Posted on: Tuesday, July 6, 2004

Complex law at root of artifact policy

By Vicki Viotti
Advertiser Staff Writer

Critics have faulted the Bishop Museum's new stance against giving up much of its collection under a federal "repatriation" law, but it's still unclear what recourse, short of a federal lawsuit, they may have.

Museum officials last week announced the policy by releasing "guidelines" on the Native American Graves Protection and Repatriation Act (NAGPRA) and posting them online.

The museum plans to adopt the guidelines in their final form after analyzing responses from the public that come in by a Sept. 1 deadline.

NAGPRA is a 14-year-old law that sets up a complex process for returning, or "repatriating," human remains and other significant burial and cultural items to the Native American and Hawaiian groups from which they originated. It places more legal force behind the return of artifacts in certain categories than in others.

For example, lineal descendants of people who were buried with funerary objects have the strongest claim on those artifacts if they have been kept together ("associated") with the human remains. If they become separated — the artifact is in a museum's collection, for example, while the remains are not — that claim becomes weaker.

In the most controversial aspect of its policy, Bishop Museum has asserted that the museum qualifies under NAGPRA as a "Native Hawaiian organization" that can make a competing claim like any other group.

It also contends that, other than human remains that are in the process of being returned to descendants, very few items in its collection qualify as items that the museum must return. For example, said museum director Bill Brown, the Bishop collection includes no items that fit the legal definition of "cultural patrimony" — items of such critical cultural importance that they belong to the population at large — or "sacred objects" as they are defined by the law.

Among the individuals who have responded in writing is Guy Kaulukukui, who was the museum's vice president for cultural studies until he was fired in January over a repatriation dispute.

Kaulukukui takes issue with much of the document, including the contention about its status as a Native Hawaiian organization and its exclusion of much of its collection from repatriation.

"Bishop Museum's new guideline is a veiled attempt to close the books on NAGPRA repatriations by trying to convince Native Hawaiians that it has completed its obligations to them under the act," he said in a written statement.

"In reality, the museum's responsibilities under NAGPRA will increase over time as Native Hawaiians continue to renew traditional religious practices and make claims for the sacred objects that are associated with these activities."

The policy, while open to revision, has been adopted by the museum's board of directors. One board member, Jennifer Goto Sabas, is also chief of staff for U.S. Sen. Daniel Inouye, D-Hawai'i, who helped to write NAGPRA.

Sabas declined to say how she voted or to comment generally on the policy. And as Inouye's spokeswoman, she said last week that staff are still analyzing the matter and that the senator would have no comment yet.

Hawai'i faces an entirely different circumstance from Native American tribes that make claims under NAGPRA, said Patricia Molloy, a spokeswoman for the National Park Service, the federal office that administers the law. Tribes are far more narrowly defined than are Native Hawaiian organizations, she said, which has left Hawai'i open to conflict.

"In terms of determining who can make a claim, Hawai'i is a unique situation," she said. "In Alaska and 48 states, there is a clearly defined universe as to who are appropriate claimants."

The NAGPRA review committee, the administrative body set up to untangle disputes, has not determined whether to take up the Bishop case, Molloy said.

"The statute is clear that the U.S. federal court is always an option," she said. "But whether there are nonjudicial or administrative options is unclear."

Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.