State should pursue charges in theft of moepu
FOUR Native Hawaiian organizations, including Hui Malama I Na Kupuna O Hawai'i Nei, the Hawai'i Island Burial Council, Ka Lahui Hawai'i and the Office of Hawaiian Affairs, are the recognized claimants of funerary objects or moepu repatriated from the Peabody Essex Museum
and iwi kupuna (ancestral skeletal remains) and moepu from the Bernice Pauahi Bishop Museum
that originated from Kanupa Cave. Following the reburial of these cultural items in November 2003 by Hui Malama, unknown people broke in and looted Kanupa Cave, which is located on state land in Kohala.
An investigation was conducted by the Office of the Inspector General of the U.S. Department of the Interior into the theft. At the outset, the state Attorney General's Office assisted with this investigation, assigning its chief investigator, Donald Wong, to the case. Also involved were enforcement officers from the Department of Land and Natural Resources.
In 2006, the U.S. Attorney's Office obtained indictments against defendants John Carta and Daniel Taylor and proceeded with the prosecution of both men for federal offenses related to the illegal sale of certain moepu stolen from Kanupa Cave in violation of 18 USC section 1170(b). On Jan. 31, Carta was sentenced to one year in federal prison by federal magistrate Barry Kurren, which is the maximum jail sentence provided under the law (Star- Bulletin, Feb. 2). It is unclear whether Carta also was fined, a penalty also provided under federal law.
It is the opinion of the four native Hawaiian organizations that they continue to be the legal owners of these moepu by operation of the repatriation provisions of the Native American Graves Protection and Repatriation Act. As such, they wrote a joint letter to state Attorney General Mark Bennett May 25, 2006, urging him to pursue all state law violations against both defendants, including criminal and civil penalties.
In that letter, they identified the state law provisions that were violated in the course of Carta and Taylor committing unlawful trafficking of the moepu, a federal offense. Such state law violations included criminal trespass, disturbance of a historic site, disturbance of a burial site more than 50 years old in violation of HRS 6E-11, offering burial goods for sale in violation of HRS 6E-12(b), and criminal theft. Breaking into the burial cave, rifling through the burial bundles and removing the moepu amounted to clear violations of Hawaii Revised Statutes Chapter 6E, known informally as the state burials law.
IRONICALLY, on June 16, 2005, Gov. Linda Lingle signed into law HB 712, a bill sponsored by the Department of the Attorney General that strengthened the enforcement provisions of the state burials law. In the May 25, 2006, letter, the four Hawaiian organizations urged Bennett to enforce the new provisions of state law against Carta and Taylor. No response was ever provided by Bennett.
An immediate procedural concern is that by not taking any action, the state attorney general and the county prosecutor's office will forego their ability to prosecute Carta and Taylor under state criminal law because of the expiration of the statute of limitations. We hope the state will at least consider pursuing civil penalties against these two defendants.
With regard to the sentencing of defendants Carta and Taylor, we believe that they are not the only ones involved and that there is a larger scheme involving at least one other person who masterminded this theft. How did these thieves know that the moepu were reburied? How did they know when the reburial was done? How did they know where the cave is located? We urge federal and state investigators to continue their work to solve this crime and request anyone with knowledge of what took place to contact the Office of the Inspector General and the Attorney General's Office.
IN ADDITION, the same four Hawaiian organizations wrote a June 7, 2006, letter to U.S. Attorney Ed Kubo requesting that his office consult with them regarding the temporary curation of the stolen moepu and to return the funerary items following the prosecution of the defendants.
One cannot help but wonder why the state attorney general has not taken any action to enforce state law against defendants Carta and Taylor. One might argue that such inaction is consistent with the Lingle administration's lack of support for Hawaiian burials. We hope this is not the case and that the purpose for chief investigator Wong's and DLNR's involvement in the outset of this investigation is that the state intends to assess civil penalties and that the Attorney General's Office will continue to investigate the Kanupa Cave thievery until justice is finally achieved for these kupuna. Let us hope.
Edward Halealoha Ayau is executive director of Hui Malama I Na Kupuna O Hawai'i Nei. This commentary also was signed by Pualani Kanahele, Charles Maxwell Sr., William Aila, Wilma Holi, Ihilani Chu, Konia Freitas, Kaleikoa Ka'eo, Ka'ohu Seto and Poki'i Seto.