Appeals court upholds ruling against Hui Malama

The organization is given 16 days to return native Hawaiian artifacts to Bishop Museum

The 9th Circuit Court of Appeals has told a native Hawaiian group to return 83 priceless artifacts to Bishop Museum so other claimants may get an opportunity to help decide their final resting place.

In a unanimous vote yesterday, the three-judge panel in San Francisco upheld the Sept. 7 ruling by U.S. District Judge David Ezra, who ordered Hui Malama I Na Kupuna O Hawaii Nei to return the objects, which were buried at Kawaihae, or "Forbes," cave five years ago.

Hui Malama was founded in 1989 to repatriate native Hawaiian bones and artifacts from museums and construction sites, but its practices have come under criticism by other groups.

Ezra ordered the artifacts be secured in a climate-safe environment, away from public view, at the Bishop Museum until the competing claimants resolve their differences.

The appeals court, which heard oral arguments to overturn Ezra's order Dec. 6, gave Hui Malama 16 days to honor the order. However, the order did not specify when the 16-day timetable begins.

"The interests of justice and the public would best be served by bringing the items to a secure location at the Bishop Museum during the pendancy of this matter," the ruling said.

It continued: "These findings are supported by the record and are not clearly erroneous. Because the District Court neither applied an incorrect legal standard, misapprehended the law nor relied on clearly erroneous findings of fact, it did not abuse its discretion in ordering the return of the items."

Hui Malama representatives criticized the decision.

"The judges got it wrong," said Alan Murakami, an attorney with the Native Hawaiian Legal Corp., which represents Hui Malama.

"Hui Malama has been forced to deal with this Western legal system for satisfaction of Hawaiian cultural issues," Murakami said, adding that the judges "weren't impressed that the First Amendment rights (to freedom of religion) of Hui Malama would be violated."

Murakami was considering strategies to appeal the opinion.

Hui Malama had argued that opening the cave would be a desecration that violates their religion. They also argued that if anyone attempted to open the cave -- reinforced with concrete and steel rebar -- it would collapse. The 9th Circuit threw out the safety issue on the technicality that it had not been argued before Ezra.

Sherry Broder, an attorney representing two native Hawaiian organizations that sued Hui Malama in August demanding return of the items, said yesterday, "It's amazing that we got a decision as fast as we did. I think the panel recognized the importance of implementing Judge Ezra's order as soon as possible to protect these priceless artifacts before they are stolen or degraded by the elements or insects."

"The panel really reaffirmed Ezra's order and did not change one word of his previous order," Broder said.

Broder represents Na Lei Alii Kawananakoa and the Royal Academy of Traditional Arts, which are federally recognized -- along with Hui Malama and 11 other organizations -- as claimants to the Kawaihae items* by the Native American Graves Protection and Repatriation Act.

NAGPRA is a federal law enacted in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts from museums back to indigenous people. NAGPRA allows federal courts to intervene if competing claimants cannot resolve issues among themselves.

In September, Ezra ordered Hui Malama to retrieve the items, saying the artifacts faced "irreparable harm" from possible theft, environmental conditions and insects. He instructed them to bring the items to the Bishop Museum.

Ezra's order said that Hui Malama was required to give the exact location of the artifacts. The location has been an issue, and as of late yesterday, Hui Malama had not released its location to Broder.

During oral arguments last week, one appellate judge, Stephen Trott, summed up the legal situation, saying "there are numerous, legitimate contenders" for the cave items, and "Judge Ezra was simply trying to preserve the subject of the controversy against the possibility of irreparable harm."

According to court documents, Hui Malama signed a "one-year loan" for the items in February 2000. That loan has widely been debated, partly because Hui Malama repeatedly said publicly that it did not intend to return the items because the loan "was a vehicle for repatriation."

Broder said that the 9th Circuit panel "agreed with Judge Ezra that a loan is a loan."

Murakami told the court that the items were looted from the cave in 1905 by three grave diggers and that the museum knew it was taking stolen goods.

"How can you loan something that was (originally) stolen?" said Murakami, who maintains the museum has no control over stolen items.

But Broder said Hui Malama's treatment of the loan "sabotaged" the repatriation process.

Near the end of last week's hearing, Judge Trott seemed to agree, telling Murakami, "The case to me has every appearance of your side trying to hijack a process" designed to "allow everyone, who has a right, to come to the table."

Murakami said yesterday that the "judges also got it wrong with words like 'hijacking the process.'"

Murakami said of one legal opponent, "Kawananakoa sat on her rights (to repatriation) for nine years before asserting herself, long after repatriation was completed."

So far, the courts have sided with NAGPRA, which found against Hui Malama and said the repatriation process needs to be redone.

Murakami said the court "doesn't know that the majority of claimants want the items left in place (in the cave). But they will be hearing about that over the next few days."

CLARIFICATION Thursday, December 15, 2005 » Na Lei Alii Kawananakoa and the Royal Academy of Traditional Arts are recognized as claimants, along with Hui Malama and 11 other organizations, to the Kawaihae items by Bishop Museum under procedures governing the Native American Graves Protection and Repatriation Act. A story in the morning edition Tuesday on Page A1 might have suggested that Na Lei was recognized under NAGPRA for all cases beyond the Kawaihae items. Please see the applicable Corrections Page for more information.