Displaced artifacts generate legal heat
The fate of rare items occupies a judge and three native groups
Two native Hawaiian groups asked yesterday that another native Hawaiian group be found in violation of a federal court order because it has not returned 83 artifacts from a Big Island cave.
In the latest turn in an increasingly bitter legal battle, lawyers for the two groups said yesterday that Hui Malama I Na Kupuna O Hawai'i Nei, a group founded in the 1980s to rebury native Hawaiian remains and burial items, has "totally failed" to comply with U.S. District Judge David Ezra's order to retrieve the items from Kawaihae or Forbes cave.
"We need to proceed as soon as possible to retrieve the artifacts," said Sherry Broder, the attorney representing the Royal Academy of Traditional Arts and Na Lei Alii Kawananakoa, which was formed by Campbell Estate heiress Abigail Kawananakoa.
Also yesterday, Hui Malama asked Ezra to reconsider his Sept. 7 retrieval order based on new evidence, including information about the location, safety and security of the cave. Hui Malama has repeatedly argued that entering the cave is a desecration that violates its members' constitutional right to religious freedom. They have also said that they secured the cave with concrete and metal rebar and that using a jackhammer would cause the cave to collapse. The group said it reburied the items there in 2001.
Hui Malama said that if the court did not reconsider the order, it wants someone else to do the retrieval.
Hui Malama declined to comment by phone or e-mail. During a news conference Friday, Hui Malama said it would "refuse to provide any information or comments" to the Star-Bulletin "due to past mistreatment" in its coverage of the group's activities.
In their filing yesterday, Kawananakoa and the Royal Academy said "time is of the essence" because of threats of looting and deterioration of the artifacts from environmental conditions and insects. The two said they are willing to retrieve the artifacts and want to go to the cave this week. They asked for federal law enforcement to be present to ensure security. They said Hui Malama's cave collapse claims are vague and that they want a structural engineer, hired at Hui Malama's expense, to assess risks.
Hui Malama has requested federal officials be posted at the cave for security until the issue is resolved. Ezra is scheduled to hold a status conference on the case this morning.
On Sept. 7, Ezra ordered Hui Malama to retrieve the items and turn them over to the Bishop Museum for storage -- away from public view -- so that 14 competing native Hawaiian claimants can review the items and decide their final resting place.
Under Ezra's order, Hui Malama had 16 days or until Sept. 23 to comply. Thirteen days later, Hui Malama appealed to the 9th U.S. Circuit Court of Appeals to overturn the order, and Ezra's order was suspended pending a decision. Last week, the 9th Circuit upheld Ezra's order.
As Broder sees it, Hui Malama had three days remaining under the 16-day order and should have retrieved the items last Thursday.
Another issue is that the cave is on land owned by the Department of Hawaiian Home Lands, which must grant access permission.
Home Lands Commission Chairman Micah Kane said yesterday, "The commission is awaiting clear and final direction from the federal court. We are in the process of reviewing the 9th Circuit decision, and we will comply with the court's order."
In its role as one of the 14 claimants to the items, the Hawaiian Homes Commission is against retrieving the items.
The Office of Hawaiian Affairs issued a statement yesterday saying that as a claimant, it supports retrieval from the cave, particularly because of security concerns.
Hui Malama board cuts off Star-Bulletin
The board of directors of Hui Malama I Na Kupuna O Hawai'i Nei has adopted a policy to refuse to provide information or comments to the Honolulu Star-Bulletin because of articles about the organization's handling of Hawaiian artifacts.
Here is its statement:
"The board of directors of Hui Malama I Na Kupuna O Hawai'i Nei hereby adopts the following policy relating to its relationship with the Honolulu Star-Bulletin, its reporters and editors as of Dec. 15, 2005:
"It shall be the policy of Hui Malama I Na Kupuna o Hawai'i Nei to conscientiously refuse to provide any information or comments to reporters or editors of the Honolulu Star-Bulletin due to past mistreatment by Honolulu Star-Bulletin reporters and editors in reporting matters involving this organization and we will only end this policy at such time that the Honolulu Star-Bulletin demonstrates the ability to treat Hui Malama objectively and fairly in its news reporting including terminating the practice of publishing images and pictures of the Kawaihae moepu or any other Hawaiian funerary objects in its publications.
"Adopted unanimously by the board of directors, Dec. 15, 2005."