By Sally Apgar
Warring factions of native Hawaiians are headed for a legal showdown in a federal court in San Francisco as early as this week over the fate of 83 treasured items that were reburied five years ago in a Big Island cave.
In preparation for that battle, the two sides filed scores of papers last week with the 9th Circuit Court of Appeals that not only advanced their legal arguments, but gave an insight into the deep spiritual divides between the groups over their interpretations of burial traditions, the uses of ancient caves, the wishes of kupuna (ancestors) and even what it means to be Hawaiian.
The 9th Circuit could decide this week whether to overturn a lower court decision by U.S. District Judge David Ezra on Sept. 7 that demands the return of the native Hawaiian burial items by Friday. Ezra wants them held at the Bishop Museum (but not on public display) until 14 federally recognized native Hawaiian claimants can decide on their final disposition.
One of the opposing native Hawaiian groups, Hui Malama I Na Kupuna 'O Hawaii Nei, said in recent court papers filed with the 9th Circuit that complying with Ezra's order would be "stealing from the dead, an action that threatens severe spiritual consequences for anyone involved." Hui Malama said retrieval would be a desecration that violates the group's First Amendment right to freedom of religion.
The legal war ignited last month when La'akea Suganuma, an expert in the ancient Hawaiian martial practice of lua, or "bone breaking," and Abigail Kawananakoa, a Campbell Estate heiress and descendent of Hawaiian royalty, filed a federal lawsuit against the Bishop Museum and Hui Malama, a group formed in 1988 to repatriate native Hawaiian remains and funerary objects from museums and when they are discovered in places such as construction sites.
Suganuma and Kawananakoa argued that the items were "improperly loaned" when museum staffers, under the former administration of museum director Donald Duckworth, crated them one Saturday morning in February 2000 and handed them to Hui Malama with inventory papers that identified the package as a one-year loan.
Hui Malama, they said, not only "arrogantly" ignored the rights of other native Hawaiian claimants when it reburied the items, but the "loan" violated the museum's own loan polices and the procedures of the Native American Graves Protection and Repatriation Act. NAGPRA is a federal law enacted in 1991 to govern the repatriation of native Hawaiian and American Indian remains and artifacts from museums back to indigenous people.
Edward Halealoha Ayau, Hui Malama's po'o (director), said the group reburied the items in Kawaihae or "Forbes Cave" to honor the wishes of the kupuna who put them there.
Ayau said, "As part of the repatriation process, Bishop Museum first transferred the moepu (funerary objects) to Hui Malama by a loan." Last March, Ayau told a NAGPRA review committee investigating the issue that "the loan was a vehicle to facilitate repatriation" and that neither Hui Malama nor the museum staff involved expected their return.
In court papers also filed last week, Bishop Museum, under the administration of director Bill Brown, supported the retrieval of the items. Brown said the Duckworth administration erred in making the loan.
Hui Malama maintains the repatriation is complete. Last week, it filed statements from two of the four original claimants, the Department of Hawaiian Home Lands and the Hawaii Island Burial Council, supporting Hui Malama's position. The items, they said, should not be taken from the kupuna. DHHL owns the Kawaihae cave lands and controls access. "Our objective is to protect and not further disturb the burial site," DHHL said.
Suganuma and Kawananakoa believe the items are in danger of "imminent harm," an argument they used in the injunction granted by Ezra. The two want the items held safely, but not on public display, until native Hawaiian groups determine their final disposition.
There is a sharp ideological split among the claimants over whether the items should be buried in the cave to honor kupuna, and allowed to decay, or whether they should be placed in an environmentally safe place so that future generations can learn about their past.
Hui Malama believes that the items are moepu that kupuna wanted buried with them, so the group secretly returned them to the "sacred resting place" from which they were stolen. In 1905 three men, including David Forbes, had discovered the items and sold them to the Bishop Museum.
Suganuma and Kawananakoa offered last week to retrieve the items for Hui Malama to spare them any harm.
But Ayau dismissed the offer, saying, "A desecration is a desecration. It does not matter whose hand."
Ayau assured the court that the burial items are secure from theft because the cave was sealed "using reinforced concrete barriers."
Kawananakoa and Suganuma contend that Hui Malama invents practices and beliefs to defend their actions and "wall off" the rest of the Hawaiian community. They say Hui Malama monopolizes repatriations from Bishop Museum or construction sites such as the Wal-Mart complex on Keeaumoku Street, to the exclusion even of families with closer lineal ties to the objects, who should have precedence.
In a statement last week, Kawananakoa said Hui Malama "has been able to falsely assert, under the pretext of so-called Hawaiian traditional belief, the dictates of the kupuna of ancient times and has refused to return the items."
Suganuma, who has fought Hui Malama for more than five years for the return of the items, said in court papers, "Hui Malama's so-called traditional burial practices are modern creations of its founders." Suganuma also said the word moepu is a modern invention.
Ayau said he has not had a chance to read either statement from Suganuma or Kawananakoa so he did not want to comment, but he is aware of their general criticisms.
"It's been made out that these perspectives are just my own," Ayau said. "They're lessons we've been taught from our kupuna, and so it's the perspective of Hui Malama and a lot of other Hawaiians."
Hui Malama and others groups disagree about the use of caves by ancient Hawaiians. Hui Malama believes that most caves are sacred burial sites that contain funerary objects. Suganuma and Kawananakoa say many caves were not burial sites, but rather places to hide sacred objects after Queen Kaahumanu outlawed the Hawaiian religion.
Ayau said that Hui Malama intends to hold more "teach-ins," as it did recently, "so people can for themselves decide what is the truth."
At the teach-in, Charles Maxwell, a founding member of Hui Malama, told how the group was formed when the Ritz Carlton was being built on a 13-acre parcel on Maui. About 800 sets of native Hawaiian remains were found.
Ayau told the audience that the finding was "a wake-up call" that Hawaiians had forgotten their burial practices.
Maxwell explained how Pualani Kanahele, a kumu hula and native practitioner, taught them burial rituals and the proper way to wrap the bones.
Kawananakoa questioned the source of Hui Malama's burial practices, saying, "The ability to receive instructions from the ancient kupuna is mana (authority or power)," and "such mana rests solely with the alii (aristocratic class)."
Referring to Hui Malama members as commoners, or "makaainana," and noting that Kawaihae was an alii burial site, Kawananakoa said, "At no time was the commoner allowed to participate at any stage of the rituals concerning the burial of an aristocrat."
Hui Malama I Na Kupuna O Hawaii Nei
U.S. Interior Dept. -NAGPRA
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