Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 10, 1 October 2005 — Appeals court allows artifacts to remain in Kawaihae cave [ARTICLE+ILLUSTRATION]

Appeals court allows artifacts to remain in Kawaihae cave

Judge had earlier ordered that the objects would have to be returned to Bishop Museum by Sept. 23

By Sterling Kini Weng Publicatiūns Editor On Sept. 20, the 9th U.S. Circuit Court of Appeals suspended a District Court judge's order requiring Hui Mālama i Nā Kūpuna o Hawai'i Nei to retrieve 83 priceless artifacts it had sealed in a Kawaihae cave. The 9th Circuit Court's decision delays a Sept. 23 deadline that District Court Iudge David Ezra had set for the items to be returned to Bishop Museum. The items will remain where they are until the appeals court hears arguments on the case in December. Alan Murakami, litigation director of the Native Hawaiian Legal Corp., the legal firm representing Hui Mālama, said that he was pleased with the ruling. He said that by rendering this decision he believes the 9th Circuit recognizes that the items are not suffering "real harm" by remaining in the cave, and that the lower court's deadline to retrieve the artifacts was unnecessary. La'akea Suganuma, president of the Royal Hawaiian Academy of Traditional Arts, one of the groups that filed a lawsuit to have the items returned, disagreed. While he acknowledged that the case is complicated and said he understands that the higher court wants to hear arguments from both sides, he said he is still concerned about the security of the cave. "The delay gives more time for a possible break-in by thieves," he said. "But it's another stop we have to take; everything has its own timing." The 83 artifacts were originally removed from the Kawaihae cave by David Lorbes and his expedition about a century ago and sold to Bishop Museum. The current controversy started in Lebruary 2000, when Bishop

Museum signed a one-year loan of the artifacts to Hui Mālama. At the time, the group was one of four claimants recognized by the museum under the federal repatriation process. Hui Mālama has said that after receiving the artifacts it reburied them in the Kawaihae cave, located on the Kohala Coast of Hawai'i island. The group has since refused the museum's requests to return the artifacts.

8 ī n c e the loan, the advisory eommittee for the federal Native American G r a v e s Protection

and Repatriation Act, the law that governs native burials, has twice ruled that the repatriation was flawed and incomplete. In August, the Royal Hawaiian Academy of Traditional Arts and Nā Lei Ali'i Kawānanakoa, two of the 14 current claimants recognized by the museum for the 83 artifacts, filed a lawsuit demanding that Hui Mālama return the items. In early September, Ezra ordered Hui Mālama to return the items by Sept. 23. In his order, Ezra said that leaving the artifacts in the cave would mean the items would be at "serious risk of irreparable harm" because they are highly prized by thieves and are vulnerable to deterioration by the elements. Live days later, Hui Mālama's attorneys filed an appeal to the higher court, claiming that Ezra's ruling violated the group members' First Amendment right to exercise free religion. The group called Ezra's ruling "culturally repugnant" and characterized it as an "order to steal from the dead."

"In Hawaiian culture, this act carries severe spiritual consequences for anyone involved," Hui Mālama's appeal request

said. "It would be an extreme h e w a ( wro n g ) for any Hui M ā 1 a m a member to take part in efforts to enter the

burial caves for the purpose of removing the moepū [funerary objects], whieh are viewed as the rightful possessions of the iwi kūpuna (ancestors) buried in the cave." Further, the mason who sealed the cave shut after the artifacts were reburied said that any attempt to reopen the cave will cause it to collapse. However, the attorneys for the Royal Hawaiian Academy and Nā Lei Ali'i Kawānanakoa dispute the mason's elaim. They noted in their appeal response that in a separate repatriation case several weeks ago, Hui Mālama stated that they wanted to return several more artifacts that were being held by the National Park Service at Volcanoes National Park into the same Kawaihae caves they said would collapse if reopened. "The reason should be obvious: Until the filing of [this] lawsuit there was no impediment to opening the caves," said the attorneys for the Royal Hawaiian Academy and Nā Lei Ali'i Kawānanakoa. Moreover, Suganuma said he disagrees with Hui Mālama's classification of the 83 artifacts as moepū and called the group's traditional burial practices "modern creations of its founders." E3

Suganuma

Ayau