By Edward Halealoha Ayau

The Native American Graves Protection and Repatriation Act (NAGPRA) authorizes American Indians, Alaska Natives and Native Hawaiians to claim ancestral human remains, funerary objects, sacred objects and cultural patrimony that were illegally acquired and placed in federally funded museums and federal agencies.

The legislative history of NAGPRA makes it clear that this bill was intended to rectify past wrongs committed against America's first peoples. Congress did not intend museums to claim their own items as Bishop Museum is attempting to do with the passage of its Interim and Proposed Final Guidance (interim guidance).

If Bishop Museum Director William Brown and the Board of Directors adopt the proposed interim guidance, Hawaiian culture will be harmed, congressional intent dishonored and the law turned on its head.

We strongly oppose the interim guidance policy and have prepared petitions with hundreds of signatures of community members who also are opposed. We call upon the museum's board to immediately repeal the interim guidance policy based upon clear community opposition for the following reasons:

First, the policy defeats the intent of Congress in enacting NAGPRA, which sought to redress harms to native people caused when their ancestors' remains, burial objects and other cultural items were unlawfully taken from them and put in museums. On Oct. 26, 1990, U.S. Sen.Daniel Inouye, co-chairman of the Senate Select Committee on Indian Affairs, stated the following with regard to proposed NAGPRA legislation, "When human remains are displayed in museums or historical societies, it is never the bones of white soldiers or the first European settlers that came to this continent that are lying in glass cases. It is Indian remains. The message that this sends to the rest of the world is that Indians are culturally and physically different from and inferior to non-Indians. This is racism ... The bill (NAGPRA) is not about the validity of museums or the value of scientific inquiry. Rather, it is about human rights."

Inouye continued, "Returning control of these human remains and funerary objects to lineal descendants, Indian tribes and Native Hawaiian organizations will help to remedy years of unequal treatment. Acknowledging the communal property systems traditionally used by some Indian tribes not only returns those objects of cultural patrimony to their rightful owners, but reinforces the complex social webs in which they serve. Neither idea is very new, both reflecting the guarantee of equal protection under the law imagined by America's founding fathers and codified in the Constitution of the United States."

Brown and the Bishop Museum board miss the point entirely that NAGPRA is human rights legislation for Native Hawaiians. Instead, the interim guidance policy denies the human rights goals of NAGPRA, contorting it into a shield to block us from caring for our kupuna (ancestors) and their possessions. Inouye recently weighed in on this matter in a newspaper interview. "It (the museum) is not a Hawaiian organization, it's a museum. The incorporation of the (Bishop) museum makes it clear that it's not a Native Hawaiian organization ... and I think the law is clear," Inouye said.

Second, the interim guidance policy places Bishop Museum in a conflict of interest as it could both claim cultural items from its own collections and maintain the authority under NAGPRA to determine the disposition of such items. How could Bishop Museum maintain objectivity in reviewing NAGPRA claims when one of the claimants is itself? The interim guidance policy fails to protect the rights of other claimants from this inherent conflict.

Third, the policy obstructs the repatriation of unassociated funerary objects, which are items that came from burials but are no longer associated with human remains. This is because the interim guidance policy declares that Bishop Museum is the lawful owner of all such objects in its collections. Brown ignores the fact that Hawaiian families placed these objects with their loved ones and that approval was not given to remove them. By assuming ownership, Brown is revoking our ancestors' decisions and usurping our kuleana to our kupuna. In addition, the policy obstructs the repatriation of sacred objects needed for cultural renewal by inaccurately asserting that the museum does not possess any such "sacred objects" -- items needed by a Hawaiian religious leader to continue or renew traditional religious ceremonies, as defined in NAGPRA. How can Brown conclude that the museum holds no sacred objects when such objects are defined by the ceremonial needs of Hawaiian religious practitioners? Once again, the museum ignores NAGPRA's intent.

For clearer insight into what NAGPRA was intended to accomplish with regard to human remains, funerary objects, sacred objects and cultural patrimony we look to the following excerpt from "In the Smaller Scope of Conscience: The Native American Graves Protection & Repatriation Act Twelve Years After," published in the UCLA Journal of Environmental Law and Policy. The article states, "The long process ... began in 1986, as Congress sought to reconcile four major areas of federal law. As civil rights legislation, Congress wished to acknowledge that throughout U.S. history, Native American human remains and funerary objects suffered from disparate treatment as compared with the human remains and funerary objects of other groups.

"Congress also wanted to recognize that the loss of sacred objects by Indian tribes and Native Hawaiian organizations to unscrupulous collectors negatively impacted Native American religious practices. In making this Indian law, Congress founded its efforts on an explicit constitutional recognition of tribal sovereignty and the government-to-government relationship between the United States and Indian tribes.

"Regarding property law, Congress wanted to clarify the unique status of the dead as well as highlight the failure of American law to adequately recognize traditional concepts of communal property in use by some Indian tribes.

"Lastly, in terms of administrative law, Congress would direct the Department of Interior to implement Congress' mandate, including the promulgation of regulations to ensure due process, awarding of grants and assessment of civil penalties."

Fourth, interim guidance enables Bishop Museum to claim cultural items under NAGPRA counter the claims of bona fide Native Hawaiian organizations. Since NAGPRA allows a museum to hold onto claimed items until resolution is reached among claimants regarding disposition of the claimed items, Bishop Museum as a claimant could forestall repatriation by disagreeing with other claimants. The policy similarly allows the Bishop Museum to block repatriation of Hawaiian cultural items from other museums and federal agencies by claiming objects as a Native Hawaiian organization and disagreeing with other claimants about their return.

Finally, the interim guidance policy is an attempt to thwart Native Hawaiians who would assert their kuleana to care for items that NAGPRA rightfully places within their purview. Rather than being a mechanism for healing historic wounds as NAGPRA was designed, this policy opens new ones. We are incensed that Brown's paternalistic and colonial penchant could impede our ability to fulfill our kuleana to care for our kupuna and their possessions and to continue cultural practices that meet our kuleana as descendants -- roles that Congress supported us taking via NAGPRA.

We are not alone in our assessment that the Bishop Museum would run afoul of NAGPRA by adopting interim guidance. Leaders throughout Indian country, including leading NAGPRA drafter and attorney Walter Echo-Hawk of the Native American Rights Fund, and many in the museum profession also have voiced opposition to interim guidance.

Passage of the proposed interim guidance policy confirms a serious need for a change in Bishop Museum leadership. For the above reasons, we urge the museum directors to repeal the interim guidance policy, call for and accept Brown's resignation and undertake efforts to select a qualified Native Hawaiian to serve as the new director of Bishop Museum.

This article is supported by Kunani Nihipali, Pualani Kanahele, Kehau Abad, Kekuhi Kanahele-Frias, Huihui Kanahele-Mossman, 'Ahi'ena Kanahele, Kaumakaiwa Keali'ikanaka'ole, Ulumauahi Keali'ikanaka'ole, Kauila Kanahele, Luka Kanahele-Mossman, William Aila Jr., Billy Fields, Pele Hanoa, Keolalani Hanoa, Kaleikoa Ka'eo, Lilikala Kame'eleihiwa, Pu'uhonua Kanahele, Kahu Charles Maxwell, Jimmy Medeiros Sr., Jon Osorio, Konia Freitas, Mehana Hind and Ho'oipo Kalaena'auao Pa.

Original article URL: http://starbulletin.com/2004/08/29/editorial/special.html

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