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The Honolulu Advertiser
Posted on: Tuesday, December 13, 2005

Group spurns ruling on Hawaiian artifacts

 •  PDF file: Read the appeals court's decision
 •  Key dates, decisions involving burial objects

By Gordon Y.K. Pang and James Gonser
Advertiser Staff Writers

This fan was found in the Kawaihae Caves by the Forbes expedition.

Bishop Museum

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YESTERDAY'S RULING

A panel of the 9th U.S. Circuit Court of Appeals yesterday affirmed U.S. District Judge David Ezra's September injunction that directed Hui Malama I Na Kupuna o Hawai'i Nei to return artifacts from a Big Island cave to the Bishop Museum.

The three appeals court judges Stephen Trott, Thomas G. Nelson and Richard Paez said they reviewed whether Ezra committed "abuse of discretion," as Hui Malama claimed, and found none.

"Our review is 'limited and deferential,' " the judges said in a memorandum. "The district court abuses its discretion when it applies an incorrect legal standard, misapprehends the law in its initial assessment of the merits of the case, or relies on clearly erroneous findings of fact."

The judges said Ezra's decision that the interests of justice and the public would best be served by bringing the items back to a secure location at Bishop Museum for the time being "are supported by record and are not clearly erroneous."

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Officials with a Native Hawaiian group yesterday asserted that they will continue to fight a federal court order requiring them to return 83 priceless burial objects to the Bishop Museum, despite an appeals court ruling affirming that decision.

The decision calls for Hui Malama I Na Kupuna 'O Hawai'i Nei to cooperate with authorities in retrieving artifacts believed to be sealed in a Big Island cave.

"We're going to ask for relief immediately," said Alan Murakami, an attorney with the Native Hawaiian Legal Corp. which is representing Hui Malama. Murakami said he intends to file a motion this week in Honolulu District Court that would halt the order.

After a one-day hearing last week, the San Francisco-based 9th U.S. Circuit Court of Appeals yesterday issued a four-page decision stating it found no abuse of discretion by U.S. District Judge David Ezra, as had been argued by Hui Malama attorneys.

In September, Ezra directed Hui Malama to return the artifacts within 16 days so that claimants to the items, which include Hui Malama and the two Native Hawaiian groups that filed the lawsuit, can sort out what should be done with them.

Hui Malama's appeal of that decision had delayed the countdown imposed by Ezra.

The museum loaned the items to Hui Malama in 2000, but the group since has refused to return them, saying they belong in their original resting place and that returning them would again desecrate the burial site.

Known as the Forbes Collection, the items were taken from the Big Island's Kawaihae Caves in 1905 and turned over to the Bishop Museum. Hui Malama and its supporters say the items were looted from the cave then and that to seek their removal again would go against the group's "cultural and religious beliefs."

Sherry Broder, who represents Na Lei Ali'i Kawananakoa and the Royal Hawaiian Academy of Traditional Arts, the groups that had filed the suit seeking the return of the artifacts, said her clients were pleased with the quick appeals court decision.

"We're glad to see that the Ninth Circuit agreed with Judge Ezra that a loan is a loan," Broder said. "We're committed to the task at hand, which is to go retrieve the artifacts and bring them back."

Broder said she now expects to resume the countdown. "This is a court order and they need to comply."

LindaLee Farm, an attorney for Bishop Museum, said she, too, was pleased with the decision. "We stand ready to assist in the implementation of Judge Ezra's order," she said. The museum, named defendant in the case, has supported the return of the artifacts.

Farm said she believes that Hui Malama has only three days until Thursday to return the artifacts because the original order by Ezra was issued on Sept. 7 and and a stay was issued by the appeals court Sept. 20. "Thirteen days passed and the order gave them 16 days," she said. "So they get the remaining three days."

But Murakami and Edward Halealoha Ayau, a Hui Malama spokesman, said they have not yet exhausted their legal options.

Murakami wants Ezra to look at information, submitted by Hui Malama after the judge's initial ruling, about safety issues involved with entering the Big Island cave. He noted that a masonry contractor has warned that attempted entry could cause the cave to collapse.

The appeals court earlier this month did not consider that additional testimony, stating it should have been brought up in earlier proceedings.

"How do you order somebody to put their own safety and life in jeopardy?" Murakami asked. "That's the position we feel we're in. That's what the affidavit (from the contractor) said. People could get hurt. The cave could collapse."

Asked if Hui Malama officials were ready to cooperate with the court or other authorities if not granted that request, Murakami said he had no comment.

Ayau said that the Native American Graves Protection and Repatriation Act Review Committee issued a letter last month clarifying its position that the remains should be left in the cave.

"The review committee never required the recovery of the moepu and that the items should be left where they're at," Ayau said.

That assumption was a key basis of the argument made by Broder in her argument and later by Ezra in his decision, Ayau said.

But Broder said last night that at least two members of the NAGPRA Review Committee are disputing the language in last month's letter and asked that it be withdrawn.

That aside, Broder said, "Judge Ezra made his own independent finding so I don't think it's going to make any difference anyway."

Murakami said Hui Malama is "on the verge" of getting a majority of the original 13 claimants to the artifacts to agree that leaving the items in the cave is the best course of action. He declined to elaborate.

The issue of the Kawaihae Caves artifacts has long been a source of emotional divisiveness among Native Hawaiians and reaction to the 9th Circuit decision was mixed.

Clyde Namu'o, administrator for the Office of Hawaiian Affairs, said the office years ago took the position that the artifacts should be returned.

"If that is what the 9th Circuit Court has ruled, we are certainly pleased," Namu'o said. "I'm just pleased (the court) reacted so quickly to the oral arguments."

Van Horn Diamond, of the Van Horn Diamond 'Ohana and former chairman of the O'ahu Island Burial Council, said the items should be returned.

"The decision enables us to go forward," Diamond said. "It will set to rest, one way or the other, whether all the items have been buried there or some place else. There have been allegations they have been sold on the black market."

Hawaiian activist Dennis "Bumpy" Kanahele said Bishop Museum officials should go to the cave themselves if they want the artifacts back.

"As far as I see it, the job was done when Hui Malama went and put them back in the cave," Kanahele said. "It's like going into Punchbowl (cemetery) and digging up some of the graves over there and figuring out what can be used for study in the future. It's sad."

Kanahele said Hui Malama should continue its fight.

Dutchy Saffrey, a member of the Big Island Burial Council, supports the court's decision but is concerned about security at the cave.

"Security is essential right now to prevent any entry," Saffrey said. "I'm fearful a whole group of people out there that may go in and open it up. Then we will never know what is there and what is not there. That place should be secured 24 hours a day until Judge Ezra has his people go in there to do that."

Kawaihae Cave is on land under the jurisdiction of the state Department of Hawaiian Home Lands. DHHL Director Micah Kane said his agency will abide by the order of the court.

Kane said the site is in a remote area that is closely monitored. "We're making sure the integrity of the caves is maintained." While there is not an around-the-clock presence, he said, "we do have people checking it."

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com and James Gonser at jgonser@honoluluadvertiser.com.