Artifacts dispute resolution elusive
Honolulu Advertiser
Thursday, September 15, 2005
By Gordon Y.K. Pang
Advertiser Staff WriterA group that is seeking to block a court order to return 83 burial artifacts from the Kawaihae Cave on the Big Island can avoid any trauma by letting others do it for them, according to a legal brief filed yesterday by an attorney for the parties seeking return of the items to the Bishop Museum.
The suggestion drew a rebuke from an attorney representing Hui Malama I Na Kupuna 'O Hawai'i Nei, the group fighting to keep the artifacts where they are.
Yesterday, attorney George Van Buren dismissed Hui Malama's key objection that forcing them to go into the cave and return the artifacts to the museum would cause emotional harm to its members and physical harm to the artifacts.
Not only has Hui Malama failed to prove there would be irreparable harm if the artifacts are returned to the museum, but "there is ample precedent in Hawaiian culture for the removal of and transfer of burial items," Van Buren wrote.
What's more, "the members of Hui Malama are not required to subject themselves to the supposed physical and spiritual harm that they perceive," Van Buren wrote. "Others can perform the transfer under the supervision of federal officials."
The proposal angered Alan Murakami, an attorney for the Native Hawaiian Legal Corp., which is representing Hui Malama.
"What they're offering to do is immaterial," Murakami said. "That's like saying, 'I don't have to push my baby off a cliff but I can get a someone else to do it, and it's not going to affect me.' "
In 2000, the museum lent the items for a year to Hui Malama, one of 14 Native Hawaiian group who have come forward as claimants to the artifacts. Hui Malama members say the items have been returned to the cave from which they were removed and then sold to the museum in 1905. They have refused requests, at first by the museum and now by a federal court, to send them back to the museum.
Native Hawaiian organizations Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, also among the 14 claimants, sued the museum and Hui Malama, arguing that the artifacts should be in the museum's possession until the claimants can agree on their final resting place.
Van Buren said the two organizations suing for their return "have no hesitation whatsoever in performing the necessary functions."
Murakami said the constitutional right of Hui Malama members to practice their religion is being violated regardless of who removes the artifacts.
In the documents they filed this week, Hui Malama attorneys submitted the testimony of a mason who helped seal the cave. He warned that reopening the site could cause its collapse, endangering the artifacts and those entering the cave.
But Van Buren, in his filing yesterday, questioned why Hui Malama had not previously issued that warning. He said that Hui Malama has been advocating for other artifacts to be repatriated in the cave, which would require it to be reopened.
Murakami said the filings yesterday by his opponents fail to adequately address Hui Malama's point that all of the claimants should be participants in the lawsuit, which has not happened.
Hui Malama's core argument is that repatriation ended with the placement of the artifacts back in the cave, and that any disputes at this point are between the claimants themselves and outside the jurisdiction of the museum or the courts.
Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.
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