Judge says Hawaiians must settle artifact fight

Tradition, not court action, would be preferable, Ezra says

Honolulu Star-Bulletin
Friday, January 6, 2006

By Sally Apgar

A FEDERAL JUDGE ordered several native Hawaiian groups yesterday to resolve their differences over the final disposition of 83 artifacts, suggesting they pursue a Hawaiian form of conflict resolution on which they can all agree.

"This is not a dispute between the federal government and native Hawaiians. It is a dispute between native Hawaiians and native Hawaiians," said U.S. District Court Judge David Ezra. "We did not file this lawsuit."

In the meantime, Ezra refused to release Edward Halealoha Ayau, leader of Hui Malama I Na Kupuna O Hawaii Nei, from federal detention. Ayau was sent to prison last week for refusing to tell Ezra the location of the artifacts or the names of those who helped him rebury them.

At issue are 83 native Hawaiian artifacts that were reburied in two Big Island caves in February 2000 by Hui Malama. The items were taken from Kawaihae, or Forbes, cave in 1905 and held by the Bishop Museum. In 2000, Bishop made a "one-year loan" of the items to Hui Malama, which has refused repeated requests to return them. The group was founded in 1989 to reclaim native Hawaiian remains and burial objects from museums and construction sites.

Now, 14 native Hawaiian groups claim the items under federal repatriation laws. The groups have different religious and cultural views of the items.

Two of those groups filed a federal lawsuit demanding the retrieval of the items from the cave so that all of the claimants can review them and share in deciding their final resting place.

Ezra said yesterday that the federal court "has the power and authority" to make a resolution "and jam it down someone's throat." However, Ezra said he prefers a "method within the framework of Hawaiian tradition" so the groups can resolve their differences "without direct court involvement."

"The whole idea is to take this out of the courtroom and put it back into the hands of the Hawaiians," he said.

In September, Ezra ruled the items needed to be retrieved. Hui Malama appealed his order to the 9th Circuit Court of Appeals, which also ruled against the organization and sent the case back to Ezra. Hui Malama has refused to cooperate.

"We did not file the lawsuit until we absolutely had to," said La'akea Suganuma, who represents the Royal Academy of Traditional Arts. "Hui Malama would not compromise, and we could not resolve it among ourselves."

Now, the major players in the dispute appear ready to give Ezra's proposal a chance.

"We welcome the court's decision to find an alternative dispute resolution" under Hawaiian tradition, Suganuma said.

William Aila, interim spokesman for Hui Malama, said they are pleased that the court recognizes there are alternate methods for resolving disputes, including bringing Hawaiians together to the table with minimal court intervention.

Hui Malama intends to be part of that process, he said: "We look forward to participating and seeing if it can be resolved.

"The key to success in this endeavor is to make sure all 14 claimants are there, otherwise we'll only have a partial settlement, and the (other) guys may not agree."

Hui Malama's board will meet to discuss Ezra's proposal and come up with some recommendations as to who else should be involved in the mediation.

Ezra had suggested kupuna in the Hawaiian community or retired judges.

"It would have been easy if Aunty Gladys (Brandt) was around," Aila noted, recalling the revered Hawaii kupuna and educator who died in January 2003. "Gotta be somebody that has everybody's respect."

Ezra, who is working out the dispute with the help of U.S. Magistrate Kevin Chang, said the groups have until Monday to propose a method to the court.

Ezra has been trying to strike a balance in the highly emotional dispute, but he stressed that with or without the help of Hui Malama, the court will pursue the retrieval of the artifacts.

At yesterday's court proceeding, Ezra denied a request to release Ayau. Ezra asked Ayau if he had changed his mind about giving the court the information.

"No, your honor," Ayau replied.

Ayau has said that retrieving the items is desecration and a violation of his constitutional right to freedom of religion.

"I'm put into an intolerable position," Ezra said after hearing Ayau's response. "A federal judge cannot step back and allow someone to openly defy a court order. The last thing I want is for Mr. Ayau to spend the next months or years in custody ... but I have no choice."

Hui Malama attorney Alan Murakami told Ezra that they "are exploring avenues," perhaps with the 9th Circuit, to appeal Ayau's imprisonment.

Sherry Broder, who represents the Royal Academy and Na Lei Alii Kawananakoa, another litigant, told Ezra, "Nobody is above the law. You bent over backward" to be lenient.

Ezra stressed that he is concerned about how this case is further "splitting native Hawaiians" because "a divided Hawaiian community is an ineffective Hawaiian community."

"If you wish to press for rights, you can't do it by being splintered and fragmented. And coming together once a year to march up and down Kalakaua Avenue isn't going to do it," Ezra said.

Star-Bulletin reporter Debra Barayuga contributed to this report.

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