On Dec. 27, after a 40-minute lecture attempting to justify what he was about to do, Federal Judge David Ezra found Edward Halealoha Ayau guilty of civil contempt of court and ordered him confined for an indeterminate period. A few minutes later, Ezra found Kihei Nahale'a in criminal contempt as the young man rose and chanted in defiance. Nahale'a was sentenced to five days in jail for his protest.
In less than an hour of the court's time, Ezra demonstrated the inability of the American judicial system to deal with issues of religious belief. It is, perhaps, for this reason that founders of the American republic took such pains to insist on the separation of church and state.
Ezra's repeated admonishment that Ayau and Hui Malama were not the sole arbiters of Hawaiian cultural and religious practice is really quite beside the point. The issue is that Hui Malama has broken no law and that Ayau is incarcerated only because he has defied the federal court's entry into this dispute among kanaka maoli and the Bishop Museum.
When Ezra ordered Hui Malama to return to the burial site and violate a gravesite, again, he presented the organization with a choice of forsaking their consciences or their liberty. In the finest traditions of a Joseph Nawahi, a Robert Wilcox or, if you prefer, a Henry David Thoreau, the members of Hui Malama chose to honor their conscience.
There have already been attempts to denigrate Ayau's religious devotion as a kind of arrogance, if not fanaticism. There are other Hawaiians who do not share Hui Malama's belief that the items stolen from the Kawaihae caves in 1905 were all moepu, or that they should necessarily be returned to the ground. The issue among them is where the articles should be kept while the different claimants to the articles discuss the matter.
Where, indeed? The museum's position in this, at least under the direction of William Brown, is that the articles should be housed at the museum until the different claimants come to an agreement. Dr. Brown knows that such agreement is unlikely ever to take place, which would, practically, give the museum permanent custody. Hui Malama wants the moepu to remain buried. Hui Malama also knows that an agreement among the claimants is unlikely ever to take place, virtually assuring that they have done their job of repatriating the stolen items to the earth.
Injury was done to our chiefs and ancestors when the 1905 museum encouraged the theft of the iwi and the moepu. Injury is now done to two living descendants who were imprisoned.
Perhaps the Hawaiian plaintiffs will see this and realize that the monetary, academic or even cultural value of these items, moepu or not, cannot possibly compensate for the liberty of two men of conscience and the repute of the museum. Perhaps, then, the Bishop Museum might take the opportunity to evaluate its leadership and the limits of its role as a custodian of the cultural artifacts of Hawai'i.
As for Judge Ezra, is it possible to hope that he might see that our burial practices and beliefs are places where his court and his opinions do not belong?
Jonathan K. Osorio
Associate professor and director, Kamakakukalani Center for Hawaiian Studies, University of Hawai'i at Manoa
Original article URL: http://the.honoluluadvertiser.com/article/2006/Jan/05/op/FP601050318.html/?print=on