Rethink order to return artifacts, group asks judge
By Mike Gordon
Advertiser Staff Writer
By Mike Gordon
A Native Hawaiian group fighting to keep 83 ancient funerary objects buried and hidden on the Big Island asked a federal judge yesterday to reconsider an earlier order to return them, saying it has compelling information that needs to be reviewed.
Hui Malama I Na Kupuna O Hawai'i Nei, which lost an appeal to the original order on Monday, stressed two points in its motion: that the sealed cave where the items are buried is too dangerous to open and that a Native American Graves Protection and Repatriation review committee recently stated that the objects should remain buried.
In 2000, Bishop Museum loaned the items to Hui Malama for a year, but ever since the group has refused to return them. The group was ordered in September by U.S. District Judge David Ezra to return the items. The 9th U.S. Circuit Court of Appeals affirmed that decision after pondering it for less than a week.
"We think there are good grounds for Judge Ezra to look at this information and really consider whether or not he truly had the complete picture of whether completing the recovery of the moepu would be practical and reasonably safe and not put Hui Malama or anybody else in danger," said Alan Murakami, an attorney representing Hui Malama.
Ezra's Sept. 7 order had given the group 16 days to return the items, but yesterday Murakami said he was not sure what kind of deadline the group now faced. On Tuesday, Ezra will hold a status hearing on the matter.
The burial objects include carved-wood statuettes of family gods, or 'aumakua; carved bowls; a human-hair wig; gourds decorated with human teeth; tools; and pieces of feather capes.
Known as the Forbes Collection, they were taken from the Kawaihae Caves on the Big Island in 1905. Hui Malama contends that the items were looted from the cave, then given to the Bishop Museum.
Two groups — Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts — filed a federal lawsuit against Hui Malama and the Bishop Museum in August, demanding the objects' return.
Hui Malama's belief that the cave is unsafe was part of an argument rejected last month by the appellate court and also by Ezra. The group said a masonry contractor who sealed the cave at its request believes that reopening it could cause it to collapse.
In his statement, the contractor said opening the cave would require the removal of a concrete wall at the entrance, but that would endanger workers because of a "good chance the walls and ceilings of the cave itself could collapse in the process."
The graves protection act, dubbed NAGPRA by many, provides a process for museums and federal agencies to return certain Native American cultural items — human remains, funerary objects, sacred objects, and objects of cultural patrimony — to lineal descendants, culturally affiliated Indian tribes and Native Hawaiian organizations.
A NAGPRA review committee said in May 2003, and this March, that giving the items to Hui Malama for repatriation was "flawed" and that they needed to be returned.
But in a Dec. 2 letter intended to clarify the committee's stance, a staffer stated that the 2003 "findings and recommendations in no way implies or requires that the Kawaihae materials be removed from their present location."
Sherry Broder, an attorney for two groups who sued for the return of the funerary objects, yesterday said she found the letter puzzling.
"It seemed like they were very specific in 2003 and 2005 that the items were to be recalled," Broder said. "I don't understand that letter."
Broder said Hui Malama's desire to keep the issue before the federal court was "very unfortunate," in part because the court made its decision swiftly.
And she said the courts are clear on what they want.
"They need to comply," Broder said. "There are federal court orders against them. It is not what they wanted and I can understand that. They have lost. They need to comply."
Reach Mike Gordon at firstname.lastname@example.org.