Judge orders disputed cave artifacts retrieved

Claimants fail to agree on the items after four months of mediation

A federal court judge ruled yesterday that four months of Hawaiian mediation have not resolved the heated differences among competing claimants for native Hawaiian artifacts buried in a Big Island cave.

Judge David Ezra will proceed under federal law to reclaim the items from the cave.

Once the items are retrieved, the groups will have a chance to examine the objects and ultimately decide their disposition.

Ezra said engineers will study the cave to determine whether entry is safe. Ezra said he would not provide a time line as to when the cave would be opened. He said he wished to proceed in a confidential fashion to thwart anyone from stealing the items, which some say are worth more than $10 million.

In January, Ezra ordered the parties to conduct a Hawaiian mediation process called hooponopono to reach a consensus on how the items could be removed from Kawaihae, or Forbes Cave, and where they should be kept while the claimants decide their final disposition. Since then the sides have been meeting under the guidance of mediators Nainoa Thompson and Earl Kawaa, who have been reporting to Judge Kevin Chang.

Yesterday, Chang reported on the result of the mediation: "There was no agreement on the method of removal or storage."

Chang told the court, "My recommendation is that the court proceed to complete the process."

Ezra said the court would proceed "in the safest manner possible" to open the cave and retrieve the objects so that every claimant has a fair chance to examine them and have a say in their fate.

At issue are 83 items that were taken from Kawaihae cave in 1905 and either sold or donated to the Bishop Museum. In February 2001, Hui Malama I Na Kupuna Hawaii O Nei, a group founded in 1989 to reclaim Hawaiian bones and burial objects from museums, took the items from staff at Bishop Museum who had crated them and signed a document identifying it as a "one-year loan."

The group has repeatedly said the items are funerary objects that ancestors wanted buried with them. To honor those wishes, Hui Malama reburied the items in Kawaihae cave.

But other groups, represented by Campbell Estate heiress Abigail Kawananakoa and La'akea Suganuma, president of the Royal Academy of Traditional Arts, say they are not burial objects that belong in caves, but items of cultural significance that should be shared with the Hawaiian people.

Roger Rose, a Harvard-educated anthropologist and former curator of the Kawaihae collection while it was at Bishop Museum, said yesterday that he believes the wooden carved images in the collection could have been the personal deities that Kamehameha the Great worshipped during the time he united the islands. Rose, who was retained as an expert by Kawananakoa, believes that carvings were hidden in Kawaihae cave for safekeeping after 1820, when the traditional Hawaiian religion was outlawed and people were encouraged to torch such carvings in bonfires.

Kawananakoa said yesterday that the wooden carved images would have been the property of the chiefs but should be preserved and studied for all Hawaiians.

During the hearing, Chang and Ezra repeatedly said the mediation was not a failure.

But outside the courthouse, both sides expressed outrage.

"The mediation was a complete farce," said Kawananakoa.

She said Hui Malama wrongfully took the items and reburied them without the consent of the other claimants.

"They have done a heinous thing to our possessions," Kawananakoa said, adding "it is very upsetting" that the items are still in the cave because of the threat of theft and climatic conditions.

"They are disintegrating at this moment, and it is such a great loss," she said, adding, "The principle of the whole thing is that they (Hui Malama) had no right to take them. They had no right, and they did it under false pretenses. It was theft. And I hope my suit against them will prove that."

In August, Kawananakoa sued Hui Malama and the Bishop Museum for the return of the items.

In December, Ezra found the leadership of Hui Malama to be in contempt of court for not revealing information about the location of the caves and the exact whereabouts of the items within the various chambers.

Hui Malama director Edward Halealoha Ayau told Ezra that giving such information would violate his religion. In December, Ezra sent Ayau to prison for contempt. After several weeks he was released and put under house arrest with an electronic ankle bracelet so that he could participate in the mediation.

Ezra said yesterday that Ayau was still in contempt but that no purpose would be served by imprisoning him.