Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 4, 1 April 1994 — News from Washington D.C. Mai Wakinekona Mai [ARTICLE+ILLUSTRATION]

News from Washington D.C. Mai Wakinekona Mai

by Paul Alexander ' Washington, D.C. Counsel for OHA

Leaal owr\ership of the ka'ai

The OHA Native Hawaiian Historic Preservation Oouneil was an active participant in longstanding plans for the ceremonial reinterment at Mauna 'Ala of the two ka'ai that had been in the custodv of Bishop

Museum since 1918. From a legal perspective, that lengthy planning was necessary to determine the status of the kā'ai and the museum's custody. In 1990. Congress passed a federal statute, the Native American Graves

Protection and Repatriation Act (NAGPRA), whieh protects the ownership of Native American (including native Hawaiian) human remains and cultural items found on federal or Native

American lands, and requires all museums to identify all human remains in their possession and to return remains to appropriate heirs, or Native American organizations. The act provided

a number of critical definitions, including one of special importance with respect to the kā'ai — "cultural patrimony." This term refers to an inalienable object having ongoing. historical or cultural importance central to the

Native American group or culture itself. The key concept is that. other than the Native American group, or traditional religious practitioners, no outsider could obtain legal ownership or patri-

mony. If an item was defined as "cultural patrimony" then the museum had to return it to the native Hawaiian group unless the

museum could show that it had a right of possession to the item(s).

Because of the power associated with the kā'ai, the closest available Western cultural definition is that of "sacred item" or "cultural patrimony."

The Historic Preservation Council members had concluded that the kā'ai were not to be treated just as skeletal remains or eul-turally-associated funeral objects. Rather, because of the power and

status associated with the kā'ai, the closest available Western eultural definition, as reflected in NAGPRA, was that of "sacred item" or "cultural patrimony." The eouneil concluded that as a matter of federal law, the two kā'ai were indeed cultural patrimony. As for the issue of custody, the record shows that the two kā'ai had been in the possession and the property of Queen Lili'uokalani as the head of the traditional native Hawaiian government. Unlike the United States government with its constitutional requirement of separation of church and state, native governments did not distinguish between secular and religious leadership. When Queen Lili'uokalani, the last reigning monarch, died without issue. her estate became the

subject of some controversy with respect to the disposition of the kā'ai. A controversy that was resolved when all potential heirs, political successors-in-interest, and otherwise — Prince Jonah Kūhiō Kalaniana'ole, the governor of the Territory of Hawai'i and the Queen's trustees (trustees of the Lili'uokalani Trust) — all agreed to plaee the kā'ai in the custody of the Bishop Museum. The custody agreement was signed on April 3, 1918 and was conditioned on the museum's agreement to transfer the kā'ai to an authorized entity when directed to by the original signers or their successors. Under this agreement, Bishop Museum, under NAGPRA, had the right of possession as a matter of federal law, at least until it was legally instructed to transfer the kā'ai elsewhere.