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Editorials
Friday, June 9, 2000Federal concern on
Hawaiian artifactsTHE dispute over the rare Hawaiian artifacts removed from the Bishop Museum has assumed a new dimension with the intervention of the National Park Service, which has urged the museum to act to ensure that the artifacts are "preserved and protected against all threats." The park service administers the federal Native American Graves Protection and Repatriation Act of 1990, the law controlling disposition of such artifacts. The letter expresses justifiable concern over the museum's mishandling of this situation.The issue: The National Park Service has urged the Bishop Museum to act to protect Hawaiian artifacts that were turned over to a private group.
Katherine Stevenson, cultural resources director for the park service, noted in a letter to museum director W. Donald Duckworth that the artifacts -- 83 items from the so-called Forbes Cave in the Kawaihae area of the Big Island -- "are subject to a substantial threat of theft" while not in the museum's possession. The letter said the objects, which include many unique pieces, "would be worth millions of dollars on the black market."
Stevenson had written to Duckworth in April, saying she hoped the museum would "take every possible step to recover and take back into direct care" the missing artifacts. The latest letter demands that the museum explain the holdup in resolving the dispute.
The artifacts were turned over to a Hawaiian organization, Hui Malama, last Feb. 26, an action that the museum subsequently admitted was a mistake based on false representations by the group. Other Hawaiian groups claiming the artifacts protested the turnover to Hui Malama. Twenty-one Bishop Museum employees signed a letter of protest, impressive evidence that a serious blunder had been committed.
Duckworth, responding to the park service's letter, said museum officials "have inspected the items' interim storage location and the security arrangements and found that the items are secure from damage as well as theft." He maintained that the transfer was a loan, not an act of repatriation.
Certainly it's to be hoped that the artifacts are safe, but it's difficult to take Duckworth's assurances at face value without a full description of the circumstances. The artifacts evidently have been hidden somewhere in the hills of Kawaihae.
There is also a credibility issue in view of the various statements the museum has made in the past, at one point claiming that the law prevented it from releasing any information about the situation.
Duckworth said the museum had informed claimants that if they do not reach agreement on the handling of the artifacts by July 1 the artifacts are to be returned to the museum.
That date is fast approaching but it's uncertain that the group that took the artifacts will voluntarily return them if it fails to win the approval of the other claimants. It may be necessary to take legal action, and even then the return of the artifacts is not assured.
The letters from the National Park Service underscore the gravity of the situation and the responsibility of the museum to correct the problem.
Intrusion on state rights
CONGRESS has passed numerous laws to protect people from various forms of discrimination not forbidden by the Constitution, generally granting itself immunity from the requirements under those protections. Recent federal laws attempt to impose such rules on the states, challenging the 11th Amendment's guarantee of state sovereignty.
Threats to withhold federal funds from state programs are the usual method of enforcing federal standards. Any bullying of states beyond that should be disallowed.
Where discrimination is forbidden by the U.S. Constitution, states must comply. States have adopted rules that require them to follow nondiscriminatory standards at least as strict as those constitutionally guaranteed.
In areas beyond those cited in the Constitution, Congress has every right to impose anti-discrimination rules on private employers but it has no authority to impose them on the states. States alone have that authority under the 11th Amendment.
"It should not be Congress," explains Hawaii Deputy Attorney General Charles Fell. "We should not be hauled into federal court to be asked why we engaged in certain state programs."
In an attempt to protect Hawaii from erosion of its sovereignty, the Attorney General's Office has joined other states siding with Alabama in a case regarding enforcement of the Americans with Disabilities Act, one of the laws that provides protections not stipulated in the Constitution.
The disabilities law makes it illegal for employers to discriminate against qualified workers who have disabilities. It also requires that government services be made available to the disabled. The issue is not whether such protections are merited but whether the states have the right to deal with these problems without federal interference.
A federal appeals court in Atlanta has ruled against two Alabama employers -- the University of Alabama and the state's Department of Youth Services -- that claimed immunity from federal requirements under the 11th Amendment. In addition to the immediate issue, the Alabama case is important because the principle of imposing federal standards on states and requiring them to create programs aimed at achieving related goals may have effects extending far beyond the disabilities law.
If the appeals court's ruling was upheld, Congress would be encouraged to intrude further on state programs and employment practices, including the imposition of measures having nothing to do with constitutional protections against discrimination. Hawaii would be derelict if it failed to join Alabama in challenging such impairment of state's rights.
Published by Liberty Newspapers Limited PartnershipRupert E. Phillips, CEO
John M. Flanagan, Editor & Publisher
David Shapiro, Managing Editor
Diane Yukihiro Chang, Senior Editor & Editorial Page Editor
Frank Bridgewater & Michael Rovner, Assistant Managing Editors
A.A. Smyser, Contributing Editor
