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The Honolulu Advertiser
Posted on: Sunday, May 25, 2003

Seeking the rightful home for bones, burial items

 •  Repatriation of Forbes Cave remains was flawed

By Kunani Nihipali
Po'o (director) of Hui Malama I Na Kupuna O Hawai'i Nei

Our position is clear: We restored the contents of the two Honokoa burial caves including iwi kupuna and moepu (ancient bones and burial items).

In 1905, explorer David Forbes entered a cave at Kawaihae on the Big Island, where he came across human remains and a variety of objects. Above is a photograph of several of the rare objects.

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By doing so, we did not impose our views upon the decision of our ancestors to place them together. Instead, we respected their decision and have sought to remind our people about the value of protecting burial sites and their contents, all from the perspective of our responsibility to our ancestors.

We have no right to desecrate and disturb burial sites.

Some believe that an end (education) justifies the means (removal and desecration). This view is inconsistent with our duties to our kupuna. A major component of our cultural identity is the exercise of our duties as living descendants to protect the sanctity of the graves of our ancestors who gave the breath of life.

Connection to ali'i

The main piece of evidence that establishes the funerary nature of these items is a sketch plan found in "Old Hawaiian Carvings Found in a Cave on the Island of Hawaii," Memoirs of the Bernice Pauahi Bishop Museum, Vol. II, No. 2 (1906), by William T. Brig-ham, museum director.

Director Brigham had been in contact with (cave explorer) David Forbes regarding the removal of items from a cave in Hono-koa Gulch. The sketch plan clearly indicates a direct connection between the four ki'i (images) and other items and the iwi (bones, or remains) as depicted in chamber "C."

But it was not in the interest of those who took the objects to confirm the funerary nature of these items, given the "severe burial laws" that existed at the time.

We believe that the sketch plan, prepared by Forbes himself, represents evidence of the violation of existing laws in 1905 regarding disinterment and larceny. Yet in his first letter to Bishop Museum's Brigham of Nov. 7, 1905, Forbes references a chamber with a full skeleton in it and states, "[t]here being but one skeleton in this chamber and immediately adjoining it all those curios together with the skulls etc. We are of the opinion that the remains must be of someone more than ordinary in personage."

Significantly, Forbes and associates indicate that the images were located with the iwi. Furthermore, in 1909, Forbes described chamber "C" where the moepu were found in a paper titled "Hidden Treasure Old Cave on the Island of Hawai'i Yields Valuable Museum Pieces," in which he states, "[i]n the recess of this cave, we counted 18 human skulls, with the large bones of legs and arms very carefully wrapped in kapa."

The iwi kupuna Forbes described are identified in the sketch plan and located immediately next to the four ki'i. The two female images are prone, while the other two are standing, and all four are in a position guarding the iwi. This placement is consistent with the function of protecting the chiefs in the current realm and providing for the ali'i in their afterlife.

The sketch plan represents irrefutable evidence of the condition of this Honokoa Gulch cave at the time of the removal of the items in 1905.

'The bones live'

David Forbes drew a rough sketch of the burial sites and labeled what he found.
In response to the suggestion that the images were temporarily stored in the cave until it was safe to resurface, and not funerary in nature, Brigham writes, "... on one side of the chamber were the articles ... wrapped carefully in kapa. What connection they have, if any, with the bones in the main cave, or those in the branch chamber I cannot say: perhaps they were simply hidden here as the safest place of deposit known — in the guardianship of the dead.

"It has been suggested that they form the paraphernalia of a temple and were hidden, as so many of the idols were, at the time of the general destruction of the idols in 1819 in the hope that the storm would blow over and better times ensue, but there is nothing in the collection to support such a view.

"The two gods or 'aumakua were household deities, the other articles might be the private property of some chief or priest, and two things — the fan and bit of porcelain — are such keepsakes as were commonly deposited with the dead to whom the articles had belonged."

The Forbes/Brigham letters, the 1906 Brigham report and the 1909 Forbes article effectively document that the items are funerary and not merely artifacts. Temporary storage, even in a burial cave if that is possible, would have required that the items be placed in a section of the cave separate from the iwi so as to avoid being considered moepu.

However, from the best evidence available, it is established that the ki'i and other items were found in the possession of the kupuna and that chamber "C" was both sealed and concealed.

Furthermore, the personal nature of these items is consistent with their placement with high-ranking ali'i to whom they belong.

Based on the above, the only conclusion that can be reached is that the items are moepu, things placed with the dead.

The bond created when the items were placed with the iwi kupuna is perpetual. The items were intended to accompany the kupuna on their post-life journey that includes natural deterioration.

It best serves us to follow the teachings of our kupuna rather than conceding to Western views that place monetary value over mana (spiritual essence) and artistic education over respect.

The fact is that the iwi kupuna and moepu were stolen. The names of the thieves are known, and the theft occurred in 1905. Forbes freely admits the taking. This same burial cave was looted again by J. Everett Brumaghim in 1935, and Keith Jones and Kenneth Emory in 1939.

Is someone planting the seeds for yet another theft of these funerary possessions, following in the footsteps of Forbes, Wagner and Haenisch?

When will the desecration end?

Here is a list of items taken from a cave at Kawaihae and their estimated value. The list was prepared by the Bishop Museum at David Forbes' request.
Our answer is: It ends now.

It is not for us, who live at this time, to decide the fate of these objects. The decision was made long ago when the personal articles were placed in the cave. As Hawaiians of today, our function is simple; it is to see that the initial decision is realized and respected. Let's respect the wise practices of our ancestors as we hope that our progeny will see the wisdom of our decisions and practices.

Maintaining the kuleana to care for the iwi and moepu is a profound expression of our cultural identity as Kanaka 'oiwi.

It is hoped that the time has come for all iwi kupuna removed from ancestral burial sites to be kanu pono (properly buried). By reburying the iwi, the ancestral foundation is strengthened, the interdependence between past and present continues, and the land is reinfused with mana necessary to sustain the ancestors, the living and the generations to come.

Ola na iwi, the bones live.

There are several problems with the recent action of the Review Committee for the Native American Graves Protection and Repatriation Act, for purely procedural reasons. These comments are based on the property law upon which NAGPRA is based. Adherence to the process is essential.

The bare and material facts are as follows: The Bishop Museum enters into NAGPRA consultation with 13 possible claimants and makes a decision that the cultural items from the Kawaihae Cave Complex, which include human remains and funerary objects, are culturally affiliated to all 13 claimants.

The requisite notice of inventory completion and intent to repatriate is published in the Federal Register. Thirty days go by, and only one group, the actual party in possession, asserts a desire to hold and retain all of the said cultural items.

The items have been on loan to this party, and to facilitate NAGPRA transfer the Bishop Museum requests their return. The party in constructive possession refuses. The Bishop Museum is not asked to resolve a dispute. Repatriation is declared.

More than two years later, the matter is placed on the NAGPRA Review Committee agenda — but by whom? The decision of the review committee is to undo the repatriation and have the items returned to the Bishop Museum, which in turn would conduct consultation with claimants, and the process would begin anew.

The decision of the review committee is flawed as a matter of process and property law, and gives rise to two potentially dangerous precedents. Once a museum makes a decision and it is published, the decision is final. The claimant can then act on the decision. In this case, one claimant has acted and the others have not.

As a matter of due process, the 13 had 30 days to pose a dispute to the Bishop Museum. If they did not, the item would go by default to the one who stepped forward. If no claimant stepped forward, the museum would retain the item.

Setting bad precedents

This carving of a female figure is among the artifacts recovered from caves at Kawaihae on the Big Island around 1905.

Advertiser library photo

As a matter of property law, the potential interested parties are the 13 claimants. If there is a dispute, it is between those who have possession of the items and the other claimants. This does not include the Bishop Museum.

If one of the other 13 claimants thinks it did not waive its rights because those who received the items did something that caused the failure to come forward within 30 days, then they must raise this issue with the successful possessor of the item.

The bad precedents established by the NAGPRA Review Committee are at least two:

1. Museums urged the good-faith provision in the law so that once they followed the process they would be done, and their liability exposure would be over. If there is no finality, then museums' worst fears have been realized. They will not want to move forward without releases from the universe of possible claimants. Even simple repatriations will take years.

Generally, property law favors finality. Anything that impedes finality is contrary to the law in general and NAGPRA expressly.

2. The review committee seemed to be concerned because the item(s) in question were on a "loan" to a claimant at the time of the process. This is an illusory issue. For guidance, look no further than some 100 years of museum property law.

Professor Norman Palmer of London wrote an extensive book on museum loans. To condense his thoughts to the point at hand: A loan does not alter ownership rights. And while an item is out on loan, its underlying ownership may shift.

During the loan of these objects, the lender (the museum) called the loan, and the holder refused to tender possession. However, the notice to recall the loan of the items listed the holder as one of 13 entitled to repatriation; in museum lingo that is lawful title. After 30 days, no other party came forward, and the possessor took lawful title, as the only one that the museum determined could make such a claim did assert such a claim.

The loan status became moot.

To now raise the issue of the loan as a means to set aside a final decision and return the item to the museum effectively to start over wipes out the concept of finality. It also suggests that repatriation cannot be resolved unless the museum physically possesses the items at the time the decision is made.

Consider what this means to the Bureau of Land Management or other federal agencies that do not have in their physical possession the millions of items for which they are responsible and which are in the custody of repositories all over the country.

Such an absurd proposition would come as a surprise to museums that, in the normal course of business, buy, sell, and trade items regardless of whether they are on premise or out on loan.

The Bishop Museum cannot go back and undermine the transfer two years later, simply because it no longer owns these cultural items, if it ever did.

Through repatriation, transfer was completed and title passed. The Bishop Museum has no authority, and as one of the legal owners, we object to their involvement, as well as the involvement of the National Park Service.

Only the lawful owners can undertake any matters relating to treatment of the Kawaihae iwi kupuna and moepu.

In this instance, the repatriation of human remains and funerary objects removed from two burial caves in Honokoa Gulch by David Forbes, et al., represents more than the application of a federal property and civil rights law.

Its primacy is the desecration of iwi kupuna and their moepu and the theft of mana. Forbes' actions amount to a violation of the sanctity of the grave and of human decency — it is extremely uncivilized and barbaric.

He was an attorney and a judge, an officer of the court who knew his actions to be unlawful according to the code of law at the time.

The discussion therefore should be refocused from NAGPRA to where it more appropriately belongs: The common law principle of theft, which translates to lack of clear title by David Forbes and subsequently Bishop Museum, which acquired the mea kapu (sacred items) from Forbes.

There is strong indication that museum director Brigham understood that the collection was acquired illicitly. Brigham goes as far as to suggest to Forbes how to cover up the theft: "In the meantime, keep the matter quiet for there are severe laws here concerning burial caves, and I shall not make the matter public, of course, until you say so. If you should wish to keep the collection or part of it, the coming from this place (Bishop Museum) would throw any suspicious persons off the scent" (William Brigham reply to David Forbes, Nov. 11, 1905).

We challenge Bishop Museum's ability to reassert control over the iwi kupuna and moepu from Ho-nokoa based on its lack of clear title under NAGPRA and under the common law principle of theft.

The NAGPRA law says: "Nothing in these regulations can be construed to: Limit the application of any State or Federal law pertaining to theft of stolen property."

Secure foundation

For the last three years, periodic security checks have been conducted by members of our organization. The right-of-access agreement we have with the state Department of Hawaiian Home Lands provides for us to continue to conduct the security checks.

All is secure. O ke kahua mamua, mahope ke kukulu.

The foundation first, then the building.