Judge sets Ayau free to participate in talks

Honolulu Advertiser
Wednesday, January 18, 2006

By Gordon Y.K. Pang
Advertiser Staff Writer

Edward Halealoha Ayau, executive director of Hui Malama I Na Kupuna O Hawai'i Nei, and his wife, Kainani Kahaunaele, leave federal court after his release. He'll join in mediation over cultural treasures.
GREGORY YAMAMOTO | The Honolulu Advertiser

The legal battle over 83 priceless Hawaiian cultural items entered a new phase yesterday.

Edward Halealoha Ayau, the executive director for Hui Malama I Na Kupuna O Hawai'i Nei, was released from jail after three weeks, and two Hawaiian leaders were named as facilitators for a mediation process that the court and the parties involved hope will result in a settlement outside of traditional judicial means.

"This is an issue for Hawaiians to decide," U.S. District Judge David Ezra said, adding that while it gives Hawaiians a chance to show they can work together despite a history of disharmony, it also provides "an opportunity to fail. I don't believe I hope that isn't the case."

Ezra ordered Ayau released under supervision from the Federal Detention Center, in large part so he can participate in the closed-door mediation process that is likely to begin next week. Ayau had been incarcerated since Dec. 27 after refusing to give Ezra information about the location of the artifacts.

Sitting just outside the Federal Building courtyard yesterday with Kainani Kahaunaele, his wife of less than six months, Ayau said his three weeks in jail made him more committed to the cause of Hui Malama, inspired by the support he and the organization received.

He could see the supporters who held vigils for him twice a day across the street from the detention center, although he could not hear them, he said.

He also received a string of letters from supporters. "They said they thought what I was doing was the right thing, and to remain steadfast," he said. "It was very humbling to me to have people I didn't even know praying for me."

Meanwhile, U.S. Magistrate Kevin Chang, who is helping Ezra with the mediation of the case, announced that two men with ties to Kamehameha Schools Nainoa Thompson and Earl Kawaa would be the facilitators or mediators for the process. Chang said the court chose the two after the parties failed to agree on a mediator, or mediators, on their own.

Thompson is the famed non-instrument navigator of the Hokule'a and president of the Polynesian Voyaging Society. He recently was appointed by the federal Probate Court to a second, five-year term as a Kamehameha trustee. His father was the late Myron "Pinky" Thompson, also a trustee when the Kamehameha Schools trust was known as Bishop Estate.

Kawaa, according to Kamehameha officials, is a family education specialist and Waimanalo site coordinator for the school's Hi'ilani program, which provides early childhood and family education, especially to those with children up to 3 years old. He formerly was with the Queen Lili'uokalani Trust.

The court is giving the parties a "target date" of Feb. 24 to reach agreement.

"It is significant that the court recognizes and encourages a Hawaiian mediation process," Chang said, adding that, if successful, it could be used as a precedent for other cases.


The Bishop Museum and Hui Malama were sued by two other Native Hawaiian organizations seeking the return of the cultural objects, which were transferred by the museum to Hui Malama in late 2000. Rather than returning them, as has been requested by the museum, Hui Malama officials said they have been buried in caves on the Big Island from where they were taken in 1905 by Western explorers.

Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts want the items returned, arguing they they and other groups have not had an opportunity to weigh in on what should happen with the items.

Ezra first jailed Ayau after finding him in civil contempt of court for refusing to disclose the exact location of the 83 items. Ayau said it would go against his religious and cultural beliefs to do so.


The court has "no genuine, practical reason" to keep Ayau imprisoned if he is willing to participate in mediation proceedings in good faith, Ezra said. "I think it would be helpful to have Mr. Ayau attend those."

The judge made it clear yesterday that Ayau remains in contempt and, as a result, will be confined to his home in central Moloka'i and his whereabouts at all times monitored electronically via Global Positioning System technology.

Ezra released Ayau yesterday under the condition that he stay on O'ahu until the monitoring system is set up, which is expected to be done tomorrow. The judge also said he expects good behavior on the part of Ayau, Hui Malama and their supporters during the supervised release.

Barefoot and wearing prison-issued white T-shirt and blue pants, his tabi-like footwear in his hands, Ayau clearly did not expect to leave jail yesterday. He fielded a seemingly endless stream of cellular telephone calls from well-wishers. He seemed more relaxed and at ease than he had been in the months leading up to his incarceration.

The usually stoic Ayau laughed when asked what he and his supporters would be doing after leaving the courthouse and meeting with attorneys.

"I like eat Pake food," he said, noting that he is part-Chinese and partial to honey-glazed walnut shrimp.


Some had called him a martyr for going to jail, but it is a label he continues to refuse, saying that is "shifting of the focus from the kupuna to me," Ayau said. "I'm just hard-headed. My parents are hard-head. They taught us right from wrong; they taught us to stand up for what we believe is right."

His work for the organization also was uppermost in his mind, he said.

Despite not having access to a computer, Ayau said, he also had a lot of time to write time he devoted to writing grants requests for Hui Malama.

"Why would I waste my time? I'm very anal," he said. "My mind's gotta be busy, otherwise I get nuts. So I was just writing out, thinking through things that gotta be done, trying to stay active. Your mind can be your best friend in prison; it can be your worst enemy. So you've gotta stay positive."

Ayau, who turns 42 on Feb. 8, said the first thing he will do when he returns to Moloka'i tomorrow will be to visit his parents. "They're the reason for my being," he said.

Ezra said that as the mediation process ensues under Chang's direction, he will continue on a "dual track" of locating the objects. Earlier this week, he named two engineering firms to begin looking at the structural integrity of the Kawaihae Cave, one of the two caves where the objects were believed to have been placed.

That's considered to be the first step toward the court actually going into the cave to remove the items, an action Hui Malama has objected to strenuously.

Ezra said that while he is required to move in that direction, "that doesn't mean I have to move quickly."


Officials with both Hui Malama and the groups suing it said that they look forward to mediation and that they had wanted to resolve their differences outside the courtroom before the lawsuit was filed last summer.

"It's important that people sit down and discuss these things," said La'akea Suganuma, president of the Royal Hawaiian Academy of Traditional Arts.

"We were ready for mediation from Day 1," Ayau said. "That would have been our preferred mode of dealing with this."

The ground rules for the mediation, as well as exactly who will be sitting at the table, have yet to be determined and are expected to be decided during the first few meetings, attorneys said.

Reach Gordon Y.K. Pang at gpang @ honoluluadvertiser.com.

© COPYRIGHT 2006 The Honolulu Advertiser, a division of Gannett Co. Inc.

Original article URL: http://the.honoluluadvertiser.com/article/2006/Jan/17/br/br04p.html/?print=on

Return to News page

Return to Bones & Burial Artifacts page

Ho`iho`i Mai