burial issues and have talked to dozens of current and former members of the council, and current and former claimants who have had the very same experiences.

Hui Malama repeatedly proclaims that because it is one of two entities actually listed in the NAGPRA act � the Office of Hawaiian Affairs being the other � that this gives it the last say in all matters regarding repatriation of all iwi and other cultural items.

What the law actually says, in Sec. 2. (11) DEFINITIONS, is the following: " 'Native Hawaiian organization' means any organization which � (A) serves and represents the interests of Native Hawaiians, (B) has as a primary and stated purpose the provision of services to Native Hawaiians, and (C) has expertise in Native Hawaiian Affairs, and shall include the Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei."

The key phrase here is "shall include," which does not give these two groups exclusivity in all repatriation issues, but only that they must be included in all negotiations, which may include other qualified Native Hawaiian groups and individuals.

Hui Malama has continually taken this to mean that it has a greater say in repatriation issues that anyone else, and has used this text to intimidate other claimants. It has always been the Hui Malama way or the highway.

Giving credit where credit is due, Hui Malama has done an extraordinary job of retrieving items from museums throughout the world, but what the general public is not aware of is that other Native Hawaiian groups and individuals with differing philosophies and methods have stepped up to the plate to do the same, but the hui, because of its need to be the sole arbiter of all disputes, and because of its access to federal grant moneys, has continually shut others out of that process.

While on the one hand the hui publicly expects others to get involved because it is its kuleana (responsibility) to do so, when others do, it has little, if any, tolerance for differing ways of actually reburying na iwi and other objects.

No claimant group or individual, to my knowledge, has ever wanted our iwi to be kept in museums. Disputes generally revolve around the manner and methods of reburial, and which objects, if any, should be reburied and which should be kept in some other repository, which may or may not be a museum.

To my continual disdain, Hui Malama always makes it seem like all of its opponents want to keep the iwi in museums. I am sick and tired of hearing this.

To me the Forbes Caves case is the case that finally made the volcano that is NAGPRA burst, spewing out all kinds of nasty fumes, especially on the part of Hui Malama. I was appalled to hear, after the judge made his ruling to jail Ayau, someone shout out to the kupuna in the spirit world to "descend, descend" to harm "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 claimants.

These mean-spirited and hateful feelings toward other Hawaiians who are sincere and humble in their efforts are totally unwarranted and undignified. As a Native Hawaiian, I felt great shame and sadness for our culture and our values as a people. As much as I disagree with and am angered by Hui Malama, I would never, ever invoke the wrath of my ancestors to do harm against any one of them.

Make no mistake, Hui Malama has some brilliant minds on its side, with years of legal, cultural knowledge and savvy media experience, which it uses against other, less experienced Native Hawaiians who disagree with them. How sad is that?

Being a graveyard historian for the last 20 years has taught me that there is never one way of doing cultural things, that cultural practices, including Hawaiian burial practices, may differ from island to island, district to district, and from family to family. Why must Hui Malama's way be the only way?

In an essay by Ayau titled "Rooted in Native Soil," which is posted on the Hui Malama Web site, he states that they expect to be treated as "partners, as natives, as human beings," and that others should "follow the NAGPRA law."

With the Forbes case, the group has chosen to do precisely the opposite � that is, to 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 further 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.

Was the hui the only culprit in the Forbes case? Certainly not. The Bishop Museum was equally complicit in authorizing a bogus loan agreement that gave the hui all of the Forbes items. The museum has admitted to this and has been willing to try to rectify the matter but cannot do so because of the hui's hard-line and self-righteous stand.

For years, the hui has been an ardent Bishop Museum hater because of its role as a repository of Hawaiian cultural items. I find this very ironic since many of the hui members are scholars and educators who frequent the museum and have learned much of what they know about Hawaiian culture and history from the archives and collections there.

Plus, I find it inconceivable that they would diss the very institution that former ali'i supported both financially and with large object donations of their own. Heck, I have some very strong issues of my own with the museum, but I will always support what it stands for and what it provides for our people.

Up till now, those of us in opposition to Hui Malama have not been able to counter its tactics and public and personal attacks. I'm grateful to the groups and individuals who had the courage to stand up to the hui at the risk of being cursed and damned as 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 precedent for all future negotiations. It shall no longer be the Hui Malama way or the highway.

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http://starbulletin.com/2006/01/02/editorial/editorial01.html
Honolulu Star-Bulletin, January 2, 2006, EDITORIAL
OUR OPINION

Hui Malama�s unyielding tactics are hurtful to Hawaiians

THE ISSUE
Hui Malama's leader has been jailed for refusing to comply with a federal court order to reveal the location of Hawaiian artifacts.

AS the leader of a group at the center of a dispute over Hawaiian artifacts spends his seventh day in a federal jail today, resolution of the issue appears no closer.

If he is willing to be confined indefinitely, Edward Halealoha Ayau and his colleagues can remain unyielding to a court order to reveal the locations of the artifacts. Barring intervention by others who may know specifically where the artifacts are buried, Ayau may be in for a long stay.

Unfortunately, that tact further divides a Hawaiian community that at times has failed to achieve common goals as a result of disagreements. While there is no expectation that all Hawaiians have the same perspectives and purposes, it certainly would be beneficial for the claimants of the artifacts to discover what views they do share and work from there.

The spectacle that erupted in a courtroom last week was characterized by members of Hui Malama I Na Kupuna O Hawaii Nei as the refusal of Hawaiians to allow the federal government to trample their religious and cultural beliefs.

That is not the court's intention. The court is merely the arbiter, attempting to settle claims fairly in the absence of any other entity to do so.

As U.S. District Judge David Ezra found Ayau and three other Hui Malama leaders in contempt of court and ordered Ayau to jail, supporters shouted, raised fists and cursed, a outburst not in keeping with the respect they feel they are due and that is due others.

For many Hawaiians and non-Hawaiians, the episode is disturbing and grievous because it pits people against each other needlessly.

Hui Malama is acknowledged as a pioneer in establishing the Native American Graves Protection and Repatriation Act, through which it began the admirable work of returning Hawaiian remains and artifacts to their proper sites.

But Hui Malama, despite its inceptive role in the law, is not the exclusive beneficiary of the act, as the recent actions and rhetoric of its members seem to suggest. In fact, Hui Malama should be welcoming to other groups and individuals who seek the same objectives.

The law directs conflicting claims to be negotiated. Hui Malama has refused, contending it is the ultimate authority of cultural and religious practices. As is evident, other claimants disagree.

Until its members, leaders and supporters concede that others in their community have rights under the law, Hui Malama will fail in its fundamental mission.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060104/NEWS23/601040356/1173/NEWS
Honolulu Advertiser, Wednesday, January 4, 2006

Judge picks engineers for Forbes Cave work

A federal judge has named Applied Technology Corp. as the structural engineering firm that will examine the Forbes Cave on the Big Island, where priceless Hawaiian artifacts are believed to have been placed by the group Hui Malama I Na Kupuna O Hawai'i Nei.

U.S. District Judge David Ezra has ruled that 83 artifacts buried in two Big Island caves must be returned to the Bishop Museum. Museum officials loaned the items to the nonprofit, but Hui Malama said they returned what they deem as funerary objects to the caves from which they were looted by westerners in 1905. Two other Native Hawaiian groups sued Hui Malama and the museum for the return of the objects pending resolution of a dispute about their final resting place.

Ezra ordered the examination of the cave by an engineer after Hui Malama's masonry contractor filed an affidavit stating that he sealed one of the caves with a concrete wall. George W. "Billy" Fields III warned that reopening the cave could cause its collapse and would be a danger to those involved.

Applied Technology is headed by Alfred Yee. Ezra ordered each group to submit recommendations for structural engineers. Applied Technology was on the lists submitted by Hui Malama's opponents and the museum.

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http://www.hawaiireporter.com/story.aspx?164f26eb-6cfc-45ad-8548-89b92cbfed2b
Hawaii Reporter, January 4, 2006

Hui Malama Dispute: Post-Akaka Power Struggle Preview?

Special from Hawaii Free Press
By Andrew Walden, editor

In what some see as a preview of a post-Akaka-Bill Hawaii, Federal Court Judge David Ezra�s Honolulu Courtroom was scene to another chapter of an ongoing dispute Dec. 21. On one side, Hui Malama I Na Kupuna o Hawaii Nei backed by the Native Hawaiian Legal Corporation, the Department of Hawaiian Home Lands (DHHL), the �Nation of Hawaii,� Dennis �Bumpy� Kanahele�s Puuhonua o Waimanalo Village and the Hawaii Island Burial Council. Facing them Princess Abigail Kawananakoa, descended from the Royal Kalakaua line, Kumu Rubellite Kawena Kinney Johnson, Laakea Suganuma of the Royal Hawaiian Academy of Traditional Arts, Van Horn Diamond, and the Office of Hawaiian Affairs.

The Akaka Bill, if passed into law, would begin the process of establishing a Native Hawaiian �tribal� government along the lines of Indian Tribal Governments or Alaskan Native Corporations. The laws under which the Forbes Cave dispute is being heard already treat Hawaiians as Native Americans. Hui Malama leader Edward Halealoha Ayau explains on his Web site: �Although Native Hawaiians are not formally recognized as Native Americans, for purposes of NMAIA (National Museum of the American Indian Act) and NAGPRA (Native American Grave Protection and Repatriation Act), Native Hawaiians enjoy Native American status. Moreover, Native Hawaiian organizations enjoy legal authorities comparable to Indian tribes.�

While working as an aide to Sen. Daniel Inouye (D-HI), Ayau drafted much of the NAGPRA law. According to Ayau, �Repatriation and burial site protection required changes in federal and state laws. Hui Malama I Na Kupuna O Hawaii Nei is honored to have participated in successful efforts to enact the National Museum of the American Indian Act (P.L. 101-185, November, 1989, �NMAIA�) and the Native American Grave Protection and Repatriation Act (�NAGPRA�, P.L. 101-601, November 16, 1990)�. Hui Malama I Na Kupuna O Hawaii Nei and the Office of Hawaiian Affairs are specifically named as Native Hawaiian organizations eligible to conduct repatriation of cultural items and to participate in consultation relating to the treatment of inadvertently discovered Native Hawaiian remains and other cultural items on Federal and Hawaiian Home lands.�

In 2004, Sen. Inouye intervened against Bishop Museum�s efforts to also be registered under NAGPRA as a native Hawaiian organization. Inouye is co-chairman of the Senate Select Committee on Indian Affairs. He has served on the committee for over two decades in spite of the fact that Hawaii is the only state with no native Indian tribes.

The 83 �Forbes Cave� items under dispute were �borrowed� in 2001 by Hui Malama from the Bishop Museum collection and according to Hui Malama, reburied in Forbes (Kawaihae) cave and nearby Mummy Cave. The caves are on DHHL property.

The Native American Graves Protection Act (NAGPRA) which Hui Malama leader Edward Halealoha Ayau drafted as an aide to Sen. Daniel Inouye (D-HI) provides for the reburial of �moepu� (burial items) but the Hawaiian claimant organizations disputing Hui Malama argue the items are non-funeral items which were hidden in the cave to prevent their destruction circa 1819-20. During that period, after the death of King Kamehameha the Great, the old Hawaiian religion was overthrown by King Liholiho Kamehameha II, Queen Kaahumanu, and high priest Hewahewa. They sent squads to destroy heiau (temples) and burn idols in the months before the arrival of the first Christian missionaries.

If the items are not moepu they would not be subject to reburial under NAGPRA and would instead remain with the Bishop Museum collection.

Hui Malama supporters claim in a January 1 Honolulu Advertiser guest commentary, �We are deeply distressed that � (Laakea Suganuma) has now filed this lawsuit and put this matter into federal court rather than where it belongs, among the claimants in a culturally appropriate setting.� In spite of this pretense of Hawaiian-ness the commentary is thick with legalese such as: �Under NAGPRA, neither Abigail Kawananakoa nor Na Lei has standing to complain �� and, �Repatriation is complete, and the official claimants already were determined.�

Nanette Naioma Napoleon, a founding member of the Oahu Island Burial Council explains in the Jan. 1 The Honolulu Advertiser, �Ayau is nothing more than a bully with a law degree and a zealot�s heart who has insulted, belittled and disrespected almost all of the NAGPRA (remains) claimants who have disagreed with Hui Malama�s unyielding dogma on repatriation issues over the last 15 years.�

Charges of intimidation, arrogance and theft have followed Hui Malama. In spite of the Hui�s claims to be based on Hawaiian traditions, Napoleon explains, �Hui Malama has continually taken �(the fact that it is included by name in the NAGPRA law) to mean that it has a greater say in repatriation issues that anyone else, and has used this text to intimidate other claimants. It has always been the Hui Malama way or the highway.�

Some of the controversies surrounding Hui Malama:

* Artifacts repatriated under NAGPRA rules from the Peabody Essex Museum in Salem, MA, and the Bishop Museum and to be buried by Hui Malama in Kohala�s Kanupa Cave were discovered in August 2004, for sale in antique stores on the Big Island. The Kanupa Cave entrance was found open and uncovered. Federal authorities are still investigating. Hui Malama sharply disputes any claim they were involved in the theft, instead blaming �highly motivated thieves worked their way through multiple protective measures that we put in place at the entrance� and urging a thorough federal and state investigation. Claimants opposing the burial of the 83 items in Forbes Cave argue the Kanupa Cave break-in shows that Hui Malama cannot guarantee the security of Forbes Cave.

* According to the Oct. 30, 2005, Honolulu Star-Bulletin, William Kaiheekai Maioho, the �kahu,� or caretaker, of the Royal Mausoleum in Nuuanu Valley, Oahu, in 2000 loaned Kunani Nihipali, then director, of Hui Malama two �puloulou� -- 113 year old royal staffs dating from the Hawaiian Kingdom. Ostensibly these were to temporarily guard over bones Hui Malama had reclaimed for reburial.

In the same article, longtime Kamehameha Schools employee Lurline Naone-Salvador describes seeing repatriated bones from Bishop Museum stored in a wooden shed behind Nihipali�s home with the puloulou in late 2000. Lineal descendants have complained that Hui Malama�s repatriation practices do not allow them to know the whereabouts of their reburied ancestors.

The puloulou were returned by Nihipali two days after publication of the Honolulu Star-Bulletin article. In 2004 around the time of the Kanupa robbery news, Nihipali left Hui Malama and Ayau became director of the Hui, a 501-c3 corporation.

According to the Honolulu Star-Bulletin, �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.��

* Forbes Cave and Nuuanu are not the only cases of theft of Alii relics in which Hui Malama is suspected. Some believe, but are unable to prove, Hui Malama was involved in an as-yet unsolved 1994 midnight break-in and theft of the �kaai� -- 400-year-old woven baskets, containing bones of deified chiefs Liloa and Lonoikamakahiki. In 1918, the kaai had been placed in Bishop Museum by Prince Jonah Kuhio Kalanianaole.

In the February 1998, Coffee Times, Betty Fullard-Leo quotes Puna Lerma, chair of the Hawaii Island Burial Council saying, �Let�s put it this way, I believe the kaai are back in Waipio, where they belong.�

Reinternment is particularly thorny in the Hawaiian context. Unlike American Indians, Hawaiians developed a modern independent Kingdom during the 19th century and Hawaiian Alii actively participated in the establishment of the Bishop Museum at the beginning of the 20th century, making large donations of relics to its collections. Many reinternment decisions can be seen as reversing earlier decisions made under the Hawaiian Kingdom.

Under the old Hawaiian belief system, capture of the �mana� (spiritual power) from the kaai or the puloulou represents a sharp challenge to the Alii -- the kind of challenge that might be made in the old days by one who is seeking to overthrow them and establish himself as the new Alii. Hui Malama supporters make such a challenge saying, �Who is Abigail Kawananakoa?�

Quoted in the Honolulu Star-Bulletin, William Kaiheekai Maioho says, �This is not just about stolen items. This is on a much larger, spiritual scale.�

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060105/OPINION02/601050318/1108/LETTERS
Honolulu Advertiser, Thursday, January 5, 2006, Letters to the Editor

JUDGE EZRA VS. HAWAIIAN BELIEFS

On Dec. 27, after a 40-minute lecture attempting to justify what he was about to do, Federal Judge David Ezra found Edward Halealoha Ayau guilty of civil contempt of court and ordered him confined for an indeterminate period. A few minutes later, Ezra found Kihei Nahale'a in criminal contempt as the young man rose and chanted in defiance. Nahale'a was sentenced to five days in jail for his protest.

In less than an hour of the court's time, Ezra demonstrated the inability of the American judicial system to deal with issues of religious belief. It is, perhaps, for this reason that founders of the American republic took such pains to insist on the separation of church and state.

Ezra's repeated admonishment that Ayau and Hui Malama were not the sole arbiters of Hawaiian cultural and religious practice is really quite beside the point. The issue is that Hui Malama has broken no law and that Ayau is incarcerated only because he has defied the federal court's entry into this dispute among kanaka maoli and the Bishop Museum.

When Ezra ordered Hui Malama to return to the burial site and violate a gravesite, again, he presented the organization with a choice of forsaking their consciences or their liberty. In the finest traditions of a Joseph Nawahi, a Robert Wilcox or, if you prefer, a Henry David Thoreau, the members of Hui Malama chose to honor their conscience.

There have already been attempts to denigrate Ayau's religious devotion as a kind of arrogance, if not fanaticism. There are other Hawaiians who do not share Hui Malama's belief that the items stolen from the Kawaihae caves in 1905 were all moepu, or that they should necessarily be returned to the ground. The issue among them is where the articles should be kept while the different claimants to the articles discuss the matter.

Where, indeed? The museum's position in this, at least under the direction of William Brown, is that the articles should be housed at the museum until the different claimants come to an agreement. Dr. Brown knows that such agreement is unlikely ever to take place, which would, practically, give the museum permanent custody. Hui Malama wants the moepu to remain buried. Hui Malama also knows that an agreement among the claimants is unlikely ever to take place, virtually assuring that they have done their job of repatriating the stolen items to the earth.

Injury was done to our chiefs and ancestors when the 1905 museum encouraged the theft of the iwi and the moepu. Injury is now done to two living descendants who were imprisoned.

Perhaps the Hawaiian plaintiffs will see this and realize that the monetary, academic or even cultural value of these items, moepu or not, cannot possibly compensate for the liberty of two men of conscience and the repute of the museum. Perhaps, then, the Bishop Museum might take the opportunity to evaluate its leadership and the limits of its role as a custodian of the cultural artifacts of Hawai'i.

As for Judge Ezra, is it possible to hope that he might see that our burial practices and beliefs are places where his court and his opinions do not belong?

Jonathan K. Osorio
Associate professor and director, Kamakakukalani Center for Hawaiian Studies, University of Hawai'i at Manoa

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060106/NEWS23/601060359/1001/NEWS
Honolulu Advertiser, Friday, January 6, 2006

Artifacts litigants consider old ways

By Gordon Y.K. Pang

The leader of Hui Malama I Na Kupuna O Hawai'i Nei remains in prison after a federal judge advised the sides involved in a dispute over 83 priceless cultural objects to participate in the Hawaiian problem-solving pro-cess of ho'oponopono or another kind of alternative resolution.

But U.S. District Judge David Ezra, during a hearing yesterday, gave Hui Malama supporters hope that the group's leader, Edward Halealoha Ayau, may at some point be eligible for home confinement. Ayau has been held in the Federal Detention Center near Honolulu International Airport since Dec. 27, when Ezra found him in contempt of court for not complying with a federal order to divulge the exact location of the objects.

Alan Murakami of the Native Hawaiian Legal Corp., which is representing Hui Malama, said he does not believe keeping Ayau incarcerated would help resolve the dispute.

Ezra said he would consider home confinement if, at some point, "I see that progress is being made" to reach a solution to the conflict.

Hui Malama and the Bishop Museum were sued by two other groups which sought the return of the objects to the museum, pending an agreement between 14 parties.

Museum staff in 2000 loaned the items to Hui Malama officials, who never returned them. Instead, Hui Malama members said they buried the objects in two burial caves on the Big Island from where they were taken by Westerners in the early 1900s. Ayau and other Hui Malama leaders said to remove the objects from the burial caves would go against their religious and cultural beliefs.

Ezra yesterday asked parties involved in the dispute to participate in the Hawaiian practice of ho'oponopono or some other type of alternative resolution as a possible means to resolve the controversial lawsuit.

The judge said he agrees with those Native Hawaiians who have publicly stated that the federal court should not decide the outcome of the case. "The whole idea is to take the matter out of the courtroom and into the hands of Hawaiians," Ezra said.

Murakami told Ezra that his side is willing to look at the alternate way of resolving the issue. "Hui Malama has always been open to this kind of Hawaiian alternative dispute resolution procedures," Murakami said after the hearing.

Sherry Broder, an attorney for the opposing groups, declined comment until she could talk with her clients.

The judge assigned U.S. Magistrate Kevin Chang to preside over the alternative resolution process. Ezra said the process will go on a "dual track" with the ongoing traditional court case continuing.

"I want to make this case a healing rather than a divisive circumstance for the Hawaiian community," Ezra said. "A divided Hawaiian community is an ineffective Hawaiian community," he said, noting that Hawaiians are seeking federal recognition in Congress.

About a dozen supporters have been been holding vigils and offering chants on behalf of Ayau at 6:30 a.m. and 6:30 p.m. each day across from the Federal Detention Center. The loose-knit group, over the weekend, also began passing out a petition seeking Ayau's release, said Mehana Hind, a traditional Hawaiian practitioner.

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http://starbulletin.com/2006/01/06/news/story02.html
Honolulu Star-Bulletin, January 6, 2006

Judge says Hawaiians must settle artifact fight
Tradition, not court action, would be preferable, Ezra says

By Sally Apgar

A FEDERAL JUDGE ordered several native Hawaiian groups yesterday to resolve their differences over the final disposition of 83 artifacts, suggesting they pursue a Hawaiian form of conflict resolution on which they can all agree.

"This is not a dispute between the federal government and native Hawaiians. It is a dispute between native Hawaiians and native Hawaiians," said U.S. District Court Judge David Ezra. "We did not file this lawsuit."

In the meantime, Ezra refused to release Edward Halealoha Ayau, leader of Hui Malama I Na Kupuna O Hawaii Nei, from federal detention. Ayau was sent to prison last week for refusing to tell Ezra the location of the artifacts or the names of those who helped him rebury them.

At issue are 83 native Hawaiian artifacts that were reburied in two Big Island caves in February 2000 by Hui Malama. The items were taken from Kawaihae, or Forbes, cave in 1905 and held by the Bishop Museum. In 2000, Bishop made a "one-year loan" of the items to Hui Malama, which has refused repeated requests to return them. The group was founded in 1989 to reclaim native Hawaiian remains and burial objects from museums and construction sites.

Now, 14 native Hawaiian groups claim the items under federal repatriation laws. The groups have different religious and cultural views of the items.

Two of those groups filed a federal lawsuit demanding the retrieval of the items from the cave so that all of the claimants can review them and share in deciding their final resting place.

Ezra said yesterday that the federal court "has the power and authority" to make a resolution "and jam it down someone's throat." However, Ezra said he prefers a "method within the framework of Hawaiian tradition" so the groups can resolve their differences "without direct court involvement."

"The whole idea is to take this out of the courtroom and put it back into the hands of the Hawaiians," he said.

In September, Ezra ruled the items needed to be retrieved. Hui Malama appealed his order to the 9th Circuit Court of Appeals, which also ruled against the organization and sent the case back to Ezra. Hui Malama has refused to cooperate.

"We did not file the lawsuit until we absolutely had to," said La'akea Suganuma, who represents the Royal Academy of Traditional Arts. "Hui Malama would not compromise, and we could not resolve it among ourselves."

Now, the major players in the dispute appear ready to give Ezra's proposal a chance. "We welcome the court's decision to find an alternative dispute resolution" under Hawaiian tradition, Suganuma said.

William Aila, interim spokesman for Hui Malama, said they are pleased that the court recognizes there are alternate methods for resolving disputes, including bringing Hawaiians together to the table with minimal court intervention. Hui Malama intends to be part of that process, he said: "We look forward to participating and seeing if it can be resolved. "The key to success in this endeavor is to make sure all 14 claimants are there, otherwise we'll only have a partial settlement, and the (other) guys may not agree."

Hui Malama's board will meet to discuss Ezra's proposal and come up with some recommendations as to who else should be involved in the mediation.

Ezra had suggested kupuna in the Hawaiian community or retired judges.

"It would have been easy if Aunty Gladys (Brandt) was around," Aila noted, recalling the revered Hawaii kupuna and educator who died in January 2003. "Gotta be somebody that has everybody's respect."

Ezra, who is working out the dispute with the help of U.S. Magistrate Kevin Chang, said the groups have until Monday to propose a method to the court.

Ezra has been trying to strike a balance in the highly emotional dispute, but he stressed that with or without the help of Hui Malama, the court will pursue the retrieval of the artifacts.

At yesterday's court proceeding, Ezra denied a request to release Ayau. Ezra asked Ayau if he had changed his mind about giving the court the information. "No, your honor," Ayau replied. Ayau has said that retrieving the items is desecration and a violation of his constitutional right to freedom of religion.

"I'm put into an intolerable position," Ezra said after hearing Ayau's response. "A federal judge cannot step back and allow someone to openly defy a court order. The last thing I want is for Mr. Ayau to spend the next months or years in custody ... but I have no choice."

Hui Malama attorney Alan Murakami told Ezra that they "are exploring avenues," perhaps with the 9th Circuit, to appeal Ayau's imprisonment.

Sherry Broder, who represents the Royal Academy and Na Lei Alii Kawananakoa, another litigant, told Ezra, "Nobody is above the law. You bent over backward" to be lenient.

Ezra stressed that he is concerned about how this case is further "splitting native Hawaiians" because "a divided Hawaiian community is an ineffective Hawaiian community." "If you wish to press for rights, you can't do it by being splintered and fragmented. And coming together once a year to march up and down Kalakaua Avenue isn't going to do it," Ezra said.

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http://starbulletin.com/2006/01/07/editorial/editorial01.html
Honolulu Star-Bulletin, January 7, 2006, EDITORIAL

Hawaiian groups should seek resolution

THE ISSUE
Federal Judge David Ezra has instructed parties in a lawsuit to come up with a way to settle their differences.

A FEDERAL judge's order that claimants of Hawaiian artifacts seek resolution outside the courtroom might be the best course of action in the bitter dispute.

That some members of the groups appear willing to settle disagreements among themselves is a big step forward in the conflict, one that could evolve into a model for reconciling other claims.

U.S. District Judge David Ezra has given parties in a lawsuit until Monday to come up with a way to work out their differences. At issue is the final disposition of 83 Hawaiian artifacts, removed from their original sites 100 years ago, which were reburied in caves on the Big Island by Hui Malama I Na Kupuna O Hawaii Nei.

Two other Hawaiian organizations filed suit against Hui Malama, wanting the artifacts retrieved so that they and other claimants could examine them and decide on proper disposition. Despite the court ruling in their favor, however, Hui Malama has refused to disclose specifically the location of the artifacts, resulting in the jailing of one of its leaders for contempt of court.

Ezra has been especially accommodating of Hui Malama, but correctly notes that he cannot allow the group to defy the court. His order for the groups to find a compromise is fitting and would allow them to work within the framework of Hawaiian traditions.

The dispute amplifies the fact that there is no established Hawaiian entity through which claims under the Native American Graves Protection and Repatriation Act can be resolved other than the federal court.

Passage of the Akaka bill, which would recognize a legal and political governing unit for Hawaiians, could move Hawaiians toward a policy for repatriation. However, the bill has stalled in Congress, and even though Hawaii's leaders in the U.S. Senate are optimistic about its approval this year, the conflict about the artifacts could raise concerns in Washington.

One of the claimants challenging Hui Malama says the suit was a last resort, filed because Hui Malama would not compromise. Now, all parties should take this opportunity to find common ground.

** Advertiser also published an editorial simply urging the parties to settle the dispute out of court.
http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060107/OPINION01/601070314/1104

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060108/COLUMNISTS02/601080342/1120/NEWS
Honolulu Advertiser, Sunday, January 8, 2006

Major shift in resolving dispute over artifacts

By Lee Cataluna
Advertiser Columnist

What would be the right word to describe this new turn in the story?
Enlightened?
Hopeful?
Historic?

Many have said that the dispute over the artifacts taken from burial caves in Kawaihae should not be settled in federal court. In a stunning development, Judge David Ezra essentially agreed when he encouraged the opposing parties in the lawsuit to turn to a traditional Hawaiian practice for dispute resolution, ho'oponopono.

"The whole idea is to take the matter out of the courtroom and into the hands of Hawaiians," Ezra said.

If the parties agree to the formal and extended Hawaiian ritual of "making things right," the federal court would still proceed with the case in a parallel manner.

Still, the outcome of ho'oponopono is considered binding to all parties. It's not over till it's over, no matter how long it takes. Everyone has to sign on to the agreement.

In opening the door to this culturally appropriate means of dispute resolution, Judge Ezra demonstrated a considerable amount of respect for the Hawaiian culture, sensitivity to the unique nature of this dispute, and a faith in the parties involved that they would have the courage and strength to go through such a rigorous process.

No one ever said ho'oponopono was easy.

Federal court, with its wood-paneled formality and adversarial nature, operates on an almost detached level. Ho'oponopono is much more visceral and holistic.

In the revered text "Nana i Ke Kumu: Look to the Source," first published by the Queen Lili'uokalani Children's Center in 1972, Hawaiian scholar Mary Kawena Pukui described ho'oponopono this way:

"The specific family conference in which relationships were 'set right' through prayer, discussion, confession, repentance and mutual restitution and forgiveness ... we forgave and were forgiven, thrashing out every grudge, peeve or resentment among us."

Rough.

Respected kupuna and attorney Beadie Kanahele Dawson has lectured on ho'oponopono. In a 2001 luncheon speech for the state judiciary, Dawson explained how the process, mediated by an unbiased leader, gets to the heart of complicated, highly emotional matters through the concepts of truth, forgiveness and absolution.

Dawson described 'oia 'i'o, absolute truth. In ho'oponopono, the concept of truth is fixed, without shades of gray.

Total and mutual forgiveness is a requirement of ho'oponopono, Dawson said. The goal is not just resolution, but healing. Not only fixing the problem, but letting it go.

Perhaps the greatest advantage of ho'oponopono is that only the involved parties take part. It is not for bystanders or commentators. (I realize that sounds hypocritical in a newspaper column, but there are so many aspects of this case that aren't anybody's business but the descendants of those buried in those caves.)

Whether all parties agree to ho'oponopono remains to be seen. It will take a great deal of fortitude to commit to that action, the right thing and the hard thing at the same time.

As Pukui wrote: "To bring about a true 'righting of wrongs,' certain attitudes were required. Some concerned the very decision to hold the ho'oponopono. For this decision rested on the basic belief that problems could be resolved definitely if they were approached properly. They must be approached with a true intention to correct wrongs. Confessions of error must be full and honest. Nothing could be withheld. Prayers, contrition and the forgiving-freeing kala must come from the heart. Without these, ho'oponopono was form without substance."

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The Honolulu Star-Bulletin of January 8, 2005 published a cartoon which could be used as a targeted reply to Calaluna's article of the same date (above). The process of ho'oponopono is so lengthy and so likely never to lead to complete resolution, that it should be properly viewed as a delaying tactic whose practical consequence is that Hui Malama wins the struggle, because the artifacts stay in the cave until ho'oponopono is completed! This cartoon originally has the URL
http://starbulletin.com/2006/01/08/news/corky.jpg

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060110/NEWS23/601100349/1173/NEWS
Honolulu Advertiser, Tuesday, January 10, 2006

Parties in artifacts suit agree to try mediation

By Gordon Y.K. Pang

Attorneys for the three sides in the heated federal court case involving 83 priceless Hawaiian cultural objects yesterday agreed to explore the possibility of a mediated solution for their ongoing dispute.

The legal representatives for Hui Malama I Na Kupuna O Hawai'i Nei, the Bishop Museum and the two Native Hawaiian organizations that sued them will meet over the next few days to see if they can agree to ground rules for how a mediation could occur. They are scheduled to give a progress report to U.S. Magistrate Kevin Chang on Friday.

"The parties agreed in principle to move forward with a type of mediation process ... that would incorporate Hawaiian culture and protocol," said Sherry Broder, an attorney for the Royal Hawaiian Academy of Traditional Arts and Na Lei Alii Kawananakoa. The two organizations sued Hui Malama and the museum seeking the return of the objects to the museum pending a final disposition to be determined by 14 claimants. Hui Malama and the two groups that filed the suit are among the claimants.

The items were handed over by the museum in 2000 as a "loan" to Hui Malama. Hui Malama officials said the items, known as the Forbes Collection, have been placed in two caves in the Kohala region of the Big Island from where they were first taken in 1905 by Western explorers. Hui Malama officials consider the items repatriated and oppose their removal on religious and cultural grounds. But the plaintiffs in the case maintain that the other claimants have had no say on the matter.

Last week, U.S. District Judge David Ezra asked the parties to consider ho'oponopono, a traditional Hawaiian method of dispute resolution, or some other form of mediation.

Alan Murakami, an attorney for the Native Hawaiian Legal Corp., which is representing Hui Malama, said he was pleased by the progress. "I think everybody's anxious to see if we can reach some sort of resolution informally to get Hawaiians to, hopefully, decide Hawaiian issues," he said. "The questions are: In what form? For how long? And who's going to lead it?" Most of the answers could surface by the end of the week, Murakami said. He expressed doubt, though, that a facilitator agreeable to all the parties could be named by Friday.

Museum attorney LindaLee Farm also expressed hope for a successful mediation. "Everybody wants things to work out, so they're optimistic," she said.

As the mediation process begins, the court proceedings would continue on a dual tract. Ezra has already ruled that the items are to be returned to the museum, a decision reaffirmed by the 9th U.S. Circuit of Appeals.

Hui Malama executive director Edward Halealoha Ayau has been incarcerated at the Federal Detention Center since Dec. 27 after Ezra found him in contempt of court for not disclosing the specific locations of the objects.

Ezra wants an engineer to examine the structural integrity of the Kawaihae Caves complex, which includes both the Forbes Cave and the Mummy Cave, before deciding future matters tied to the recovery of the objects.

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On January 10, 2005 the Honolulu Star-Bulletin published another cartoon showing Hui Malama (Eddie Ayau) in jail, This sarcastic cartoon has Ayau saying "The trouble is those who disagree with us are so stubborn and mulish about it" -- which is exactly what Ayau and Hui Malama are known for! This cartoon originally has the URL
http://starbulletin.com/2006/01/10/news/corky.jpg

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060112/NEWS23/601120355/1173/NEWS
Honolulu Advertiser, Thursday, January 12, 2006

Hui leader calls mediation promising

By Gordon Y.K. Pang

In his first contact with the public since being jailed Dec. 27, the leader of Hui Malama I Na Kupuna O Hawai'i Nei applauded a federal judge's suggestion that the ongoing legal dispute involving 83 priceless cultural objects be taken out of the courtroom and resolved through a Native Hawaiian form of dispute resolution.

But Edward Halealoha Ayau, in a handwritten Letter to the Editor sent to The Advertiser, which appears on today's Letters and Commentary page, asserted that he remains firm in his refusal to disclose the specific location of the objects believed to be buried in two caves on the Big Island.

U.S. District Judge David Ezra, in his court order, said he wants the parties to consider ho'oponopono or some other form of mediation.

"I believe this latest development in the case is the most promising and important because it seeks to return the dispute back to where it rightfully belongs: In the Hawaiian cultural realm and not in the courts," Ayau wrote. "Having said this, as long as I am ordered to disclose how we conducted the Kawaihae reburial, I am compelled to decline, respectfully." To disclose the locations of the items would violate the commitment Hui Malama made to the ancestors with which the objects have been buried, he said.

Alan Murakami of the Native Hawaiian Legal Corp., which represents Hui Malama, said he believes Ayau is eager to participate in an alternative form of resolution. "He wants to be a part of it and he's looking forward to being part of it � if he's allowed," Murakami said. Murakami noted that the court did not require disclosure of the items as a condition of Hui Malama's participation in the mediation process.

William Aila, Hui Malama spokesman, said he also believes Ayau wants to participate in mediation. "What he's doing is making it clear ... that this (disclosing the location of the items) is what he cannot commit to in the Hawaiian mediation process," he said. Under the traditional Hawaiian form of dispute resolution, known as ho'oponopono, parties cannot leave the process until a decision is reached, Aila said.

Sherry Broder, attorney for the Royal Hawaiian Academy of Traditional Arts and Na Lei Alii Kawananakoa, said she interprets Ayau's letter to mean that he won't participate in mediation unless the court lifts the order requiring him to disclose the location of the objects. It was Ayau's refusal to make the disclosure that landed him in the Federal Detention Center after Ezra found him in contempt of court. "It seems to me that he has declined to participate as long as the court order ordering him to disclose the location of the artifacts is in effect," Broder said.

Murakami acknowledged that the language in Ayau's letter "sounds a little vague as to what he means." But he stressed that his client has told him that his intention is to participate in the process.

Ezra has so far declined Murakami's requests to free Ayau, although the judge said he will consider home confinement if Hui Malama is cooperative in court proceedings.

Murakami said he is hopeful Ayau can be let out of jail, adding that he believes it would be difficult for mediation to work if the group's executive director is not present.

The two Native Hawaiian organizations sued Hui Malama and the Bishop Museum seeking the return of the objects to the museum pending a final disposition to be determined by 14 claimants under federal repatriation laws. Hui Malama and the two groups that filed the suit are among the claimants. The items were handed over by the museum in 2000 as a "loan" to Hui Malama. Hui Malama officials said the items, known as the Forbes Collection, have been placed in two caves in the Kohala region of the Big Island from where they were looted in 1905 by Westerners. Hui Malama officials consider the items repatriated and oppose their removal on religious and cultural grounds.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/section?Category=LETTERS
Honolulu Advertiser, Thursday, January 12, 2006

Letters to the Editor

HUI MALAMA
NO TO HO'OPONOPONO IF IT MEANS EXPOSING REBURIAL

I am an inmate in the Federal Detention Center � #95548-022. At a status conference with Judge Ezra and Judge Chang on Jan. 5, the court announced that it was encouraging the parties to the Na Lei Ali'i lawsuit to pursue traditional Hawaiian forms of dispute resolution, including ho'oponopono.

I believe this latest development in the case is the most promising and important because it seeks to return the dispute to where it rightfully belongs: in the Hawaiian cultural realm and not in the courts.

I think it is incumbent upon the parties to take this latest development seriously. I applaud the efforts of the judges to seek a cultural-based resolution to a cultural dilemma.

Having said this, as long as I am ordered to disclose how we conducted the Kawaihae reburial, I am compelled to decline, respectfully. To disclose such information would violate the general commitment to malama i na iwi, the specific commitment to malama, the Kawaihae kupuna, and the teachings of my kumu.

Put another way, we of Hui Malama I Na Kupuna O Hawai'i Nei are incapable of consciously betraying the sanctity of the grave. I/we can't do it, all due respect to the court.

Finally, although I am the only Hui Malama member incarcerated, the decision to forgo personal freedom if it came to that was a hui decision. All members of Hui Malama made the same commitment that I did. In that sense, I am not alone.

The fact that Pualani Kanahele, Charles Maxwell, Konia Freitas and William Aila all held fast to our conviction not to be a party to the intentional disturbance of ancestral graves provides me with the continual strength to persevere. I am proud of all of us and honored to be in this position.

Nanette Napoleon is correct: I am not a hero. But I am hard-headed, as we all should be. Whenever faced with the need to be 'onipa'a regarding fundamental values, I practice from wa kahiko. Ola na iwi � the bones live.

Edward H. Ayau
Executive director, Hui Malama I Na Kupuna O Hawai'i Nei

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060113/NEWS23/601130347/1001
Honolulu Advertiser, Friday, January 13, 2006

Dispute delivers praise and scorn to Hui Malama

By Gordon Y.K. Pang

Supporters of Hui Malama leader Edward Ayau hold a daily vigil outside the Federal Detention Center where he is being held until he reveals the exact location of Hawaiian cultural objects loaned to his group.

The leaders of Hui Malama I Na Kupuna O Hawai'i Nei say that since forming about 17 years ago, the group has taken possession of the remains of more than 5,900 ancestral Hawaiians and reburied more than 2,900 sets of remains in or near their original burial sites. It also has reinterred hundreds of items that the group calls funerary objects � some from museums around the globe, from Australia to Zurich.

Much of this work has been done in relative obscurity. That changed late last month, when Hui Malama leader Edward Halealoha Ayau was jailed by U.S. District Judge David Ezra for refusing to disclose the precise whereabouts of 83 priceless cultural objects that make up most of what's known as the Forbes Collection.

At the center of the dispute, which has been bubbling in Hawaiian circles for years, is the issue of a permanent home for the objects, which include a famous wooden female figure and several renowned stick 'aumakua.

To comply with Ezra's order, Ayay said, would fly against his religious and cultural beliefs.

A large contingent of Hawaiians are supporting Hui Malama. Vigils are held every morning and night across the street from the Federal Detention Center where Ayau has been locked up since Dec. 27.

Supporters say that the group was right to reinter the Forbes items and that to disturb them would be a mistake. Opponents say Hui Malama was wrong to rebury them when 14 recognized claimants to the items had not decided collectively on final disposition as required under the Native American Graves Protection and Repatriation Act.

A key status conference today could determine if the matter can be settled by the parties out of court and through a traditional Hawaiian form of dispute resolution.

PRAISE AND CRITICISM

Over the years, Hui Malama's efforts have drawn praise for filling a void in the Hawaiian movement and making people aware of practices that otherwise might have been forgotten. But there have also been murmurs of criticism that Hui Malama overstepped its charge and is too dismissive of groups with different views on how to honor ancestors.

The group formed in late 1988 during a controversy involving the removal of more than 1,100 sets of human remains found at the construction site of a Maui resort. Following protests by Hawaiians, a deal was worked out allowing the remains to be reburied where they were found while the Ritz Carlton Kapalua was forced to move inland away from the graves.

Charles Kauluwehi Maxwell Sr., Hui Malama president, said that first repatriation effort ranks among the greatest experiences of his life. When it was done, "several of us couldn't sleep for days," Maxwell said. "It was such an emotional high to have helped your kupuna continue their journey. It was indescribable."

Dennis "Bumpy" Kanahele, head of the Nation of Hawai'i and Pu'uhonua o Waimanalo Village, is among Hui Malama's biggest supporters. He believes that the group's hard work has not received the recognition it deserves for the service it has provided for the Hawaiian community. "Nobody wanted the job, brah, nobody even thought about it," said Kanahele, a distant relative to the late Edward Kanahele, co-founder of Hui Malama.

Kanahele said he and his two organizations, which are among the 14 claimants to the Forbes objects, participated in the repatriation of remains in Windward O'ahu and worked closely with Hui Malama members. "For me, I learned through Hui Malama how to do pohaku (hard as stone) work. I learned chants, I learned prayers that would protect the people who were doing the actual work."

Critics have also pointed an accusatory finger at Hui Malama's ability to obtain grant money for its operations and questioned what they have spent the money on. According to annual federal 990 tax forms required of all nonprofits, Hui Malama reported total income of $1.04 million, mostly from grants, from 1993 to 2002.

Hui Malama leaders maintain that they work on a voluntary basis and receive no compensation for their time. Much of the funds go toward paying for airfare to and from where items are being recovered, materials associated with reburials such as those relating to the making of tombs, and workshops that teach others about Hui Malama's practices, they said. The group does not get paid for every repatriation, they said.

Van Horn Diamond, a member of the O'ahu Island Burial Council, has a different take on the group. Diamond said that eight years ago, when he and other claimants in a case involving burial remains at Mokapu on the Windward side disagreed with Hui Malama and other claimants, things got hostile. The claimants still have not agreed to a plan for final disposition. The friction began, Diamond said, when Hui Malama tried to exert pressure on other claimants to speed up finishing a burial plan in order to meet a deadline to qualify for a federal funding source. Diamond and others seeking a slower path felt money could be found at a later date. "One of the shortcomings of Hui Malama is they seem not to know the difference between expediting something and expediency," Diamond said. "They always seem to be in a rush. And when you get caught up in that rush thing, you're going to lose out on certain details and it's going to come back and bite you in the butt."

ARTIFACTS AND BONES

Hui Malama's current court entanglement does not involve human remains but objects that had been found in the caves with them. But the protocol espoused by Hui Malama is firm in the belief that they are one in the same.

"Take the artifacts, you take the iwi with them," said Pualani Kanahele, Hui Malama's spiritual leader. "They go together because you're doing just as much harm to the iwi if you only take the artifacts. And it's still grave robbing."

Some of Hui Malama's critics have questioned the group's protocols and rituals. Among them is Cy Kamuela Harris, one of the claimants to the Forbes objects who opposes Hui Malama. Harris, who described himself as a member of the Temple of Lono, said he and others have attempted to talk to Hui Malama's leaders and have been refused. "We have constantly asked and tried to sit down and talk and tell them 'you know, this is not right what you do; you're not following traditional Hawaiian concepts,' " said Harris. "There's nothing written in a book. It is bogus. They're making it up as they go along."

Kanahele said she and her late husband, Edward, established a set of protocols for reburials because they could find none that had been passed down through the generations. "When we first started, we were baffled with this because the whole thing was totally new," Kanahele said. "We had to really look at what the protocol would have been if we did burials initially." An assistant professor of Hawaiian studies at the University of Hawai'i-Hilo and a kumu hula, Kanahele said she did research by poring through the traditional chants that had been passed down by the renowned Kanaka'ole and Kanaele families from which she is a descendant.

Oftentimes, in the absence of more precise information, decisions such as where to place remains or what type of housing material to use, if any, are determined by clues such as other older burials found in a respective area, she said.

Kanahele dismissed criticism that Hui Malama is rigid in its protocol and ignores the wishes of others. She noted that among the repatriations the group has completed are those involving remains transferred to Protestant churches with services provided by church ministers.

STORAGE DURING KAPU?

One of the primary points of contention in the Kawaihae dispute is whether all the items are funerary.

La'akea Suganuma, leader of the Royal Hawaiian Academy of Traditional Arts which is one of the two groups that filed the suit against Bishop Museum and Hui Malama, believes that items such as wooden figures and 'aumakua would not be buried with the dead. Suganuma and others believe they may have been placed in the caves separate from the burials, possibly for safekeeping after Kamehameha the Great died and Queen Ka'ahumanu put a kapu on Native Hawaiian religion.

But such talk draws a strong rebuke from Maxwell, Hui Malama's president. "A theft is a theft is a theft," said Maxwell. "It wasn't taken, it wasn't discovered, it was stolen," he said of the collection.

FROM CAVE IN 1905 TO COURT IN 2006

1905: The David Forbes expedition takes cultural objects and human remains from the Kawaihae Caves on the Big Island and eventually conveys them to the Bishop Museum. The objects are known as the Forbes Collection.

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: As the Bishop Museum reviews a NAGPRA claim on the Forbes Collection by several groups, Hui Malama I Na Kupuna O Hawai'i Nei obtains 83 objects from the collection. The museum later asks for the return of the items; Hui Malama officials refuse and indicate that repatriation has been completed.

August 2005: Two Hawaiian groups, Na Lei Alii Kawananakoa and the Hawaiian Academy of Traditional Arts, sue the museum and Hui Malama, seeking the return of the objects to the museum so the claimant groups can decide what to do with the collection items. At least 13 groups are seeking some say in the fate of the objects, which range from wooden statuettes of family gods, or 'aumakua, to tools and pieces of feather capes.

Sept. 2: U.S. District Judge David Ezra orders the return of the objects to the museum so discussions among the claimants can continue.

Sept. 5: Ezra sets a Sept. 23 deadline for return of the objects. In his decision, Ezra noted �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, he said the risk of harm to the objects from natural decay in the cave also warranted their return to the museum.

Sept. 20: The 9th U.S. Circuit Court of Appeals lifts the court order directing retrieval of the objects while Hui Malama appeals Ezra�s injunction.

Dec. 12: The 9th Circuit court affirms the September injunction by Ezra calling for the return of the objects.

Dec. 20: Ezra sets a deadline of 4 p.m. Dec. 21 for Hui Malama to disclose specifically where each of the objects is buried.

Dec. 27: Hui Malama�s leader is ordered into federal custody until the exact whereabouts are revealed.

Jan. 5: Ezra suggests the parties settle the issue through a traditional Hawaiian form of dispute resolution and orders them to begin meeting. U.S. Magistrate Kevin Chang will oversee the process.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060113/NEWS23/601130371/1001
Honolulu Advertiser, Friday, January 13, 2006

One of the central issues is what constituted a 'loan'

By Gordon Y.K. Pang

Opposing sides in the Forbes Collection repatriation dispute disagree on some fundamental points. Here's a guide to various elements in the case:

Who sued whom and why? Two Hawaiian groups, the Royal Hawaiian Academy of Traditional Arts and Na Lei Alii Kawananakoa, sued Bishop Museum and Hui Malama I Na Kupuna O Hawai'i Nei. The two groups that sued are seeking the return of 83 objects known as the Forbes Collection that were "loaned" by the museum to Hui Malama. The lawsuit plaintiffs say all claimants to the items need to have a say in repatriation.

Where did the items come from? They were taken from up to four Big Island caves in 1905 during an expedition led by David Forbes, William Wagner and Frederich Haenisch and subsequently sold to Bishop Museum.

Are they artifacts or funerary objects? Hui Malama calls the objects funerary and opposes the term "artifacts," noting that the word connotes archaeological or historical interest. Others believe that the objects may have religious significance. They note that in the period after Kamehameha the Great's death in 1819, Queen Ka'ahumanu converted to Christianity and put a kapu on Hawaiian religious practices and many religious items were hidden for safekeeping.

Was there a loan in 2000 by the museum to Hui Malama? The shipping invoice accompanying the objects when the Bishop Museum released the objects includes a "loan due date" of Feb. 26, 2001, exactly one year from the date of shipment. But the due date also includes an asterisk referring to "loan pending completion of repatriation." That notation, Hui Malama says, proves that the museum never anticipated return of the items and that "loan" is simply jargon used by museums to indicate a transfer. The group also points to a shipping invoice for bones from the Kawaihae Caves that were "loaned" to Hui Malama with a one-year due date; the group notes that the museum never asked for those back. Those human remains, or iwi, were reburied by Hui Malama. The museum argues that the loan of the objects did not transfer title to Hui Malama and that they could be recalled at any time. Additionally, the museum notes that human remains loaned to Hui Malama in 1998 came with a written agreement of all claimants and the loan was closed by the museum after a public statement was made.

What is a claimant and how many are there? Claimants, as defined by the Native American Graves Protection and Repatriation Act, the federal law commonly known as NAGPRA, are "lineal descendants, Indian tribes, Native Alaskan villages and corporations, and Native Hawaiian organizations." Native Hawaiian organizations are "organizations that serve Native Hawaiians." Originally there were four � Hui Malama, the Department of Hawaiian Homelands, the Office of Hawaiian Affairs and the Hawai'i Island Burial Council. That list grew to 13 in 2000 after Hui Malama took possession of the items. Last summer, the museum added Na Lei Alii Kawananakoa. Hui Malama and its supporters challenged that group's claimant status, pointing out that notice of the change has not been published in the federal register.

How is repatriation different from reburial? Repatriation is the formal NAGPRA term for the transfer of ownership back to a native claimant or claimants. But NAGPRA is not concerned about the final location of the objects or remains.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060114/NEWS23/601140342/1173/NEWS
Honolulu Advertiser, Saturday, January 14, 2006

Silence ordered in artifacts mediation

Attorneys involved in an ongoing court case over 83 priceless Hawaiian cultural objects were told to keep mum about any developments toward resolving the dispute following a 90-minute closed-door conference yesterday with U.S. Magistrate Kevin Chang.

On Monday, U.S. District Judge David Ezra gave the parties until yesterday to come up with a game plan for proceeding with a mediation process.

Two Native Hawaiian organizations filed a lawsuit in August against the Bishop Museum and Hui Malama I Na Kupuna O Hawai'i Nei that called for the return of the objects that the museum had loaned to Hui Malama in 2000. Hui Malama members said that the objects had been buried in two Big Island caves from where they were taken by Westerners in 1905. Hui Malama has refused to return the items, maintaining that doing so would violate the group's religious and cultural beliefs.

Royal Hawaiian Academy of Traditional Arts and Na Lei Alii Kawananakoa are seeking the return of the objects to the museum so that a final disposition may be determined by 14 claimants. Hui Malama and the two groups that filed the suit are among the claimants.

A status conference before Ezra is slated for Tuesday morning.

Last week, the judge said that if the parties make strides with mediation, Hui Malama leader Edward Halealoha Ayau may at some point be eligible for home confinement. Ayau has been held in the Federal Detention Center near Honolulu International Airport since Dec. 27, when Ezra found him in contempt of court for not complying with a federal order to divulge the exact location of the objects.

Ezra yesterday issued an order naming Englekirk and Sabol Consulting Structural Engineers Inc. and Geolabs Inc. as the two companies that will study the structural engineering of the Kawaihae Cave, one of the two caves where the objects are believed to be. The court had previously selected Applied Technology Corp. but the company said it would not be available.

Hui Malama's masonry contractor filed an affidavit stating that he sealed one of the caves with a concrete wall and warned that reopening the cave could cause its collapse and would be a danger to those involved.

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Honolulu Advertiser, Wednesday, January 18, 2006

Judge sets Ayau free to participate in talks

By Gordon Y.K. Pang

The legal battle over 83 priceless Hawaiian cultural items entered a new phase yesterday. Edward Halealoha Ayau, the executive director for Hui Malama I Na Kupuna O Hawai'i Nei, was released from jail after three weeks, and two Hawaiian leaders were named as facilitators for a mediation process that the court and the parties involved hope will result in a settlement outside of traditional judicial means.

"This is an issue for Hawaiians to decide," U.S. District Judge David Ezra said, adding that while it gives Hawaiians a chance to show they can work together despite a history of disharmony, it also provides "an opportunity to fail. I don't believe � I hope that isn't the case."

Ezra ordered Ayau released under supervision from the Federal Detention Center, in large part so he can participate in the closed-door mediation process that is likely to begin next week. Ayau had been incarcerated since Dec. 27 after refusing to give Ezra information about the location of the artifacts.

Sitting just outside the Federal Building courtyard yesterday with Kainani Kahaunaele, his wife of less than six months, Ayau said his three weeks in jail made him more committed to the cause of Hui Malama, inspired by the support he and the organization received. He could see the supporters who held vigils for him twice a day across the street from the detention center, although he could not hear them, he said. He also received a string of letters from supporters. "They said they thought what I was doing was the right thing, and to remain steadfast," he said. "It was very humbling to me to have people I didn't even know praying for me."

Meanwhile, U.S. Magistrate Kevin Chang, who is helping Ezra with the mediation of the case, announced that two men with ties to Kamehameha Schools � Nainoa Thompson and Earl Kawaa � would be the facilitators or mediators for the process. Chang said the court chose the two after the parties failed to agree on a mediator, or mediators, on their own.

Thompson is the famed non-instrument navigator of the Hokule'a and president of the Polynesian Voyaging Society. He recently was appointed by the federal Probate Court to a second, five-year term as a Kamehameha trustee. His father was the late Myron "Pinky" Thompson, also a trustee when the Kamehameha Schools trust was known as Bishop Estate.

Kawaa, according to Kamehameha officials, is a family education specialist and Waimanalo site coordinator for the school's Hi'ilani program, which provides early childhood and family education, especially to those with children up to 3 years old. He formerly was with the Queen Lili'uokalani Trust.

The court is giving the parties a "target date" of Feb. 24 to reach agreement. "It is significant that the court recognizes and encourages a Hawaiian mediation process," Chang said, adding that, if successful, it could be used as a precedent for other cases.

LAWSUIT SEEKS RETURN

The Bishop Museum and Hui Malama were sued by two other Native Hawaiian organizations seeking the return of the cultural objects, which were transferred by the museum to Hui Malama in late 2000. Rather than returning them, as has been requested by the museum, Hui Malama officials said they have been buried in caves on the Big Island from where they were taken in 1905 by Western explorers.

Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts want the items returned, arguing they they and other groups have not had an opportunity to weigh in on what should happen with the items.

Ezra first jailed Ayau after finding him in civil contempt of court for refusing to disclose the exact location of the 83 items. Ayau said it would go against his religious and cultural beliefs to do so.

PRESENCE 'HELPFUL'

The court has "no genuine, practical reason" to keep Ayau imprisoned if he is willing to participate in mediation proceedings in good faith, Ezra said. "I think it would be helpful to have Mr. Ayau attend those."

The judge made it clear yesterday that Ayau remains in contempt and, as a result, will be confined to his home in central Moloka'i and his whereabouts at all times monitored electronically via Global Positioning System technology. Ezra released Ayau yesterday under the condition that he stay on O'ahu until the monitoring system is set up, which is expected to be done tomorrow. The judge also said he expects good behavior on the part of Ayau, Hui Malama and their supporters during the supervised release.

Barefoot and wearing prison-issued white T-shirt and blue pants, his tabi-like footwear in his hands, Ayau clearly did not expect to leave jail yesterday. He fielded a seemingly endless stream of cellular telephone calls from well-wishers. He seemed more relaxed and at ease than he had been in the months leading up to his incarceration.

The usually stoic Ayau laughed when asked what he and his supporters would be doing after leaving the courthouse and meeting with attorneys. "I like eat Pake food," he said, noting that he is part-Chinese and partial to honey-glazed walnut shrimp.

'JUST HARD-HEADED'

Some had called him a martyr for going to jail, but it is a label he continues to refuse, saying that is "shifting of the focus from the kupuna to me," Ayau said. "I'm just hard-headed. My parents are hard-head. They taught us right from wrong; they taught us to stand up for what we believe is right." His work for the organization also was uppermost in his mind, he said.

Despite not having access to a computer, Ayau said, he also had a lot of time to write � time he devoted to writing grants requests for Hui Malama. "Why would I waste my time? I'm very anal," he said. "My mind's gotta be busy, otherwise I get nuts. So I was just writing out, thinking through things that gotta be done, trying to stay active. Your mind can be your best friend in prison; it can be your worst enemy. So you've gotta stay positive." Ayau, who turns 42 on Feb. 8, said the first thing he will do when he returns to Moloka'i tomorrow will be to visit his parents. "They're the reason for my being," he said.

Ezra said that as the mediation process ensues under Chang's direction, he will continue on a "dual track" of locating the objects. Earlier this week, he named two engineering firms to begin looking at the structural integrity of the Kawaihae Cave, one of the two caves where the objects were believed to have been placed.

That's considered to be the first step toward the court actually going into the cave to remove the items, an action Hui Malama has objected to strenuously.

Ezra said that while he is required to move in that direction, "that doesn't mean I have to move quickly."

'PREFERRED MODE'

Officials with both Hui Malama and the groups suing it said that they look forward to mediation and that they had wanted to resolve their differences outside the courtroom before the lawsuit was filed last summer. "It's important that people sit down and discuss these things," said La'akea Suganuma, president of the Royal Hawaiian Academy of Traditional Arts. "We were ready for mediation from Day 1," Ayau said. "That would have been our preferred mode of dealing with this."

The ground rules for the mediation, as well as exactly who will be sitting at the table, have yet to be determined and are expected to be decided during the first few meetings, attorneys said.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060120/OPINION02/601200327/1108/LETTERS
Honolulu Advertiser, Friday, January 20, 2006
Letters to the Editor

JUDGE EZRA ACTED RESPONSIBLY

This letter responds to Jonathan K. Osorio's Jan. 5 letter entitled "Judge Ezra vs. Hawaiian beliefs." We are writing on behalf of the Hawai'i Chapter of the Federal Bar Association, whose members are lawyers working in the federal judicial system.

Because federal judges cannot comment outside of the courtroom about cases before them, we are responding to professor Osorio's unfair criticism of Judge David Ezra's handling of the Kawaihae Cave artifacts case.

As an initial matter, it is regrettable that professor Osorio would make this kind of highly personalized and, in our opinion, biased and agenda-driven attack against Judge Ezra and the judiciary over the judge's handling of the case.

Judge Ezra is not against Hawaiians, nor is he against Hawaiian beliefs. Indeed, his record on the bench clearly reflects sympathy for and an understanding of Hawaiian issues.

Lest The Advertiser's headline further confuse the issue, we would like to point out that Judge Ezra did not file a suit "vs." Hawaiians or their beliefs. The plaintiffs brought the dispute about the Kawaihae artifacts to the Hawai'i Federal District Court in search of a judicial resolution. The case was assigned to Judge Ezra by random assignment.

We are a nation of laws, governed by the rule of the law. Edward Halealoha Ayau knowingly and willingly violated a court order by failing to return the Kawaihae artifacts to the Bishop Museum. Kihei Nahale'a was detained and held in contempt by Judge Ezra for disrupting the proceedings.

Edward Ayau and Kihei Nahale'a made choices. The judge's actions that followed did not demonstrate "the inability of the American judicial system to deal with issues of religious belief," as suggested by professor Osorio. Rather, Judge Ezra did what is expected of any good judge � he applied the law, enforced his order and maintained control of his courtroom.

Mr. Osorio also criticizes Judge Ezra for giving a "40-minute lecture" before issuing his ruling. In point of fact, Judge Ezra again did what a judge is supposed to do; he explained in detail the reasons and rationale for his ruling. Had Judge Ezra given no explanation at all and just ruled, he could have been justly criticized for not providing an explanation.

The message that anyone is above the law is a wrong message. Personal and religious beliefs do not, under our system of government, provide justification for disregarding an order of a federal District Court judge or for disrupting the legal proceedings in the judge's courtroom.

The job of the judicial system is to render justice under the law. Our job, as citizens, is to abide by the rule of law and to work within the system � or suffer the penalties the law metes out if we elect not to do so.

We trust that Judge Ezra will continue to do what he has done so far and what all good judges hope to do; that is, to apply the law in an objective, impartial and fair manner; to articulate the bases for his rulings in a clear manner so that the parties and the community understand his reasoning; and to enforce, when necessary, his orders so that all understand that we are a nation of laws, governed by laws � and where no one is above the law. Terence O'Toole President, Federal Bar Association, Hawai'i Chapter

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http://starbulletin.com/2006/01/24/news/story12.html
Honolulu Star-Bulletin, January 24, 2006

Artifacts case tests isle tradition
A federal judge orders Hawaiian litigants to resolve their dispute through hooponopono

By Alexandre Da Silva
Associated Press

A federal judge is offering Hawaiian groups and the state's largest museum an unusual alternative to settle their dispute over a cache of priceless artifacts: using an ancient Hawaiian mediation process.

Hooponopono, meaning "to make things right," has traditionally been used to solve fights between brothers, disputes over family inheritance and divorce.

This fight involves the Bishop Museum and 14 groups, including a state agency that oversees native Hawaiian affairs. At stake are 83 Hawaiian artifacts that have been missing from the museum since 2000.

The group Hui Malama I Na Kupuna O Hawaii Nei, which borrowed the objects from the museum, hid them in an undisclosed cave on the Big Island. They include a human-hair wig, containers with human teeth and carved wooden statuettes of family gods.

A frustrated U.S. district judge, David Ezra, who already jailed one Hawaiian leader for 21 days in the dispute, has offered the process as an alternative to having the federal judicial system solve the deadlock.

Hui Malama argues that the objects are funerary and not meant for public display. But two other groups sued in Ezra's court, saying the articles need to be unearthed and properly repatriated under a federal law.

Some observers familiar with the Hawaiian process proposed by Ezra have their doubts whether it will work. If traditional rules are followed, they say, group members would be required to sit in a circle, pray, confess to wrongdoing, apologize and forgive. "You have to let everything out. You cannot hold anything back. Otherwise, you haven't fully confessed and you can't be fully forgiven," said Keala Losch, a Pacific-studies professor at the University of Hawaii. "But I don't think people are willing to apologize or admit they are wrong."

Group members will take turns but will not be allowed to speak to each other, directing comments or questions only to court-appointed mediators. The process can take hours, weeks or longer.

These are among the 83 items loaned to Hui Malama that the Bishop Museum and some other Hawaiian groups would like returned. At a judge's urging, the parties will try to resolve their dispute using a traditional mediation practice that involves sitting in a circle, prayer, confession and forgiveness. The mediators appointed by the court are Nainoa Thompson, a master of navigation techniques used by ancient Hawaiians and a trustee of the all-Hawaiian Kamehameha Schools, and Earl Kawaa, site coordinator for a Kamehameha outreach program in Waimanalo.

Hui Malama's leader, Edward Halealoha Ayau of Molokai, after being imprisoned for refusing to say exactly where the artifacts were buried, said he was hopeful but not optimistic. Ezra released him to home confinement last week so he could participate in the hooponopono. "One thing I learned in prison is not to have expectations, because they may not turn out the way you want it to," Ayau said.

Hawaiian-studies professor Haunani-Kay Trask compared the current dispute to "a bad divorce." "This is a case of an irreconcilable difference," said Trask, an outspoken Hawaiian activist. "An example of that is Halealoha's refusal of the judge's order."

Asked whether he might change his mind and reveal where the items were placed, Ayau replied, "No."

The two groups suing Hui Malama -- Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts -- want all 14 claimants to decide on the objects' fate under provisions of the Native American Graves Protection and Repatriation Act, a 1990 federal law that governs the repatriation of human remains and artifacts.

But despite its goal of bringing people together, mediation likely will not include all groups this time. So far, only Hui Malama, Na Lei Alii and the Royal Academy have confirmed participation. This could be another problem, said Naomi Losch, a faculty member at the Department of Hawaiian/Indo-Pacific Languages & Literatures at the University of Hawaii. "It's going to be difficult to exclude people from the process and try to get a resolution," said Losch, who is Keala Losch's mother.

Jodi Yamamoto, legal counsel for the Bishop Museum, would not confirm or deny the museum's participation, saying she was sworn to secrecy by the judge. At least during initial mediation, the state's Office of Hawaiian Affairs, another group claiming the items, will not be present, said Lance Foster, director of native rights, land and culture.

Sherry Broder, an attorney representing Na Lei Alii and the Royal Academy, declined comment when asked to give specifics on the mediation. So did Alan Murakami, Hui Malama's lawyer.

DeSoto Brown, who has been collections manager of the Bishop Museum's archives department for 18 years, said "the level of disagreement has been very strong" among the Hawaiian groups. But, like Ayau, he hopes a deal can be reached. "I suspect that those who will be involved in the entire discussion will do so with a sense of a new beginning," Brown said, "and start from a place where they can speak to each other without becoming angry."

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http://www.kaleo.org/vnews/display.v/ART/2006/01/24/43d692aca0a6e
Ka Leo O Hawaii (University of Hawaii student newspaper), January 24, 2006

Hui Malama group steals knowledge from public

By Paul Kolbe

Driving up to the Bishop Museum on a recent family day, it was ironic to encounter supporters of Hui Malama I Na Kupuna O Hawai'i Nei with signs that read, "Teach your kids not to steal."

By any definition, borrowing something and then not returning it would constitute stealing. The group borrowed 83 burial objects on good faith from the Bishop Museum. Rather than displaying the objects, as was the intended purpose, the group reburied the objects in the Big Island's Kawaihae Caves, from where they were originally removed in 1905.

The group has justified its actions with religious and cultural beliefs, stating that the artifacts had been looted in the first place. But looted artifacts do not usually end up in museums, they end up in the hands of private collectors who rarely have an interest in increasing public knowledge, which museums, despite their flaws, do have.

As for religious and cultural beliefs, many have sent their written opinions to Honolulu newspapers arguing that had the artifacts been of white people, they would have never been disturbed. Nonsense. European tombs, as well as Egyptian, Mayan and American tombs are disturbed frequently.

Amadeus Mozart's skull recently had chips scraped from it and compared to the bone scrapings of his dead grandmother, just to make sure it was really his skull and to possibly resolve how he died. Yet, neither his relatives, nor the New York Philharmonic was outside protesting.

Disturbing tombs is unfortunately one of the best ways to learn about a culture and its practices, especially one with no written records. Many understand its necessity for the betterment of historical understanding. Hui Malama is not only depriving those who have little or no knowledge of Hawaiian culture, but also future generations of Hawaiians from viewing the works of their ancestors.

Hui Malama's reasoning makes about as much sense as my b eing half-German, going to Germany and taking artifacts of early Germanic tribes, who also had only oral traditions, and burning the artifacts because my ancestors would have. Not only would it be pretentious of me to act as if I knew what my ancestors would have wanted today, but maybe � and this will perhaps prevent my entrance into Valhalla � my ancestors were not all-knowing.

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Honolulu Advertiser, Tuesday, February 14, 2006

Judge rejects Hui Malama motion to dismiss lawsuit

U.S. District Judge David Ezra yesterday denied a motion by the Native Hawaiian group Hui Malama I Na Kupuna O Hawai'i Nei to dismiss a lawsuit seeking the return of 83 cultural objects to the Bishop Museum. In a 21-page ruling, Ezra said Hui Malama "has not presented any new or valid reasons for dismissal of this case."

The items were "on loan" by the museum to Hui Malama members, who reportedly buried them alongside human remains in the Kawaihae Caves Complex on the Big Island.

Two Native Hawaiian groups that last year filed the suit against Hui Malama maintain that they and others have not had a chance to weigh in on the final disposition of the items that Hui Malama members say have been placed back in the caves where they were first taken by Western explorers in 1905.

While Ezra ordered the items returned to the museum, an order reaffirmed by the U.S. 9th Circuit Court of Appeals, Hui Malama has refused to disclose their exact locations. A Hawaiian style mediation between the two parties began last month in an effort to settle the matter out of court.

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http://starbulletin.com/2006/02/15/news/story09.html
Honolulu Star-Bulletin, February 15, 2006

3 new groups seek inclusion on burial lawsuit
The native Hawaiian organizations claim to have a clear stake

By Sally Apgar

Three native Hawaiian organizations, including two led by sovereignty activist Dennis "Bumpy" Kanahele, filed papers in federal court yesterday seeking to intervene in a lawsuit over 83 native Hawaiian artifacts that were reburied in a Big Island cave in 2001.

Kanahele's groups -- the Nation of Hawaii and Pu'uhonua I Waimanalo -- joined with the Native Hawaiian Advisory Council in asking that U.S. District Judge David Ezra include them as federally recognized claimants to the artifacts in negotiations to decide their disposition. Kanahele, a longtime sovereignty and Hawaiian rights' activist, could not be reached for comment.

In court papers, the three groups argued that they are recognized claimants to the artifacts and have rights "on equal footing" with claimants involved in the lawsuit and therefore should not be excluded from the ongoing court-ordered mediation process. They said their "ongoing exclusion is inappropriate" because the native Hawaiian organizations involved in the suit will not protect the rights of other claimants. Their filing says that the claimants have "myriad differences" and "motivations," implying that makes groups less likely to guard the legal rights of others. The filing said that without the inclusion of Kanahele's groups "as indispensable parties to these proceedings," any agreement or court order arising from the current negotiations would be "incomplete, nonbinding, unenforceable and/or subject to challenge."

In an order filed Monday on another matter in the case, Ezra found that the claimants currently not involved in the lawsuit "were not necessary" because the case will only decide whether the items are retrieved from the cave. His order said the suit will not determine anyone's specific rights to the items or their final disposition. Those questions will be taken up by all of the claimants going through the consultation process conducted under federal repatriation law.

The 83 artifacts at the center of the dispute were stolen from several caves in 1905 and later sold or given to the Bishop Museum. The items, considered funerary objects by many of the claimants, came under the authority of the Native American Graves Protection and Repatriation Act of 1990, a federal law designed to repatriate the human remains and certain artifacts from native Hawaiian and American Indian groups from museums.

Under NAGPRA guidelines, the Bishop Museum recognized 14 competing claimants to the items from Kawaihae cave. NAGPRA intends for native Hawaiian groups to consult with each other to determine who has cultural or familial ties to the objects and decide on their disposition.

In February 2000, museum staff crated the items and handed them over to one of the claimants, Hui Malama I Na Kupuna O'Hawaii Nei, a native Hawaiian group founded in the late 1980s to repatriate native Hawaiian remains and artifacts from museums and construction sites. The items were identified on the inventory documents as "a one-year-loan." Hui Malama, in accordance with its religious beliefs, reburied the items in two Big Island caves so they could be spiritually reunited with ancestral bones.

In August, two groups at odds with Hui Malama over its reburial filed the federal lawsuit alleging Hui Malama violated NAGPRA and by reburying the items denied other claimants their right to have a say in the disposition. The two groups that sued Hui Malama are the Royal Academy of Traditional Arts and Na Lei Alii Kawananakoa, which is headed by Abigail Kawananakoa, a wealthy Campbell Estate heiress and the great-granddaughter of Queen Kapiolani and King Kalakaua.

La'akea Suganuma of the Royal Academy said last night the intervention of the three groups "really doesn't change anything. The law is still broken."

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060429/NEWS23/604290350/1001
Honolulu Advertiser, Saturday, April 29, 2006

Search for artifacts to resume

By Gordon Y.K. Pang and Ken Kobayashi

Efforts to enter the Big Island's Forbes Cave complex and retrieve 83 priceless Hawaiian cultural objects will resume in the wake of a failed mediation of the dispute, U.S. District Judge David Ezra said yesterday.

Abigail K. Kawananakoa � a descendant of Hawaiian royalty and one of those seeking the return of the objects to the Bishop Museum � dismissed the four-month mediation as a "farce." She said Edward Halealoha Ayau, the leader of the group Hui Malama I Na Kupuna o Hawai'i Nei, should be sent back to federal prison for failing to disclose where the objects are buried.

Ayau said that Hui Malama is willing to assist in a return to the cave complex to ensure that the objects have not been disturbed, but only if the caves are found to be structurally sound, and if the court and the group's opponents agree to leave the items there. Formed in the 1980s, Hui Malama is dedicated to the repatriation of Native Hawaiian remains and the objects that accompanied them.

The Bishop Museum and Hui Malama were sued by two Hawaiian organizations seeking the return of the objects, which were transferred by the museum to Hui Malama in late 2000. Rather than returning them as requested by the museum, Hui Malama officials said they buried the objects in caves on the Big Island from where they were taken in 1905 by David Forbes and other Western explorers. The objects are known as the Forbes Collection.

Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts want the items returned. The two groups and others contend that they have not had an opportunity to weigh in on what should happen with the items as allowed under the federal Native American Graves Protection Act.

NOT A FAILURE

Ezra yesterday said that the "Hawaiian mediation process" had been worthwhile. "I am, of course, disappointed that the matter was not resolved to a conclusion," Ezra said. "But that doesn't mean I think the process was a failure." Noting that the opposing parties were able to agree on some issues, he added, "I do not believe that all chances for a resolution have been lost."

Ezra and U.S. Magistrate Judge Kevin Chang praised Nainoa Thompson, the Hokule'a navigator and Kamehameha Schools trustee, and Earl Kawaa, a family education specialist for the Hi'ilani family education program, for their voluntary efforts.

The court will now direct appointed engineers to determine whether the cave complex is structurally sound enough to enter. Ayau and other Hui Malama members have maintained that it is not safe.

Ezra declined to release a timeline to retrieve the objects, pointing out that such disclosure could be valuable to potential grave-robbers. He referred to the recent indictments against two men in connection with the theft of burial objects at Kanupa Cave, which is near the Forbes Cave complex in the Kohala section of the Big Island. "I don't want anybody to get their hands on these sacred objects, if they are in the cave," he said.

In late December, the judge held Ayau in contempt of court for refusing to pinpoint the whereabouts of the items. Ayau had contended that divulging the location would violate his cultural and religious beliefs. He was jailed at the Federal Detention Center for three weeks before being released to participate in the mediation.

Ezra said yesterday that while Ayau remains in contempt he sees no "legitimate purpose" in putting him back in jail. Ayau will remain confined to his home on Moloka'i, except for work-related travel that must be approved by the court.

Kawananakoa, who turned 80 this month and has made few public appearances in recent years, said she was "devastatingly disappointed" by the results of the mediation, which she described as "a complete farce."

The Campbell Estate heiress questioned Hui Malama's explanation that the objects are funerary and interred with Native Hawaiians in the cave. "We have documents to prove that what (Ayau) contends ... is completely and utterly false," she said. She said she and others tried to persuade Hui Malama members that "they have done a heinous thing to our possessions. ... They are not theirs."

When asked to further explain to whom she referred when she spoke of "our possessions," she said, "the Hawaiian people." She described Hui Malama and its supporters as "a small group that has convinced whomever that what they're doing is correct." She added, "They had no right to take it. It was under false pretenses. It was a theft."

'A GREAT LOSS'

The items, which have been appraised at more than $10 million, were the personal deities of Kamehameha the Great and hidden in the cave for safekeeping, she said. "There's no question that they should never have been put down there," she said.

Among the items is the Kilawahine, a carved 18-inch wooden figure of a Maui goddess who was an aumakua to Kamehameha. Kawananakoa said it is one of the most sacred objects known to Hawaiians.

"People cannot use it for their own studies. It is not available. Do you think that is right to put things like this and bury it in a cave with very little care for their maintenance? These are fragile. They're priceless."

As a descendant of the Kawananakoa and Kamehameha families, she said, she has a duty to ensure that such objects are preserved for future generations of Hawaiians. "Even if they are securely sealed in there, it's the climate, the conditions in there. They are being destroyed right now as we speak. They're disintegrating. It's such a great loss."

Kawananakoa said she has spent the last three to four years researching the issue with the help of Roger Rose, an anthropologist who spent more than two decades with the Bishop Museum.

Rose said, "The preponderance of evidence suggests that these items are not funerary. They were hidden away at the time of the abandonment of the traditional (Hawaiian) religion or shortly after that. They are cultural items of great importance. I believe they were associated with Kamehameha the Great."

Kawananakoa also asserted that Ayau should be returned to jail. "It's a great disservice not to punish these people for what they have done up to date," she said.

In response, Ayau said, "I'll be willing to go back to prison, if she's willing to drop the lawsuit and leave the kupuna alone." Ayau added that he has yet to see documentation to back up the argument that the cultural objects are not funerary.

NO RIGHT FOR REMOVAL

Ayau said Hui Malama has offered to cooperate with the court's request to check on the condition of the items. The group, however, maintains that it will not participate in a court order that involves removing of the objects.

"The focus of our proposal ... was to verify that the moepu were back where they were taken from," he said. "At the same time, we maintain the position that we don't have the authority, we don't have the mana or the right � and we contend nobody does � to order their removal."

Hui Malama bases its assertion that the items are burial objects on the group's own research, which shows that they were placed in the cave complex with human remains as was customary. "The primary issue is maintaining the integrity of the kupuna," he said. "It is our hope that all Hawaiians share in that. If the plaintiffs feel somehow that we've wronged them and they need to be made whole again, well, then direct your attention at us � not at the kupuna. Don't take it out on them. They're the ones who were looted."

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http://starbulletin.com/2006/04/29/news/story06.html
Honolulu Star-Bulletin, April 29, 2006

Judge orders disputed cave artifacts retrieved
Claimants fail to agree on the items after four months of mediation

By Sally Apgar

A federal court judge ruled yesterday that four months of Hawaiian mediation have not resolved the heated differences among competing claimants for native Hawaiian artifacts buried in a Big Island cave.

Judge David Ezra will proceed under federal law to reclaim the items from the cave. Once the items are retrieved, the groups will have a chance to examine the objects and ultimately decide their disposition.

Ezra said engineers will study the cave to determine whether entry is safe. Ezra said he would not provide a time line as to when the cave would be opened. He said he wished to proceed in a confidential fashion to thwart anyone from stealing the items, which some say are worth more than $10 million.

In January, Ezra ordered the parties to conduct a Hawaiian mediation process called hooponopono to reach a consensus on how the items could be removed from Kawaihae, or Forbes Cave, and where they should be kept while the claimants decide their final disposition. Since then the sides have been meeting under the guidance of mediators Nainoa Thompson and Earl Kawaa, who have been reporting to Judge Kevin Chang.

Yesterday, Chang reported on the result of the mediation: "There was no agreement on the method of removal or storage." Chang told the court, "My recommendation is that the court proceed to complete the process."

Ezra said the court would proceed "in the safest manner possible" to open the cave and retrieve the objects so that every claimant has a fair chance to examine them and have a say in their fate.

At issue are 83 items that were taken from Kawaihae cave in 1905 and either sold or donated to the Bishop Museum. In February 2001, Hui Malama I Na Kupuna Hawaii O Nei, a group founded in 1989 to reclaim Hawaiian bones and burial objects from museums, took the items from staff at Bishop Museum who had crated them and signed a document identifying it as a "one-year loan."

The group has repeatedly said the items are funerary objects that ancestors wanted buried with them. To honor those wishes, Hui Malama reburied the items in Kawaihae cave.

But other groups, represented by Campbell Estate heiress Abigail Kawananakoa and La'akea Suganuma, president of the Royal Academy of Traditional Arts, say they are not burial objects that belong in caves, but items of cultural significance that should be shared with the Hawaiian people.

Roger Rose, a Harvard-educated anthropologist and former curator of the Kawaihae collection while it was at Bishop Museum, said yesterday that he believes the wooden carved images in the collection could have been the personal deities that Kamehameha the Great worshipped during the time he united the islands. Rose, who was retained as an expert by Kawananakoa, believes that carvings were hidden in Kawaihae cave for safekeeping after 1820, when the traditional Hawaiian religion was outlawed and people were encouraged to torch such carvings in bonfires.

Kawananakoa said yesterday that the wooden carved images would have been the property of the chiefs but should be preserved and studied for all Hawaiians.

During the hearing, Chang and Ezra repeatedly said the mediation was not a failure.

But outside the courthouse, both sides expressed outrage.

"The mediation was a complete farce," said Kawananakoa.

She said Hui Malama wrongfully took the items and reburied them without the consent of the other claimants.

"They have done a heinous thing to our possessions," Kawananakoa said, adding "it is very upsetting" that the items are still in the cave because of the threat of theft and climatic conditions.

"They are disintegrating at this moment, and it is such a great loss," she said, adding, "The principle of the whole thing is that they (Hui Malama) had no right to take them. They had no right, and they did it under false pretenses. It was theft. And I hope my suit against them will prove that."

In August, Kawananakoa sued Hui Malama and the Bishop Museum for the return of the items. In December, Ezra found the leadership of Hui Malama to be in contempt of court for not revealing information about the location of the caves and the exact whereabouts of the items within the various chambers.

Hui Malama director Edward Halealoha Ayau told Ezra that giving such information would violate his religion. In December, Ezra sent Ayau to prison for contempt. After several weeks he was released and put under house arrest with an electronic ankle bracelet so that he could participate in the mediation. Ezra said yesterday that Ayau was still in contempt but that no purpose would be served by imprisoning him.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060503/OPINION01/605030317/1104
Honolulu Advertiser, Wednesday, May 3, 2006

EDITORIAL

Artifacts case needs a prompt resolution

Resolving a dispute through mediation is always preferable to hauling warring parties before a judge for a long and costly legal battle. Usually, making the attempt before anyone sets foot in the courtroom is the more productive approach.

But in the case of the Kawaihae Caves artifacts, court procedures began and then took a hiatus while a form of ho'oponopono, the more traditional Hawaiian reconciliation process, took place.

At issue were the 83 cultural artifacts that were stolen from the caves roughly a century ago, and then reinterred before the federal "repatriation" process to transfer them back to native ownership had finished.

There was high courtroom drama at the outset, with two people imprisoned for contempt. U.S. District Judge David Ezra decided to try mediation, which recently ended up back in court without a resolution.

Ezra declared it a success nonetheless � his actual words were "it is no failure," if that doesn't put too fine a point on it.

From the standpoint that the mediation enforced a necessary cooling-off period and demonstrated the court's willingness to try a less formal strategy, it was a good idea at the time.

Ezra went on in his remarks to express his wish that the exercise "set a precedent in the United States courts" for the use of traditional Hawaiian settlement methods in cases like this. But mediation makes sense only as a precursor to litigation, not a courthouse tool.

If there's a lesson to be learned here, it's that mediation of these complex cultural issues is best attempted long before contentious parties come to court. Reconciliation always works best before positions harden and emotions flare, when sides are determined to avoid the expense and strain of a courtroom battle.

Once a dispute like this reaches the "court of last resort," it's better to press ahead with settling matters quickly and fairly. It's time to get the repatriation process back on the correct course.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060521/NEWS23/605210350/1173/NEWS
Honolulu Advertiser, Sunday, May 21, 2006

For museum or the cave?

By Gordon Y.K. Pang

Hidden away to be seen by future generations or burial objects that should never have been disturbed? That's the central issue of the federal court case involving 83 sets of cultural objects from the Forbes Cave on the Big Island.

Abigail Kawananakoa, who for years has avoided the public spotlight, recently spoke to The Advertiser about why her group, Na Lei Alii Kawananakoa, and the Royal Hawaiian Academy of Traditional Arts are suing for the return of the objects to Bishop Museum. The two groups are among 14 organizations that filed as claimants under the Native American Graves Protection and Repatriation Act to have a say in the fate of the items.

The items were "loaned" by the museum to Hui Malama I Na Kupuna O Hawai'i Nei, a group dedicated to repatriating burial remains and also one of the claimants. In 2000, Hui Malama placed the items next to iwi, or bones, in Forbes Cave. The museum has asked to have the items returned. But Hui Malama officials have maintained that they consider the items repatriated and the matter closed, even refusing a federal court order to return them.

Kawananakoa and her supporters believe at least seven to nine of the objects were hidden there nearly two centuries ago when, following Kamehameha's death in 1819, his successors abolished the kapu system and ordered all symbols of the old Hawaiian religions destroyed.

"Our purpose is to preserve and to bring back the things that were taken illegally," Kawananakoa said.

The argument flies in the face of the beliefs of Hui Malama and its supporters, who believe the objects were placed in the Forbes Cave and others nearby as "moepu," objects buried with the dead. They believe the theft occurred when David Forbes and two other Western explorers discovered the objects in 1905 and sold them to the museum.

THE KAMEHAMEHA LINK

Former Bishop Museum anthropologist Roger Rose, who is employed by Kawananakoa's foundation, said at least seven of the items belonged to ali'i. High-ranking chiefs, Rose said, were buried in secrecy because their remains would be coveted by their enemies. As a result, he said, ali'i were not buried with possessions that could identify them.

Rose believes it's "highly probable" that some of the items, at one time, belonged to Kamehameha the Great. He pointed to the Kiha-wahine, the human-like wooden figure that is arguably the one object that has come to symbolize the Forbes Collection.

To solidify his legitimacy to rule the islands, Kamehameha married Keopuolani, the highest-ranking woman on Maui in the early 1800s, Rose said. The union led to two boys who would succeed him as king.

He took back to his home island of Hawai'i the symbols of the most powerful gods of Maui chiefs. Kiha-wahine, Rose said, is one of them. "He took over the women, the chief sacred sites, and the sacred deities of the Maui rulers as his own to establish his own credibility," Rose said.

Rose also pointed out the proximity of the Forbes Cave to Pu'ukohola, Kamehameha's personal heiau, as well as other royal sites. "That would explain why these very important items came from caves in Kawaihae, the area from which Kamehameha began his conquest," he said.

Carved images were rarely found in burial caves, or any caves, he said. "They were found in swamps, in old irrigation canals that had been filled in, buried in the ground, in cavities that have been created to hide them away," he said. "They have been found in caves, but not with burials."

Hui Malama disagrees with Rose's conclusion, citing information by William T. Brigham, Bishop Museum's director in the early 1900s. "The two ki'i 'aumakua with inlaid hair were placed immediately before the set of (18) iwi kupuna," said a statement issued by Hui Malama. "The two ki'i akua with the elaborate headdresses were placed immediately beside these 18 individuals."

Near the entrance was a gourd containing an infant's skeleton, Hui Malama said. "Hence, the four ki'i were literally situated between two burial features representing a total of 19 individuals, all within a single chamber of the cave."

The statement says: "Several lines of evidence indicate that the ki'i in 'Forbes Cave' are directly associated with the burials there and were not coincidentally placed in the burial caves for a purpose unrelated to the individuals interred there."

Hui Malama cited the 19th-century writings of Samuel Kamakau and the Rev. William Ellis, who spoke of precious objects accompanying burials.

'NOT GRAVE GOODS'

Scholars outside the lawsuit also disagree sharply on whether the objects were buried with the human remains.

Artist and historian Herb Kawainui Kane also cited written reports by Brigham, the former museum director. Kane said Brigham learned of the old ways from Kalakaua, who was counseled by elders who once were part of Kamehameha's court.

"Brigham said by no means were the bones of chiefs interred along with any of the objects that could identify them," Kane said. "Brigham's interpretation of this was that these were not grave goods. ... They did not have grave goods during the pre-contact times."

Many Hawaiians today, he said, "have succumbed to the idea of (the remains of) ancient ali'i ... laid out in royal splendor surrounded by all the wealth of their time similar to the pharaohs of Egypt. Just the opposite is the case."

Lilikala Kame'eleihiwa, a professor at the Center for Hawaiian Studies at the University of Hawai'i-Manoa, said there is no evidence that the idols belonged to Kamehameha. "In fact, the evidence is quite to the contrary," she said. "We did not see those kinds of carvings described or drawn by any of (Capt. James) Cook's people that knew Kamehameha, or Ka'ahumanu or people of that time." She added: "What is so interesting about these ancestral treasures ... is that they are so different. Therefore, I am even more convinced that they were not placed there after Ka'ahumanu started burning images. I think they belonged to the people who are buried there."

KAWANANAKOA'S VIEW

Kawananakoa, the Campbell Estate heiress who recently turned 80, has until recently declined comment on the issue. She maintained a low profile since a fallout with other leaders of Friends of 'Iolani Palace that led to her departure from the group. Supporters point out, however, that she has continued her Hawaiianarelated charitable activities, including a recent contribution of $110,000 to the palace when the Friends requested it.

After participating in a four-month attempt at mediating the Forbes dispute, Kawananakoa expressed disappointment and called the futile effort "a farce."

U.S. District Judge David Ezra has called for proceeding with a court order to examine the safety of the cave in anticipation of opening it up to retrieve the items. The timeline was sealed to deter looters, Ezra said.

The descendant of Hawaiian royalty, Kawananakoa said she was devastated by the theft of two ka'ai, burial baskets believed to contain the remains of Hawaiian chiefs, from the museum in 1994.

In 2002, she, Hawaiian genealogy expert Edith McKenzie and other advisers went to Bishop Museum to examine the safety of other priceless Hawaiian artifacts stored there, Kawananakoa said.

The group concluded that the ka'ai theft was only part of a larger threat to the preservation of cultural treasures, she said. In 2004, after further research and consultation with experts, she filed to be a claimant in the Forbes case.

Kawananakoa, whose grandmother was Princess Abigail Kawananakoa and whose mother founded the Friends of 'Iolani Palace, said she was adopted by her grandmother and grew up learning to appreciate Hawaiian culture and to understand the importance of preserving physical links to the past. "I've had it instilled in me since I was born that this is Hawaiian history. I've been around these things," she said.

Kame'eleihiwa dismissed that explanation. "If she were a true ali'i, what she'd want to do is make sure that ... all of these ancestral treasures would stay with the ancestors," she said.

She said Hui Malama did what was proper, pointing out that it has taken possession of more than 5,900 ancestral Hawaiians and reburied more than 2,900 sets of remains in or near their original burial sites.

There is also disagreement over the legality and intent of the Forbes expedition in taking the items.

The Kawananakoa side believes no laws were enacted until after 1905 that barred the taking of cultural items from caves.

Kawananakoa and Rose said they believe that the Forbes expedition did not set out for financial gain but rather to help preserve a culture at a time when Hawaiians were seeing a dramatic drop in their population. "This was a period when it was generally thought that because of what happened to the Hawaiian population in the past, they were headed towards extinction, that there would be no Hawaiians left," Rose said. "People did whatever they could to preserve what they could at the time."

Hui Malama and its supporters insist that grave robbing was committed by the three men in coordination with the museum. In its prepared statement, Hui Malama pointed out that while negotiating the sale of the items, Brigham advised Forbes to "keep the matter quiet for there are severe laws here concerning burial caves."

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060616/NEWS23/606160370/1173/NEWS
Honolulu Advertiser, Friday, June 16, 2006

Museum fights Hui Malama in court

By Gordon Y.K. Pang

Hui Malama I Na Kupuna 'O Hawai'i Nei, one of two parties sued in the case involving cultural items from Forbes Cave, is facing a cross-claim by codefendant Bishop Museum, which is alleging a breach of contract.

The museum is asking that the U.S. District Court indemnify it from liability and that Hui Malama, a Native Hawaiian organization dedicated to repatriating human remains, pay any expenses the museum is incurring.

At issue are 83 sets of cultural objects, many of which are believed to have been taken from Forbes Cave and other nearby caves in the 1900s. They had been in the possession of the museum but lent in February 2000 to Hui Malama "pending completion of ... repatriation."

At the time, the items were the subject of a repatriation action under the guidelines of the Native American Graves Protection and Repatriation Act.

The term of the loan was for one year, museum attorney LindaLee K. Farm said in court documents. The museum recalled the items shortly after the loan was made "upon learning that some of the other then recognized claimants had not given Hui Malama authority to act on their behalf," court documents said.

"Despite repeated recalls of the loan ... and requests that it return the items, Hui Malama refused and still refuses to return the items to Bishop Museum," the documents said.

Hui Malama officials have stated repeatedly that they have placed the items in Forbes Cave, also known as the Kawaihae Caves Complex, either where they came from, or near where they came from, and that they consider the items repatriated.

Alan Murakami of the Native Hawaiian Legal Corp., which is representing Hui Malama, said he was puzzled by the cross-claim filed in court Tuesday, noting that the museum had itself declared the items repatriated.

"If they, in their own words, are saying that (repatriation) is over and that it's complete, how can they allege breach of contract today?" Murakami said.

Farm said the museum does not view the repatriation process complete, noting that it moved away from its initial retraction relatively quickly.

"We loaned the items to Hui Malama, they didn't return them," she said. "Legally, they're obligated to return them, especially if we recall the loan and say 'please give them back to us.' "

Last year, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts sued the museum and Hui Malama for the return of the items, alleging that repatriation of the items had not occurred under guidelines set forth. Those two groups, like Hui Malama, are among the claimants in the NAGPRA process.

Trial is set for Sept. 26 before U.S. District Judge David Ezra. Hui Malama has refused to follow court orders demanding that the items be returned pending the trial. The court has ordered the items retrieved, with or without Hui Malama's cooperation.

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http://www.msnbc.msn.com/id/14690936/
MSNBC copy of KITV News report

Buried Hawaiian Artifacts Recovered

KITV-TV

8:59 p.m. HST September 5, 2006

HONOLULU - Native Hawaiian artifacts that were reburied in a cave six years ago have been removed, KITV 4 News has learned. The 83 artifacts, also known as the Forbes Collection, were first removed from the Kawaihae burial cave system just over a century ago and were displayed at Bishop museum.

In February 2000, the museum loaned the items to Hui Malama, a Native Hawaiian burial organization. Hui Malama quickly returned the items to the cave and sealed it with concrete.

Five years later, Hawaiian groups filed a lawsuit. A month later, federal Judge David Ezra ruled the items must be retrieved.

When Hui Malama leader Eddie Ayau refused to cooperate Ezra jailed him for three weeks.

In an operation that was kept secret, the items were retrieved from the cave last week.

Hui Malama was hoping new evidence would block the effort to retrieve the artifacts. Lawyers for the organization said that collusion between Abigail Kawananakoa and the Bishop Museum is grounds the lawsuit's dismissal.

It seemed unusual that the Bishop Museum and Campbell Estate heir Kawananakoa were on opposite sides of dispute over possession of the Kawaihae artifacts. Both wanted the artifacts returned.

Lawyers for the group that reburied them said they now know why.

Hui Malama's lawyers obtained documents showing that well before the lawsuit Kawananakoa secretly gave the museum $25,000 to help retrieve the items, then $50,000 two years later, followed by a $1 million pledge for the renovation of the museum's Hawaii Hall.

Hui Malama's lawyers said it proves that the Bishop Museum and Kawananakoa were legally and financially joined, even while Bishop Museum was technically a defendant on Hui Malama's side.

"It certainly put my client at a huge disadvantage in terms of a defendant and plaintiff being able to strategize," Hui Malama attorney Moses Haia said.

Hui Malama planned to argue this week that the Bishop Museum was not legally a defendant, and if it was not a defendant, the lawsuit itself was illegal.

Now that the Kawaihae artifacts are on their way back to the Bishop Museum, the legal arguments don't make any difference because it's not time to begin an argument that began six years ago over whether they should be put on display, reburied or put in storage, KITV reported.

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From: La'akea Suganuma [e-mail address and recipient list redacted by Ken Conklin to protect everyone's privacy]
Sent: Thursday, September 07, 2006 1:56 PM

THE FORBES CAVE ARTIFACTS HAVE BEEN RECOVERED

'Ano'ai Kakou,

Quietly and without fanfare, for obvious reasons, a team of experts have recovered the Kawaihae objects and returned them to Bishop Museum.

It has taken six years, thousands of hours, two NAGPRA Review Committee hearings and a federal lawsuit, and the loving guidance of our ancestors....just to make things right, to insure that every claimant, each Native Hawaiian Organization, is treated fairly and equally, and that Hui Malama did not, and does not, have the inherent authority to force it beliefs upon, nor does it speak for, the Hawaiian people.

Instead of trying to persuade others to agree with them, Hui Malama's leadership, and the former administration of the Bishop Museum, chose to concoct a deceitful scheme, involving a loan of the objects, re-sealing them in the cave without the agreement of the other claimants and then declaring that proper repatriation had occurred, all designed to ignore the voices and deny the rights of other Hawaiians. Was this right? 'A'ole Loa! The real issue was then clouded over with a smokescreen of claims of racial discrimination, religious persecution, cultural distortions and mis-statements of the positions of the other Hawaiian claimants.

All of this was totally unnecessary and resulted from one small group recklessly and fanatically forcing its will upon the majority. From the very beginning, the so-called "loan," the Forbes Cave issue has been fraught with lies and deception, instead of ALOHA, the very foundation of the Hawaiian people.

There is much more to be done and we must always remain maka'ala.

Aloha No Kakou,
La'akea.

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http://starbulletin.com/2006/09/08/news/story02.html
Honolulu Star-Bulletin, September 9, 2006

Reburied cave items finally back at museum
A complete inventory of the Big Isle artifacts remains to be done

By Gary T. Kubota

Ancient Hawaiian artifacts buried in a cave for more than five years have been returned to the Bishop Museum, said Laakea Suganuma, president of the Royal Hawaiian Academy of Traditional Arts.

Suganuma, whose group pushed for the return of the artifacts, said a full inventory of the items has not been done. But he said he thinks most of the major pieces were back in the museum. "I haven't seen them, but I understand they're in good condition," Suganuma said yesterday.

Suganuma said the museum, which completed the task last week with U.S. District Judge David Ezra's consent, took more than a week to find and recover the artifacts, a task made difficult because some were buried under rocks or behind cement walls. "It took them a while to get through that junk," he said.

The Bishop Museum handed over the 83 artifacts to native group Hui Malama I Na Kupuna O Hawaii Nei in February 2000, and the group reburied them in caves where they were believed to have been taken by explorer David Forbes in the late 1800s.

Forbes had sold the burial artifacts to the museum in the early 1900s.

Some Hawaiians, including Suganuma and Abigail Kawananakoa, filed a lawsuit against the Bishop Museum and Hui Malama and called for the return of the objects.

Suganuma said as one of 14 groups recognized as having an interest in the artifacts based on the federal repatriation law, the Royal Academy should have been consulted before the artifacts were released by the museum. Suganuma said by taking the relics, Hui Malama violated the Native American Graves Protection and Repatriation Act.

Suganuma said the main objective was to make sure every claimant, each native Hawaiian organization, is treated fairly and equally.

"Hui Malama did not and does not have the inherent authority to force its beliefs upon, nor does it speak for, the Hawaiian people," Suganuma said. "From its very inception the ... issue has been fraught with lies and deception instead of aloha, the very foundation of the Hawaiian people."

Charles Kauluwehi Maxwell, president of Hui Malama Na Kupuna O Hawaii Nei, said he is under a court order from Ezra to say nothing about court proceedings.

But Maxwell, a Hawaiian cultural expert, said if the artifacts have been taken out of the cave, those responsible will have bad luck fall upon them.

"Someone will pay spiritually," Maxwell said.

Maxwell said the artifacts were not on loan to his group when handed over by the Bishop Museum, and from the very start it was the group's intention to return the artifacts to their rightful place.

"All we did was put back what was stolen by Forbes," Maxwell said.

The museum has maintained the artifacts were loaned in good faith.

Maxwell said that over the years his group has taken hundreds of burial artifacts and returned them to their grave sites.

Hui Malama arose in the late 1980s to oppose the development of the Ritz-Carlton Kapalua hotel on a burial site. The hotel was eventually constructed away from the burial grounds.

Congress enacted the Native American Graves measure in 1990, requiring museums and federal agencies to return American Indian, Hawaiian and Alaskan artifacts to descendants or groups to which they belong.

Maxwell said Suganuma had his chance to do something about the artifacts and allowed them to be repatriated in the caves.

Bishop Museum and attorneys for Kawananakoa and Hui Malama declined to comment, based on a gag order placed on them by Ezra.

WHAT IS NEXT FOR THE ARTIFACTS

Now that the artifacts have been returned to the Bishop Museum, native Hawaiian groups with recognized claims to them can decide on their future, said Laakea Suganuma, president of the Royal Hawaiian Academy of Traditional Arts.

"This really puts us back where every claim has an equal right," he said.

Suganuma said there will be further discussions and consultations about the artifacts to determine their final disposition.

Charles Maxwell, whose group buried the artifacts in a cave in Kawaihae, said the proper place for the artifacts is for them to be buried at the grave sites.

He also believes if the artifacts have been returned to the museum, a court order imposed on Hui Malama official Edward Ayau should be lifted.

Ayau was determined to be in contempt of court for refusing to return the artifacts. "He should be let go. They got what they wanted," Maxwell said.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060909/NEWS23/609100328/1173/NEWS
Honolulu Advertiser, Saturday, September 9, 2006

Hawaiians react to artifacts reports

By Gordon Y.K. Pang

Published reports that cultural objects were collected by state authorities from a Big Island cave and turned over to the Bishop Museum are being met with mixed � and emotional � reactions by the Hawaiian community.

One faction is rooting for their return to the museum, arguing that it was wrong for the group Hui Malama I Na Kupuna o Hawai'i Nei to have taken possession of the 83 sets of artifacts from the museum in 2001 and put them back in the Forbes Cave complex, also known as the Kawaihae Caves, where they were believed to have been buried more than a century ago.

"Hui Malama broke (Native American Graves Protection and Repatriation Act) laws by taking the items without the agreement of other claimants," said Nanette Napoleon, a former member of the O'ahu Island Burial Council.

But another faction argues that the explorers who first removed them from the caves and turned them over to the museum were the thieves.

"Moving them to Bishop Museum just creates a real problem culturally, spiritually and politically for the Hawaiian community," said Jon Osorio, chairman of the Center for Hawaiian Studies at the University of Hawai'i- Manoa. "Those people who believe they were moepu (funerary objects) are going to be outraged and will be devoted to getting them reinterred."

U.S. District Judge David Ezra last year ordered the items retrieved after the groups Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts sued for their return.

Several published reports have stated the items have been taken back to the museum. The Advertiser has not been able to confirm the retrieval independently. Citing a gag order placed by the court, officials with the museum and other litigants declined to comment. So, too, have officials with the state attorney general's office who ostensibly took part in their retrieval and the Department of Hawaiian Home Lands, which owns the land where they were buried.

The Royal Hawaiian Academy and the Kawananakoa group, like Hui Malama, are among the 14 claimants under NAGPRA rules who are locked in a stalemate over the fate of the items.

The items include a famous wooden female figure and several renowned stick 'aumakua.

Attorney Dexter Kaiama, who has supported Hui Malama's position, said: "If it wasn't for the initial theft (by the Forbes expedition), all of the items would have remained untouched in those caves."

But Bill Souza, the kahu po'o nui, or protocol officer, for the Royal Order of Kamehameha I, said it was Hawaiian royalty in the early part of the 20th century that asked that items be turned over to the museum "until they could find a place to house them."

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20061208/NEWS23/612080350/1001
Honolulu Advertiser, Friday, December 8, 2006

Retrieval of cave artifacts settled

By Gordon Y.K. Pang

A settlement reached yesterday in the long dispute over Forbes Cave artifacts requires Bishop Museum and the group Hui Malama I Na Kupuna o Hawai'i Nei to share the $330,000 cost of recovering the objects from a Kohala Coast cave.

The agreement appears to bring to a close a chapter involving the fate of the 83 cultural items, which are among the most cherished Hawaiian cultural objects known to exist and include a famous wooden female figure and several renowned stick 'aumakua.

However, what ultimately happens to the objects remains up in the air.

Repatriation proceedings involving 14 Hawaiian organizations that were halted six years ago are expected to restart with the conclusion of the case.

The settlement and release agreement, presented by the parties yesterday to U.S. Magistrate Judge Kevin Chang, also confirms for the first time that the items were retrieved by museum staff, with assistance from engineers and the state, from the Kawaihae Caves complex, also known as Forbes Cave, and taken back to the museum in September.

The agreement requires the museum to be responsible for $183,333.82 of the costs, and Hui Malama to pay $146,667.16.

It also raises questions about the future of Hui Malama, a group formed in 1989 with the mission of protecting burials and reburying iwi, bones and moepu (burial objects) that have been removed.

Moses Haia III, an attorney for the Native Hawaiian Legal Corp., which represents Hui Malama, said the settlement allows the organization to "continue to go forward and do the work that they were created to do, and that is to take care of the remains of our ancestors."

But Haia also said that Hui Malama "is currently unable to pay" the amount stipulated in the settlement. Asked how the group would meet its obligation, Haia said "that's something that we're working on."

Haia said he did not believe the cost of the settlement would be detrimental to Hui Malama's future. "Their work does not depend on whether or not they're going to be financially solvent," he said. "This is their duty, this is their obligation to their ancestors."

FROM FORBES CAVE

Abigail Kawananakoa, one of the plaintiffs in the case, was reflective in winning the case. "This is a turning point in saving the authentic history of the Hawaiian people," Kawananakoa, a Campbell Estate heiress, said in a statement. "We are just beginning."

Hui Malama had taken the items on loan from the museum in 2000 and placed them in the cave they are believed to have been taken from by three men known as the Forbes Expedition in 1905 and sold to the museum.

Hui Malama leaders said because the items were stolen by the expedition, the act of returning them to the cave constituted repatriation.

STILL MANY CONTENDERS

Two Hawaiian organizations � Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts � filed a lawsuit in August 2005 against Hui Malama and the museum, seeking the return of the objects.

At the time they were removed from the museum, the items were the subject of repatriation proceedings by 14 organizations that filed as claimants under the Native American Graves Protection and Repatriation Act to have a say in the fate of the items.

Some of those groups, including Na Lei and the Royal Hawaiian Academy, believe that at least some of the items were hidden away to be preserved for the benefit of future generations. But others, such as Hui Malama, believe the artifacts' rightful place is in the caves where they were found and that they should never have been disturbed.

COURT SPAT

When District Judge David Ezra last year called for the retrieval of the items from the cave pending the outcome of the case, Hui Malama officials refused, stating that not only would it be wrong to disturb the artifacts, but that doing so would be dangerous to those attempting entry.

Hui Malama leader Edward Halealaoha Ayau and three others were found in contempt of court.

Ayau spent three weeks in the Federal Detention Center until Ezra let him out on supervised release so he could participate in mediation hearings.

BOTH SIDES BENEFIT

The case, and Ayau's imprisonment, caused an uproar among Hui Malama supporters, many of whom demonstrated and held vigils in front of the courthouse and the detention center.

Ayau is technically still under a home confinement order. He is expected to be released from that constraint at a hearing before Ezra at 1:30 p.m. today.

George Van Buren, an attorney for Na Lei and the Royal Hawaiian Academy, said that while no party admitted to liability or wrongdoing, Hui Malama agreed to a judgment against it in favor of the Bishop Museum, which had filed a counterclaim against the organization.

Van Buren also said that Hui Malama will not be able to claim that the items have been repatriated, unless sued.

"We're gratified that all of the items have been returned and that the consultation process and the repatriation process can now be completed in a full, fair and inclusive manner," Van Buren said.

Donna Kalama, an attorney for the museum, said her client is pleased with the settlement, which also leaves the institution without any admission of guilt or wrongdoing.

"It means that the next step will be going forward with restarting the consultation and repatriation."

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http://starbulletin.com/2006/12/09/news/story08.html
Honolulu Star-Bulletin, December 9, 2006

Hui Malama-Bishop Museum pact has them sharing artifact retrieval costs

By Debra Barayuga

Hui Malama and Bishop Museum will have to share the $330,000 cost for the recent retrieval of 83 burial artifacts from Big Island caves, under a settlement approved yesterday in U.S. District Court.

U.S. District Judge David Ezra approved the settlement, which was reached by the parties on Thursday. The deal also releases Edward Halealoha Ayau, head of Hui Malama I Na Kupuna O Hawaii Nei, who had been placed under home confinement for 11 months.

Hui Malama and Bishop Museum were sued in August 2005 by two Hawaiian groups seeking return of the burial items. The settlement terminates the lawsuit filed by Na Lei Alii Kawananakoa, headed by Campbell Estate heiress Abigail Kawananakoa, and the Royal Academy of Traditional Arts, headed by Laakea Suganuma. The groups contend that they were deprived of an opportunity to decide the artifacts' final resting place.

The 83 artifacts were taken in 1905 from several caves and ended up at Bishop Museum. Bishop Museum loaned the items in 2000 to Hui Malama, which buried them in the caves and maintained that the artifacts were returned to their rightful place.

Ezra found Ayau in contempt last December for refusing to identify their location and ordered him jailed. Ayau said that complying with Ezra's order would violate Hui Malama's cultural and religious beliefs and was tantamount to stealing from their dead kupuna.

Yesterday, Ezra said he believed Hui Malama "made a terrible mistake and terrible misjudgment," and should have worked with other Hawaiian groups, rather than taking the "hard line" and disregarding their opinions. Instead of uniting native Hawaiians, Hui Malama's actions divided the community, Ezra said,

Ayau defended himself and Hui Malama, saying, "It was not disrespect for the court, but respect for our kupuna."

Outside the courthouse, Ayau said that the fact that Hui Malama undertook such an immense responsibility, "the fact that we were willing to lose our freedom over what we did, to stand by what we did, demonstrates the content of our character." He and three others were held in contempt by the court, but only Ayau was jailed.

If he had to do it all over again, he would, Ayau said.

He was held for several weeks at the federal detention center before Ezra transferred him to home confinement so that he could participate in the mediation. After four months of discussions, Ezra found the parties could not resolve their differences and appointed experts to assess the condition of the caves and to safely retrieve the artifacts.

All 83 items were retrieved over the summer by the group, which included the Department of Hawaiian Homelands, the state Attorney General's office and Bishop Museum representatives.

George Van Buren, who represented Na Lei Alii and the Royal Academy, said they are satisfied with the settlement because they accomplished what they sought in the lawsuit -- to have the items recovered so that the consultation and repatriation process can resume and judgment be entered against Hui Malama.

He said they are eager to proceed with the items' repatriation.

Ayau said Hui Malama got no satisfaction from the settlement, which they agreed to only so they could return to their mission of reclaiming Hawaiian remains and funerary objects and returning them to their rightful resting places.

He said Hui Malama's reputation was "dragged through the mud" during the dispute, including being accused of selling the artifacts on the black market. "For those people who cast doubt on Hui Malama and knowing the lies, I feel sorry for them."

He felt especially sorry for Kawananakoa and Suganuma, whom he said felt had won the suit. "The case represented redisturbing a burial site. How can anyone take joy in that?"

Van Buren said they agreed with Ezra's comments that Hui Malama did not participate in good faith in the mediation.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20061212/OPINION01/612120302/1105/OPINION
Honolulu Advertiser, Tuesday, December 12, 2006
EDITORIAL

Museum must pursue final artifacts solution

A painful chapter in Hawaiian affairs has ended satisfactorily with the settlement of a legal challenge over the reburial of 83 cultural artifacts in a Kohala cave complex.

The 18-month federal court challenge pitted a nonprofit burials protection group, Hui Malama I Na Kupuna O Hawai'i Nei, against two other groups asserting a claim on the objects, Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts. The plaintiffs deserve credit for taking this step in such a highly charged atmosphere, because their courage has resulted in a needed course correction.

The hui acted in pursuit of their right-minded mission: the respectful treatment of ancient native burials and objects sacred to the culture. But the group overstepped its bounds when it reburied the objects six years ago before the established legal process had played out.

The fact that the objects had been stolen from the cave a century ago and ended up at Bishop Museum certainly underscores the need for the federal burials law. But trying to short-circuit what the law created � a process for determining ownership of these cultural artifacts � can't be justified.

It's unfortunate that Native Hawaiians, lacking any kind of unified authority representing their interests, must go through such a complex claims process to take advantage of federal protections. But unless and until that changes, it's important that these sensitive disputes be handled through consultation that is as open and inclusive as possible.

Now Bishop Museum must move without delay to resume the search for claimants who can make a case, and decide which native organization should have title to the objects. The sooner the future of these cultural treasures can be settled, the better.

** Comment to this editorial, by Ken Conklin, posted on Honolulu Advertiser feedback blog:

The editorial strongly implies that passing the Akaka bill would lead to creation of a governing entity that could "speak on behalf of all Hawaiians."

The problem is that there are over 400,000 Hawaiians living scattered through every neighborhood of Hawaii plus also scattered among the other 49 states. They are thoroughly integrated and assimilated, and often share nothing in common except one drop of the magic blood.

The tribal model is intended for small groups who are truly indigenous, who live in community with each other and who can therefore reach consensus -- that's not the way it is for today's Hawaiians.

A tribal government would have authority to make these decisions through any process it chooses, even arbitrarily and capriciously, and THERE CAN BE NO APPEAL OF A TRIBAL DECISION TO A FEDERAL OR STATE COURT, based on "western legal standards", because the tribe has "sovereignty."

The net result would be that the biggest demagogues, most closely connected to Dan Inouye -- people like Charlie Maxwell and Eddie Ayau -- would have near-dictatorial powers, and the plaintiffs who successfully brought the artifacts back to Bishop Museum would be unable to pursue their claims.

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http://www.westhawaiitoday.com/articles/2006/02/26/local/local01.txt
West Hawaii Today (Kona), February 26, 2006

Kohanaiki images revealed

Group recommends relics be protected and preserved, but also shared

by Bobby Command

** Photo caption: Post-type temple images and upright stones that were inadvertantly discovered in a lava tube during construction of the Shores at Kohanaiki development. - Photograph Special To West Hawaii Today

A Kona group of Native Hawaiian men has recommended the recent discovery of significant antiquities at Kaloko be protected and preserved, but also be shared as a resource and reminder of a vital host culture.

The group, known as Na Kia'i, also provided photographs of about three dozen "kii," or images as they were discovered late last year by Rutter Development during construction of its 500-lot Shores at Kohanaiki subdivision.

Na Kia'i spokesmen said events following the discovery were clouded in secrecy and distrust. Na Kia'i said its recommendations and accompanying photographs are presented as testament of transparency in their intentions, a means to share the find without compromising its integrity and to protect the images from possible looting.

"There was too much speculation following the discovery," said Chad Kalepa Babayan, a traditional navigator who was among Na Kia'i who visited the cave. "We made the decision to provide an independent observation by men from the area who have no other intentions other than to preserve and protect the kii."

On Jan. 29, nine Native Hawaiian men entered the large lava tube with the approval of Rutter Development. Following both Christian prayer and traditional chants, the men were led in small groups to what is believed to be an altar deep within the 60-foot-long cave.

Accompanying the men were Native Hawaiian archaeologist Solomon Kailihiwa of the firm Pacific Legacy, and kupuna and lineal descendants William and Josiah Hoohuli.

A statement from the Na Kia'i can be read unedited and in its entirety [below] and characterizes the wooden images as "na mea makamae Hawaii," or esteemed objects of Hawaiian antiquity.

Placed on a stone platform, the kii are of similar design to or "post-type" temple images documented by early westerners who were allowed entry by Native Hawaiians into the interior of religious compounds.

The kii are primarily trunks and limbs of trees in natural states except for carved slits that represent eyes and mouths. The largest is about four feet long. Some are unfinished, and one shows signs of being partially stained. A few have toppled over, but others were likely placed in a prostrate position.

Evidence leads experts to believe the deposit was a one-time event, possibly by a family seeking to protect their personal gods, or aumakua, which were often found in men's eating houses personifying deified ancestors.

Experts said the images could have been placed in the cave around the time of the 1819 abolishment of the kapu system, which included an edict by Liholiho, or Kamehameha II, that all temples and images be destroyed.

The cave floor fronting the platform contain bones from numerous birds and a possible mammal. There also are two small stone mounds containing uprights of cave, coral and beach rocks, along with a piece of wood on the floor that may have served as a torch.

Na Kia'i member Larrio Kahekili Ursua, a counselor for Family Support Services West Hawaii, said the group realizes there are Native Hawaiians who feel a need for secrecy, but those concerns are outweighed by the cultural value they offer to the community.

"We could have settled for sealing the cave," Ursua said. "But I believe that if that was appropriate, then they never would have been found. Hawaiians knew how to hide things, and if they didn't want them found, these things would never have been revealed."

Ka'u member and Hawaii County Councilman Kapikapika Angel Pilago said the images originally bound people together, and can still offer the same significance today.

"These objects were a glue to hold society together, but now they are creating differences," said Pilago. "We have to relook at our societal values and realize that they can restore the spirit of aloha."

Bryant Mock Chew, a boat captain, said it is important to record and reveal the contents of the cave to prevent any chance that looters may remove them and try to sell them via on-line auctions.

Mock Chew said it was also important for Native Hawaiians of the area to act in the spirit of a konohiki and oversee protection and preservation of the images.

"Some people have said to leave them alone, but in my eyes it is better to have a local group inform the community," he said. "I feel relieved that we're able to answer valid questions and gain the trust of the community and developer."

Dave Eadie, Rutter Development president, said the group's efforts are sincere and respectful of the Hawaiian community. "The process has been served well and we hope it will be looked upon as a good way of evaluating these things in the future," said Eadie. "It is an appropriate decision."

Na Kia'i also has said the continued experience between Rutter and the community will serve as a model for future development and discoveries of cultural significance. In addition, Na Kia'i encourages the Hawaiian community to support their recommendations to preserve the kii in place and allow them to "serve the Native Hawaiian community as an example of how our Hawaiian ancestors continued to honor their culture throughout the turbulence of change."

Na Kia'i members said they realize their actions may be criticized by some members of the Native Hawaiian community, but they also believe the benefit that students and scholars can gain from the find outweighs those concerns.

"Sometimes it takes people to step up and become leaders," said Babayan, relating to his mentor, Mau Piailug, a wayfinder from Micronesia who rose from humble circumstances to revitalize star-based navigation. "This is about unselfish sharing."

Statement from Na Kia'i

Na Kia'i released the two photographs in the accompanying article to afford other Hawaiians the opportunity to share in the privilege granted to its nine men.

The collection of wooden images and stone uprights as deposited within this cave exists as a culturally rich assembly of significant objects of Hawaiian antiquity whose placement there remains a definite unchanged footprint left by ancestral Hawaiians. It exists as an example of how our Hawaiian ancestors continued to honor their culture throughout the turbulence of change. For these relics to be considered significant they must be afforded the opportunity to be appreciated by others.

These are not burial objects. We witnessed no burials within the cave chambers we entered. We applaud the developers' position that it has no intention of staking any permanent claim as to the ownership of the Hawaiian cave objects other than what is necessary to fulfill its duty to safeguard and protect them until there is a final decision as to mitigation and proper treatment in accordance with Hawaii state law.

The cave entry has been resealed and cannot be re-entered without the assistance of heavy equipment. There is adequate security at the site to prevent unauthorized attempts to enter the cave. We encourage those who are interested in further disclosure of the event, a description of the cave and contents, views as to their significance, and recommendations for future treatment to visit the West Hawaii Today Web site and read the personal account as written by Na Kia'i.

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http://www.westhawaiitoday.com/ke_ana_story/

Na mea makamae

*Ka Hana (The Process):*

On Sunday morning, January 29, 2006, Rutter Development, Managing Partner of the 450-acre Kohanaiki Shores project, allowed a group of nine Hawaiian men entry into a cave containing carved wooden images and stone uprights. The contents of the cave are Ki'i, religious objects, and were probably placed within the cave interior following the abolishment of the Kapu system, a strict social code that entwined religion and the laws that governed the daily lives of all Hawaiians. The group of men came together after the inadvertent discovery of the cave and objects were reported in local newspapers back in October 2005 to discuss the many individual concerns they had regarding the safety and condition of the contents, the condition of the cave itself, and the lack of burials as reported by the developer. It was the consensus of the group that independent validation by an all-Hawaiian source was warranted given the importance of such a significant find.

The descriptions we offer are our observations as practitioners and students of our culture and serve here to provide a more descriptive interpretation beyond what has already been published.

*Ka Loina (The Protocol):*

Following a Christian prayer and a Hawaiian chant offered by Chad K�lepa Baybayan and Larrio Kahekili Ursua, the group was led into the cave by archeologist Solomon Kailihiwa of the archeological firm Pacific Legacy who acted as the monitor for the developer to ensure that the group would not handle or touch any of the images. K�puna and lineal descendants, the brothers William and Josiah Ho'ohuli followed and were the first to view the images. The group allowed only four of its members into the cave at a time to minimize any disturbances to the cave floor, control group movement, and maintain a constant demeanor of respect while in the presence of the Ki'i. At no time did any of the group touch or handle any of the objects. Prayers were also offered after the group left the cave and before the cave entrance was re-secured.

*Ke Ana (The Cave):*

Outside of the initial puncture point that breached the cave ceiling, the cave interior appears to be structurally sound and does not present an environmental threat at this time. The hole you crawl through leads you into a chamber that has a 12-foot high ceiling and extends some 60 feet. This first chamber leads to a second smaller chamber that contain the wooden images and stone uprights; the ceiling here is 8-feet high and the chamber about 15 feet long. This second chamber is farthest point back in the cave that you can stand up without fear of hitting your head, the cave narrows considerably immediately after this chamber. The ceiling and walls of the cave are covered with a white residue; however, the wooden images do not show any of this coloration on its surface.

*N� Mea Makamae Hawai'i (Esteemed Objects of Hawaiian Antiquity): *

The collection of wooden images and stone uprights as deposited within this cave exists as a culturally rich assembly of significant objects of Hawaiian antiquity. Their placement upon a stone platform which incorporates both a natural ledge and a constructed wall of loosened cave rock, remains as a unchanged footprint left by Hawaiians who chose this particular location, deep within the dark cave interior, to hide these Ki'i away. Three of the carved images reflect familiar designs documented by early westerners who were allowed entry into the interior of religious compounds. The largest of these is four feet long, some of the wooden images are unfinished, and one shows signs of being partially stained.

About three-dozen of the wooden images are tree trunks or limbs of varying dimensions carved with slits for eyes and a mouth, they are left in this natural state with no other carved or stylistic features. A few of the Ki'i retain the �Y� shaped fork created by the outgrowth of two branches with eyes and mouth carved below the fork. Their simplistic design may indicate that these Ki'i were 'Aumakua, personal gods, often found in men�s eating-houses and personifying deified ancestors. A few have fallen over, some have broken off due to deterioration, some may have been purposely placed prostrate, but the majority are standing or leaning over in loose groupings or rows. There are also a few jagged stone uprights interspersed within the rows of wooden objects. The majority of the images face the same direction although a few may have turned over time as their footings became loose or shaken free by earthquakes Their arrangement in loose groups or rows may possibly reflect a council or collection of gods, if a hierarchy exists, it is in the sense that they have all been located and stored together on the same platform. The stylistic impressions of the branch images with the carved slits for eyes and mouth are all similar and may have been carved by the same person or personages, possibly influenced through a common priestly order or residents sharing neighboring compounds.

The cave floor fronting the platform contains numerous bird or fowl bones and a possible set from a mammal. There are also two small stone mounds, possibly altars that contain stone uprights of cave, coral, and beach rock. The first stone grouping fronts a corner of the platform containing the wooden images, the second contains larger stone uprights and is farther back within the cave and harder to access because the cave ceiling narrows considerably. There is a single piece of wood on the floor of the cave fronting the platform that looks like it may have served as a torch. We did find a few wood shavings on the floor of the cave, but we believe that work on the images took place outside of the cave previous to their placement.

*Ka Mahalo (Acknowledgements):*

The group wishes to thank Rutter Development, Managing Partner of Kohanaiki Shores, LLC, for granting the group access to the cave as well as the courtesy, respect, and professionalism its staff showed the men while carrying out our work at the site. We acknowledge that the developer has secured the site and taken measures to safeguard the immediate area surrounding the cave and its contents. We witnessed no burials within the cave chambers we entered. We applaud the developers� position that it has no intention of staking any permanent claim as to the ownership of the Hawaiian cave objects other than what is necessary to fulfill its duty to safeguard and protect them until there is a final decision as to mitigation and proper treatment in accordance with Hawai'i state law. We support and agree with the developer that mitigation of the find should be left to the Native Hawaiian community including lineal descendants and kupuna. We lastly acknowledge the developers� pledge to fully cooperate in carrying out the mitigation plan.

*He Mau Mana'o K�ko'o (Recommendations):*

As a group, we recommend that the site and its contents be preserved in place. Removing these religious objects of Hawaiian antiquity from the context it exist in would permanently destroy the significance of the find and erase forever that footprint left to us by our ancestors. Secondly, we feel that the site must continue to be secured and that access to the cave be controlled and limited. We do not feel that the cave should be sealed permanently as it exists as a vital resource to the Native Hawaiian community, Hawaiian scholars, and Hawaiian students. Lastly, there does exist a need for further study and a more thorough documentation of the objects, but for now the more pressing need is for Hawaiians to reach consensus that allow for preservation and continued safe care of the Ki'i.

*Ka Lauhoe (/To paddle together and uniformly, either in the same or different canoes/; A Template for Building Healthy Communities): *

For the men of the group the internal debate that individually led us to consensus on how we should proceed was a demonstration of how Hawaiians of such diverse backgrounds can collaborate and collectively create a common vision that lead people to action. We were moved by our conscience, reminded along the way that our culture continues to be vital and dynamic, and guided by a sense of pono. Like many other Hawaiians we do our work quietly, caring for our families, and acting in the spirit of the konohiki, a /steward/ to culture, resources, and people. We feel as a group we acted as quiet Hawaiian leaders, fulfilling our kuleana as men in service to our Hawaiian community. We were honored and privileged. We encourage our Hawaiian community now to support a plan that allows the Ki'i to remain in place and to exist as N� Mea Makamae, objects of great value and esteem, and to serve the Native Hawaiian Community as an example of how our Hawaiian ancestors continued to honor their culture throughout the turbulence of change.

*N� Po'e (The Participants):*

Solomon Kailihiwa, Archeologist, Pacific Legacy, cave monitor for the developer
William Ho'ohuli, Lineal Descendant
Josiah Ho'ohuli, Lineal Descendant
Larrio Kahekili Ursua, Counselor, Family Support Services West Hawai'i
Kauila Ho, Lomilomi-Hawaiian Massage Therapist
Bryant Mock Chew, Boat Captain
Sean N�leimaile, Graduate Student, Archeology
K. Angel Pilago, Councilman
Chad K�lepa Baybayan, Canoe Captain/Navigator
James Sogi, Attorney, liaison for the group with the developer, did not enter the cave

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http://starbulletin.com/2006/03/02/news/story02.html
Honolulu Star-Bulletin, Thursday, March 2, 2006

Group wants newfound lava tube artifacts shared
Hawaiians who viewed the carvings oppose their burial

By Sally Apgar

A group of native Hawaiians say dozens of carved wooden images accidentally found last fall in a Big Island lava tube should be studied and viewed rather than permanently sealed away.

"These are treasures of our kupuna (ancestors) that should be shared," said William Hoohuli, 64, who says he is a descendant of those kupuna and that his family has lived in the area of the cave for almost 300 years.

In late January, Hoohuli, his brother Josiah and seven other local native Hawaiian men were granted permission to enter the cave to photograph the carved wooden gods and to assess the safety of the cave by Rutter Development Corp.

Rutter, an Irvine, Calif.-based developer, is building the Shores at Kohanaiki, a championship golf resort and 500 luxury homes over 450 acres about three miles north of Kailua-Kona.

Hoohuli, a retired superintendent from a cement company, and others who have visited the cave said no human remains have been found, leading them to believe it is not a burial site. Hoohuli and others said they believe the cave served as storage or a hiding place. Some have also suggested that it might have been a secret place of worship.

In 1820, Chiefess Kaahumanu outlawed the Hawaiian religion. Kamehameha II issued an edict to burn kii, or carved images that were made as personal gods. Hawaiians who continued to practice their religion often hid kii in caves to protect the items from roving groups that threw them into bonfires.

"Different people have told me that we should bury them because they are not for us or for our eyes," Hoohuli said. "I feel differently. If the kupuna hadn't wanted us to see it, they would have destroyed it already. They wouldn't have left it. When it was discovered, it was time for them to reveal themselves."

Hoohuli and members of his informally organized group of local native Hawaiian men call themselves Na Kai'i (guardians or protectors). They said they formed to protect the caves and their families. Asked why the group members are all male, one member said, "In ancient times men were the protectors and the caretakers, so we kept it all men."

The men said that they were prepared for kupuna who did not want them to enter the cave but that they offered prayers, chants and protocols asking for entry.

"In my innermost self, I felt welcomed," Hoohuli said.

Bryant Mock Chow, another Na Kai'i member, said, "How could we just sit back and trust what the developer said? We needed a locally based group to go in make sure everything was pono (right)." "Everyone said leave it alone, cover it, but how can we leave it alone and not know what is in there and if something comes up for sale online?" Chow said. "We have the satisfaction of knowing that a locally based group of Hawaiian people went in there and surveyed it and inventoried it, and we'll know if something is sold online," Chow said.

The items were discovered Sept. 21 when heavy construction equipment breached a lava tube. The State Historic Preservation Division, developer Rutter and landowner Kennedy-Wilson International kept the discovery secret for several weeks, partly because they wanted the site secured from looters. The find became public when the Star-Bulletin published a story Oct. 19. Under state law an inadvertent find is reported to SHPD, and all construction in the area is stopped and the site is secured.

According to correspondence between SHPD Executive Director Melanie Chinen and Rutter, state staff determined there were no human remains in the cave. In an Oct. 10 letter to Chinen, Rutter wrote that under state law Rutter is "the owner of a historic property located on private property and lacking in any human skeletal remains" and has the right to "assume the leading role in determining the appropriate protection, treatment and ultimate disposition of the site and its contents." David Eadie of Rutter Development could not be reached for comment on why he chose Na Kai'i to inventory the cave rather than another group.

Several of the men in Na Kai'i stressed that they feel this cave served a different purpose from Kawaihae, or Forbes Cave, which is at the center of a heated public dispute playing out in a federal court suit among competing native Hawaiian groups.

For those who have entered the lava tube, the question is how to share what was found. "Clearly, these are not burial objects. They are of cultural significance and should be shared with other Hawaiians. If we seal them up, how can they be appreciated?" asked Chad Baybayan, a navigator and member of Na Kai'i. He called the discovery "an accident of fate." "We are fortunate to have this discovery," he said. "But discovery is one thing; the bigger task is how to take care of it and manage it."

Several Na Kai'i members said the cave site was fragile and would not wear well under the traffic of hundreds of visitors. They said the find should be shared through photographs and scholarly studies. Hoohuli said he believes the site should have limited access as a "learning center," where scholars may visit and study the handwork of kupuna.

Baybayan also believes the items "should remain in the cave because removing them would do harm. There was certain sanctity in how they were placed. They were not just stored. They were presented in a purposeful way."

He said that when he entered the chamber containing the kii, after walking through a 60-foot-long lava tube that was 10 to 15 feet high, he was amazed to see four or five dozen facing him.

"It was like a council of gods standing in judgment of you," he said.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060318/NEWS01/603180336/1001
Honolulu Advertiser, Saturday, March 18, 2006

Man charged in artifact trafficking

By Ken Kobayashi and Gordon Y.K. Pang

More than a year and a half after Hawaiian artifacts were plundered from a South Kohala burial cave, federal prosecutors yesterday filed the first criminal charge, accusing a man of taking the objects knowing they would be sold for profit.

A misdemeanor charge against John Carta of the Big Island is the first here involving Hawaiian cultural objects that had been reburied under the federal Native American Grave Protection and Repatriation Act.

Carta is charged with transporting, for sale and profit, cultural items obtained in violation of the federal law.

Federal authorities opened the investigation, which they say is ongoing, after the artifacts were found for sale at a Big Island shop in June 2004. No arrests or charges had been brought until yesterday.

Carta is accused of going to Kanupa Cave with another individual who was not named in court papers. Carta took the cultural objects from the site sometime before June 16, 2004, knowing that they recently had been reburied, court papers state.

Carta was arrested Thursday on the Big Island and appeared briefly yesterday before federal Magistrate Barry Kurren, who approved his release on a $10,000 signature bond to reside with his daughter in Kona.

Handcuffed and wearing an aloha shirt, Carta said little during the hearing, except to confirm that he reviewed the indictment and understood the charge. His court-appointed lawyer, Rustam Barbee, later said that it's too early to say what the defense will be. "Mr. Carta is presumed to be not guilty by the laws of the United States and he'll have his day in court," Barbee said.

The charge of violating the federal law protecting the cultural artifacts carries a jail term of up to a year. U.S. Attorney Ed Kubo declined to discuss Carta's case, the number of items allegedly taken or details on how they were taken. But federal prosecutors are working on the prosecution of a second man. The case remains confidential, but First Assistant Federal Public Defender Alexander Silvert, who represents the man, said his client has been "fully cooperative with law enforcement."

The sale of artifacts from a cave that was supposed to be secure from intruders was disturbing to Native Hawaiian groups and helped fuel the controversy in a separate federal civil case over artifacts reburied in another Big Island cave, in Kawaihae.

In both cases, the artifacts were reburied by Hui Malama I Na Kupuna O Hawai'i Nei, an organization dedicated to overseeing the perpetual care of Native Hawaiian remains and burial items.

The issue of whether burial artifacts should be returned to burial caves or placed in museums has generated acrimonious debate recently. Abigail Kawananakoa, a descendant of Hawaiian royalty, along with a group known as the Royal Hawaiian Academy of Traditional Arts, sued Bishop Museum and Hui Malama, charging that they and other groups had not agreed to the repatriation of 83 cultural objects in Kawaihae Cave. The case is still pending.

Edward Halealoha Ayau, executive director of Hui Malama I Na Kupuna O Hawai'i Nei, said yesterday that he was pleased with the arrest. "We have faith that federal investigators did their job and we look forward to a successful prosecution," Ayau said. "Through NAGPRA, we are the legal owners of these items," Ayau said. "When this prosecution is completed, those items must be returned to us." The investigation amounted to "trying" times for Hui Malama members, Ayau said, because federal authorities gave them no information about the items.

Federal authorities cited the ongoing investigation for not disclosing the information.

Ayau said: "We understand that; we don't want to compromise their investigation. But at the same time, we are the owners of sensitive burial items. We would have hoped for at least some kind of explanation as to where the items are being kept, what items they were able to retrieve, what items they were not able to retrieve."

Even as activists praised the federal case, they took the opportunity to criticize the state Department of Land and Natural Resources and the attorney general's office for not investigating the break-in. Kanupa is "a burial cave in an historic site located on state property," Ayau said. The state, he said, should be investigating violations of disturbance of a burial cave, looting and trespassing. "Those are state law violations," he said, adding that NAGPRA provisions pertain only to trafficking of the items. Kawananakoa agreed with Ayau that the state should have done more in the Kanupa case. In a brief statement, Kawananakoa said: "I hope that Gov. Lingle will take note that federal intervention was required to carry out the duties of DLNR."

Attorney General Mark Bennett said the state made a decision to allow the federal investigation to proceed first and to cooperate with that effort. "We do not have the ability, given our double jeopardy laws, essentially to prosecute the same people for the same crimes that the federal government does," he said. When the federal investigation is complete, however, "we are going to review all of the facts and make a determination as to whether or not to have other types of prosecution," he said.

La'akea Suganuma, head of the Royal Hawaiian Academy, said the Kanupa case underscores the need for culturally valuable items to be held in museums for safekeeping. "These things were safe until they were taken and allegedly reburied and sealed in a cave, and then showed upon the black market," Suganuma said. "These things need to be in a safe environment."

Hui Malama's Ayau said that "under the circumstances, that's fair criticism coming from people who don't do reburials." "For us," he said, "it's a lesson learned that when we do reburials of this nature, we have to seal them in a manner that will prevent looting that can happen."

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A HISTORY OF THE KANUPA ARTIFACTS

Late 1800s, early 1900s: Joseph Swift Emerson collects about 40 cultural objects from Kanupa Cave on the Kohala side of the Big Island. They are made part of the Emerson Collection, which is later divided and sold to the Bishop Museum and the Peabody Essex Museum in Salem, Mass.

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

1997: Under NAGPRA rules, Hui Malama I Na Kupuna O Hawai'i Nei receives custody of the Emerson artifacts that had been in the Bishop Museum.

2001: The first set of Emerson Collection objects housed by the Essex Museum is handed over to Hui Malama. A second set is repatriated in 2003.

November 2003: Hui Malama reburies the items, about 40 in all, in Kanupa Cave.

August 2004: Hui Malama reports a break-in to authorities.

August 2005: In a separate case, two Native Hawaiian groups, Na Lei Alii Kawananakoa and the Hawaiian Academy of Traditional Arts, sue Bishop Museum and Hui Malama, seeking the return of 83 cultural objects from the Big Island's so-called Kawaihae or Forbes Cave. Hui Malama officials maintain they buried the objects and consider the matter closed, but other groups claim that Hui Malama's actions denied them a say in the final disposition of the items, which range from carved wooden statuettes of family gods, or 'aumakua, to gourds decorated with human teeth, and pieces of feather capes. The case is ongoing.

Yesterday: Federal authorities charge John Carta for allegedly trafficking Native Hawaiian objects, which he and an unnamed individual allegedly took from Kanupa Cave.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060322/OPINION01/603220317/1105/OPINION
Honolulu Advertiser, Wednesday, March 22, 2006, EDITORIAL

Security a key issue in burial artifact cases

It took more than 18 months, but the investigation of the plundering of the Kanupa burial cave in South Kohala finally has yielded a federal charge, a welcome signal that the criminal justice system is taking the prosecution of such thefts seriously.

It's also a signal that these burial caves are continually at risk of looting, and authorities need to confront the persistent issue of security.

Last week, Big Island resident John Carta was charged with transporting for sale and profit cultural items obtained in violation of a federal burial-protection law. If convicted, Carta could serve up to a year in prison for the misdemeanor offense.

Given the lucrative attraction of artifacts trafficking, the penalty alone may not be sufficient to discourage further thieving. It's been suggested that the objects can fetch $5,000 to $20,000.

Clearly, the lava-tube enclosures that ancient Hawaiians held to be sacrosanct are more vulnerable in these crime-ridden times.

It's encouraging that federal agents plan to continue the investigation. When artifacts claimed under the federal law protecting Hawaiian burials are released for reburial, there needs to be a plan for security that addresses the multiple openings to many of these caves.

Federal and state officials also need to consider their responsibility to provide additional security with regular site inspections. The objects in dispute in the Forbes Cave litigation come to mind. With the prominence of that case, these cultural treasures remain at risk.

State historic preservation officials, and their enforcement team, could have done more to patrol the Kanupa site, which sits on state land. Both cases underscore that the job doesn't end when burial artifacts are returned to the earth. They can't be assumed to be resting in peace.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060324/OPINION02/603240329/1108/LETTERS
Honolulu Advertiser, March 24, 2006, LETTER TO EDITOR

AYAU WRONG
HUI MALAMA DOESN'T OWN CAVE ARTIFACTS

Regarding the news that John Carta has been charged with the illegal trafficking of artifacts from the Kanupa Cave on the Big Island (Honolulu Advertiser, March 18): Hui Malama director Eddie Ayau incorrectly stated to a reporter that by virtue of being the group that was originally awarded Native American Graves Protection and Repatriation Act repatriation rights in 1997, "we are the legal owners of these things."

Section 3 of NAGPRA addresses ownership by saying that "The ownership or control of Native American cultural items which are excavated or discovered on Federal or tribal lands ... shall be in the 1) lineal descendants, or 2) in the Indian tribe or Native Hawaiian organization on whose tribal land such objects or remains were discovered."

Note that the law specifies that ownership is only applied to objects recovered from federal or tribal lands. Kanupa Cave resides on state lands. While Hui Malama had the "right of possession" through NAGPRA, it did not gain "ownership" of the objects.

For Ayau to state that Hui Malama "owns" the objects is not only legally incorrect, it is highly presumptuous. How dare he claim ownership to things that no member of Hui Malama is connected to through direct lineage. At best, groups that have right of possession hold a sacred guardianship of such objects, but to claim ownership is not legally or culturally appropriate.

In addition, Hui Malama was not the sole repatriation recipient; the Office of Hawaiian Affairs, the Hawai'i Island Burial Council and Ka Lahui Hawai'i were also named and participated in the process.

Nanette Naioma Napoleon
Kailua

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060325/NEWS20/603250347/1170/NEWS
Honolulu Advertiser, Saturday, March 25, 2006

Guilty plea in artifact trafficking

By Ken Kobayashi and Gordon Y.K. Pang

One of two Big Island men described by federal authorities as grave robbers pleaded guilty yesterday and gave his first public account of how he and the other man took artifacts from a South Kohala burial cave to sell at a profit.

U.S. Attorney Ed Kubo hailed the federal prosecution and said he hopes it makes a statement that the burial sites are sacred. "Anyone who dares to enter such a sacred burial site and dares to take anything � anything � is nothing more than a grave robber, and he will be treated as such under federal law," Kubo said.

The maximum sentence for the Big Island shop operator in Kona who pleaded guilty yesterday to a misdemeanor is a year in jail. Kubo said the misdemeanor charge is the only one that could be brought under the federal Native American Grave Protection and Repatriation Act, which protects the artifacts and burial sites.

Daniel W. Taylor, 39, the first to be convicted here under the 1990 federal law, pleaded guilty to conspiring with co-defendant John Carta to take the artifacts from the Kanupa Cave in June 2004. As part of the agreement, a second misdemeanor charge against Taylor will be dropped.

"I took Hawaiian artifacts from a cave on the Big Island of Hawai'i when I knew I should not have done that," Taylor told U.S. Magistrate Barry Kurren.

In his written plea agreement, Taylor said that in 2000, Carta talked to an individual identified only as M.F. who told him about a Big Island cave containing native Hawaiian artifacts.

According to the document, Taylor and Carta agreed on June 16, 2004, to look for the cave with the understanding that they would sell any artifacts for a profit. They got directions from M.F. the next day and found Kanupa Cave, the document said. They pushed aside a rock at the cave's entrance and discovered items wrapped in woven lauhala and black cloth, according to the document. They unwrapped the items, which they determined to be artifacts that included wooden bowls, a gourd, a holua sled runner, a spear, kapa and cordage, Taylor said. Some artifacts had labels indicating they belonged to the J.S. Emerson Collection, he admitted.

The artifacts known as the Emerson Collection were taken from the cave in the late 1800s and sold to museums, including the Bishop Museum. They were reburied in the cave in 2003.

Taylor admitted that on the day after the break-in, he tried to sell a palaoa, or whale-tooth pendant, for $40,000. He said they sold a piece of kapa to a tourist for $150 later that month. The following month, they sold a fisherman's bowl and its cover to a collector for $2,083, he said.

Federal authorities said 157 items were recovered. The only one missing is the piece of kapa � bark cloth, also known as tapa.

Kurren permitted Taylor to remain free on a signature bond promising to pay $10,000 if he doesn't show up for sentencing.

Taylor declined to comment as he left the federal courthouse. But Alexander Silvert, first assistant federal public defender, said his client wished to apologize to the Hawaiian community. Silvert said Taylor assisted the government in the return of almost all of the items. "He has done everything he can to rectify the wrong that he did," Silvert said.

Silvert said that Carta apparently was a drifter who made replicas of Hawaiian artifacts for Taylor's shop, but that Carta also was a "cave hunter" who knew about the cave's location and "misled" Taylor as to what they were doing.

Carta, 45, was charged last week with a misdemeanor count of taking the artifacts in violation of the federal law. He was charged with a second misdemeanor count yesterday. Carta's arraignment is scheduled for April 6. His lawyer, Rustam Barbee, could not be reached for comment.

Kubo said the investigation is continuing, but after the criminal case is completed, the artifacts will be returned and it will be up to the native Hawaiian community to determine what should be done with them. One of the four groups with claims to the items is Hui Malama I Na Kupuna O Hawai'i Nei, which had reburied the artifacts before the break-in.

The group is embroiled in another federal court case involving the return of 83 cultural objects reburied by Hui Malama in another Big Island cave. That case is still pending.

Edward Halealoha Ayau, Hui Malama executive director, said his organization is pleased by the recent developments. But Ayau said Hui Malama members do not understand why it has taken so long for charges to be brought against the two defendants. He said that Hui Malama's own investigators identified Carta and Taylor more than 18 months ago.

Kubo said the investigation had to be thorough, and he indicated time was needed to track down the artifacts that were taken.

Ayau also renewed Hui Malama's call that aside from the U.S. attorney's office, state attorneys should bring charges against those responsible for the Kanupa thefts. Disturbing a burial site, criminal trespassing and looting are state offenses that federal prosecutors can do nothing about, Ayau said.

State Attorney General Mark Bennett yesterday referred to the cave break-in and the taking of artifacts as "disgraceful acts." He said his office will later consider whether state criminal charges "are either legally permissible and, if they are, appropriate."

La'akea Suganuma, head of the Royal Hawaiian Academy of Traditional Arts, said he hopes the prosecutions are just the first in a series. "Hawaiian artifacts are big on the market, and anything that's not secured is apt to be stolen," Suganuma said. "These things have been going on for years and years."

Suganuma's group is one of the two that brought suit against the Bishop Estate and Hui Malama, seeking the return to the museum of the cultural items that Hui Malama buried in the Kawaihae Caves. Suganuma and others feel they have not yet had a say on the final disposition of the items, while Hui Malama maintains that the items have been repatriated and that the matter is closed.

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http://the.honoluluadvertiser.com/article/2006/Apr/06/br/br07p.html
Honolulu Advertiser, breaking news, Posted at 1:35 p.m., Thursday, April 6, 2006

Trial date set in Kanupa Cave artifacts case

A trial date has been set for May 23 for the second man charged with stealing Hawaiian artifacts from a Big Island cave to sell to make a profit.

U. S. Magistrate Judge Barry Kurren scheduled the trial for John Carta of the Big Island. Carta is charged with breaking into the Kanupa Cave in June 2004 and taking the items in violation of the federal Native American Grave Protection and Repatriation Act.

Carta, 45, will plead to the two misdemeanor charges later. Carta's lawyer Rustam Barbee said he doesn't know what plea his client will enter until the lawyer receives police reports in the case.

Daniel W. Taylor, 39, the other man charged with violating the federal law, pleaded guilty to a misdemeanor last week.

The two are the first here to be prosecuted under the federal law.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060527/NEWS20/605270341/1001
Honolulu Advertiser, Saturday, May 27, 2006

Man pleads guilty in theft of artifacts

By Peter Boylan

The second of two men charged with taking native Hawaiian artifacts from a South Kohala burial cave to sell for profit pleaded guilty to a misdemeanor in U.S. District Court yesterday.

John Carta, 45, avoided trial by pleading guilty to conspiring to enter the cave and to actually entering the cave and removing objects in violation of the federal Native American Grave Protection and Repatriation Act, which protects the artifacts and burial sites.

He faces up to one year in prison, a $100,000 fine, one year of probation and a $25 special assessment. Carta is to be sentenced Sept. 8 at 10 a.m. by U.S. Magistrate Judge Barry Kurren.

Dressed in a white with blue-and-green print aloha shirt, Carta stared straight ahead and answered, "yes sir" as U.S. Magistrate Judge Kevin Chang asked questions.

"I'm guilty," said Carta, after he was asked to enter a plea. "I took an individual, showed him where a cave was and we removed the items."

Carta's attorney, Rustam Barbee, said outside of court that Carta cooperated with authorities at all times during the investigation. "He knew he was doing something he shouldn't be and he feels very remorseful about it," he said.

Carta's cohort in the crime, Daniel W. Taylor, 39, was the first person to be convicted here under the Native American Grave Protection and Repatriation Act. He pleaded guilty March 24 to conspiring with Carta to take the artifacts from the Kanupa Cave in June 2004.

According to documents filed at the time of Taylor's plea, the pair agreed on June 16, 2004, to look for the cave with the understanding that they would sell any artifacts for a profit. They got directions from an individual identified only as M.F. the next day and found Kanupa Cave, the document said. They pushed aside a rock at the cave's entrance and discovered items wrapped in woven lauhala and black cloth, according to the document. They unwrapped the items, which they determined to be artifacts that included wooden bowls, a gourd, a holua sled runner, a spear, kapa and cordage, Taylor said. Some artifacts had labels indicating they belonged to the J.S. Emerson Collection.

The artifacts known as the Emerson Collection were taken from the cave in the late 1800s and sold to museums, including the Bishop Museum. They were reburied in the cave in 2003.

Barbee said Carta received $200 and an old car.

Federal authorities said 157 items were recovered. The only one missing is the piece of kapa � bark cloth, also known as tapa.

The artifacts will be returned and it will be up to the Native Hawaiian community to determine what should be done with them.

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http://starbulletin.com/2006/05/27/news/story05.html
Honolulu Star-Bulletin, May 27, 2006

Guilty plea in artifact theft
A Big Isle man admits helping a dealer raid a cave where items had been reburied

By Nelson Daranciang

A Big Island man has acknowledged receiving $200 and an old car from a collectibles dealer for showing the dealer a burial cave where native Hawaiian artifacts were placed, and helping to remove the artifacts from the cave in June 2004.

John A. Carta, 45, of Kailua-Kona pleaded guilty in federal court yesterday to conspiracy to sell or traffic in native Hawaiian artifacts, in violation of the Native American Graves Protection and Repatriation Act of 1990, or NAGPRA. The crime is a misdemeanor punishable by up to a year in prison, a $100,000 fine and a year of supervised release.

Carta remains free on supervised release pending sentencing Sept. 8.

The collectibles dealer, Daniel W. Taylor, 39, of Kona, pleaded guilty to the same charge in March. His sentencing is scheduled July 6.

Carta told U.S. Magistrate Judge Kevin Chang yesterday, "I took an individual, showed him where the cave was. We removed the items. From there he dealt with it." Rustam Barbee, Carta's attorney, said his client "feels really remorseful about it, to the extent that he's cooperating with the authorities." But federal investigators had already retrieved most of the items by the time they approached Carta, Barbee said.

Taylor tried to sell the items by approaching collectors and advertising them on the Internet. At least two items were sold. A tourist bought an ancient kapa for $150, and a collector bought a fisherman's bowl for $2,083.

The items are part of the J.S. Emerson Collection, which Bishop Museum bought in the late 1880s. In 1997 the museum legally transferred the items to Hui Malama I Na Kupuna O Hawaii Nei for repatriation under NAGPRA. Hui Malama reburied the items in Kanupa cave in Kohala.

Federal prosecutors said Carta and Taylor broke into the sealed cave to take the artifacts. Barbee said the cave was not sealed well and had just little boulders blocking the entrance. "Anybody walking by could've just pushed these little rocks out of the way and gone in. It wasn't very protected," he said. Carta made replicas that Taylor sold to tourists, Barbee said.

He said Carta knew he had done something wrong when he saw that the items from the Kanupa cave had writing on them identifying them as belonging to the Emerson collection.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060523/NEWS23/605230336/1001/NEWS
Honolulu Advertiser, Tuesday, May 23, 2006

Park releases Hawaiian relics

By Gordon Y.K. Pang

Five cultural items that were once part of the Forbes Cave collection have been designated "unassociated funerary items" by Hawai'i Volcanoes National Park, paving the way for Native Hawaiian organizations to determine what to do with them.

The items belong to the same collection as 83 cultural objects that have been at the center of a long-standing dispute between Bishop Museum and several Native Hawaiian groups.

The five items housed at the park are a carved wooden female figure, believed to be a representation of the deity Kiha Wahine; a carved wooden game board; a cutting tool with a shark-tooth attachment; a water gourd; and a wrist ornament made of rock oyster.

"We have determined these items belong to the Native Hawaiian people," said Park Superintendent Cindy Orlando. "Now it's up to the Native Hawaiian people to determine the disposition of these items."

The objects were donated to the park in 1956 by Blodwin Forbes Edmondson, daughter of David Forbes, who headed the 1905 expedition into a Kawaihae lava tube cave. Other items were sold to Bishop Museum.

Under the Native American Graves Protection and Repatriation Act, certain Native American and Native Hawaiian cultural items must be turned over to lineal descendants or culturally affiliated Indian tribes or Native Hawaiian organizations.

The items were determined to be funerary because they were found with human remains, Orlando said. They are designated "unassociated," however, because the human remains themselves are not in the park's possession.

Orlando said her staff spoke to at least 14 groups over the past five years in trying to determining the status of the items.

"The next step in the process is to consider claims for the items we have in our collection," Orlando said. After meeting with NAGPRA officials next week, "we'll probably invite the potential claimants back in for another consultation and invite them to submit evidence of their claims for these items."

So far, there have been 13 potential claimants, Orlando said. But NAGPRA law allows for new claimants until items are repatriated. Some of the key organizations involved in the Bishop Museum dispute have also been among those talking to park staff about the items there.

In the Bishop Museum case, there were 14 claimants. Hui Malama I Na Kupuna o Hawai'i Nei, a group dedicated to repatriating human remains and the funerary items buried with them, were "loaned" the items by the museum. When the museum asked for the items back, Hui Malama officials said the items were taken back to Forbes Cave and that they considered the items repatriated.

Two other groups, Na Lei Alii Kawananakoa, and the Royal Hawaiian Academy of Traditional Arts, have sued the museum and Hui Malama for their return to the museum. The issue is before the U.S. District Court.

Hui Malama and the Royal Hawaiian Academy are among the groups vying for a say in what happens to the items at Volcanoes.

Edward Halealoha Ayau, Hui Malama executive director, said his group believed that the items should be designated as associated funerary objects. Other groups lobbied for the items to be designated associated funerary or cultural patrimony, or community-owned, Orlando said.

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http://starbulletin.com/2006/05/24/news/story11.html
Honolulu Star-Bulletin, May 24, 2006

Artifacts dispute hits a second front
Conflicts arise among claimants to items at a national park

By Sally Apgar

The bitter dispute among some native Hawaiians over the fate of artifacts taken from a Big Island cave complex and held for almost a century at the Bishop Museum is about to burst onto a second front involving artifacts from the same caves that have been housed at Volcanoes National Park.

Many of the claimants involved in the Volcanoes National Park dispute are also involved in a dispute over 83 items from Kawaihae Cave or "Forbes Cave," which is being argued in U.S. District Court.

Officials from the Big Island park announced Monday that after 18 months of consultation with about 14 competing claimants, it has determined that five items in its collections are "unassociated funerary objects" as defined by the Native American Graves Protection and Repatriation Act of 1990. NAGPRA is a the federal law that established a process for museums to repatriate human remains and other specific items, such as funerary or sacred objects, back to native Hawaiians and American Indians.

Under NAGPRA, the park has the authority to categorize the items as "unassociated funerary objects," which means the items were likely buried with ancestors, but the remains are not in the possession of the museum or federal agency.

The five items are: a female carved wooden figure, a cutting tool with a shark tooth attached to a human collar bone, a table held up by carved images that could be a Konini game board or even an altar, a water gourd, and a bracelet made of rock oyster.

"Clearly these items are very important," said park Superintendent Cindy Orlando. "The consultation process is long and very complicated." Orlando said the park initially began notifying possible claimants and consulting with them in 1999 and sent letters to 128 individuals in 2000 but then nothing more happened.

Hui Malama I Na Kupuna O Hawaii Nei, a native Hawaii organization involved in the Forbes Cave federal case, officially complained to the NAGPRA review committee in March 2004 that the park was dragging its heels.

Orlando, who came to the park two years ago, said, "We recognized that we needed to honor the spirit and intent of the law and we did that and continue to do that as we continue with the consultation."

The items came from three caves. In 1905, David Forbes, William Wagner and F.A. Haenisch broke into the caves and took the items. Two of the men later sold the items to the Bishop Museum. In 1956, Forbes' daughter, Blodwin Forbes Edmondson, donated her father's lot to the park.

Orlando said the items were on display at the park and at other museums until 1983, when replicas were put on display and the originals were stored away in deference to beliefs the items are sacred and should not be in public view. By 2000, the replicas were taken off display.

Cy Harris, with the Keawe-mahi Ohana, is trying to prove lineal descent and disagrees that the items are funerary but says they were "sacred objects" that were needed for the practice of religion.

"It's the park's call, but I think they made a premature determination that is disappointing," Harris said, adding "they made this determination without going through all the consulting. I think they're getting caught up like Bishop Museum did."

La'akea Suganuma of the Royal Hawaiian Academy of Traditional Arts, a claimant to Kawaihae items from the park and museum, said: "This consultation (with the park) won't be as bitter (as with Bishop Museum) if the laws and procedures are followed. Those procedures weren't followed with the Bishop Museum items."

Suganuma and Campbell Estate heiress Abigail Kawana-nakoa, who founded Na Lei Alii Kawananakoa, a native Hawaiian organization under NAGPRA guidelines, have had a long-standing dispute with Hui Malama.

"Hui Malama just stole everything from the Bishop Museum and reburied them in the cave. They violated the process and denied the other claimants their right of having any say in what happened," Suganuma said.

Alan Murakami, an attorney for Hui Malama, did not return repeated telephone calls yesterday.

In February 2000, when the Bishop Museum was under the administration of Donald Duckworth, museum staff crated the items and handed them over to Hui Malama as "a one-year loan."

Hui Malama continues to insist that the items were funerary objects that the ancestors wanted buried with them. To honor their ancestors, Hui Malama acted as caretakers and reburied the items in the caves with secret religious ceremonies in 2001. Hui Malama has refused to return the items, repeatedly telling the federal court that retrieving them would be a desecration under their religion.

Hui Malama has argued unsuccessfully in the U.S. District Court in Hawaii and the 9th Circuit Court of Appeals that fulfilling the court order would violate their Constitutional right to freedom of religion.

Suganuma and others noted that Hui Malama has repeatedly said it planned to rebury the park's items in the same caves. "But that might be difficult because now they are telling the court no one can go into the cave because it is unsafe and might collapse," Suganuma said.

Under NAGPRA, the items remain in the possession of the park while the consultation process among claimants moves forward. Part of that process could determine who has the closest ties to the objects and therefore the most say in their fate. Several claimants have said they are "lineal descendants" with evidence of family connections, which would give them the closest tie. Other claimants are native Hawaiian organizations recognized under NAGPRA that have "cultural ties."

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060713/NEWS23/607130348/1173/NEWS
Honolulu Advertiser, Thursday, July 13, 2006

Don't move bones, families say

By Gordon Y.K. Pang

The unearthing of 11 sets of ancient Hawaiian burial remains could pose a hurdle for a major commercial and residential renovation planned for the Ward Centers complex in Kaka'ako.

The O'ahu Island Burial Council yesterday heard from two Native Hawaiian families that want the iwi, or human remains, to stay exactly where they were found on the construction site. But representatives from landowner/developer General Growth Properties Inc. submitted a detailed burial plan to relocate the remains to a different part of the project site.

The $100 million-plus expansion plan for the Ward Village Shops includes a Whole Foods Market, an upscale supermarket, a 17-story rental apartment building, assorted retail shops and a seven-story parking complex. The project would incorporate the existing Pier 1 Imports outlet.

The remains were found in March primarily in the 'ewa-makai and diamondhead-makai sections of the nearly 5-acre property. General Growth wants to relocate the iwi to the diamondhead-mauka portion of the site.

"We'd like to move them to a safe place," said Dwight Yoshimura, a General Growth senior vice president.

But Paulette Kaleikini of the Keaweamahi 'ohana, which has been recognized as cultural descendants of the area by the state Historic Preservation Division of the Department of Land and Natural Resources, said the iwi should be preserved where they were found.

"They were laid to rest by their 'ohana and they should stay there," Kaleikini said. "I think they have time to go back and redesign their structure ... to accommodate our kupuna who were there first."

Manuel Kuloloia of Maui, who is also seeking cultural descendant status, said his family would prefer to see the iwi remain undisturbed.

The council is charged with making a recommendation to the Historic Preservation Division, which has the final say on the matter.

A motion to reject General Growth's burial plan in favor of keeping the remains where they are was defeated in a 5-2 vote, with several council members saying they wanted more information about the case. Members subsequently voted to defer further action until the council's next meeting.

The council has 45 days from yesterday's hearing to send a recommendation to Historic Preservation, but General Growth officials said they would agree to a time extension. The developer is barred from working in the burial areas until the matter is settled.

After the meeting, Yoshimura declined to say what would happen to construction plans if General Growth is required to leave the remains in place, noting that he wanted to first review that information with burial council members and cultural descendants. He also would not disclose the cost of relocating the iwi.

Carolyn Norman, another member of the Keaweamahi family, and Kaleikini both said they don't want to block the development, just ensure that the remains of their ancestors are undisturbed.

The remains were found in "flex" and "semi-flex" positions, indicating they are ancient, Kaleikini said.

The Keaweamahi family also has been involved in a dispute over iwi found during construction of the Wal-Mart/Sam's Club complex on Ke'eaumoku Street. That issue has not yet been resolved, and the iwi have remained in a trailer on-site since 2004.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060716/OPINION01/607160303/1105/OPINION
Honolulu Advertiser, Sunday, July 16, 2006, EDITORIAL

Don't let Ward work bog down in delays

Lines have been drawn in the earth at the Kaka'ako site of a Ward Centers project, boundaries that under the best of circumstances are meant to preserve the dignity of human remains that have been exposed during construction.

Those with an interest in the issue � which includes everyone at some level � can only hope that these markings don't harden into battle lines.

So far, 11 sets of ancient Hawaiian burial remains have been disturbed in the construction of the $100 million expansion of Ward Village Shops, a development that will include a Whole Foods Market, rental apartments, shops and a parking complex.

People who have documented their descent from residents of the district who could have been buried in the area (defined in the state burials law as "cultural descendants") want the project redesigned so the remains can be left in place rather than reburied elsewhere.

The decision on whether this request could be reasonably accommodated will be made by the state Historic Preservation Division, which has been woefully shortstaffed. Additional descendants may wish to weigh in. The process of verifying their descent and hearing more details about the case could extend decisionmaking beyond the prescribed 45-day window.

Judging by the complexity and volatility of previous conflicts � the still-festering dispute over the Wal-Mart burials leaps to mind � this hitch could calcify and become an impasse. The remains unearthed at the Wal-Mart Ke'eaumoku site are still entombed in a trailer on the grounds of the superstore complex after two years.

To whatever extent is possible, given its staffing limitations, the state division should expedite the review of testimony and come to a reasoned decision without delay. All parties should work toward finding a respectful conclusion to the disagreement. In some cases, reburials have taken place with dignity.

Surely, any end would be preferable to leaving human remains in limbo during disputes among the living that seem interminable.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060716/OPINION02/607160302/1108/LETTERS
Honolulu Advertiser, Sunday, July 16, 2006, LETTER TO EDITOR

WARD DEVELOPMENT
OWNER SHOULD BE ABLE TO RELOCATE BONES

Your article "Don't move bones, families say" (July 13) mentioned that the families of ancient Hawaiian burial remains found at the Ward Village Shops construction site want the bones undisturbed.

Hawaiian history shows it was common practice for families to bury their relatives on the property of their residence, such as in backyards. When O'ahu was controlled by a Hawaiian chief or king such burial sites were not considered community sacred sites. Therefore, the current owner (General Growth) should have the legal right to relocate the bones at another area on the property.

Descendants should not have the right to prevent the legal owners of property worth millions of dollars from continuing commercial development that benefits our entire society, creating employment and generating additional taxes for our state, city and federal governments.

Wilbert W. W. Wong
Kane'ohe

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http://starbulletin.com/2006/07/20/business/story01.html
Honolulu Star-Bulletin, July 20, 2006

Whole Foods in a PR pickle
The idealistic retailer must decide what to do about bones at its site

By Stewart Yerton

Whole Foods Market Inc. has built a $5 billion annual business selling organic groceries, gourmet cheeses and healthful prepared foods -- while at the same time being guided by a "vision of a sustainable future (in which) our children and grandchildren will be living in a world that values human creativity, diversity, and individual choice."

But now the Texas-based retailer known for its lofty ideals faces a thorny question as it tries to establish its first store in Honolulu: whether to locate the store atop several native Hawaiian burial sites.

"This is not something we've ever had to deal with before, and we're just trying to figure out what the right thing to do is," said Marci Frumkin, regional marketing director for Whole Foods' Southern Pacific region. "We're basically waiting to hear back from the developer."

General Growth Properties Inc. of Chicago is developing the site, located at Auahi and Kamakee streets, and plans to anchor the development with Whole Foods' 67,000-square-foot store.

The project would culminate a five-year effort by Whole Foods to establish itself in Hawaii and give General Growth's Ward Village Shops a unique retailer attractive to many of the well-heeled condominium owners who are flocking to Kakaako's new luxury high-rises.

But the project has encountered a roadblock.

Having discovered 11 sets of human remains on the construction site, General Growth has sought permission from state regulators to move the bones to a landscaped vault to be located near the new center.

The Oahu Island Burial Council, the state agency charged with deciding what to do with the bones, is considering the plan and must make a decision before the end of next month, said Jace McQuivey, chairman of the board that governs the burial council.

In the meantime, native Hawaiian families have come forward to oppose moving the bones, which are known as "iwi." McQuivey said the bones were buried in a way that suggests they pre-date Western contact and are placed in three to five separate locations on the site.

Experts on Hawaiian culture say that iwi carry enormous spiritual importance.

McQuivey said that the burial council is trying to determine the best solution, and General Growth exe- cutives have declined to comment, citing a desire to respect the council.

"We are not trying to stop development," said McQuivey. "We are just trying to do the right thing."

In the meantime, Whole Foods faces a public relations challenge particularly touchy for a company so sensitive to doing the right thing that it once built tiny "condos" in its live lobster tanks so the lobsters, which thrive on solitude in the wild, could have privacy. Whole Foods eventually quit selling the live crustaceans altogether, saying it was "not yet sufficiently satisfied that the process of selling live lobsters is in line with our commitment to humane treatment and quality of life for animals."

Whole Foods also is sensitive to people. It consistently ranks among Fortune magazine's Top 100 places to work, placing No. 15 in 2006. And the company has demonstrated a commitment to partnering with local producers to sell locally grown fruits, vegetables and other goods.

All of this raises the question: Assuming the burial council grants its approvals, would Whole Foods go forward with the project over the objections of native Hawaiians?

"Whole Foods will go out of its way to be politically correct, more so than most companies would," said Jack Plunkett, chief executive of Plunkett Research, publisher of Plunkett's Retail Industry Almanac.

At the same time, Plunkett said, Whole Foods will not simply shrink from the slightest controversy. In fact, Plunkett said, Whole Foods has forged ahead when facing more run-of-the-mill anti-development controversies while developing big stores in other markets.

"They'll be attentive. They'll be concerned," Plunkett said. "But I would suspect that they're a long way from walking away from it."

Dave Stewart, a professor of marketing at the University of Southern California's Marshall School of Business, agrees that Whole Foods doesn't have to abandon the store altogether in order to protect its brand and image.

"If it's managed properly, they need not walk away from it," he said.

For Whole Foods to protect its hard-earned image, Stewart said, the company needs to "be seen as paying appropriate respect to native Hawaiians."

And the company should be proactive in getting out its message, he said.

Finally, Stewart said, it's important that Whole Foods not allow the debate to be framed in a way that moving the bones is necessarily an act of disrespect.

The company, he said, would "want to avoid getting in that box."

But that box might be hard to avoid.

Ty Tengan, an assistant professor of anthropology and ethnic studies at the University of Hawaii, said the primary issue concerning iwi is to keep them undisturbed.

In traditional Hawaiian culture, iwi are considered the repository of a person's spiritual power, or mana. And the word used to describe a human burial is kanu, the same word that is used to describe planting something.

In addition, iwi often connotes kinship. Thus Hawaiians sometimes refer to themselves as "kanaka oiwi," or people of the bone, Tengan said, and one's homeland is referred to as "kulaiwi."

To desecrate iwi is an affront not just to the dead, but also to the deceased person's descendants, Tengan said.

"The highest form of sacrilege is to disturb the iwi," he said.

All of this makes dealing with the iwi at the Whole Foods site especially touchy given that at least one "cultural descendant" of the iwi has objected to the plan to move them.

Because of the gravity of the situation, McQuivey said, the burial council is taking as much time as possible to weigh its options.

Although some have protested the plan to move the iwi to a memorial, McQuivey said the bones could face a far less desirable fate. For instance, he said, it is possible that the developer could simply build on top of the iwi.

"The families need to realize that it's possible there could be a concrete slab poured over the site," including the iwi, he said.

But, McQuivey said, that would probably leave everyone unhappy.

So while the burial council must try to forge a plan, the descendants must decide what, for them, is the best solution.

"What may be respectful in some peoples' eyes would not be respectful in another's," Tengan said. "That's when it comes down to the families and what they want."

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20060914/NEWS23/609140346/1173/NEWS
Honolulu Advertiser, Thursday, September 14, 2006

Board votes to move iwi at Ward site

By Gordon Y.K. Pang

Developers of Ward Villages will be allowed to move 11 sets of Hawaiian iwi, or burial remains, although relocation details still need to be worked out.

The O'ahu Island Burial Council voted 6-4 in favor of relocation, averting a serious setback for the landowner/developer building a Whole Foods Market, a 17-story rental apartment building and assorted retail shops on a site incorporating the existing Pier 1 Imports outlet.

The vote disappointed some Hawaiian families and burial council members who believe it is wrong to disturb the iwi. Others at the meeting maintained that moving them away from a construction area was the proper course.

General Growth Properties' work on the site halted when the remains were found in March.

General Growth, the State Historic Preservation Division and eight families or individuals recognized as cultural descendants of the area will now spend up to 90 days deciding the best place to relocate the remains.

General Growth submitted a detailed burial plan that relocates the iwi to a location on-site. One of the descendant families is offering to store the remains until construction is completed and the parties can agree where they should be placed.

Dwight Yoshimura, General Growth senior vice president, said the iwi would be better protected if relocated because construction plans for the project's foundation require driving 1,200 piles into the ground at the parcel, which is just under five acres.

Recognized cultural descendants were divided on what to do.

Carolyn Norman of the Keawemahi family urged burial council members to leave the iwi where they are. Norman said she recognizes that asking General Growth to redesign its project would mean incurring additional costs. "But you cannot put a value on Hawaiian culture, Hawaiian culture cannot be bought," she said.

Kealoha Keohokalole, who is a leader of a union that represents pile drivers, countered that it would make no sense for the iwi to stay where it would be subjected to heavy construction work all around it. "Twelve hundred piles? That's a whole lot of rockin' and rollin'," Keohokalole said.

Burial council members spoke passionately about how they came to a decision.

Linda Paik said she views her job as a simple one. "For me, desecration is to take them out," she said before voting for keeping the iwi in place.

Alice Greenwood, who voted for relocation, said decisions about the iwi need to be done on a case-by-case basis. She said it pained her to vote in favor of a relocation at another project, but ultimately determined it was the best thing in the long run. And in deciding to relocate the iwi, she said, those involved in the decision asked their ancestors "to please forgive us."

Yoshimura said that if required to leave the iwi in place, "the plan as it is today would not be able to proceed."

Media representatives at Whole Foods' headquarters in Austin, Texas, could not be reached after hours yesterday.

An underlying issue throughout the hearing was whether six new cultural descendants should have been recognized yesterday. Previously, only the Keawemahi family was recognized.

Paulette Kaleikini, a member of the Keawemahi family, said she thought the arrival of the other descendants had an outcome in the vote. Kaleikini said she does not believe most of the families who came forward after her can trace their lineage back to the Ward area.

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http://starbulletin.com/2006/11/02/news/story05.html
Honolulu Star-Bulletin, November 2, 2006

Embattled Bishop Museum chief quits

By Leila Fujimori

The man who headed Bishop Museum through tumultuous years and painful battles with a native Hawaiian group is resigning to become president of the Academy of Natural Sciences in Philadelphia on Feb. 1.

Many will remember Bill Brown, president of the museum for the past five years, for his role in connection with a set of 83 native Hawaiian artifacts that pitted several native Hawaiian groups and the museum against each other.

A few Hawaiian activists called for Brown's resignation in 2004, when the museum proclaimed itself a native Hawaiian organization that could act as a claimant for sacred and funerary objects on a par with 130 recognized native Hawaiian groups.

"Well, good riddance," said Charles Kauluwehi Maxwell, president of the native Hawaiian group Hui Malama I Na Kupuna O' Hawaii Nei, upon learning of Brown's departure. "I think Bill Brown did so much damage to the image of the Bishop Museum, it's irreparable.

"He lacked spirituality and common sense when it came to native Hawaiians," Maxwell said. "He has a Western mind, and he can never transcend into Hawaiian thinking."

Brown declined an interview with the Star-Bulletin, but said in a news release: "It has been an honor and pleasure to have led Bishop Museum for the last five years. There were challenges along the way, but with the support of the Board of Directors and the work of our highly qualified staff, the museum is now much stronger and headed for a great future."

Under Brown's tenure, "the museum has eliminated its annual operating deficit, doubled endowment, built the $17 million Science Adventure Center," and began the first major restoration of Hawaiian Hall, the museum's news release said. It also has a majority of native Hawaiians on its board of directors for the first time, the release said.

In February 2000, long before Brown arrived in October 2001, the museum handed to Hui Malama 83 artifacts that had been taken by explorer David Forbes in the 1880s and sold to the museum in the early 1900s. Hui Malama reburied the objects.

Two of the 14 recognized Hawaiian groups with claims to the artifacts called for their return and sued the museum and Hui Malama, which refused to return them.

This past summer, Bishop Museum said Hui Malama had breached its contractual duty when it failed to return the items to the museum in 2001. The museum maintains it loaned the artifacts for one year and the group repatriated them improperly.

In September, the museum finally recovered the items from the burial caves.

Hui Malama maintains that the artifacts are funerary objects and should be returned to those for whom they were carved 1,000 years ago, Maxwell said.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20061102/NEWS01/611020333/1001/NEWS
Honolulu Advertiser, Thursday, November 2, 2006

Bishop Museum chief leaving

Bishop Museum president and CEO William Brown has agreed to become president of The Academy of Natural Sciences in Philadelphia, where he will begin his new duties on Feb. 1.

Brown has headed the Bishop Museum for five years, during which time the museum built and opened the $17 million Science Adventure Center. The museum also began its first major restoration project of Hawaiian Hall in July.

Brown took the helm of the museum in the midst of a dispute over the disposition of 83 Hawaiian artifacts plundered a century ago from burial caves in Kawaihae. Disagreements led first to upheaval among museum staff, and Brown found himself vilified by supporters of the nonprofit group wanting to rebury the objects, Hui Malama I Na Kupuna O Hawai'i Nei.

The controversy came to a boil when the hui took the objects on a loan and reburied them; it has culminated in a federal lawsuit seeking to restart the legal process of returning ownership of the items to a Native Hawaiian organization.

"It has been an honor and pleasure to have led Bishop Museum for the last five years," Brown said in a written statement. "There were challenges along the way, but with the support of the board of directors and the work of our highly qualified staff, the museum is now much stronger, and headed for a great future."

In a memo to Bishop Museum staff, Brown said a key reason for taking the new job is to be closer to his family. Brown said his wife, Mary, is a lawyer who works for the State Department who moved back to Washington, D.C., last spring. Brown said his two daughters also are on the Mainland.

Bishop Museum has begun a search for his successor.

Brown graduated from the University of Hawai'i in 1973 with a doctorate in zoology. His work prior to the Bishop Museum includes serving as science adviser to U.S. Interior Secretary Bruce Babbitt in the Clinton administration.

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To continue with events in 2007, please go to
https://www.angelfire.com/planet/bigfiles40/nagprahawaii2007

This present webpage covers only the year 2006. For coverage of events in 2005 (about 250 pages), see:

https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

To continue with events in 2007, please go to
https://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.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

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