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The Honolulu Advertiser
Posted on: Wednesday, September 21, 2005

Retrieval of artifacts blocked

By Ken Kobayashi and Gordon Y.K. Pang
Advertiser Staff Writers


A federal appeals court yesterday lifted a court order directing a Native Hawaiian group to retrieve 83 priceless burial artifacts from a sealed Big Island cave and return them to the Bishop Museum by Friday.

The 9th U.S. Circuit Court of Appeals decision averts for now a potential confrontation between Hui Malama I Na Kupuna 'O Hawai'i Nei, which wants the objects to remain in the cave, and Chief U.S. District Judge David Ezra, who ordered them returned.

"Fantastic," said Alan Murakami, the Native Hawaiian Legal Corporation lawyer representing Hui Malama. "The first hurdle has been overcome."

Without the appeals court's decision, Hui Malama would be facing "a crisis of conscience" this week, Murakami said.

The appeals court ruled that the artifacts can remain in the cave while Hui Malama appeals Ezra's injunction of Sept. 2 ordering the return to ensure the objects aren't damaged while Native Hawaiian groups determine what should ultimately be done with them.

But the appeals court also ordered an expedited appeal, which could result in a decision as early as December. The appeals process usually takes a year or longer.

Edward Halealoha Ayau, spokesman for Hui Malama, said he and his group are pleased with the decision.

After Ezra's Sept. 2 decision, Ayau said he hoped the federal court would not force Hawaiians to violate their spiritual beliefs by returning the artifacts. "We do not have the stomach to do something like that," he said.

Yesterday, he affirmed the group's commitment to "protect the kupuna, their possessions and the integrity of their burial site."

"To be successful, we need to ensure the integrity of the burial site is maintained, and we have to be able to stave off any attempt to disturb them," he said.

The leader of one of two Native Hawaiian groups that asked for the return focused on the appeals court order expediting the appeal.

"We are gratified by the 9th Circuit Court's decision to expedite the appeal of the injunction order," Abigail Kawananakoa, head of Na Lei Alii Kawananakoa, said in a statement.

"The court, by scheduling the hearing on the appeal for the first week of December which is the earliest possible date recognizes the importance of this case to the people of Hawai'i."

She said her group is pleased the decision will be made "in three months instead of three years."

LindaLee Farm, lawyer for the Bishop Museum, which supported Ezra's order, also said she was pleased the court put the appeal on the "fast track."

Farm said she thinks the appeals court ordered an expedited appeal because it recognizes the issue of possible "irreparable harm" to the artifacts.

The appeals court ruling is the latest development in the contentious dispute that has pitted Native Hawaiian groups against one another over the artifacts, which include carved-wood statuettes, a human-hair wig, gourd objects and tools.

The museum handed the artifacts to Hui Malama in 2000.

But Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts filed a lawsuit last month asking for the injunction. They argued that the transfer to Hui Malama was not legal and that the group should have returned the items which may now be in jeopardy from insects and environmental elements.

Hui Malama argued that the objects had been stolen from the cave in 1905 and turned over to the museum. The group contended the moepu are now in their original and rightful place, and that to return them would violate First Amendment protection of religious beliefs.

In granting the injunction, Ezra agreed that the items might be at risk and agreed that the two groups raised legal issues about whether Hui Malama can rightfully refuse, under the law, to return the items.

Hui Malama told the appeals court that Ezra's decision was "an order to steal from the dead." Also, the group argued that retrieving the artifacts from the sealed cave could cause the cave to collapse.

Under yesterday's appeals court order, Hui Malama must file its opening brief by Sept. 30 explaining why Ezra's decision should be overturned. The two Native Hawaiian groups that sought the injunction have until Oct. 21, or 21 days after the court receives the opening brief, to respond. Hui Malama would then have 10 days to reply.

The appeals court said the case would be on the calendar during the week of Dec. 5.

Farm said the ruling could come shortly after that.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com and Gordon Y.K. Pang at gpang@honoluluadvertiser.com.