Sept. 23 deadline for artifacts
Honolulu Advertiser
Thursday, September 8, 2005
By Ken Kobayashi Advertiser Courts Writer
A federal judge yesterday gave a Native Hawaiian group until Sept. 23 to return to the Bishop Museum 83 priceless burial objects that the organization says it sealed in a Big Island cave five years ago.
But a lawyer for the group said it will immediately ask the 9th U.S. Circuit Court of Appeals to stay the enforcement of U.S. District Judge David Ezra's decision until an appeal by the organization is resolved. Ezra yesterday filed a 22-page court order formalizing an oral ruling Friday that directed Hui Malama I Na Kupuna 'O Hawai'i Nei to return the artifacts.
Ezra's decision is the latest development in the continuing controversy that has pitted Native Hawaiian groups against each other over what should be done with the moepu or funerary objects.
Alan Murakami, lawyer for the Native Hawaiian Legal Corp., which represents Hui Malama, said Ezra's decision goes against "the very core" of the group's religious and spiritual beliefs protected by the First Amendment.
"We will have to sit down and pray and come up with a decision," Hui Malama president Charles Kauluwehi Maxwell said in discussing whether the group will comply if it doesn't get relief from Ezra's order.
Known as the Forbes Caves Collection, the items were taken from the Big Island's Kawaihae Caves in 1905 and turned over to the Bishop Museum.
The museum lent the items to Hui Malama in 2000, but the group has since refused to return them, saying they belong in their original resting place and that returning them would again desecrate the burial site.
Two Native Hawaiian groups, Na Lei Alii Kawananakoa and Royal Hawaiian Academy of Traditional Arts, which filed claims to the items, asked for the order. The Bishop Museum supported the request.
In his decision yesterday, Ezra said there are "serious questions" as to whether the federal law governing the disposition of burial objects was violated when Hui Malama received the items and refused to return them. In addition, the risk of harm to the objects also warrants their return to the museum, he said.
The judge also said he is "greatly troubled" by Hui Malama's failure to provide basic information about the whereabouts of the objects or their condition.
The judge directed his order to Hui Malama, its members or anyone who has custody of the items.
He said the members of Hui Malama are not required to participate in the removal, but Hui Malama "bears the burden of either returning the moepu to the Bishop Museum itself, or by causing them to be returned to the museum through other means procured by Hui Malama."
Ezra also said he will ask that federal officials be present to monitor the removal.
"We're pleased," said attorney George Van Buren, who represents Na Lei Alii Kawananakoa. "We believe the judge made the correct decision."
Bishop Museum lawyer LindaLee Farm also said they were pleased with the order, which sets a definite timetable to minimize the risk of harm to the objects.
Van Buren declined to speculate about what might happen if Hui Malama does not get relief from the appeals court and does not comply.
"I expect everybody to comply with court orders and generally they do, and I think Judge Ezra made it very clear that he expected compliance," Van Buren said.
If anyone refuses to comply, the judge's options under federal law could include finding that party in contempt of court, which could include fines and, in extreme cases, jail time.
Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.
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