Punishment threatened if artifacts not returned

Honolulu Star-Bulletin
Wednesday, December 21, 2005

By Sally Apgar

A federal court judge said yesterday that if a native Hawaiian group does not comply with his orders to retrieve 83 artifacts from a Big Island cave, he will not only impose "substantial" fines but also jail time.

"No one is above the law, Mr. Murakami, not even your client," said U.S. District Judge David Ezra, addressing Alan Murakami, the attorney for Hui Malama I Na Kupuna O' Hawaii Nei, a group founded in 1989 to rebury native Hawaiian remains and burial items taken from museums and construction sites.

Ezra ordered that by 4 p.m. today, Hui Malama supply precise information about the location of the artifacts, adding that previous information supplied by the group was "grossly inadequate."

Ezra also ordered that each side submit three names of structural engineers by Dec. 28 to assess the risks of cave collapse. Hui Malama has said that when it reburied the items in the cave in 2001, it used concrete and metal rebar to seal the cave against looters -- and that using jackhammers to remove the concrete would cause the cave to collapse.

Murakami also said the artifacts might be reburied not only in Kawaihae, or Forbes, cave, but an additional nearby cave.

"That is the first time I have heard that," said an angry Ezra, who has repeatedly suggested that Hui Malama has tried to hide the location of the artifacts from the court and the two claimants who sued Hui Malama in August. The two groups are represented by La'akea Suganuma of The Royal Academy of Traditional Arts and Abigail Kawananakoa, who founded Na Lei Alii Kawananakoa.

At one point, Murakami said that the Department of Hawaiian Home Lands, a claimant in the case that also owns the land where Kawaihae is found and therefore controls access, has known the location of the cave "for some time" so that it could conduct security.

An outraged Ezra said, "Are you telling me that the state has conspired with your client to hide these objects?"

Although the Hawaiian Homes Commission is a claimant that believes, along with Hui Malama, that the items should not be retrieved from the cave, Ezra said that "as a state agency" it had a duty to give information about the location of caves when a federal court order first went into effect.

DHHL did not return calls for comment.

The dispute started in February 2001, when the Bishop Museum, which had held the items since about 1905, crated them and handed them over to Hui Malama with papers identifying it as a "one-year loan."

Hui Malama reburied the items in the caves to honor the wishes of ancestors, and refused repeated requests to return the items.

In August, Kawananakoa and the Royal Academy filed a lawsuit asking that the items be retrieved from the cave so that the 14 competing claimants could review them and decide their final resting place.

On Sept. 7, Ezra ordered the physical retrieval of the items, to be stored at the Bishop Museum, away from public view, until the claimants could reach a decision about their fate.

Yesterday he said the artifacts would be treated respectfully and not "put in a glass display case for the tourists to view."

Hui Malama argued against retrieval, saying it would desecrate a sacred burial cave -- a violation of their constitutional right to freedom of religion. They appealed to the 9th U.S. Circuit Court of Appeals, which last week upheld Ezra's decision, leading to the proceeding before him yesterday.

Ezra issued an order yesterday that he hoped "showed compassion" and sensitivity to Hui Malama's religious beliefs. For example, since Hui Malama has said that anyone desecrating a cave will be punished, possibly by death, Ezra said that someone else could do the retrieval.

Kawananakoa and the Royal Academy said they were prepared to conduct the retrieval as soon as possible.

"Please pray that our most sacred idols will be returned without further damage," Kawananakoa said.

Also yesterday, Ezra admonished Murakami for statements he and his clients made publicly about the court.

During a news conference last week, the Star-Bulletin reported that the po'o or director of Hui Malama, Edward Halealoha Ayau, said, "We are in a Western court of law trying to explain to Western-trained judges and lawyers our deeply felt cultural values. We are in an inappropriate forum."

Ezra reprimanded Murakami for statements referring to "Western-trained judges, as if some of those, myself included, have no understanding or appreciation" of Hawaiian laws and traditions.

Glaring at Murakami, Ezra said, "I trust your comment wasn't racial. But if you were saying that Caucasian judges cannot understand Hawaiian laws, then I think your comments border on sanctionable."

Ezra also admonished Murakami for other public Hui Malama statements characterizing the dispute as one between "Hawaiians and the federal court."

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