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.

Bishop Museum doesn’t
qualify as a claimant
to artifacts

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.

Items stolen from cave
must be retrieved, reburied

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.