Kawaihae moepu case is misunderstood

Honolulu Advertiser
Sunday, November 6, 2005

COMMENTARY
By U'i Pauole and Alan Murakami

Recent news coverage of the events and issues surrounding the reinterment of moepu (funerary objects) in the Kawaihae Cave indicates a need for a clearer understanding of the role Hui Malama I Na Kupuna O Hawai'i Nei played to return these moepu to the cave from which grave robbers stole them a century ago.

Hui Malama's goal is to honor their departed Hawaiian ancestors, to protect their eternal resting places from intrusions, and when necessary, to return items taken from these descendants by museums and federal agencies.

As this need for swift and certain return of burials and their associated burial items is paramount, Hui Malama has strived to follow federal and state laws, designed in part with its input, for the past 16 years.

Unfortunately, The Advertiser's Sept. 25 opinion piece highlights some basic misunderstandings of the governing law and key issues related to the restoration of the moepu in their culturally appropriate setting.

FULL DISCUSSION

First, Advertiser editorial writer Vicki Viotti mistakenly asserted that competing claimants for these funerary objects have had to go to court to have their voices heard.

Not true. Hui Malama, the state Office of Hawaiian Affairs and the state Department of Hawaiian Home Lands all asked for repatriation beginning in 1994. For over five years before the reinterment in 2000, different public forums like the Hawai'i Island Burial Council, OHA's Native Hawaiian Historic Preservation Council and Hawaiian Home Lands, after public notice, as well as the Bishop Museum, actively discussed and debated the issue of the moepu.

Those now complaining, Abigail Kawananakoa and La'akea Suganuma, never surfaced in any of these early public discussions.

In 2000, after the Bishop Museum supposedly "loaned" it the moepu, Hui Malama reinterred them in the Kawaihae Cave without objections from the four original claimants (Hui Malama, OHA, DHHL and HIBC) to these items.

It was only after the 2000 reinterment when notice of the transfer of legal interest in the moepu the last step to complete repatriation was taken that Suganuma and eight others made claims to the moepu. Even then, Kawananakoa was not among them.

Viotti mistakenly assumed that there could be ho'oponopono (correction or resolution) only if the moepu were back in the hands of the Bishop Museum. However, under the Native American Grave Protection and Repatriation Act or NAGPRA, debate among this new set of 13 claimants may proceed without actual museum physical custody of the moepu, as the simultaneous transfer of physical custody and legal interest of the moepu is not required for repatriation.

Contrary to Viotti's assertion that Hui Malama "deprived other Native Hawaiians of a seat at the negotiations," Suganuma and these other eight claimants were thereafter involved in numerous meetings and discussions, and had full participatory rights to determine what to do with the moepu recover them or leave them in the Kawaihae Cave and to whom legal interest should be transferred.

In fact as spokesperson for the 13 claimants who ultimately obtained title to the moepu, Su-ganuma urged the museum to recognize all 13 as co-owners and complete the repatriation (thereby awarding them, including Hui Malama and Suganuma's Royal Hawaiian Academy of Traditional Arts, custody and ownership of the moepu). The museum did so in April 2001.

Throughout this process, Hui Malama deprived no one a seat at the table.

Viotti also thinks Hui Malama's reinterment of the iwi kupuna (bones of the elders) and moepu was unilateral. However, one of the claimants, Hawaiian Home Lands, which as the landowner must give consent to any disturbance of burials or moepu, has steadfastly refused access to anyone, including Hui Malama, to the cave.

Three other co-owners of the moepu Native Hawaiian Advisory Council, Pu'uhonua O Waimanalo and the Nation of Hawai'i have all urged no further disturbance.

If anything, Suganuma has acted unilaterally, as none of the other co-owners joined him in the lawsuit, filed four years after the end of repatriation. Instead, he now enlists the aid of Kawananakoa as a co-plaintiff, whom the museum conveniently and tardily recognizes without authority to do so as a claimant in 2005, four years after repatriation was completed.

NOT A LOAN

Under the grave protection act, Hui Malama or any of the other original four claimants at the time could demand a museum with no right to possess moepu to immediately surrender them. The Bishop Museum bought these moepu in 1905 knowing they were stolen. Thus, it had no right of possession and could not refuse to turn over the moepu unconditionally.

Instead, it unilaterally chose to "loan" the moepu to Hui Malama. With repatriation complete, the museum waived any rights, if it ever had any, under its "loan" to demand that Hui Malama return the moepu.

In fact, a thief can never enforce a loan of stolen goods to the original owner and expect them to be returned, ever, in the future.

The law is clear. Under the grave protection act, the 2001 "repatriation" officially terminated any legal ability of the museum to recognize additional claimants or recover the items it "loaned" to Hui Malama. It was then up to the 13 Hawaiian groups with title to jointly decide where the moepu would rest. In the end, they, including Suganuma, agreed to disagree.

Also, remember, it is Suganuma who is claiming these moepu are not funerary objects and should be returned to the museum. Yet in filing his lawsuit under the Native American Grave Protection and Repatriation Act, he explicitly acknowledges these same objects are moepu.

To be consistent, he should be renouncing any claim under NAGPRA to these items, or at the very least, join every claimant he has excluded from his lawsuit. He cannot logically or legally have it both ways.

U'i Pauole and Alan Murakami are with the Native Hawaiian Legal Corp. They wrote this commentary for The Advertiser.

© COPYRIGHT 2005 The Honolulu Advertiser, a division of Gannett Co. Inc.

Original article URL: http://the.honoluluadvertiser.com/article/2005/Sep/21/ln/FP509210351.html


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