Sunday, August 29, 2004
The Honolulu Star-Bulletin
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Editor's note: Earlier this month the Star-Bulletin
reported that a federal investigation is under way into alleged illegal
trafficking of priceless ancient Hawaiian artifacts that Bishop Museum had
turned over to native group Hui Malama for reburial and safekeeping. On
Thursday, the Star-Bulletin published a photo of the breached opening of
Kanupa Cave on the Big Island from which the artifacts apparently were
taken. In a related development, the Bishop Museum board is reviewing a
policy under which it would be identified as a native Hawaii organization
enabling it to lay claim to artifacts. In two essays here, Hui Malama
leaders respond to these developments.
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By Edward Halealoha Ayau
The Native American Graves Protection and Repatriation Act (NAGPRA)
authorizes American Indians, Alaska Natives and Native Hawaiians to claim
ancestral human remains, funerary objects, sacred objects and cultural
patrimony that were illegally acquired and placed in federally funded
museums and federal agencies.
The legislative history of NAGPRA makes it clear that this bill was
intended to rectify past wrongs committed against America's first peoples.
Congress did not intend museums to claim their own items as Bishop Museum is
attempting to do with the passage of its Interim and Proposed Final Guidance
(interim guidance).
If Bishop Museum Director William Brown and the Board of Directors
adopt the proposed interim guidance, Hawaiian culture will be harmed,
congressional intent dishonored and the law turned on its head.
We strongly oppose the interim guidance policy and have prepared
petitions with hundreds of signatures of community members who also are
opposed. We call upon the museum's board to immediately repeal the interim
guidance policy based upon clear community opposition for the following
reasons:
>> First, the policy defeats the intent of Congress in enacting
NAGPRA, which sought to redress harms to native people caused when their
ancestors' remains, burial objects and other cultural items were unlawfully
taken from them and put in museums. On Oct. 26, 1990, U.S. Sen.Daniel
Inouye, co-chairman of the Senate Select Committee on Indian Affairs, stated
the following with regard to proposed NAGPRA legislation, "When human
remains are displayed in museums or historical societies, it is never the
bones of white soldiers or the first European settlers that came to this
continent that are lying in glass cases. It is Indian remains. The message
that this sends to the rest of the world is that Indians are culturally and
physically different from and inferior to non-Indians. This is racism ...
The bill (NAGPRA) is not about the validity of museums or the value of
scientific inquiry. Rather, it is about human rights."
Inouye continued, "Returning control of these human remains and
funerary objects to lineal descendants, Indian tribes and Native Hawaiian
organizations will help to remedy years of unequal treatment. Acknowledging
the communal property systems traditionally used by some Indian tribes not
only returns those objects of cultural patrimony to their rightful owners,
but reinforces the complex social webs in which they serve. Neither idea is
very new, both reflecting the guarantee of equal protection under the law
imagined by America's founding fathers and codified in the Constitution of
the United States."
Brown and the Bishop Museum board miss the point entirely that NAGPRA
is human rights legislation for Native Hawaiians. Instead, the interim
guidance policy denies the human rights goals of NAGPRA, contorting it into
a shield to block us from caring for our kupuna (ancestors) and their
possessions. Inouye recently weighed in on this matter in a newspaper
interview. "It (the museum) is not a Hawaiian organization, it's a museum.
The incorporation of the (Bishop) museum makes it clear that it's not a
Native Hawaiian organization ... and I think the law is clear," Inouye said.
>> Second, the interim guidance policy places Bishop Museum in a
conflict of interest as it could both claim cultural items from its own
collections and maintain the authority under NAGPRA to determine the
disposition of such items. How could Bishop Museum maintain objectivity in
reviewing NAGPRA claims when one of the claimants is itself? The interim
guidance policy fails to protect the rights of other claimants from this
inherent conflict.
>> Third, the policy obstructs the repatriation of unassociated
funerary objects, which are items that came from burials but are no longer
associated with human remains. This is because the interim guidance policy
declares that Bishop Museum is the lawful owner of all such objects in its
collections. Brown ignores the fact that Hawaiian families placed these
objects with their loved ones and that approval was not given to remove
them. By assuming ownership, Brown is revoking our ancestors' decisions and
usurping our kuleana to our kupuna. In addition, the policy obstructs the
repatriation of sacred objects needed for cultural renewal by inaccurately
asserting that the museum does not possess any such "sacred objects" --
items needed by a Hawaiian religious leader to continue or renew traditional
religious ceremonies, as defined in NAGPRA. How can Brown conclude that the
museum holds no sacred objects when such objects are defined by the
ceremonial needs of Hawaiian religious practitioners? Once again, the museum
ignores NAGPRA's intent.
For clearer insight into what NAGPRA was intended to accomplish with
regard to human remains, funerary objects, sacred objects and cultural
patrimony we look to the following excerpt from "In the Smaller Scope of
Conscience: The Native American Graves Protection & Repatriation Act Twelve
Years After," published in the UCLA Journal of Environmental Law and Policy.
The article states, "The long process ... began in 1986, as Congress sought
to reconcile four major areas of federal law. As civil rights legislation,
Congress wished to acknowledge that throughout U.S. history, Native American
human remains and funerary objects suffered from disparate treatment as
compared with the human remains and funerary objects of other groups.
"Congress also wanted to recognize that the loss of sacred objects by
Indian tribes and Native Hawaiian organizations to unscrupulous collectors
negatively impacted Native American religious practices. In making this
Indian law, Congress founded its efforts on an explicit constitutional
recognition of tribal sovereignty and the government-to-government
relationship between the United States and Indian tribes.
"Regarding property law, Congress wanted to clarify the unique status
of the dead as well as highlight the failure of American law to adequately
recognize traditional concepts of communal property in use by some Indian
tribes.
"Lastly, in terms of administrative law, Congress would direct the
Department of Interior to implement Congress' mandate, including the
promulgation of regulations to ensure due process, awarding of grants and
assessment of civil penalties."
>> Fourth, interim guidance enables Bishop Museum to claim cultural
items under NAGPRA counter the claims of bona fide Native Hawaiian
organizations. Since NAGPRA allows a museum to hold onto claimed items until
resolution is reached among claimants regarding disposition of the claimed
items, Bishop Museum as a claimant could forestall repatriation by
disagreeing with other claimants. The policy similarly allows the Bishop
Museum to block repatriation of Hawaiian cultural items from other museums
and federal agencies by claiming objects as a Native Hawaiian organization
and disagreeing with other claimants about their return.
Finally, the interim guidance policy is an attempt to thwart Native
Hawaiians who would assert their kuleana to care for items that NAGPRA
rightfully places within their purview. Rather than being a mechanism for
healing historic wounds as NAGPRA was designed, this policy opens new ones.
We are incensed that Brown's paternalistic and colonial penchant could
impede our ability to fulfill our kuleana to care for our kupuna and their
possessions and to continue cultural practices that meet our kuleana as
descendants -- roles that Congress supported us taking via NAGPRA.
We are not alone in our assessment that the Bishop Museum would run
afoul of NAGPRA by adopting interim guidance. Leaders throughout Indian
country, including leading NAGPRA drafter and attorney Walter Echo-Hawk of
the Native American Rights Fund, and many in the museum profession also have
voiced opposition to interim guidance.
Passage of the proposed interim guidance policy confirms a serious
need for a change in Bishop Museum leadership. For the above reasons, we
urge the museum directors to repeal the interim guidance policy, call for
and accept Brown's resignation and undertake efforts to select a qualified
Native Hawaiian to serve as the new director of Bishop Museum.
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This article is supported by Kunani Nihipali, Pualani Kanahele, Kehau
Abad, Kekuhi Kanahele-Frias, Huihui Kanahele-Mossman, 'Ahi'ena Kanahele,
Kaumakaiwa Keali'ikanaka'ole, Ulumauahi Keali'ikanaka'ole, Kauila Kanahele,
Luka Kanahele-Mossman, William Aila Jr., Billy Fields, Pele Hanoa, Keolalani
Hanoa, Kaleikoa Ka'eo, Lilikala Kame'eleihiwa, Pu'uhonua Kanahele, Kahu
Charles Maxwell, Jimmy Medeiros Sr., Jon Osorio, Konia Freitas, Mehana Hind
and Ho'oipo Kalaena'auao Pa.
Items stolen from cave must be retrieved, reburied
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By Edward Halealoha Ayau and Kunani Nihipali
During the past two weeks, Native Hawaiians have been distressed by
media reports that Kanupa Cave may have been disturbed. The cave contained
iwi kupuna (ancestral bones) and moepu (burial objects) repatriated from the
Bernice Pauahi Bishop Museum and the Peabody Essex Museum to four Hawaii
organizations in accordance with the Native American Graves Protection and
Repatriation Act (NAGPRA). The four groups are Hui Malama I Na Kupuna O
Hawai'i Nei, Ka Lahui Hawai'i, the Hawai'i Island Burial Council and the
Office of Hawaiian Affairs. Hui Malama initiated these repatriation efforts
and reburied the kupuna and moepu in Kanupa.
Upon the first such media report Aug. 11 in the Star-Bulletin, Hui
Malama members immediately went to Kanupa Cave to conduct a security check.
However, federal agents from the Office of the Inspector General who were
investigating the matter turned them away. The OIG has still not briefed any
of the four aforementioned organizations about the investigation, although
via NAGPRA the four organizations are the legal co-owners of the items
central to the investigation.
Hui Malama last week hired its own private investigator to determine
whether the cave was disturbed. After acquiring authorization to access
Kanupa Cave, we discovered that our worst fears had come true -- Kanupa Cave
had been broken into. Apparently highly motivated thieves worked their way
through multiple protective measures that we put in place at the entrance
and throughout the cave to secure the iwi kupuna and moepu in Kanupa. While
Hui Malama has reburied the iwi of more than 2,500 kupuna (ancestors) at
close to 100 separate reburial sites throughout the islands, this is the
single instance of such a burial being disturbed.
The looting at Kanupa Cave is no different than the original theft of
these same items by J.S. Emerson and the robbing of sacred iwi kupuna and
moepu from the Kawaihae caves by David Forbes, William Wagner and Kenneth
Emory in the early 1900s. The same greed and callous disregard for Hawaiians
and Hawaiian cultural values that led Emerson and others to loot Hawaiian
burial caves is shockingly still with us today.
Whoever desecrated Kanupa Cave violated Hawaiian kapu (sacred law)
regarding the sanctity of a burial site and state laws regarding historic
burial sites and must be apprehended. Though we do not yet know the thieves
who committed this crime, they are well known to the robbed kupuna who will
seek their own justice.
Under the laws of the living, those who disturbed Kanupa violated
separate federal and state statutes. The ongoing federal investigation
involves a violation for trafficking illegally acquired burial objects. Hui
Malama and Ka Lahui Hawai'i have formally communicated to the OIG their
desire to assist with that effort and their request to be briefed on the
status of the investigation. We call upon the Office of the Inspector
General to work with us as the co-owners of these cultural items under
federal law and to fully investigate the trafficking of these cultural
items.
Hui Malama has also repeatedly asked state officials at the Department
of Land and Natural Resources to begin their investigation into the
disturbance of Kanupa Cave, a violation of HRS section 6E-11, a statute
aimed at protecting historic sites, including burials.
A primary reason for our requests for a DLNR investigation was so that
the cave could be resealed. We did not resecure Kanupa Cave because it is a
crime scene, and we did not want to be accused of tampering with it, and
because the DLNR has not initiated its investigation. However, as of last
Thursday, the state has taken measures to secure the cave.
At the county level, we urge the Hawaii County Prosecutors Office to
investigate the criminal aspects of the Kanupa Cave disturbance as provided
by HRS section 6E-11 and section 711-1107(b) and fully prosecute all
responsible parties.
Federal investigators have not yet contacted the four Native Hawaiian
organizations. The state and county of Hawaii have yet to launch their own
investigations into this matter, though leaders of the four organizations
are hopeful that this will change as officials are brought up to speed on
this case. We stand by to assist federal, state and county investigators.
When the investigations are completed and responsible parties are
apprehended, fined and prosecuted, we expect the confiscated moepu to be
returned to the four organizations for proper reburial. We are thankful that
the state took action to protect Kanupa Cave from further intrusion and wish
it had acted to prevent Star-Bulletin reporter Sally Apgar from
photographing Kanupa Cave and publishing it on the front page of the
Star-Bulletin. This act was extremely distasteful and offensive. In the
future, permission from Natives Hawaiians should be acquired before
publishing photos of wahi kupuna (ancestral places).
The leaders of the four Native Hawaiian organizations strongly urge
all persons who have knowledge of the Kanupa Cave disturbance to contact the
federal Office of the Inspector General, the state Attorney General's Office
and the Hawaii County Prosecutor's Office. We must all stand together in
support of the kupuna (ancestors) and their sacred burial places.
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Hui Malama I Na Kupuna O Hawaii Nei
huimalama.tripod.com
Bishop Museum
www.bishopmuseum.org
U.S. Interior Dept. -NAGPRA
www.cr.nps.gov/nagpra