Disputed artifacts
ordered returned

All 14 claimants are to resolve
the fate of the reburied items

A federal judge ordered the return yesterday of 83 treasured native Hawaiian artifacts believed to have been secretly reburied in a Big Island cave five years ago.

Chief U.S. District Judge David Ezra ordered Hui Malama I Na Kupuna 'O Hawai'i Nei, a native Hawaiian group, to retrieve the funerary items and bring them "back to a secure location at the Bishop Museum where they will be held in an undisturbed condition until this matter is resolved" among 14 competing native Hawaiian claimants. His order is expected to take effect Tuesday.

Ezra told the court, "The sad thing here is that we have Hawaiians vs. Hawaiians."

Earlier this month, two native Hawaiian claimants filed a lawsuit against Hui Malama and the Bishop Museum demanding return of the items so that the whole group of claimants could have a say in their fate under the Native American Graves and Repatriation Act.

NAGPRA is a federal law that governs repatriation of native Hawaiian and American Indian remains and artifacts. Disputes under NAGPRA are handled by the federal court. The arguments in the lawsuit are based on violations of NAGPRA and the Fifth Amendment property law.

The two claimants are La'akea Suganuma, a practitioner of native Hawaiian martial arts and the president of the Royal Hawaiian Academy of Traditional Arts, and Na Lei Alii Kawananakoa, a group founded by Abigail Kawananakoa, a wealthy Campbell estate heiress and descendant of royal Hawaiian blood. The 14 claimants have all been recognized under NAGPRA.

When they filed the lawsuit, Suganuma and Kawananakoa asked for the preliminary injunction demanding the return of the items, which Ezra granted yesterday. They argued that the items had been "improperly loaned" to Hui Malama from the Bishop Museum in February 2000 and that they faced "imminent harm" in Kawaihae Cave (also known as Forbes Cave) due to environmental conditions, insect attack and possible theft.

Suganuma, who has been fighting for the return of the items since 2000, said he was pleased with Ezra's ruling. "We had to go through this step in federal court because of the arrogance and complete disregard for the rest of the claimants," he said.

Edward Halealoha Ayau, a founding member of Hui Malama, said that exhuming the items is desecrating an ancestral burial ground.

Standing outside the court, Ayau said, "I would hope that a federal court would not order someone to violate their spiritual beliefs or violate their kupunas' (ancestors') wishes."

Asked if he would comply with the federal order, Ayau said, "We do not have the stomach to take from our kupuna."

Hui Malama is expected to file an emergency appeal to the 9th U.S. Circuit Court of Appeals to overturn Ezra's order.

LindaLee Farm, an attorney representing Bishop Museum, said, "The museum is pleased. We will set up a place that is safe and secure" to hold the items until the claimants decide on their final resting place.

Although identified as a defendant in the case, the museum filed pre-hearing documents that supported the injunction and return of the items.

Ayau has long said his group reburied the items in the cave according to the wishes of ancestors who originally chose to put them there. In the early 1900s, three men, including David Forbes, entered the cave, took the items and eventually sold or donated them to the Bishop Museum. The items include several valuable stick figure aumakua (deified ancestors), a female figure adorned with human hair, and refuse bowls studded with human teeth.

Ayau repeatedly has said Forbes and the others were grave robbers "who committed theft and desecrated the caves." Yesterday, he said he was especially angered the court ordered the items "returned to the very institution involved in the illicit taking."

Ezra addressed the potential defiance of his order, saying, "I will take such action as is necessary to ensure that my orders are complied with."

The judge also assured Hui Malama that the items would not be displayed in the museum and that the group would have equal "rights to assert their claim."

"I intend no whitewash here. There will be no giveaway to any particular entity or organization," Ezra said.

In explaining his decision, Ezra said he had not been assured by Hui Malama in court papers that the items were secure.

Ezra also referred to a "serious and fundamental allegation" in the lawsuit that Hui Malama had violated the NAGPRA process and that the group obtained the items "under false pretenses."

According to the lawsuit, the 83 items were crated up and handed over to Hui Malama on a Saturday in February 2000 when most of the museum staff was not present. The document releasing the items describes it as a "loan" from Feb. 26, 2000, until Feb. 26, 2001. The document also says, "These items are being loaned pending completion of NAGPRA repatriation per request of Hui Malama and Dept. of Hawaiian Home Lands."

Despite repeated requests from the museum, Hui Malama refused to return the items.

At the time of the loan, there were four claimants: Hui Malama, DHHL, the Office of Hawaiian Affairs and the Hawaii Island Burial Council.

In May 2003 a NAGPRA review committee, which gives only advisory opinions, found that the repatriation was "seriously flawed" and therefore not final. Last March, a second review committee meeting in Honolulu upheld the first ruling calling for reclamation of the objects from the cave while the NAGPRA consultation process proceeds.

During the March proceeding, Ayau told the review committee that "the loan was just to facilitate the repatriation" and that neither Hui Malama nor the museum staff had expected the items' return.

The museum's "loan" to Hui Malama was made under the administration of former museum Director Donald Duckworth. Current museum Director Bill Brown testified to the NAGPRA committee that the loan was wrong and that the items should be reclaimed.

Ayau said, "This is not about excluding anyone. It's about honoring the wishes of our kupuna."