1
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REVIEW COMMITTEE MEETING
MARCH 13, 14 & 15, 2005
HONOLULU, HA
VOLUME I
SUNDAY, MARCH 13, 2005
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 2
NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REVIEW COMMITTEE MEETING
1:00 p.m.
Sunday, March 13, 2005 Keoni Auditorium
Hawaii Imin International
Conference Center
Honolulu, HI
COMMITTEE MEMBERS PRESENT:
Ms. Rosita Worl, Chair
Mr. Garrick Bailey
Ms. Vera Metcalf
Mr. Dan Monroe
Mr. Vincas Steponaitis
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 3 TABLE OF CONTENTS WELCOME – PRAYER/DANCE ...... 5
CALL TO ORDER – CHAIR ...... 5
COMMENTS BY DESIGNATED FEDERAL OFFICER ...... 6
PRESENTATION OF EVIDENCE REGARDING DISPUTE BETWEEN HUI MALAMA I NA KUPUNA O HAWAI’I NEI AND THE BISHOP MUSEUM REGARDING THREE UNASSOCIATED FUNERARY OBJECTS FROM MOLOKAI ...... 15 HUI MALAMA I NA KUPUNA O HAWAI’I NEI ...... 22 CHARLES KAULUWEHI MAXWELL ...... 22 EDWARD HALEALOHA AYAU ...... 23 POEMALEILANI PESCAIA ...... 31 KEOKI PESCAIA ...... 32 IKAIKA PUA’A ...... 34 IPOLANI MA’E ...... 36 EDWARD HALEALOHA AYAU ...... 39 BISHOP MUSEUM ...... 39 WILLIAM BROWN ...... 40 ISABELLA ABBOTT ...... 45 CHARMAN AKINA ...... 48 REVIEW COMMITTEE ...... 50 BREAK ...... 70
PRESENTATION OF EVIDENCE REGARDING DISPUTE BETWEEN HUI MALAMA I NA KUPUNA O HAWAI’I NEI AND THE BISHOP MUSEUM REGARDING THE KALAINA WAWAE ...... 70 HUI MALAMA I NA KUPUNA O HAWAI’I NEI ...... 71 EDWARD HALEALOHA AYAU ...... 71 FILM PRESENTATION ...... 74 MIKIALA AYAU-PESCAIA ...... 81 EDWARD HALEALOHA AYAU ...... 85 BISHOP MUSEUM ...... 87 WILLIAM BROWN ...... 87 CHARMAN AKINA ...... 92 ISABELLA ABBOTT ...... 92 REVIEW COMMITTEE ...... 93 BREAK ...... 108
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 4
PRESENTATION OF EVIDENCE REGARDING DISPUTE BETWEEN HUI MALAMA I NA KUPUNA O HAWAI’I NEI AND HAWAII VOLCANOES NATIONAL PARK REGARDING ITEMS FROM A CAVE AT KAWAIHAE108 HAWAII VOLCANOES NATIONAL PARK ...... 108 CINDY ORLANDO ...... 109 HUI MALAMA I NA KUPUNA O HAWAII NEI ...... 114 EDWARD HALEALOHA AYAU ...... 114 TY KAWIKA TENGAN ...... 119 KEHAUNANI ABAD ...... 123 REVIEW COMMITTEE ...... 130 MEETING RECESS ...... 160
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 5
1 WELCOME – PRAYER/DANCE
2 (A Native Hawaiian prayer was offered by Hale O
3 Na Ali’i O Hawai’i.)
4 ROSITA WORL: I would like to call the meeting of
5 the NAGPRA Review Committee meeting to order, and I
6 want to thank our hosts for that wonderful message
7 and song and prayer for us. And I understand that —
8 and I’m sure that you might also know that it is also
9 our duty to respond when we are coming into someone’s
10 country. And we’re very pleased to be here in this
11 beautiful country of the Hawaiians. And so if I may,
12 I would like to call upon one of our own sons of one
13 of our committee members, Mattox Metcalf and also
14 Debbie Dommek. And Mattox is from Savoonga, living
15 in Anchorage currently. And Debbie is from Kotzebue,
16 living in Anchorage currently. And if they might
17 welcome or give our expression of thanks.
18 MATTOX METCALF/DEBBIE DOMMEK: (Native Alaskan
19 prayer and dance.)
20 ROSITA WORL: (Native Alaskan language.)
21 CALL TO ORDER – Chair
22 ROSITA WORL: Well, I first of all want to thank
23 you all for attending this meeting. I know if you
24 were in Alaska, we wouldn’t expect to have so many
25 people here because when the sun shines in Alaska we
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 6
1 don’t get people attending meetings, but I guess it’s
2 a different story here. But nevertheless, we’re
3 very, very happy to see the kind of response we’ve
4 had in your attendance.
5 So if I may now, I’d like to turn it over to
6 Dr. McKeown, who is the Designated Federal Official.
7 And just for the record, maybe Mr. — you could note
8 who is here.
9 COMMENTS BY DESIGNATED FEDERAL OFFICER
10 TIMOTHY MCKEOWN: Thank you, Madam Chair. I
11 would like to note that the Review Committee has five
12 members present. They include three members that
13 were appointed from nominations received from
14 national scientific organizations. That’s Dr. Vin
15 Steponaitis, Mr. Dan Monroe, and Dr. Garrick Bailey.
16 One member appointed — appointed from nominations
17 received from an Indian tribe or Native Hawaiian
18 organization. That’s Dr. Rosita Worl. And then the
19 seventh member that is appointed from nominations
20 received and concurred to by the first six members of
21 the committee, that’s Vera Metcalf. So the committee
22 has quorum at this time.
23 I’d like to open by thanking the Hawaiian people
24 for inviting us to participate in the meeting here
25 and to deal — request the assistance of the committee
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 7
1 in resolving several disputes that have been put
2 before. There’s also some other information and
3 other matters that the Review Committee will need to
4 deal with. As part of Federal law, I would like to
5 say up front that this meeting was duly noticed in
6 the Federal Register as a public meeting, that
7 everyone is welcome to participate. However, it is a
8 business meeting of the committee. It is not a
9 public hearing, per se. So the committee has to do
10 various types of business, as anyone that has seen
11 the agenda has seen the schedule is very, very tight.
12 So the committee needs to keep on track with the time
13 in order to get through the business in an effective
14 fashion.
15 There’s one issue that I would like to bring up
16 front, actually first by reviewing the agenda, and
17 then one comment before I hand it over to the Chair.
18 You will see that there are three primary disputes
19 that are going to be heard today. The way the time
20 has been scheduled is that the primary disputing
21 parties will make presentations for each of these
22 three, then the other party will come forward and
23 make a presentation, and then the committee will have
24 an amount of time to ask questions related to that.
25 This is a fact-finding period of time for the
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 8
1 committee.
2 This is mirrored by a period of time tomorrow
3 morning when other affected parties to the dispute
4 have been invited to come forward and address the
5 committee. And again, there will be time for the
6 committee to ask additional questions there, again as
7 part of a fact-finding exercise. In the afternoon
8 tomorrow, there is an issue that will be brought
9 before the committee again related to a dispute that
10 was heard a year or so ago in St. Paul, Minnesota.
11 And at the September meeting of the committee, there
12 was a decision to hold that initial finding in
13 abeyance and to reconsider that. And that will be
14 tomorrow afternoon. All of the disputing parties
15 have been invited, as well as all of the affected
16 parties.
17 All of the affected parties in all of these
18 disputes have received formal invitations to
19 participate. Some have contacted me before. I’ve
20 put those on the agenda here. Others may show up and
21 we’ll try to provide them with time as well.
22 There’s some other business that the committee
23 will be considering. There’s some information that’s
24 provided in your binders that was derived from a
25 hearing held by the Senate Indian Affairs Committee
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 9
1 here in December of last year regarding the
2 definition of Native Hawaiian organization, as
3 defined in the statute, for your consideration. I’ve
4 asked Colin Kippen, formerly of the staff of the
5 Senate Indian Affairs Committee to be here tomorrow
6 to talk a little bit about establishing and setting
7 up that hearing and some of the results that came
8 from it.
9 On Tuesday, there’s some other business.
10 There’s a request from the Army regarding disposition
11 of culturally unidentifiable human remains from Utah.
12 There is a review that the Program Manager of the
13 National NAGPRA Program will make on the status of
14 various issues within the program. There is a report
15 to Congress that the committee needs to put forward,
16 and there’s a draft that was derived from suggestions
17 from the committee and some data that we provided for
18 your consideration. There’s discussion of the
19 seventh member of the committee that you will need to
20 deal with and discussion of where the next meeting
21 will be for the committee.
22 Then on Tuesday afternoon will be the time when
23 the committee can sit down and think about what kind
24 of recommendations and findings they wish to issue
25 regarding the various disputes and activities that
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 10
1 have come before you at the meeting. Again, as I
2 emphasized, the hearing is — the timeframe is very,
3 very tight. And I think you all – anyone that is
4 chairing particular pieces needs to be very mindful
5 of the clock.
6 Lastly, I want to talk a little bit about the
7 dispute procedures that the committee has. There was
8 some issue that was raised regarding the St. Paul
9 meeting and the decision by the committee to rehear
10 that. As part of kind of logicing through that, I
11 actually took a chance to review the dispute
12 resolution procedures. And I noticed that some of
13 the activities, particularly in line of what is
14 considered a potential dispute, that there may have
15 been over the past few years a bit of mission creep
16 in terms of an expansion of what the committee’s
17 jurisdiction is in terms of dealing with disputes.
18 In particular I want to focus on the one that – in
19 the document as it stands now, there’s an issue
20 related to determination of ownership of particular
21 Native American human remains and other cultural
22 items. Ownership is a very precise word as used in
23 the statute. It comes from Section 3 of the statute
24 that deals with excavations and discoveries on
25 Federal or tribal land. The Review Committee was
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 11
1 established to monitor the implementation of the
2 collection provisions of the statute. So that is not
3 something that is really within the jurisdiction of
4 the committee. That’s one of the ones that I think
5 we’ll need to focus on a lot more. And what I would
6 propose is to revise that for your consideration at
7 your next meeting, possibly the teleconference
8 meeting, to look at that.
9 I would like to draw you back then to the
10 regulations of the statute, which do talk about the
11 committee’s role in disputes, and this is under 43
12 CFR 10.17 (b). And that talks about the Review
13 Committee may facilitate the informal resolution of
14 disputes relating to these regulations among
15 interested parties that are not resolved by good
16 faith negotiations. The Review Committee actions may
17 include convening parties — or convening meetings
18 between parties in disputes, making advisory findings
19 as to contested facts, and making recommendations to
20 the disputing parties or to the Secretary as to the
21 proper resolution of disputes consistent with these
22 regulations and the Act.
23 And I would like to draw you in particular to
24 the whole crux of this, which is making advisory
25 findings as to contested facts. And the facts that I
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 12
1 think are squarely within the jurisdiction of the
2 Review Committee are whether an object fits one of
3 the categories under the statute, whether an object
4 is a human remain, funerary object, sacred object, or
5 object of cultural patrimony, whether an individual
6 is a lineal descendant, whether a Native American —
7 whether an Indian tribe or Native Hawaiian
8 organization is culturally affiliated with particular
9 cultural items, whether one — of a group of claimants
10 whether one is the most appropriate claimant, whether
11 a museum has shown that they have right of possession
12 to an object, and lastly, whether a study that is
13 ongoing at a particular institution is of major
14 benefit to the United States. These are all factual
15 issues that the committee is well-versed and well-
16 qualified to make decisions and recommendations
17 about.
18 One of the things that you’ve noticed in the
19 responses that I have sent to the various disputing
20 parties is that there is a number of issues that I
21 have basically taken off of the table. These have to
22 do with procedural issues. Procedural issues that
23 involve Federal agencies are typically resolved in
24 Federal court under provisions of the Administrative
25 Procedures Act, and that particular statute is not
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 13
1 one that basically is within your jurisdiction to
2 make those recommendations.
3 Secondly, there have been some that involve
4 allegations of failure to comply. There is a
5 separate process under the statute to investigate
6 those. Criminal investigators are assigned to those
7 cases to make sure that they have all the relevant
8 facts. And again, in providing staff support to the
9 committee we do not have the capability to do that
10 kind of data gathering for you.
11 Lastly, there are some issues that are squarely
12 within the province of state or other local
13 jurisdictions in terms of whether a repatriation was
14 final. And I know that that has come up in a couple
15 of the issues that are brought to the committee.
16 Those are properly considered by a court of competent
17 jurisdiction at the state or local level. Within the
18 area of factual issues that are in dispute, our
19 position — the Department’s position is in terms of
20 getting you information we will do anything we can to
21 get you the relevant information you need to make
22 recommendations based on firm data. And that those
23 recommendations – in compiling those, we are a
24 neutral party. The recommendations need to come from
25 you. So we’re not going to try to steer you in any
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 14
1 way. We’ll give you the information. But outside of
2 that area, I’ve tried to take a pretty firm hand at
3 identifying where the boundary is.
4 ROSITA WORL: Thank you, Mr. DFO, for outlining
5 those procedures for us. I’m sure that the committee
6 will have many comments and questions later. And we
7 will save that discussion for Tuesday afternoon. I’m
8 also pleased to hear you outline your
9 responsibilities in your relationship to the NAGPRA
10 committee. That’s very good to hear that. And if I
11 may for the record, if you would please introduce
12 your — the staff people who are here for the record
13 and also for the public.
14 TIMOTHY MCKEOWN: I’ll just let them introduce
15 themselves.
16 CARLA MATTIX: I’m Carla Mattix. I’m with the
17 Department of the Interior Solicitor’s Office,
18 Division of Conservation and Wildlife, advisor to the
19 Review Committee.
20 SHERRY HUTT: Good afternoon. I’m Sherry Hutt,
21 and I’m the Program Manager of the National NAGPRA
22 Program. Welcome all.
23 TIMOTHY MCKEOWN: I think with that, Madam Chair,
24 I’ve done my duty here, and I will turn it over to
25 you.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 15
1 ROSITA WORL: Thank you very much. You’ve heard
2 our agenda outline for the next few days. We do have
3 a very full agenda and we want to be certain that we
4 hear all of the evidence, that we hear from all of
5 the affected and interested parties. So we will
6 proceed to move right along into the three disputes
7 that we have.
8 The process that we have is that we have asked
9 various committee members to chair various disputes.
10 And with that, I would like to begin the first
11 dispute and turn it over to Mr. Steponaitis, Vin
12 Steponaitis.
13 PRESENTATION OF EVIDENCE REGARDING DISPUTE BETWEEN
14 HUI MALAMA I NA KUPUNA O HAWAI’I NEI AND THE BISHOP
15 MUSEUM REGARDING THREE UNASSOCIATED FUNERARY OBJECTS
16 FROM MOLOKAI
17 VINCAS STEPONAITIS: Thank you, Madam Chair. For
18 the first time in the several meetings that I’ve
19 attended we’re actually ahead of schedule. And so —
20 and maybe if I could have your leave to just take a
21 few minutes. Since I’m relatively new to the
22 committee, I just wanted to, before starting the
23 discussion of our dispute and also the others that we
24 will start hearing in the course of this meeting, I
25 just had several questions that I wanted — that kind
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 16
1 of I think are important to consider up front and I
2 just wanted to get some advice on.
3 And one of these things is, particularly in the
4 aftermath of our last face-to-face meeting, I spent
5 some time looking at the dispute resolution
6 procedures and I want to make sure that I understand
7 certain points. And also mindful of the fact that
8 last time we met face to face, one of the things that
9 led to the issue that’s on this meeting’s agenda is
10 that there were certain questions about whether
11 procedures were followed. So I just wanted to sort
12 of bring some of those up front and just ask some
13 questions about that.
14 ROSITA WORL: Mr. Steponaitis, that will be an
15 agenda item. And if you would hold your questions
16 until we — until we bring that to the agenda. Right
17 now, our agenda is to do the first dispute, and
18 because time is of the essence, and I don’t know — I
19 think we’re right on time and we should proceed with
20 that dispute.
21 VINCAS STEPONAITIS: With all due respect, Madam
22 Chair, I’m not sure I see where it is on the agenda.
23 This won’t take long. This can take five minutes, I
24 think, and we’re ahead of schedule. Would that be
25 okay?
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 17
1 ROSITA WORL: All right, Mr. Steponaitis. If
2 you’d just keep it short, please.
3 VINCAS STEPONAITIS: I will. I promise.
4 The first question is just about Federal
5 Register notices, and I just want to make sure that I
6 understand the background. As I read the dispute
7 resolution procedures, as I read it there is meant to
8 be an explicit notice prior to a meeting where a
9 dispute is heard that will mention the nature of the
10 dispute and so forth. And I did not see a Federal
11 Register notice that had that in it, and so I
12 wondered if I had missed one or whether there was
13 another explanation.
14 TIMOTHY MCKEOWN: There actually was a draft of
15 that notice that was put forward, and because of the
16 amount of time that it takes to get a notice through
17 our process, it didn’t get into the register within
18 the 15 days prior to the meeting. At which point, we
19 published the draft agenda on the Website, sent it to
20 the press here so that the information would come
21 out. Basically in consultation with our counsel and
22 other parties, I think our notice is legally
23 sufficient, our initial notice was legally
24 sufficient.
25 VINCAS STEPONAITIS: Okay. So I take it from
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1 that, that even if we diverge somewhat from our
2 dispute resolution procedures, one can still conclude
3 that substantively the procedures were met and that
4 the dispute can go forward. And I’m not arguing that
5 we shouldn’t go forward. Don’t get me wrong.
6 TIMOTHY MCKEOWN: Yeah, the binding document in
7 this case would be the Federal Advisory Committee
8 Act, which is the one that we really have to follow —
9 VINCAS STEPONAITIS: I see. Okay. It helps to
10 know that. The other question I want to just bring
11 up again comes from the — both from the dispute
12 resolution procedures and from the past experience of
13 this committee as I’ve observed it over the years.
14 The procedures stipulate that if the DFO has or has
15 the appearance of a conflict of interest that he may
16 recuse himself. And I know that in the past when
17 there have been disputes that have involved National
18 Park Service units, my impression is that in the past
19 the DFO has recused himself. And I’m sure you’ve
20 considered this, but I just for the record wanted to
21 ask about that and to get a sense of what your stance
22 on that was.
23 TIMOTHY MCKEOWN: I believe your question is
24 probably focused on the dispute between Hui Malama I
25 Na Kupuna O Hawai’i Nei and the Hawaii Volcanoes —
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 19
1 VINCAS STEPONAITIS: Hawaii Volcanoes. Yes,
2 that’s right.
3 TIMOTHY MCKEOWN: I actually was not involved in
4 the decision regarding whether there would be recusal
5 on this, but Dr. Hutt, who is the Program Manager,
6 was and I can pass that on to her.
7 SHERRY HUTT: Thank you for your question,
8 Dr. Steponaitis, and it is a good one. And I would
9 like the entire committee to know that when a park is
10 a party to the dispute, we don’t automatically assume
11 conflict of interest and that a second DFO would be
12 needed. Rather, the parties to the dispute will
13 advise. In this case I received communication from
14 the party bringing the dispute that they did not
15 object to Dr. McKeown being the DFO for that matter.
16 Therefore, we did not provide a second DFO to hear
17 the matter between the park and the Native Hawaiian
18 organization.
19 VINCAS STEPONAITIS: In that case, just so I
20 understand, is it only the opinion of the party
21 bringing the dispute that matters in this case, or
22 would it be both parties of the dispute that would
23 matter?
24 SHERRY HUTT: The party that would be
25 disadvantaged would be the party bringing the
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 20
1 dispute, and that party indicated that they had no
2 problem with Dr. McKeown’s ability to be fair and
3 impartial in being the DFO for all matters. So in
4 all matters of that nature going forward, that is how
5 we will conduct business. I will have that
6 discussion with the parties and determine their
7 feelings on the matter and I will respect those
8 feelings. And that is the procedure that we used in
9 this instance.
10 VINCAS STEPONAITIS: Thank you very much. That
11 answers my question. And thank you for leave to ask
12 them. I just felt it was important to get these
13 issues out on the table in front and have them
14 resolved before we proceeded.
15 SHERRY HUTT: I should also add that this
16 discussion also involved the Chair, Dr. Worl.
17 VINCAS STEPONAITIS: Okay. Well, in that case,
18 we’re moving to the item on the agenda that deals
19 with the dispute between Hui Malama I Na Kupuna O
20 Hawai’i Nei and the Bishop Museum regarding three
21 items from Molokai. We have an hour for this portion
22 of the dispute or of the process, and as Tim McKeown
23 mentioned earlier, this hour will be spent only in
24 fact finding, so to speak. We will be gathering
25 evidence from the disputants.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 21
1 And what I propose that we do, if this is all
2 right with other members of the committee, is that we
3 divide the hour into three parts. That we hear first
4 from the party bringing the dispute, then we hear
5 from the party against which the dispute is brought,
6 and then we have a third portion that is for
7 questions and answers, questions from the committee
8 largely to clarify points, to gather additional
9 information that would be useful to the committee in
10 its deliberations. And I also propose that the
11 presentations from the disputants be 15 minutes each,
12 which will give us a half hour for questions and
13 answers. Is that all right with the committee?
14 TIMOTHY MCKEOWN: I just — if I might, I just got
15 a bad look from back in the room, because I think I
16 told them 20. I told disputants that they would have
17 20.
18 VINCAS STEPONAITIS: Well, I would be willing to
19 give the disputants 20 minutes, if they would give me
20 leave to be extremely strict in enforcing that
21 because my main concern is that we have to have time
22 for question and answer. Keep in mind that we have
23 the benefit of the documents that the disputants
24 submitted, and we have studied these documents. We
25 have a lot of the basic information in front of us
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 22
1 that we’ve read and that we can refer to as we
2 deliberate. So again, with the committee’s leave,
3 I’m happy to go 20/20/20, but also I’ll be watching
4 my clock very closely so that when we get to 20
5 minutes I will respectfully ask folks to stop so that
6 we can proceed to the other parts of the hearing.
7 And I also before we start since we are still
8 running a couple of minutes ahead, I just want to
9 thank everyone involved for the care that they took
10 in providing materials, in supplying useful
11 information to the committee. I know how time-
12 consuming it is and I know the care with which those
13 involved approached this. So please accept my
14 gratitude for that.
15 Are there any other questions or issues that
16 committee members wish to raise before we begin?
17 ROSITA WORL: I think we’re ready.
18 VINCAS STEPONAITIS: Well, in that case, let’s
19 begin with a 20-minute presentation from Hui Malama.
20 HUI MALAMA I NA KUPUNA O HAWAI’I NEI
21 CHARLES KAULUWEHI MAXWELL
22 CHARLES KAULUWEHI MAXWELL: Aloha, (Native
23 Hawaiian language), members of the committee,
24 honorable Chairman, my name is Kahu Charles Kauluwehi
25 Maxwell. Before we begin I would like to do a pule,
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 23
1 our members would like to do a pule. Could we all
2 rise?
3 (Native Hawaiian pule.)
4 EDWARD HALEALOHA AYAU: Aloha, Review Committee
5 members, and welcome to Hawaii. I believe this is
6 the second time the committee has come. I think 1993
7 was the first time that they came to hear a dispute,
8 and that was between Hui Malama and the University of
9 California at Berkeley. This particular dispute
10 involves three unassociated funerary objects from
11 Molokai, including a leho or cowrie shell, a small
12 wood image and a rock oyster pendant. On November 8,
13 2004, Hui Malama submitted a request for the Review
14 Committee to assist in resolving this dispute with
15 Bishop Museum. The issues pending resolution at that
16 time included, one, whether or not the Bishop Museum
17 has right of possession to the cowrie shell and wood
18 image, both of which have already been determined to
19 be unassociated funerary objects and culturally
20 affiliated with Hui Malama, the Molokai Island Burial
21 Council, and the Office of Hawaiian Affairs; two,
22 whether or not the rock oyster pendant is an
23 unassociated funerary object; and three, if so,
24 whether Bishop Museum has right of possession to that
25 pendant.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 24
1 This dispute is part of a broader disagreement
2 between Hui Malama and the Bishop Museum over what we
3 assert is a failure of Bishop Museum to repatriate
4 human remains and unassociated funerary objects from
5 Molokai in a timely fashion, as required by NAGPRA.
6 We filed a formal complaint with the National Park
7 Service Civil Penalties Officer who determined in
8 June 2004 that an investigation is warranted into
9 allegations of Bishop Museum’s failure to comply with
10 NAGPRA. In her response letter, Civil Penalties
11 Officer Ann Hitchcock states, quote, “I have
12 determined that your allegations are relevant to one
13 of the eight tests for failure to comply as described
14 in 43 CFR 10.12 (b)(1)(v) and warrant further
15 investigation pursuant to 25 USC 3007. I am
16 referring your complaint to the National Park Service
17 Chief Ranger for evaluation,” unquote. This is the
18 backdrop with which this dispute is framed.
19 Back to the issues at the heart of this dispute
20 that are in need of resolution. The Bishop Museum
21 provided answers to three of the affirmation issues a
22 month after the dispute and request for assistance
23 from the Review Committee was filed by Hui Malama.
24 By a letter dated December 10, 2004, the Bishop
25 Museum determined that, one, with respect to the
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 25
1 cowrie shell and rock oyster pendant, Hui Malama has
2 presented evidence, which standing alone and before
3 introduction of evidence to the contrary, supports a
4 finding that the Bishop Museum does not have a right
5 of possession. The Bishop Museum does not assert
6 that it has a right of possession to these objects.
7 Two, “With respect to the wooden ki’i, no claimant
8 has discharged its initial burden to show that the
9 museum does not have a right of possession. Further,
10 even assuming that this initial burden had been
11 discharged, the museum asserts a right of possession
12 as a good-faith purchaser for value from a native.
13 There is no evidence that the native was a thief,”
14 unquote. And there I’m quoting the museum’s December
15 10, 2004 letter to us.
16 The current status of each of the three cultural
17 items from Molokai is as follows then: one, the leho
18 or cowrie shell has been determined to be an
19 associated funerary object, and this was based on the
20 Federal Register notice of May 2, 2003; two,
21 culturally affiliated to Hui Malama and at least
22 three other organizations; three, available for
23 repatriation as Bishop Museum does not have right of
24 possession.
25 The Bishop Museum says the next step is to
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 26
1 review the strength of cultural affiliation as the
2 museum recognized at least one additional claimant in
3 December of 2004. This new claim was recognized more
4 than 90 days after the date of the first recognized
5 claim filed by Hui Malama and 15 months after the
6 museum first determined to complete repatriation of
7 this funerary object to Hui Malama in November 2003.
8 This recognition is problematic. The failure of
9 Bishop Museum to repatriate to Hui Malama in a timely
10 fashion is the subject of the aforementioned
11 investigation by the NPS Civil Penalties Officer and
12 the Office of the Chief Ranger.
13 We had hoped that, since it was determined in
14 June 2004 that the allegations against Bishop Museum
15 for failure to comply would have been investigated,
16 that investigation would have been completed by the
17 time the committee heard this case. We had hoped
18 that that would have been done. Unfortunately it is
19 unclear to us at present what the status is of that
20 investigation. In our email communications with
21 Ms. Hitchcock, it is – she has not been able to give
22 us a status on where this investigation is at. And
23 so we don’t have the benefit of the investigation and
24 the findings of that with respect to the issue of
25 whether or not Bishop Museum violated NAGPRA when it
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 27
1 did not repatriate these cultural objects to us by
2 November of 2003.
3 With regard to the rock oyster pendent, it has
4 been determined, one, that it is an unassociated
5 funerary object. Here we are citing Bishop Museum’s
6 December 10th letter. Two, that it’s culturally
7 affiliated to Hui Malama and at least one other
8 organization. And three, that it is available for
9 repatriation as Bishop Museum does not have right of
10 possession.
11 The problem here is that the Bishop Museum is
12 saying the next step again is to review the strength
13 of cultural affiliation as the museum recognized an
14 additional claimant. Troubling is that although the
15 funerary object was included and identified in the
16 original inventory as one of three funerary objects,
17 it was somehow left out of the Federal Register
18 Notice of Intent to Repatriate cultural items, which
19 was published on May 2nd, 2003. The only objects that
20 were included was the leho and the ki’i. And so
21 before this case — this object can be repatriated, a
22 Federal Register notice must be published before the
23 item can be made available for repatriation.
24 With regard to the small wood image, it has been
25 determined that one, it is an associated funerary
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 28
1 object. It was identified in the Federal Register
2 notice. It is culturally affiliated to Hui Malama
3 and at least two other organizations, OHA and the
4 Molokai Island Burial Council. However, Bishop
5 Museum claims to have right of possession and
6 therefore believes it does not have to repatriate.
7 Our position is that Bishop Museum did not obtain
8 possession of this ki’i la’au with the voluntary
9 consent of a person who had the authority to
10 alienate. The museum’s own record provides that,
11 quote, “purchased for the museum by Dr. C. M. Hyde of
12 some native who found this idol wrapped in kapa,”
13 unquote.
14 The definition of right of possession requires
15 proof that the person from whom the item was attained
16 from had the authority to transfer title. The museum
17 states that there is no evidence that the native was
18 a thief. However, the issue is not the lack of proof
19 of thievery, but the lack of proof of authority to
20 lawfully transfer. There is absolutely no evidence
21 of any kind — evidence of any kind of such requisite
22 authority or any indication of the relationship, if
23 any, between this Hawaiian whom they bought the item
24 from and the small wood image. All we know is that
25 he or she found it. Without the requisite element of
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 29
1 authority to alienate, Bishop Museum is unable to
2 assert ownership.
3 Interestingly, with regard to the rock oyster
4 pendant, which was also found and collected, the
5 Bishop Museum determined that it did not have right
6 of possession. In this instance, the museum asserts
7 right of possession as a good-faith purchaser.
8 However, the record lacks any evidence to establish
9 that the purchase was made in good faith. That is
10 presumptuous. For all we know, Dr. Hyde may have
11 encouraged the unauthorized taking of the ki’i la’au
12 or similar cultural items by offering money or a
13 value of some kind for them.
14 We do not know that a purchase was made — excuse
15 me. We do know that a purchase was made but with
16 what is unclear. What is clear is that the exchange
17 of value for the item, in and of itself, does not
18 establish requisite authority to alienate. There
19 simply isn’t proof of such authority or proof of good
20 faith on the part of Dr. Hyde. The absence of
21 authority to transfer title is enough to undermine
22 any claim of right of possession by Bishop Museum.
23 The museum’s recourse would be to somehow get its
24 money back.
25 Hence, it is our position that we have presented
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 30
1 evidence which standing alone and before introduction
2 of evidence to the contrary supports the finding that
3 the Bishop Museum does not have the right of
4 possession of the small wood image and must therefore
5 make this cultural item available for repatriation to
6 Hui Malama based on our recognized claim.
7 With this said, we assert, and Bishop Museum has
8 proven this to be true with regard to two of the
9 three unassociated funerary objects, that the museum
10 never did have right of possession to any of the
11 three moepu to begin with. In fact, this was the
12 understanding that we had when Dr. Kaulukukui
13 conducted the consultations in this case on behalf of
14 Bishop Museum. This was explained why the Federal
15 Register Notice of Intent to Repatriate published on
16 May 2nd contains the statement that, quote,
17 “repatriation of these unassociated funerary objects
18 to the Molokai Island Burial Council, Hui Malama I Na
19 Kupuna O Hawai’i Nei, and the Office of Hawaiian
20 Affairs may begin after that date.” And the date is
21 June 2nd, 30 days after the notice was published. We
22 know that repatriation of funerary objects can only
23 proceed when the museum does not have a right of
24 possession. Second, this also explains why
25 Dr. Kaulukukui’s memo of August 21, 2003, which is in
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 31
1 your materials, to the three organizations in this
2 case did not require the claimants to address the
3 right of possession issue, as there was no proof at
4 the time that the museum had any right of possession,
5 and the museum was in fact proceeding with
6 repatriation.
7 At this point, I’m going to stop and bring up
8 residents from Molokai who came to also testify on
9 this particular matter.
10 POEMALEILANI PESCAIA
11 POEMALEILANI PESCAIA: Aloha. My name is
12 Poemaleilani (Native Hawaiian name) Pescaia, and I am
13 from the Island of Molokai. I am 14 years old.
14 Through generations, our ancestors have done nothing
15 but protect us, guide us, taught us, and protect —
16 and prepared us for the actions that might occur in
17 the future. Our ancestors have taught us to be
18 respectful, to be humble, to also carry out — always
19 carry out the wishes of our elders, to not be greedy
20 or selfish. I am here today to state the problem
21 that I have with the Bishop Museum claiming Molokai’s
22 moepu to be their own.
23 First of all, can the Bishop Museum truly claim
24 the moepu to be theirs? They belong to our
25 ancestors, the same ancestors that taught us to be
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 32
1 respectful and humble. Did the ancestors tell them
2 you could have my shell or my pendant, my carvings?
3 If we ignore the fact that the moepu belongs on
4 Molokai with their rightful owners, if we ignore the
5 fact that the Bishop Museum is wrongfully claiming
6 that this is rightfully someone else’s, then we will
7 be — then we will be straying from our teachings.
8 This is not the way we should honor our ancestors.
9 The moepu should return to Molokai. That’s where
10 they belong, resting alongside with their owners.
11 Another problem that we have is we have to deal
12 with the uneducated public. And we try to do it; we
13 try to educate them as much as we can. Also, people
14 need to stop being niele, maha oi, or glatis
15 (phonetic) and leave them to be. Let them — let them
16 rest back with their true owners, but to — and to
17 rest on Molokai to live their true purpose, to
18 accompany their owners in death. If not, let’s just
19 rob everyone’s grave, all of our ancestors’ burials,
20 with — and put them in boxes and storage and just
21 never see them ever again. And that’s all I have to
22 say. Mahalo.
23 KEOKI PESCAIA
24 KEOKI PESCAIA: Aloha. My question is why are
25 the moepu not being returned to Molokai and are we
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 33
1 doing the right thing? When I die and my wishes is
2 to be buried with some of my personal and prized
3 possessions, my family would honor my wishes. No one
4 would question who owns it. No one would take them
5 from me, exhume my remains, and desecrate my resting
6 place. It would not be right in any civil society.
7 It wouldn’t be right. If an earthquake would unearth
8 my bones or the ocean tides expose my resting place,
9 would it not be still mine?
10 Even out of curiosity, if someone would find
11 something and take it from me, does it make it
12 theirs? Does the old adage stand, finders keepers?
13 I’m sure we all share the same feelings that they
14 should be returned and replaced from where they came.
15 Would you want someone other than your family handle
16 you, your personal possessions, put you on display,
17 taken from your ’aina? I would not imagine any of
18 you wanting this happen — wanting this to happen to
19 you or your kupuna. We must do the right thing.
20 Does some title afford someone or some entity to
21 say, wait, we think we need to keep these moepu, to
22 study it, break it apart and put it back together,
23 put under a microscope to pick and prod? Haven’t
24 they done enough of this, taken in the name of study
25 and preservation? Groups from Oahu saying the moepu
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 34
1 should stay on Oahu and they were taken – and taken
2 from Molokai. The Molokai people say no. The moepu
3 should be returned to its rightful place of rest.
4 Hina (phonetic) is calling them home to her island.
5 Aloha.
6 VINCAS STEPONAITIS: With respect, while we’re
7 just having a change of speakers, we have about two
8 minutes left before we get to the 20-minute mark.
9 IKAIKA PUA’A: How many minutes?
10 VINCAS STEPONAITIS: About two.
11 IKAIKA PUA’A
12 IKAIKA PUA’A: (Native Hawaiian language.)
13 Aloha, everyone. My name is Nelson Ikaika (Native
14 Hawaiian name) Pua’a, and I am a resident of Molokai
15 and I am 16 years old. Ever since I was little I
16 have always known the sand dunes of Keonelele above
17 Mo’omomi to be kapu or forbidden, off limits. My
18 kupuna are buried there. Many mo’olelo, or historic
19 accounts, teach us that they are in there and I know
20 it is true. Even without going there in person, I
21 know I have no business there, no reason to walk
22 those sands, and so I have honored the sacredness of
23 my ancestors as an obedient, respectful grandchild.
24 When I hear of people going into the sand dune
25 area and finding iwi, or bones, and other sacred
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 35
1 objects, it hurts my na’au, my soul, because it is
2 rude to disturb my kupuna while they sleep. But when
3 something is taken I am offended, because it is like
4 stealing. Anything found in the dunes belongs to the
5 kupuna in the dunes. The leho and the palaoa were
6 removed by people who had no authority to remove
7 them. The Bishop Museum bought the ki’i la’au from
8 someone who had no authority to sell it.
9 According to the records, Dr. Hyde purchased the
10 ki’i la’au from a native. Just because he paid money
11 doesn’t mean — doesn’t make it yours. It’s like a
12 state worker taking a discarded park bench from a
13 state park and then selling it to his friend. Just
14 because he works for the state doesn’t mean he has
15 the right to take something that doesn’t belong to
16 him personally and sell it for personal gain. It’s
17 still stealing.
18 Now who really owns all these objects? It is —
19 is it the land owner? If this was true, the
20 Department of Hawaiian Homelands owns every jewelry,
21 bible, photograph, hala lei, love letter ever buried
22 in Kanakalo (phonetic) cemetery. Will they be able
23 to make — to take out whatever they wanted, whenever
24 they want? I hope not. It is a disgusting thought,
25 same as Keonelele. Besides it being disgusting to
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 36
1 take people’s beloved possessions, it is a crime, one
2 that should have been corrected as it was discovered.
3 To have taken so long to make these moepu returned is
4 a crime all over again.
5 The museum has played a huge role in victimizing
6 my ancestors and continue to do so each day they wait
7 for their possessions to be returned. (Native
8 Hawaiian language), may justice prevail. Mahalo.
9 VINCAS STEPONAITIS: Thank you.
10 CHARLES MAXWELL: Okay?
11 VINCAS STEPONAITIS: If you could just sum up
12 very quickly, yes. Thank you.
13 CHARLES MAXWELL: Okay, yes. She came all the
14 way from Molokai, 200-something dollars she paid.
15 Please, I appeal to you.
16 VINCAS STEPONAITIS: Yes, I understand.
17 CHARLES MAXWELL: Thank you.
18 IPOLANI MA’E
19 IPOLANI MA’E: (Native Hawaiian language.) Aloha.
20 My name is Ipolani Ma’e. I am 16 years old and
21 currently attending (Native Hawaiian name), on the
22 Island of Molokai. I am not an expert on NAGPRA law,
23 but I understand its intent is to protect ancestral
24 remains, their possessions that were buried with
25 them, and objects of great significance culturally to
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 37
1 native peoples.
2 The three moepu we are referring to today
3 clearly qualify for the protection of the NAGPRA law.
4 In this instance, proper procedures were followed by
5 the claimant and the same good-faith trust was
6 expected to be found in the Bishop Museum, that they
7 too would follow the procedure with timeliness and
8 accuracy. That has not been the case. What should
9 have been a familiar, routine repatriation for the
10 museum was unnecessarily dragged out for over a year.
11 This lag allowed claimants who weren’t qualified
12 before to build up a long-shot claim to further delay
13 the repatriations.
14 As a true child of Molokai, I cannot see my
15 kupuna waiting any longer for their belongings. As a
16 mo’opuna, a descendant of those very iwi and aumakua
17 who guide me to this day, it is my duty to see their
18 wishes carried out. Though I admit many things
19 strike my curiosity in the world, I was raised to
20 honor my elders and their wishes. The kupuna of
21 Keonelele are indeed my elders and if their families
22 at the time decided to bury them in the sands of
23 Mo’omomi with these selected special objects, I have
24 no right to place my own desires above theirs; not
25 for reasons of research, education, science or any of
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 38
1 the many reasons that are out there. My kuleana is
2 to learn kuleana more deeply, not just physically but
3 spiritually, as well. Learn to respect, to trust, to
4 have faith, to believe in what – in what which cannot
5 be seen.
6 Our kupuna have left us with much knowledge that
7 cannot be touched, only felt. For remains to be
8 buried in the sand, someone else needed to place them
9 there, along with the moepu. The person who was
10 doing the burying clearly demonstrated his intent as
11 he placed his iwi and moepu into the sand. If the
12 pendant was meant for the living to see, it would
13 never have been placed in the sand to begin with. To
14 be chosen to hide someone’s remains was a great honor
15 taken very seriously. I have never heard of someone
16 burying remains and keeping a souvenir for
17 themselves. A promise is a promise, and the shame
18 and guilt of such actions would be too much to bear.
19 Besides the kupuna are watching and one day you will
20 have to answer to them for any hewa or misconduct.
21 They’re always watching us and watching over us. In
22 their death I must return the aloha by watching over
23 what remains of them on this earth and speak on their
24 behalf for the expedient return of their moepu to
25 Keonelele. Mahalo.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 39
1 VINCAS STEPONAITIS: Thank you very much for
2 those presentations.
3 EDWARD HALEALOHA AYAU
4 EDWARD HALEALOHA AYAU: Just one last comment.
5 We have the proposed — our proposed solutions, and we
6 just want to hand them out to the committee.
7 VINCAS STEPONAITIS: That’s fine. Thank you.
8 Thank you very much for coming and for presenting.
9 And again, I apologize for being so strict about
10 time. We have so many things on the agenda and so
11 many people who have come to speak that my concern is
12 that if we start running behind up front that the
13 people later on in the agenda will not have their
14 chance. So I take no pleasure in being strict about
15 this, but I think we just have to do that.
16 Next, we’ll hear from representatives of the
17 Bishop Museum.
18 ROSITA WORL: Mr. Chair, while the Bishop Museum
19 are walking up to the table, I just might note for
20 the public that tomorrow that they still will have an
21 hour to — you know, for affected parties and the
22 public to comment on this.
23 VINCAS STEPONAITIS: Thank you for pointing that
24 out.
25 BISHOP MUSEUM
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 40
1 WILLIAM BROWN
2 WILLIAM BROWN: Thank you, Mr. Chairman, members
3 of the committee. I’m William Y. Brown, the
4 President of the Bishop Museum. As you know this
5 matter concerns objections raised by the Hui Malama I
6 Na Kupuna O Hawai’i Nei over Bishop Museum’s handling
7 of three items from Molokai in the museum’s
8 collections; a wooden ki’i or carved human figure, a
9 cowrie shell, and a rock oyster pendant.
10 The ki’i was purchased for the Bishop Museum
11 from a, quote, “native,” who said that it was found
12 in a cave. The pendant was found on a west Molokai
13 beach by Emma Turnbull, who wrote that bones were
14 present in the area. The cowrie was found by Jack
15 Porteus at Mo’omomi. We know little more than that
16 in terms of the facts.
17 This statement touches on a few key points
18 augmenting what the museum has already provided to
19 the committee in documentation. Although the facts
20 are limited and not dispositive, the museum is moving
21 forward on the premise that each of these items is an
22 unassociated funerary object for purposes of NAGPRA.
23 The museum has asserted right of possession to the
24 ki’i, but not to the cowrie or to the pendant. The
25 museum is currently reviewing competing claims for
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 41
1 the cowrie and pendant by multiple Native Hawaiian
2 organizations.
3 The Hui Malama has asserted that the museum has
4 violated NAGPRA because it has not given them the
5 ki’i and cowrie. To the contrary, the museum has
6 complied fully with NAGPRA and has provided the
7 committee with details in support of its compliance.
8 However, the museum respectfully submits that legal
9 judgments on compliance are properly matters for
10 enforcement authorities and the courts and not
11 appropriate for this committee.
12 I would note that the way in which the NAGPRA
13 civil procedures regulations work, if someone makes
14 an allegation which on its face if true suggests a
15 violation then a review by the chief ranger is
16 warranted. And that’s what’s happened here. There’s
17 been no finding of any kind that Bishop has violated
18 the law. We — my staff spoke with the Chief Ranger’s
19 office, who said they would call us if they were
20 moving forward. They have not called. You should
21 note that NAGPRA requires a formal hearing on the
22 record before any penalties might be assessed and
23 that has not happened.
24 The last point to note that was related to the
25 earlier comments, the legal exposure — the question
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 42
1 on resolving competing claims, we are moving forward
2 with the two items that we’re not asserting right of
3 possession for. But there is a legal exposure were
4 we to give the items to one group, to the Hui Malama,
5 while the other claims were there. NAGPRA has no
6 provisions that terminate the period of time when
7 consultation with other claimants may happen. The
8 only termination is once repatriation has actually
9 taken place.
10 So the only remaining issue raised by the Hui
11 Malama is whether the museum is correct in asserting
12 that it has right of possession to the wooden ki’i.
13 The museum’s position is based on a legal
14 interpretation of the text and the legislative
15 history of NAGPRA. Our position was developed with
16 the assistance of in-house and outside counsel after
17 extensive review. And we suggest respectfully that
18 the committee should not consider reaching any
19 conclusions or making any recommendations that differ
20 from this interpretation unless the committee has, as
21 a minimum, itself conducted a comparable thorough
22 review. And in fact, clearly this is the kind of
23 issue that would be decided ultimately in court. It
24 is a matter of fact in law. It would be decided
25 under the Administrative Procedure Act, as well as
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 43
1 the statute.
2 Now, but to summarize where we are from a legal
3 point of view on right of possession, the museum has
4 addressed this in its guidance. As you know, NAGPRA
5 does not require repatriation of unassociated
6 funerary objects if the museum has, quote, “right of
7 possession.” The statute states that right of
8 possession is, quote, “possession obtained with the
9 voluntary consent of an individual or group that had
10 authority of alienation.” For unassociated funerary
11 objects, such as those at issue here, the statute
12 indicates – the statute indicates that right of
13 possession is to be determined under otherwise
14 applicable property law, if necessary, to avoid a
15 Fifth Amendment taking.
16 The Fifth Amendment is key to this. The
17 legislative history of NAGPRA, which we’ve provided
18 references to in our other documentation, supports
19 this interpretation. Furthermore, the US Supreme
20 Court has held that whether a person has property
21 rights protected by the Fifth Amendment is a question
22 of state law. Thus, the Bishop Museum has right of
23 possession of the ki’i, the cowrie, and the pendant,
24 from Molokai if it is their owner under Hawaii State
25 law. And if the museum is the owner, then
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 44
1 repatriation is not required by NAGPRA. The museum
2 asked the law firm of Goodsill, Anderson, Quinn, and
3 Stifle to provide an opinion on whether the museum is
4 in fact the owner of these items under Hawaii State
5 law. Following consultation, the museum has decided
6 to assert right of possession of the ki’i but not the
7 cowrie and pendant.
8 In closing, I would like to emphasize that the
9 committee would make – could make recommendations on
10 this and other agenda items that I think would be
11 very useful to all the parties. For example, the
12 committee could very usefully recommend that an
13 effort at mediation be undertaken to resolve the
14 conflict between claimants to the Kawaihae caves
15 artifacts, an item that is addressed later, and the
16 committee could hopefully recommend that the Bush
17 Administration support additional funding to enhance
18 access to and educational programs for cultural
19 artifacts. The remainder of our presentation will be
20 given by board members, Dr. Isabella Iona Abbott, who
21 is next to me, and Dr. Charman Akina. Both are of
22 Native Hawaiian ancestry and they are members of the
23 museum’s collections committee, which Dr. Abbott
24 chairs. The museum’s collections committee oversees
25 NAGPRA issues for the board and the collections
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 45
1 committee has nine members, seven of whom are Native
2 Hawaiians. Dr. Akina is a physician who has for
3 decades devoted himself to advancement of Native
4 Hawaiian health in economically disadvantaged
5 communities. Dr. Abbott is a professor of botany at
6 the University of Hawaii, after retiring from many
7 years as a professor at Stanford, where she was the
8 first woman to be on the Stanford biology faculty.
9 She’s also the first woman Hawaiian to have a Ph.D.,
10 and she’s a noted expert on cultural matters in
11 Hawaii, as well as science.
12 And please note that we are joined in this room
13 David Hulihee, who is the Chairman of the Board of
14 Bishop Museum and who is a Native Hawaiian also.
15 Dr. Abbott.
16 ISABELLA ABBOTT
17 ISABELLA ABBOTT: Thank you. I’m very happy to
18 be here to speak in support of the Bishop Museum’s
19 stand, which I helped shape but not entirely by
20 myself, believe me. In something like this, you need
21 a lot of help. It disturbed me this morning or just
22 recently that quite a number of young Molokai
23 student-types — I have nothing against them. I’ve
24 been a teacher for over 30 years — but I think they
25 have accepted a word, as have their elders who
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 46
1 testified, the word moepu, which translated means
2 funerary object. These are not funerary objects in
3 any way that I can puzzle them out, examine them,
4 think about them. So I think we should know that. I
5 at least start from that point.
6 First, I’d like to address the ki’i, the wooden
7 figure that is about that high that was found in a
8 cave associated with some other objects. It is said
9 that there were bones of a red fish. Now, a red fish
10 in Hawaiian in terms of religion is very important.
11 Also that a piece of awa or kava, as you know it
12 probably, a somewhat intoxicating drink, was found
13 also with the fish. I want to say that in a cave,
14 that might have held a canoe or more than one canoe
15 or might have been used for making a canoe, that is
16 exactly the place you would find these kinds of
17 objects. These are offerings to the God Ku, Ku of
18 the forest, Ku of the ocean, who was the Hawaiian God
19 in charge of canoe making. I would be surprised, for
20 example, if those objects were found, say, at the
21 seashore and there are no canoes in sight, no place
22 to store a canoe. That would not be — you could not
23 make the jump to the conclusion that I did that this
24 — there were canoes in this cave. There must have
25 been.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 47
1 In my own Hawaiian family, which had its housing
2 and its taralui (phonetic) up in the mountains behind
3 Lahaina, we had a cave in which the family canoe was
4 stored. So I’ve known this since I was very little.
5 But that’s a proper place for a canoe.
6 Secondly, I’d like to talk about the cowrie
7 shell and the rock oyster pendant. Both of these
8 things were not in a cave, but the cowrie shell was
9 collected by Jack Porteus, as Dr. Brown said, and the
10 rock oyster was found on the beach near Mo’omomi,
11 which is on the north shore of Kauai. Mo’omomi is
12 very famous all over the anthropological world, as
13 well as in the Hawaiian islands, for having huge sand
14 dunes that have been there since the year maybe 10,
15 something like that, that have been accumulating for
16 a long, long time.
17 Within the time that the Polynesians found
18 Molokai Island, plus or minus 1000 A.D., these dunes
19 were the home of many birds. These birds have been
20 found recently as fossils buried in the sand dunes
21 and shown that they were killed by blunt tools. Not
22 killed from disease, say, like smallpox, which might
23 not leave anything to show it was smallpox that was
24 there. But if you had a hit on your head, that would
25 show up quite clearly. So there is hundreds of bird
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 48
1 fossils and most of them, most of these birds that
2 I’m talking about were land birds. They had become
3 flightless after having been here for maybe 200,000
4 or more years.
5 And so our ancestors, I’m sorry to say, were
6 probably the ones that clubbed them to death, but
7 they’re all over those sand dunes and it’s very windy
8 there. The wind can cover them up and then the wind
9 can unearth them, too. Similarly, I am advancing the
10 argument that a cowrie shell or a rock oyster pendant
11 could similarly have been covered by sand and then
12 uncovered by the wind. And yes, there were human
13 habitations nearby. Some of those probably have at
14 least their fireplaces and their house posts covered
15 up and uncovered also.
16 So I don’t think that any of these three items
17 could fall under the title of being moepu by any
18 stretch of the imagination. Thank you.
19 CHARMAN AKINA
20 CHARMAN AKINA: Thank you. Aloha (Native
21 Hawaiian language). My name is Charman (Native
22 Hawaiian name) Akina. I’m 72 years old. I’m 50
23 percent Hawaiian, and I’m here to represent myself
24 and my immediate family, and because I’m a member of
25 Bishop Museum I can also represent Bishop Museum.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 49
1 I think the graves protection and repatriation
2 act has been excellent and has been very effective
3 for the continental American Native. But here in
4 Hawaii Nei, it really doesn’t fit. Hawaiians are not
5 tribal and we as yet do not have our sovereignty.
6 We’re part of the general population. So on that
7 basis, I can only represent myself, my family, and
8 Bishop Museum. There’s no other person, there’s no
9 other organization that can represent the general
10 Hawaiian population.
11 As far as bones are concerned and artifacts that
12 are found with bones, all Hawaiians will agree they
13 should be cared for very carefully. And the people
14 who should care for them should be the lineal family
15 members. And if bones do not have family members
16 connected with them, then an organization should have
17 that responsibility.
18 As far as other artifacts are concerned, I
19 personally feel that our culture has really been very
20 much endangered. Our culture has been taken apart
21 since 1820, and it continues to be diluted further
22 and further. And we as Hawaiians need to know our
23 aboriginal past. And the only way to know about our
24 aboriginal past is to be able to see these artifacts
25 and to learn about them. And the only place that
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 50
1 they can really be cared for is within a museum
2 setting. As a consequence, I have become a member of
3 Bishop Museum so that we can work on outreach
4 programs to bring these artifacts to Hawaiian people
5 and to the public in general, so that we can learn
6 about ourselves and so that people in general can
7 know about us.
8 This is our homeland. We don’t have another
9 place to go to. We don’t have our aboriginal culture
10 right now. We have to relearn it. And the only
11 place that our culture really resides, our aboriginal
12 culture really resides is at the Bishop Museum. And
13 the Bishop Museum was started by our ali’i who looked
14 after us, and they were looking forward to our future
15 and preserving our culture for us, and that’s why
16 they started the Bishop Museum. So if we are really
17 going to learn about our past, artifacts need to be
18 preserved, they need to be made public, and people
19 have got to know about them so that we can learn
20 about our cultural past as well. Thank you.
21 REVIEW COMMITTEE
22 VINCAS STEPONAITIS: Thank you very much for that
23 presentation. I’d like to move now if we could into
24 a period where members of the Review Committee could
25 ask representatives of both organizations questions.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 51
1 And I wonder how we arrange this — excuse me, Tim.
2 Would it be possible to pull some more — shall we
3 just have one representative of each? Would that be
4 acceptable to the organizations? Or to have two and
5 pull up one additional chair? How —
6 WILLIAM BROWN: How about three and three?
7 VINCAS STEPONAITIS: It’s just purely a
8 logistical matter because I don’t know to whom the
9 questions will be addressed, and I just want to give
10 everyone an opportunity to address the questions to
11 both.
12 WILLIAM BROWN: Well, the Federal representatives
13 might sit back.
14 VINCAS STEPONAITIS: Would that be acceptable?
15 If you would just let representative of Hui Malama
16 sit there. Thank you so much. I’m sorry for the
17 inconvenience.
18 TIMOTHY MCKEOWN: Just to indicate that I am not
19 leaving the room.
20 VINCAS STEPONAITIS: We wouldn’t let you leave
21 the room. I thank you all for your understanding.
22 This is the first meeting I’ve attended where we’ve
23 gone through a dispute like this. So I’m learning as
24 I go how best to arrange things.
25 Let me ask my fellow members of the committee if
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 52
1 they have any questions to please feel free and ask.
2 Garrick, would you like to start?
3 GARRICK BAILEY: The right of possession
4 interests me because it’s a key element in this
5 argument. And it only — you know, it’s basically, I
6 think, looking at it in a reasonable manner, I think
7 it’s a crucial issue. But I also think about the
8 antiquity of these objects, I mean as far as their
9 acquisition by the Bishop, and the little bit I know
10 about museum acquisition policies and behaviors at
11 that time, and I think that in many ways what the
12 Bishop Museum doesn’t know about these particular
13 objects and how they were acquired is to be kind of
14 be expected.
15 I would — I would, in most cases, and I know
16 there are other members of the committee who have
17 worked with museums more closely than I have on these
18 issues. But at times, the museums are not the best
19 record keepers. I’ll put it that way. And on the
20 other hand, what would legitimate rights look like?
21 Had they had the name of the individual who sold the
22 wooden object, what would that tell us today? I
23 mean, these are just — these are things I’m wondering
24 about. If they had the names of others, what would
25 they tell us about the legitimacy of that individual
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 53
1 and their right of possession or sale. I’m making
2 some statements. I’m not really addressing them to
3 either — either party.
4 VINCAS STEPONAITIS: I would however just remind
5 my fellow committee members that our time is just as
6 limited as that of the presenters, so that we really
7 ought to focus on questions that we — just, you know,
8 the information we need to get from them because we
9 will have our —
10 GARRICK BAILEY: I was trying to get to a
11 question, but I never got to one.
12 VINCAS STEPONAITIS: Okay. Yes, Rosita.
13 ROSITA WORL: Thank you, Mr. Chair. I have a
14 couple of questions. And thank you, Dr. Abbott, for
15 your commentary. I enjoyed that. But I’m wondering
16 if you would clarify for me, Dr. Brown, in his
17 opening statement and his statement here, says that
18 he views the objects as funerary objects. And would
19 you clarify for me what your assertion is? I think I
20 understood you to say that you did not view them as
21 funerary objects.
22 ISABELLA ABBOTT: I would define funerary objects
23 as objects unequivocally buried with bones, not as —
24 not a cave that’s holding some objects that might
25 have been inserted post-funeral or maybe put in the
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 54
1 cave for safekeeping. In the case of my
2 grandmother’s cave that I was talking about, they did
3 put things in the cave to keep the rain out. That
4 was one of the things they used the caves for.
5 Fortunately, that is the case because Bishop Museum
6 has lots of artifacts that if they had been left
7 outside would have suffered and probably would never
8 have made it into the museum. Does that answer your
9 question?
10 ROSITA WORL: Thank you.
11 WILLIAM BROWN: You know, maybe I could help too.
12 I understand your confusion. The — I think it would
13 be accurate to say that today none of the three of
14 the people sitting here believe that these three
15 items meet the definition of an unassociated funerary
16 object. And I will, for example, point to the
17 definition in NAGPRA which at the end has one of
18 three things that has to be the case. That the
19 objects be identified by a preponderance of the
20 evidence as related to, one, specific individuals or
21 families, that’s not the case for any of these three;
22 or two, known human remains, that’s not the case; or
23 three, by a preponderance of the evidence having been
24 removed from a specific burial site of an individual.
25 And it goes on.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 55
1 But the Bishop Museum has in the past said in a
2 black-and-white letter that through an executive of
3 the museum that we believe these three objects are
4 unassociated funerary objects. And we are trying in
5 our review of the law to minimize the number of
6 issues where the museum, based on sound reasoning,
7 changes its position. We’ve changed our position on
8 a number of things we’ve proposed, but I am reluctant
9 to change our position on something where we said
10 something was one thing, even though I’m convinced
11 it’s not. I’m convinced Dr. Abbott is right.
12 ROSITA WORL: So Mr. Chair, I’m still confused.
13 You statement that you’ve presented to us does say
14 that you view them in your written testimony and as
15 you articulate it, they are funerary objects. But
16 now you’re saying they’re not funerary objects.
17 WILLIAM BROWN: Well, I tried to be a little
18 careful. What I said was, though the facts are
19 limited and not dispositive, the museum is moving
20 forward on the premise that each of these items is an
21 unassociated funerary object. So we are – we are
22 regarding them as such for purposes of this
23 discussion and we will honor that position.
24 DAN MONROE: Thank you, everyone, for your
25 testimony. We very much appreciate it. Appreciated
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 56
1 the lecture about the takings clause, Mr. Brown, and
2 it does raise an interesting question which is this:
3 who would have had the authority to alienate the
4 kiwi, in your judgment?
5 WILLIAM BROWN: Ki’i. Any individual who upon
6 transfer of the object the result would be that the
7 person who got it, in this case the Bishop Museum,
8 became the owner of the property under — of the item
9 under Hawaii State law. And so you need — when you
10 think about this, I think that Mr. Bailey was
11 touching on an interesting question because, I mean,
12 how do objects come to museums. In this case, in the
13 case of — I mean, think of Emma Turnbull. She was
14 walking down the beach in the 1930s and she found the
15 rock oyster pendant on the surface of the beach. She
16 picked it up and gave it to the museum. Museums
17 often get objects that way. There was no — there was
18 no formal title. In fact, if you think about it, for
19 personal property there rarely is title, a bill of
20 sale, some sort of note of conveyance.
21 But our fundamental position is that right of
22 possession is basically defined by the limits of the
23 takings clause of the Fifth Amendment. That if the
24 nature of the transfer is such that a Fifth Amendment
25 property right is created, then right of possession
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 57
1 obtains. So the person who can do that is one who
2 under the circumstances can give that right. Now
3 that right doesn’t occur if something is stolen, for
4 example, typically. But in this case there’s no
5 evidence of theft. So there are limitations — there
6 are limitations on what results in a property right,
7 you know, upon — after a transaction, which thieves —
8 you know, thievery is another matter.
9 DAN MONROE: So just so I’m clear, removal of an
10 object such as this from a cave by anyone would be in
11 your view legitimate?
12 WILLIAM BROWN: No.
13 DAN MONROE: And would confer upon that person
14 the right to transfer the property they found to the
15 Bishop Museum? And finally, that that transfer would
16 be legally standing.
17 WILLIAM BROWN: It would depend on the nature of
18 removal from the cave. If you own the cave and I
19 went into the cave and took it and you said you stole
20 an object from my cave, I would not be the owner
21 under Hawaii State law. I wouldn’t have a Fifth
22 Amendment protection. If someone were to take an
23 object in violation of Federal law from a cave, and
24 it was clear that they did that and violated Federal
25 law or probably other law, then that Fifth Amendment
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 58
1 right wouldn’t obtain.
2 But in this case where an — where all we really
3 know was that Dr. Hyde a hundred years ago purchased
4 this item for the Bishop Museum from a native, in
5 quotes, who said he’d found it in a cave, there what
6 we did — what we’ve done is ask the law firm that’s
7 helping is to not be an advocate for the Bishop
8 Museum. We feel this is our responsibility, that I —
9 we’ve asked it to assist us in making a judgment,
10 whether we are the owner under Hawaii State law and
11 therefore have a Fifth Amendment interest. In this
12 case, they are convinced we do, as a good-faith
13 purchaser without knowledge of theft.
14 DAN MONROE: Do we know what cave?
15 WILLIAM BROWN: No, we don’t know what cave, and
16 we don’t know anything about the cave except it was a
17 cave. The record doesn’t indicate there were — there
18 was any burial there.
19 DAN MONROE: Could I just ask for a quick
20 response from Hui Malama? Same question?
21 CHARLES KAULUWEHI MAXWELL: If I could respond to
22 what Dr. Brown, our good Dr. Brown said, I was a
23 police officer for 15 years. If you find something
24 on the ground and do not try to return it to the
25 owner or turn it in to the police department, that is
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 59
1 simple theft. That’s larceny. Now, I think what we
2 got to bear in mind here, who was this object made
3 for? Was it made for us here in the 21st Century? Or
4 was it carved two to three hundred years ago to
5 accompany the people in their eternal journey in
6 death? That is the bottom line here. I don’t think
7 it can be clearly said.
8 We have objects in the Bishop Museum, like the
9 Ku image, and everybody can buy it. It’s in Waikiki
10 on towels and on images that people buy to have a
11 tiki tiki party. So this is a very sensitive subject
12 that we’re talking about, but the essential subject
13 we got to stick to, how — who carved these items and
14 who it was meant for. It was meant for the people
15 200 years ago, not for us presently.
16 EDWARD HALEALOHA AYAU: In the Federal Register
17 notice, May 2nd, 2003, with regard to the small wooden
18 image, the Bishop Museum wrote, quote, “Native who
19 found this idol wrapped in kapa, with awa and bones
20 of red fish in a cave,” unquote. The cave is
21 believed to have been a burial site. That’s the
22 museum’s own representation in the note.
23 DAN MONROE: Just one quick last question. There
24 is a law, and perhaps somebody can help me with it,
25 that pertained in Hawaii regarding disinterment of
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 60
1 human remains from burial sites that was applicable
2 at this time, a Hawaiian law. If this was removed
3 from a burial site, in fact, then why wouldn’t that
4 law be applicable because such a removal would be
5 illegal?
6 WILLIAM BROWN: We — as you might expect, we
7 asked the — we’ve done analysis of all of those legal
8 requirements. The — if these objects were not
9 considered funerary, and they are considered that for
10 purposes of this although they’re probably not, then
11 we would probably be asserting right of possession
12 over all three of them. But indeed there’s —
13 Mr. Monroe, in some ways the key point is that
14 there’s a law of abandonment which generally applies
15 and allows one to lawfully pick up something like
16 this, but that law doesn’t apply to funerary objects
17 for the reasons, that if you think about it, make
18 sense. But we reviewed all of the — with assistance
19 of counsel.
20 I don’t pretend to be an expert in all the
21 nuances of it, and if you really want to get down to
22 it, we looked at all that. We got the best legal
23 advice we could. We got a strong, supportive opinion
24 that the museum is the owner under Hawaii State law.
25 And we’ve also reviewed our interpretation of NAGPRA.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 61
1 We believe it’s — you know, the statute is not the
2 clearest piece of legislation on that point that it
3 might be. We believe our interpretation of state
4 ownership, given a Fifth Amendment right being
5 dispositive. So there we are. This discussion has
6 nothing to do with the proper treatment of the ki’i
7 or the pendant or the cowrie. The Bishop Museum
8 cares for these objects. In a very generic sense, we
9 consider all of what we have cultural patrimony, even
10 though we have a difference on what the law might
11 say. And so I would note that too.
12 VINCAS STEPONAITIS: I have a question, just to
13 clarify Hui Malama’s position, just so I understand
14 it (comment inaudible). Is that correct?
15 EDWARD HALEALOHA AYAU: That’s represented by the
16 museum as well.
17 VINCAS STEPONAITIS: Right. And this leads to
18 the question I want to pose, is it your position also
19 that once a museum or an agency publishes a notice,
20 that notice can never be changed? Because that seems
21 to be implied in both the materials you submitted and
22 your testimony here today. And again, without
23 getting to the substance of what the evidence is for
24 one or the other — the position as to what the class
25 — as to what class this object belongs to, would you
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 62
1 also argue that once a museum publishes a notice,
2 that notice can’t be changed?
3 EDWARD HALEALOHA AYAU: Well, the notice contains
4 a representation that repatriation could occur 30
5 days from the date of its publication, which is why
6 it states in the notice June 2nd, 2003. The question
7 then becomes whether or not the Bishop Museum
8 received a bona fide claim for these items, that they
9 meet the definition, that the organization is
10 culturally affiliated, and that the museum does not
11 have right of possession. We’re asserting that those
12 requirements were met, ergo the 90-day requirement to
13 repatriate kicks in. The museum didn’t repatriate to
14 us in 90 days.
15 VINCAS STEPONAITIS: I do understand that part of
16 your argument, but I guess what I’m wondering about
17 is the question I posed a minute ago, which is would
18 you argue then that – that the museum in principle
19 cannot change its notice? I mean, we’ve heard from
20 the Bishop Museum that on several issues it’s changed
21 its mind. Can a museum in principle change its mind,
22 after publishing a notice about the classification or
23 the nature of the object in question?
24 EDWARD HALEALOHA AYAU: Okay. Now I understand
25 your question. Before those three requirements of
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 63
1 repatriation are met, yes; after those requirements
2 are met, I would argue no, they’re bound by the 90-
3 day rule by which — which states that if you meet the
4 three requirements, the museum has to repatriate. So
5 yes, they can change. And they’ve done so, we know
6 it, Kalaina Wawae, the next case you’re going to hear
7 where they’ve changed the notice. But at the time
8 that our claim was recognized, the notice wasn’t
9 changed. It was the notice that was in the —
10 VINCAS STEPONAITIS: Okay. And I understand that
11 there’s a difference of opinion in your positions as
12 to whether — you know, when repatriation takes place
13 or when repatriation is final. But it sounds to me,
14 and please correct me if I’m wrong, that both parties
15 agree that in principle before repatriation is final
16 a museum can change its position on the facts
17 represented in a notice. Is that an accurate —
18 EDWARD HALEALOHA AYAU: No, what I said was when
19 the three repatriation — the three elements of
20 repatriation are met, there’s a bone fide claim, our
21 position is that the museum has to repatriate within
22 90 days. That’s a regulatory rule. They can — if
23 that — if all of those three elements are not met,
24 then I would agree that the museum is free to — that
25 the consultation period is open, they can entertain
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 64
1 additional claims, they can continue to review
2 cultural affiliation. But once they recognize a
3 claim, once cultural affiliation is recognized and
4 right of possession is not proven, they have to — in
5 this case, Bishop Museum wrote us a letter on October
6 5 recognizing, discussing — recognizing our claim and
7 setting a date to repatriate.
8 VINCAS STEPONAITIS: So your — again, I’m just
9 doing this so I’m sure I’m clear. Your position then
10 is it’s not the point at which repatriation takes
11 place that the facts of a notice are kind of — cannot
12 be further changed, but it’s the point at which a
13 museum —
14 EDWARD HALEALOHA AYAU: The requirements are met.
15 The three principle requirements are satisfied for
16 repatriation.
17 VINCAS STEPONAITIS: But that’s — the third
18 requirement —
19 EDWARD HALEALOHA AYAU: I mean, what would be the
20 point of the 90-day requirement?
21 VINCAS STEPONAITIS: No, but the third
22 requirement then is — your position, and I know that
23 not everyone agrees on this position, is that
24 regardless of where the object is if your claim is
25 recognized, at the end of 90 days it’s — repatriation
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 65
1 has happened.
2 EDWARD HALEALOHA AYAU: It’s not that the claim
3 is recognized, that cultural affiliation — the
4 claimant is considered culturally affiliated and that
5 right of possession, the museum cannot prove that
6 they have right of possession.
7 In this case, you know, if you review the
8 October 5 letter that was acknowledged. We were
9 moving towards repatriation by the end of November.
10 VINCAS STEPONAITIS: So I’m sorry. And it may be
11 just because of the jet lag, I’m not getting it. In
12 this particular case, at what point in this process,
13 let’s use a concrete example, would — would we be at
14 a point where the museum could no longer change its
15 mind about what was in the notice? Would it be at
16 the point where they recognized your claim or 90 days
17 after they recognized your claim? At what point?
18 EDWARD HALEALOHA AYAU: Ninety days from when the
19 claim was first submitted, which I believe was June
20 29th, 2003. That’s why the repatriation date was set
21 prior to November 29th of 2003, in order to meet that
22 90-day requirement. The formal recognition came in
23 writing to us on October 5th of 2003.
24 VINCAS STEPONAITIS: So it’s not — so it’s not —
25 but that’s irrelevant on the date. It’s the 90 days
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 66
1 after you submitted your claim that you would argue —
2 EDWARD HALEALOHA AYAU: No.
3 VINCAS STEPONAITIS: I’m sorry. You submit a
4 claim. They recognize it, and then 90 days from the
5 claim is when you would —
6 EDWARD HALEALOHA AYAU: From when the claim was
7 filed.
8 VINCAS STEPONAITIS: From when the claim was
9 filed. So in your view, what would happen if, and
10 this is a hypothetical situation now, if within that
11 90-day period, let’s say a claim is made, the museum
12 recognizes that claim, but within that 90-day period
13 another active claim appeared? What — how would that
14 affect the point at which the museum could no longer
15 change its mind?
16 EDWARD HALEALOHA AYAU: Well, our opinion is then
17 that that additional claim has to meet the
18 repatriation requirements before the end of the
19 90-day period, because the museum has already
20 recognized one of the claimants.
21 VINCAS STEPONAITIS: So if for example —
22 ROSITA WORL: Mr. Chair.
23 VINCAS STEPONAITIS: Yes.
24 ROSITA WORL: We’ve tried to keep our other
25 parties to their time limit, and I think the
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 67
1 committee is over exceeding its time limit.
2 VINCAS STEPONAITIS: With all due respect —
3 VERA METCALF: Mr. Chair, we have a couple
4 questions over on this end.
5 VINCAS STEPONAITIS: Yes. Okay.
6 VERA METCALF: Just for clarification purposes,
7 you’re presenting your information. In the Native
8 Hawaiian culture is a cave – can be used for burying
9 your ancestors and also understand it was used for
10 storage purposes, the caves?
11 ISABELLA ABBOTT: I’m sorry. It was for what
12 kind of purposes?
13 VERA METCALF: The caves —
14 ISABELLA ABBOTT: Storage.
15 VERA METCALF: — storage and for burial — burying
16 your ancestors.
17 ISABELLA ABBOTT: I’d hate to generalize on that,
18 but in my family, the bones were buried in a
19 different cave than the cave I mentioned that had the
20 canoes and storage things in it.
21 VERA METCALF: Okay. And in regards to the
22 original register notice, I understand that all the
23 objects were included in that original ‘93 [2003?]
24 notice — or when you first mentioned —
25 EDWARD HALEALOHA AYAU: They left off the
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 68
1 pendant.
2 VERA METCALF: The pendant was left out.
3 EDWARD HALEALOHA AYAU: There was only three
4 objects and they left one of them off.
5 VERA METCALF: But the current register also does
6 not include that.
7 EDWARD HALEALOHA AYAU: Did you guys publish the
8 second?
9 WILLIAM BROWN: No, but we’re discussing the
10 matter with them –
11 VERA METCALF: Okay. Thank you.
12 DAN MONROE: Could you clarify, originally you
13 categorized all three objects as unassociated
14 funerary objects. And now, even though you don’t
15 believe it’s the case, you’re willing to consider two
16 of them unassociated funerary objects excepting the
17 ki’i. Can you explain the rationale for
18 differentiating it from the two?
19 WILLIAM BROWN: No. We are going forward on the
20 premise that all three are unassociated funerary
21 objects, but we are asserting that we have right of
22 possession of the ki’i.
23 VINCAS STEPONAITIS: I think we have run out of
24 time. And thank you, Rosita, for keeping me on
25 track.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 69
1 WILLIAM BROWN: And Rosita, can I — actually I
2 can do this very quickly, 60 seconds or less, just
3 the point that was —
4 VINCAS STEPONAITIS: Please go ahead.
5 WILLIAM BROWN: I think we actually agree on some
6 things. If all the requirements are met, then
7 there’s a 90-day period. But it’s our view that the
8 museum is under an obligation to repatriate within 90
9 days once things are complete. In this case, we
10 quickly saw we hadn’t, to our view, done right of
11 possession. And there was a competing claim that
12 then backed out. It was quite complicated.
13 But the bottom line in terms of the entrance of
14 other claimants, I believe, is that another claimant
15 can come forward until repatriation has actually
16 occurred. And once it’s occurred, then it’s done.
17 But if someone else comes in with a valid claim, then
18 you’re confronted with two possible imperfect
19 actions. One is — one is to make the earlier
20 claimant wait, but the other is potentially to give
21 the item to the wrong claimant and that’s a worse
22 thing to do. Also as a matter of law, we think
23 that’s the way the law should be read.
24 VINCAS STEPONAITIS: Thank you very much to
25 everyone for your presentations and for your answers
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 70
1 to our questions. I think that we probably all still
2 have questions, but we really do have to move on. So
3 I thank everyone and hand the gavel back to Rosita.
4 ROSITA WORL: We will now take a 10-minute break.
5 BREAK
6 ROSITA WORL: If we could come back to order
7 please. We will come back to order. We will now
8 begin our second dispute, but I wanted to remind the
9 public that there will be opportunities for affected
10 parties and other members of the public to comment
11 tomorrow on each of these disputes. And if that is
12 something that you would like to do, you may sign up
13 with Dr. McKeown. And we do apologize that we just
14 don’t have the time for everyone, you know, to speak.
15 I know that a lot of people have a lot of things that
16 they want to say.
17 But if we could, we will now move into our
18 second dispute, and this will be chaired by Vera
19 Metcalf. And I will now turn it over to Vera.
20 PRESENTATION OF EVIDENCE REGARDING DISPUTE BETWEEN
21 HUI MALAMA I NA KUPUNA O HAWAI’I NEI AND THE BISHOP
22 MUSEUM REGARDING THE KALAINA WAWAE
23 VERA METCALF: Thank you, Madam Chair. As we
24 were reminded earlier, we have a lot of information
25 to be presented before us. We have about 20 minutes
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1 between two parties to provide information to the
2 committee. This is the dispute between Hui Malama
3 and the Bishop Museum.
4 HUI MALAMA I NA KUPUNA O HAWAI’I NEI
5 EDWARD HALEALOHA AYAU
6 EDWARD HALEALOHA AYAU: Aloha. This dispute
7 involves Kalaina Wawae, which consists of three
8 sandstone blocks with human footprints and a pair of
9 boot marks carved into it. The carvings were made by
10 a kaula, or prophet, named Ku’una, a woman who had a
11 vision that strange men would arrive on island
12 shores, leave strange footprints in the sand, and
13 claim the land for themselves. Her vision was not
14 well-received by the people of Molokai, and in an
15 attempt to prevent this vision from being realized,
16 the people stoned Ku’una to death. The sandstone
17 carvings are known as Kalaina Wawae. Two hundred
18 years after her death, Ku’una’s prophecy comes true
19 with the arrival of Captain James Cook. This
20 mo’olelo, or story, is an essential part of the
21 cultural history of Molokai.
22 In 1909, Molokai Ranch allows John Stokes to cut
23 three sections of Kalaina Wawae out of the sandstone
24 shelf and remove them to Bishop Museum. In 1993 and
25 1998, Hui Malama submits a NAGPRA claim for Kalaina
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1 Wawae as cultural patrimony. By a letter dated
2 February 1, 1999, the Bishop Museum responds and
3 states that it, quote, “agrees to repatriate this
4 piece as cultural patrimony to the people of Molokai
5 through Hui Malama,” unquote. On April 9, 1999, a
6 Notice of Intent to Repatriate cultural items from
7 Molokai is published in the Federal Register for the
8 return of Kalaina Wawae as cultural patrimony to Hui
9 Malama. Thirty days go by with no competing claims.
10 The only active – the only activity left is for Hui
11 Malama to take possession.
12 On Molokai there is a request for more time for
13 the community to discuss treatment of Kalaina Wawae
14 when the sandstones are returned. These discussions
15 take place over a four-year period. The decision is
16 made by Hui Malama ’o Mo’omomi, who are the
17 caretakers of Mo’omomi, the area where Kalaina Wawae
18 is located, to place the three sandstones permanently
19 at Mo’omomi. Permission is sought and granted by the
20 landowner, Department of Hawaiian Homelands, and a
21 NAGPRA grant is sought for this purpose.
22 On November 13, 2002, a site visit is held at
23 Mo’omomi with the board of directors of Hui Malama,
24 Dr. William Brown, Dr. Guy Kaulukukui of Bishop
25 Museum, and Mac Poepoe of Hui Malama ’o Mo’omomi.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 73
1 Dr. Brown informs us all that he opposes the
2 repatriation of Kalaina Wawae through NAGPRA but is
3 nonetheless willing to allow them to return
4 independent of the Federal repatriation law.
5 The Hui Malama board ponders this offer,
6 especially in light of the fact that for four years
7 the Molokai community has anticipated the return of
8 Kalaina Wawae. The Hui Malama board agrees to engage
9 in this discussion but not to withdraw its recognized
10 NAGPRA claim. A three-month negotiation period takes
11 place over proposed language for an agreement with
12 all the parties ultimately concurring with. The key
13 points of the agreement provide that Kalaina Wawae
14 would be returned to Molokai, the Bishop Museum would
15 retain ownership and help fund the return, and that
16 the sandstones could not be removed from the island
17 without the consent of all parties. That was the
18 key. However, when it came time to sign the
19 agreement, Dr. Brown unilaterally removed Hui Malama
20 from the document, in spite of the fact that we had
21 never withdrawn our recognized NAGPRA claim. Mac
22 Poepoe, head of Hui Malama ’o Mo’omomi, signed the
23 private agreement under protest on March 4th, 2003,
24 the same day that members of Hui Malama and Hui
25 Malama ’o Mo’omomi took possession of the sandstones.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 74
1 On November 29th, 2004, Hui Malama submitted a
2 request for the Review Committee to assist in
3 resolving this dispute. The main issue pending
4 resolution at this time was whether or not the three
5 sandstone blocks known as Kalaina Wawae are — qualify
6 as cultural patrimony. So that’s the central issue
7 here. And as part of our testimony, I’ll turn it
8 over to Mikiala, involves the telling the story of
9 Kalaina Wawae, as well as testimony by Molokai
10 residents who were unable to attend.
11 (The following portion includes two film
12 presentations provided by Hui Malama I Na Kupuna O
13 Hawai’i Nei.)
14 FILM PRESENTATION
15 (Film one.)
16 (Native Hawaiian language.)
17 In the word there is life. In the word there is
18 death. Our ancestors recorded every single event
19 through oral traditions in order to preserve the mana
20 and identity of our people. Since the beginning of
21 time, these traditions were told generation to
22 generation, from kupuna to opio. On Molokai, we are
23 blessed with kupuna who preserve the mo’olelo of our
24 aina and are willing to share them with us. In
25 listening to our kupuna, we realized that there are
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 75
1 various versions of the same stories. (Native
2 Hawaiian language) has chosen carefully the mo’olelo
3 we present to you now. Mo’olelo pu haku (phonetic),
4 four stories of sacred and special stones on Molokai.
5 (Native American language.)
6 (Native Hawaiian language.)
7 There at Avalau (phonetic), the woman, Ku’una,
8 was raised by her grandfather. Well-skilled in the
9 arts of healing, she cared for her family and anyone
10 who sought her help. A strange flesh-eating disease
11 fell upon the people of Molokai. Despite their every
12 effort, the healers of the island could not find a
13 cure, and Ku’una watched her people die. Then Ku’una
14 had a vision. She dreamt of peculiar yellow stones
15 in an undersea cave. She awoke, knowing exactly
16 where to find them, not far from her home. As in her
17 vision, she found the spot. She gathered up the
18 stones carefully and returned to shore. There she
19 made a poultice, using various plants and the ground
20 up yellow pebbles. After much preparation, Ku’una
21 took the poultice to be administered to the people.
22 They were healed. The people’s love for her grew
23 even stronger. They would come to respect her
24 wisdom.
25 Ku’una then had another vision. This time she
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 76
1 saw strange footprints in the sand and an
2 overwhelming feeling of sadness filled her na’au.
3 She awoke to share her vision with the crowds,
4 telling of floating islands, men covered in clothing,
5 and their strange footprints. She warned them that
6 when those prints appear in the sand, it will be the
7 beginning of a great era of change. Ku’una carved
8 the image in her mind into the sandstone shelf. Men
9 will want to own land, but how can that be? The aina
10 belongs to the akua, not to kanaka.
11 Those who had trusted her now turned against
12 her. How can we even begin to fathom what you are
13 saying, they asked themselves. (Native Hawaiian
14 language.) With so many questions, Ku’una was stoned
15 to death.
16 For hundreds of years following, Ku’una’s family
17 orally perpetuated the prophecy generation to
18 generation. They also protected the prophetic stone
19 carvings of the boot prints from disintegrating. The
20 day came when a messenger approached from the east.
21 As was common of the time, runners were responsible
22 for delivering messages in person. He brought word
23 to the people of Mo’omomi of a fascinating floating
24 island covered with strange men, who wore funny
25 looking clothes and something called boots on their
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 77
1 feet. The messenger was shown the carving and
2 confirmed indeed that it matched the shape of the
3 footprints left at Kealakekua.
4 Ku’una’s descendants recited the prophecy and
5 warned the people once more of the great change
6 ahead. All that Ku’una saw in her vision came to
7 pass. The land became a commodity to be owned, to be
8 bought, to be sold, to be enslaved. (Native Hawaiian
9 language.)
10 (Film two.)
11 FEMALE SPEAKER: (Native Hawaiian language.) She
12 was the — she had the vision of what was — what was
13 to come for — well, actually not just for Molokai,
14 all of Hawaii. So this is the reason that she carved
15 that Wawae, and it was in the print of boots, which
16 was a print that Captain Cook made on the sands of
17 Kealakekua when he came.
18 FEMALE SPEAKER: As a Hawaiian opio of Molokai,
19 this is my one hanau. This is the land where I was
20 born. This is where I came from. This is who I am.
21 And I feel that Kalaina Wawae is a part of Molokai
22 and a part of me as well, a part of my history, a
23 part of the culture, the Hawaiian culture.
24 MALE SPEAKER: Growing up, no one had title to —
25 title or ownership to land. No one had title or use
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1 of water. No one had title to use of the air. No
2 one can have so-called legal, quote/unquote, title to
3 these kinds of things. The perspective of many from
4 a different world is that simply, you know, title
5 indicates or signifies that, you know, how much can I
6 make from it. And I think our people here on Molokai
7 do not look at it from that perspective. We see
8 something more – longer lasting.
9 FEMALE SPEAKER: Nobody claims that. Nobody —
10 that island over there, they don’t claim ownership,
11 because you know that’s not a concept (comment
12 inaudible). They’re not going to claim that they own
13 that Kalaina Wawae. But in the line of Ku’una, you
14 know, she was a prophetess and that was her way of
15 showing the people what — it was a visual of what was
16 to come.
17 MALE SPEAKER: I think the Kalaina Wawae belonged
18 to the aina, and it belonged to the (comment
19 inaudible).
20 FEMALE SPEAKER: The aina and the people of
21 Molokai.
22 FEMALE SPEAKER: (Native Hawaiian language.)
23 FEMALE SPEAKER: (Native Hawaiian language.) Who
24 would think that anybody would even consider carving
25 out what was part of the island, you know, this rock,
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 79
1 this sandstone (comment inaudible).
2 MALE SPEAKER: (Comment inaudible.)
3 FEMALE SPEAKER: (Native Hawaiian language.)
4 MALE SPEAKER: The sandstone, the carvings belong
5 over there, to remain there. The carvings should
6 never have been taken away. I don’t think anybody
7 should come in there and remove them (comment
8 inaudible).
9 FEMALE SPEAKER: I am against Bishop Museum
10 claiming title to it. We had no title to it. It was
11 (comment inaudible) of Molokai. It belongs to this
12 island.
13 FEMALE SPEAKER: It is just as important as a
14 child to its mother. This is – this is the home for
15 Kalaina Wawae. Molokai gave birth to this pohaku and
16 history was made on this pohaku, and you’re telling
17 Molokai that you’re going to take it away. You know,
18 and it’s not pono. It is something that our Molokai
19 people should share and enjoy and learn from.
20 FEMALE SPEAKER: One of the carvings that
21 (comment inaudible).
22 FEMALE SPEAKER: (Native Hawaiian language.)
23 MALE SPEAKER: (Comment inaudible) guarding our
24 field and the cattle was running around. That’s not
25 our cattle.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 80
1 FEMALE SPEAKER: (Native Hawaiian language.)
2 MALE SPEAKER: Those stones were there for a
3 reason. People need to take care of them.
4 FEMALE SPEAKER: (Native Hawaiian language.)
5 MALE SPEAKER: (Comment inaudible.) Now that it
6 is back in our hands where it belongs, you know, we
7 can care for them. You can see the happiness every
8 time people go by them. (Comment inaudible.) This
9 is my home. (Comment inaudible.) We worry about
10 cattle running them over, and we worry about people
11 taking them or they steal them again. We worry about
12 them being destroyed.
13 FEMALE SPEAKER: Stewardship over the footprint
14 rocks become almost the same question as stewardship
15 over the Hawaiian Islands. It came from Molokai. It
16 is Molokai. The legend is here, the prophesy here,
17 the people still here.
18 FEMALE SPEAKER: I feel that Kalaina Wawae should
19 not have been removed from Molokai from Mo’omomi in
20 the first place. And now that she has returned to
21 Molokai, she should remain here in her rightful place
22 where she is pono, where she feels pono.
23 FEMALE SPEAKER: When things are made of the
24 natural environment, as this is, out of the
25 sandstone, and it is so tied to a physical and
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 81
1 geographical area, to put it in a museum, to take it
2 off Molokai shores, what then becomes the symbolism
3 of that gesture?
4 FEMALE SPEAKER: (Native Hawaiian language.)
5 MIKIALA AYAU-PESCAIA
6 MIKIALA AYAU-PESCAIA: Mahalo, everyone, for your
7 attention during that presentation. Mahalo for the
8 opportunity to address you this day. My name is
9 Mikiala Ayau-Pescaia. I am born and raised of
10 Molokai. My parents are of Molokai, my grandparents,
11 my great-grandparents, and many, many generations
12 before that. I represent those who couldn’t make it
13 today, who weren’t able to travel. And as reflected
14 in the video presentations, Ku’una and Kalaina Wawae
15 are an integral part of many different kinds of
16 peoples’ lives, not just kupuna, not just educators,
17 but everyone, even down to our kamali’i, to our
18 children.
19 For 400 years, Kalaina Wawae lay at Avalau and
20 no Molokaian had every removed them. For 400 years,
21 they were respected. They were not vandalized.
22 Travelers stayed clear. The people revered the
23 symbol and reflected on the prophesy, even after it
24 started to come to pass and even after man began to
25 own land. But soon the foreigner, not of the koko,
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 82
1 or the bloodline, would decide that the akua, that
2 Molokai, that the Goddess Hina was not capable of
3 caring for that which was born of her. Each morning,
4 Hina would blanket Kalaina Wawae with a soft,
5 caressing mist. Ilima blossoms and ahinahina would
6 adorn her. The clouds would dance above an
7 enchanting breeze and the sun warm her sandstone body
8 golden. And in the heated afternoon, the salty sea
9 spray would refresh her, the brilliant sunset
10 entertain her, the stars to sing a lullaby. But the
11 foreigners say, nice over here for cattle, aaawww,
12 but the carving is getting bust up, most safe in the
13 museum.
14 In 1999, I was hired by Bishop Museum in the
15 collections department. How excited I was to imagine
16 the treasures I would see, especially Kalaina Wawae,
17 a historical account mentioned by my grandmother many
18 times. I found it all right. In a place called
19 Halikini (phonetic), a storage area with no
20 environmental controls, covered in cockroach and rat
21 feces and a rat carcass and maggots. Thick dust and
22 a sticky film from the nearby freeway exhaust choked
23 the sandstone. I barely recognized it. Painfully
24 humiliating, I apologized a thousand times to
25 ancestors that day and every day until they were
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 83
1 returned. How dare they be removed in the name of
2 preservation when they have been so badly mistreated?
3 Ku’una, the prophetess, she stood up and spoke
4 truth and wisdom, despite public persecution. And I
5 would give my best to do her justice this day. Her
6 example of onipa’a, or steadfastness, reminds me that
7 there are those who fear the truth, who fear change,
8 and will do and say anything just for spite, those
9 who would try to stone me with false accusations and
10 intimidation. You know who you are. But 400 years
11 later, Ku’una lives on through me. And 400 years
12 from now the truth will still survive through my
13 mo’opuna, my descendants because the prophesy is
14 still being revealed and still coming to pass.
15 Kalaina Wawae is returned in a time where this
16 generation seeks its presence for strength, to fight
17 against Molokai ranchers’ proposed developed of La’au
18 Point, John McAfee’s multi-million dollar estate
19 auction, the super ferry and cruise ships. It is
20 integral to our spiritual survival as an island. The
21 island was not the same while they were gone.
22 People go to Mo’omomi to sit in her presence to
23 be entranced by the crashing waves and enlightened by
24 ancestral mana. I know I do. We do not know
25 everything, but at the proper time answers are
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 84
1 revealed to those who are responsible enough. And as
2 a healer, Ku’una reminds us that every ailment has a
3 cure. We cannot rely on our own worldly wisdom, but
4 lean on ancestral and divine wisdom as well.
5 Interestingly, as we gathered the video
6 testimony for this presentation, many didn’t
7 understand why we’re having this hearing. Molokai
8 people still don’t believe anyone can own the
9 carving. That’s just what we’ve been taught. They
10 didn’t believe that this was — that it was possible
11 then and we don’t believe it now. Ku’una carved
12 Kalaina Wawae into the earth itself. It’s
13 indisputable. She didn’t carve it into a loose rock
14 that could be carried away. She had no intention of
15 it being transferable. That was the point of the
16 prophesy.
17 Molokai is famous, not for their ali’i or ruling
18 chiefs, but for their kahuna. Everyone knows an
19 ali’i is only as powerful as their kahuna behind
20 them. Otherwise, it’s just a title. Molokai, where
21 many find kahuna, the arts, the healing, hula,
22 histories, genealogies, all stored on Molokai in
23 Molokai people. Kahuna, or commoner, knew that they
24 didn’t own the knowledge, the sacred sites, or the
25 sacred stones. They’re only stewards. As mentioned
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 85
1 before, (Native Hawaiian language), the first video,
2 it showed all these different examples, (Native
3 Hawaiian names). All these stones are a significant
4 cultural patrimony. No one has ever owned these
5 entities and no one ever will. It’s common knowledge
6 to Molokai people.
7 The museum’s claim that they have title is
8 simply impossible. If a Molokaian has never owned
9 any of these, neither will anyone else. Our video
10 testimony ended with a chant, (Native Hawaiian
11 chant). A circle of Molokai residents, supporters,
12 and even the Bishop Museum staff, who were sent there
13 for the special occasion of its return representing
14 the museum, they all stood there together chanting
15 that Kalaina Wawae be firmly set, each stone
16 carefully placed, never to be removed, ever. This is
17 clear to us and we hope we have made it clear to you.
18 Kalaina Wawae belongs to Hina, to Molokai. If you
19 want to see her, you’re welcome. You know where
20 she’ll be. Look for the ilima blossoms and the sea
21 spray. Mahalo.
22 VERA METCALF: Thank you. Since our 20 minutes
23 is almost up, do you have any more comments?
24 EDWARD HALEALOHA AYAU
25 EDWARD HALEALOHA AYAU: Part of the reason why we
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 86
1 had to bring this dispute is, you know, there was an
2 effort to try and repatriate Kalaina Wawae through
3 NAGPRA. Dr. Brown said that he wasn’t in favor of
4 that. We were open to doing it privately, outside of
5 the repatriation statute. But the bottom line that
6 we had to — there were two bottom lines that we had
7 to make sure happened. One was that the stones were
8 returned. Two, that we could guarantee that they
9 wouldn’t be taken again.
10 The problem with what took place is that the
11 private agreement that we had all agreed to Dr. Brown
12 changed, and it allows the Bishop Museum to remove
13 them unilaterally without consent. Initially we were
14 willing to agree that the museum could claim to be
15 the owner but removal could only occur with consent
16 of the organizations, and we weren’t going to do
17 that. So we felt the stones were safe.
18 That’s not — that’s no longer the case. So
19 although they are home, which is very important, our
20 job is not done because we’ve got to guarantee that
21 they cannot be taken again and especially not
22 lawfully. And so that’s why reassert our cultural
23 patrimony claim and are trying to guarantee that they
24 never be taken again.
25 VERA METCALF: Thank you, Hui Malama. And if
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 87
1 that is the end of your presentation, we’ll hear from
2 the Bishop staff.
3 Thank you. Dr. Brown.
4 BISHOP MUSEUM
5 WILLIAM BROWN
6 WILLIAM BROWN: Thank you, Ms. Metcalf. I have a
7 brief written statement that I’ll read, but I think
8 it’s worth to emphasize — I suppose this is clear —
9 the stones are now at Mo’omomi Beach. They are at
10 exactly the location that it was our understanding
11 that Hui Malama and others wanted them to be placed.
12 And they are placed there in an arrangement with Mac
13 Poepoe and his own separate group. He lives not that
14 far away, and he’s caring for them and we’re actually
15 helping — using some funding to help make sure there
16 are educational programs related to them.
17 So the stones — but note, the stones are there
18 and we intend for the stones to be there forever.
19 The only reason that we have insisted on having a
20 clause in the arrangement that could allow us to take
21 them back, which we don’t intend to do, would be if
22 there were repeated acts of vandalism or some other
23 acts — activities that threaten them. We haven’t
24 seen that. I think — I think the island has clearly
25 embraced the stones and Mac has cared for them, but
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1 we want them to be there. So I mean, I begin this
2 saying, what really is the dispute?
3 These are the facts, King Kamehameha V owned the
4 island of Molokai, and he transferred title to areas
5 that included Mo’omomi to Charles Reed Bishop in
6 1875. So the ruling ali’i of all the Hawaiian
7 Islands transferred that property to the founder of
8 the Bishop Museum. The land was then later
9 transferred to the estate of his wife, Bernice Pauahi
10 Bishop, the great-granddaughter of Kamehameha the
11 Great. And Bishop Estate sold the land to Molokai
12 Ranch in 1897.
13 There were carvings with the appearance of bare
14 footprints and squared heels that were made in the
15 stone in the area of Mo’omomi. And the stones were
16 called Kalaina Wawae or Feet of Kalaina. Shoes and
17 boots with heels were unknown in Hawaii at the time,
18 and a story or legend associated with the carvings
19 said they were made by a woman who prophesized the
20 coming of foreigners to Hawaii. The story said that
21 the woman was stoned to death for her prophesy.
22 In 1909 Charles Cook, who was manager of Molokai
23 Ranch, removed sections of stones and sent them to
24 Bishop Museum for safekeeping. The area had been
25 badly damaged by cattle and the carvings, which
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1 covered a wide area, were worn away by animal
2 traffic, even the ones the Bishop has, they’re — they
3 are unfortunately degraded compared to what they
4 apparently were before.
5 Hui Malama requested that the Kalaina Wawae be
6 repatriated to it, and in 1999 the National Park
7 Service published a notice prepared by the museum
8 stating that the museum intended to repatriate the
9 stones to Hui Malama as an object of cultural
10 patrimony. However, the museum subsequently reviewed
11 this proposal and determined that although the stones
12 are a very important part of the history of Hawaii
13 and Molokai Island, they do not qualify as cultural
14 patrimony as defined by NAGPRA. And let me say that
15 has nothing to do with the view of the Bishop Museum
16 that these are extraordinarily important and should
17 be preserved. In addition, the museum determined
18 that it would have right of possession to the stones
19 if they had been such a cultural item, but there’s no
20 need to assert that if they’re not.
21 Nothing in NAGPRA prevents a museum from
22 reconsidering past positions during the repatriation
23 process. It’s legally allowed and also it’s sort of
24 sensible. If you make a — if you know you’re making
25 a mistake, it makes sense to change the course that
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1 you’re on. So the museum prepared a notice
2 rescinding its 1999 proposal and that notice was
3 published in the Federal Register by the National
4 Park Service on November 3, 2003.
5 Cultural patrimony is defined by NAGPRA to mean,
6 quote, “an object having ongoing historical,
7 traditional, or cultural importance central to the
8 Native American group or culture itself rather than
9 property owned by an individual Native American.”
10 You know this. I’m saying this really for the group
11 as a whole. “And which therefore cannot be
12 alienated, appropriated, or conveyed by any
13 individual regardless of whether or not the
14 individual is a member of the Indian tribe or Native
15 Hawaiian organization, and such object shall have
16 been considered inalienable by such Native American
17 group at the time the object was separated from such
18 group.”
19 Kalaina Wawae clearly does not meet this
20 definition. It is widely accepted in Hawaiian
21 culture that the ali’i or Hawaiian Royalty owned all
22 things, including objects such as the Kalaina Wawae,
23 and the ali’i could give them away. Furthermore, the
24 Kalaina Wawae and the land surrounding them were in
25 fact transferred to Charles Reed Bishop and — in 1875
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 91
1 by the reigning ali’i king, Kamehameha V. He gave
2 them away, and no one questioned his authority to do
3 so. And I would defer to Dr. Abbott and Dr. Akina,
4 but I think it would be accurate to say that to have
5 raised a question at the time that was done would
6 have been counter to a millennium of cultural life.
7 Although not repatriated as cultural patrimony
8 and still part of the museum’s collection, as I noted
9 at the beginning, the Kalaina Wawae currently resides
10 in Mo’omomi, Molokai, under the care of Hui Malama ’o
11 Mo’omomi. In fact, the stones are placed at the very
12 spot they wanted. And let me just say again, it is
13 our intention for those stones to be at that spot.
14 You know, when I (comment inaudible) tell them that
15 these objects did not meet the definition of NAGPRA
16 for cultural patrimony. But Mac Poepoe led me out
17 onto the peninsula over the beach where he wanted the
18 objects and told me — actually Mac doesn’t really
19 care about the law that much and he doesn’t really
20 want to take sides with either side, but he said,
21 they really should be here. And I was moved by that
22 and went back and recommended that to the board, and
23 that’s what’s happened.
24 So I would just ask — that’s all I have to say,
25 but I’d ask Dr. Abbott and Dr. Akina if they would
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 92
1 like to add something.
2 CHARMAN AKINA
3 CHARMAN AKINA: Basically, the footprints are
4 back at where they should be, and currently there are
5 a lot of — there are generations right now who are
6 very, very dedicated. But what about the next
7 generation or the one to follow, are they going to be
8 equally dedicated? Right now we have an institution
9 that’s dedicated towards their preservation. It’s a
10 long and ongoing stewardship. And I think if the
11 Bishop Museum were involved continually with these
12 prints, they would be preserved forever. Thank you.
13 ISABELLA ABBOTT
14 ISABELLA ABBOTT: I’m old enough to remember when
15 the whale was taken down in Bishop Museum for repair,
16 and the people who lived near the museum, the
17 children who used to run in and out frequently,
18 including Robert Kasamaro (phonetic), were just sure
19 that it was never going to be put up again. But in
20 those days you didn’t have activists protesting this
21 and protesting that, but they were — he told me
22 himself, he was so pleased, he and his brother were
23 so pleased to find the whale all patched up and no
24 danger of any parts of it falling on people’s heads
25 and put back in the museum.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 93
1 So I look upon Kalaina Wawae, as Dr. Brown was
2 describing them, those footsteps, that maybe you
3 would feel a little uncomfortable, a little uneasy
4 that something is going to happen to these things.
5 But I’m Hawaiian enough to say a little prayer for
6 Kalaina Wawae that it is going to stay there forever.
7 I’ll be one of the first to bring it a lei and wish
8 it a long life at that place. It’s a beautiful site
9 for it, and I would like to register as a Hawaiian
10 that this business of — this big haole institution is
11 against bringing something that belongs to Molokai
12 back to Molokai, quit it, you guys, you got it
13 already.
14 VERA METCALF: Thank you, Bishop. Any other
15 comments, because I think we’re almost there at the
16 time. We still have our last dispute presentation
17 from both sides, but if members of the committee, do
18 you have any comments or questions?
19 REVIEW COMMITTEE
20 GARRICK BAILEY: I have a question. First of
21 all, who owns the land that it’s situated on today?
22 I think that’s an important question.
23 WILLIAM BROWN: I believe it’s Department of
24 Hawaiian Homelands’ property.
25 GARRICK BAILEY: Is there a — well, that should
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 94
1 be under some — I know that the land status is —
2 WILLIAM BROWN: It’s a state agency.
3 GARRICK BAILEY: It’s a state agency.
4 WILLIAM BROWN: And they gave permission to place
5 it.
6 GARRICK BAILEY: Isn’t there some manner of
7 putting it in trust for the people of Molokai legally
8 to do it? I mean, so much of this seems to be a
9 question of just legalities and legal issues. You
10 know, to me, first of all, I really commend the
11 museum for returning them. They should have never
12 been taken to begin with. But they are part of the
13 real estate. And unfortunately it’s real estate laws
14 are Western laws, that those belong to the people who
15 owned the surface at the time they were taken. They
16 also belong to the people who own the surface today.
17 But can’t you just kind of work out some sort of a
18 trust status with organizations where you give it to
19 the trust and work out the difference? I mean, this
20 is — this is exactly what this committee should be
21 designed to handle. This is a case where you all
22 agree. How do you reach it and how do you reach an
23 agreement that you can both be happy with. Because
24 it’s not concerning who — where these are going to
25 be. It’s going to be the legal status under which
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 95
1 they are returned there, and they’ve already been
2 returned. So can’t you — have you sat down and tried
3 to work out —
4 WILLIAM BROWN: Well, we did. But I would — I
5 would — I mean, well, I hear you. But the — that’s
6 essentially what we have. I mean, first of all we
7 have the Bishop Museum whose collection committee is
8 predominantly Native Hawaiian. We have the Bishop
9 Museum whose full board is a third Native Hawaiian,
10 whose chairman is Native Hawaiian. So when you raise
11 this, this is an institution that is very involved,
12 governance — in its governance with Native Hawaiians,
13 and that is increasing. Point two, we meant to do
14 just that. The Bishop Museum regards its objects not
15 as property that it could sell, for example. It is
16 an institution of stewardship and it is an
17 institution that was created by the Hawaiian Royalty
18 and Charles Reed Bishop as the husband of Hawaiian
19 Royalty, to serve that role.
20 And then what we’ve done is we have an agreement
21 with Mo’o — Hui Malama ’o Mo’omomi, which is through
22 Mac Poepoe, representing the area of Mo’omomi. So
23 this is — he’s not doing this on his own. He’s doing
24 this, you know, involving the people there. And this
25 gives us — but this leaves with us the responsibility
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 96
1 to care for those stones, as Dr. Akina said to spend
2 money if needed to protect them.
3 And you must know, indeed I agree they shouldn’t
4 have been taken, but they — part of the motivation
5 was they were being lost, they would have been lost,
6 maybe they should have had the sense to fence it. I
7 don’t know why they didn’t do that. But I understand
8 your point, but I think that, you know, if you knew
9 Hawaii as many of us do and you looked for an
10 institution that was representative of the Hawaiian
11 people, you would not find one. There, you know,
12 there are many — there are many that have
13 responsibilities. The Hawaiian Homes Commission is
14 one, but it’s a state agency of the State of Hawaii.
15 It’s not the government of all the people of Hawaii.
16 GARRICK BAILEY: You know, I think that what
17 you’re saying is something that we’re going to have
18 to address later. I think one of the really sad
19 things that we have to deal with is there is no legal
20 representation of the Hawaiian people, the Native
21 Hawaiian people at any level. And so that it really
22 is such a totally different situation than in dealing
23 with the tribes on the mainland, American Indian
24 groups on the mainland.
25 VERA METCALF: Garrick, I think we have Dan.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 97
1 Dan.
2 DAN MONROE: Just a quick question. Mr. Brown,
3 could you explain how the Bishop Museum understands
4 its role and mission in terms of Native Hawaiian
5 culture? And I’m not talking about the preservation
6 of the objects part of it, but rather the
7 preservation and the continuation of the development
8 of the culture of Native Hawaiian people. How do you
9 understand that at present?
10 WILLIAM BROWN: I want to address that, but
11 actually I want Dr. Abbott and Dr. Akina to say
12 something too, because they’re both on the board and
13 they are Native Hawaiians, so their insights should
14 be had.
15 AUDIENCE MEMBER: (Inaudible comment.)
16 VERA METCALF: Yes, please. Thank you.
17 WILLIAM BROWN: The answer to your question is we
18 — through preservation, study, and public programs,
19 we see as a central part of our mission to advance
20 and to keep alive Native Hawaiian culture. So that
21 is a core principle, which is actually in the
22 strategic plan of the Bishop Museum.
23 VERA METCALF: Hui, do you have a comment?
24 I’m sorry.
25 DAN MONROE: I have one more question. Go ahead.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 98
1 VERA METCALF: Okay.
2 VINCAS STEPONAITIS: Looking at the issue of
3 whether these items are objects of cultural
4 patrimony, I — it seems to me that the key issue in
5 the disagreement has to do whether anyone at the time
6 had the authority to alienate possession, and the
7 museum has made the assertion that ali’i had that
8 authority. And I just wondered if the
9 representatives of Hui Malama would like to respond.
10 EDWARD HALEALOHA AYAU: To us that’s not the
11 issue. The issue is whether or not this is an object
12 that is so centrally important to the people of
13 Molokai that it has ongoing historical and cultural
14 and traditional importance that it’s part of the
15 fiber of who they are. That no one would have
16 fathomed the idea that anyone could own it and
17 transfer it. So the issue has to do with the place
18 that this object has in the minds and in the aua
19 (phonetic) of the people of Molokai. Is this object
20 so important to us, is it so central to us we would
21 never imagine somebody being allowed to take it.
22 That’s the issue.
23 It’s not — it doesn’t have to do with right of
24 possession because if we can demonstrate that this
25 object has this high level of significance and
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 99
1 importance to us, then right of possession is not an
2 issue because it can’t be alienated. You cannot get
3 permission from all of the owners who passed away and
4 you cannot get the permission from the owners who
5 haven’t been born yet. So the issue here is whether
6 or not it’s — the significance of Kalaina Wawae to
7 the people of Molokai. I mean, I appreciate what
8 they’re saying, but the question isn’t is it
9 important to them. Is it important to us?
10 VINCAS STEPONAITIS: Let me again ask, just so I
11 understand the position, so you’re saying that it is
12 not important whether King Kamehameha at the time
13 could have conveyed ownership. What’s important is
14 the way the people feel about it today? Is that —
15 MIKIALA AYAU-PESCAIA: I believe Kamehameha V may
16 have conveyed ownership over the land, but he too
17 believed — must have understood that there is just
18 certain things that were — that belonged to everyone.
19 DAN MONROE: That was my question. You’re
20 touching on it, so maybe you can address it, continue
21 to address it. My question was, how do you respond
22 to the argument which basically says that the island
23 was owned by King Kamehameha V and transcended down
24 to the ranch and therefore there’s a right of
25 possession?
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1 CHARLES MAXWELL: You know, let me tell you about
2 this fallacy about the chiefs owning the land. They
3 were stewards of the land. They controlled. They
4 had konohikis under them that controlled the land,
5 you know, the farm, the this, the that, the ocean.
6 So they didn’t have possession of something as
7 important as this. They knew – the chiefs knew that
8 this was important to Molokai.
9 MIKIALA AYAU-PESCAIA: And I’m not sure if you
10 caught that in my testimony or in the presentation,
11 but yeah, that’s true. There’s no — there are just
12 things that people have — I mean, and it’s
13 perpetuated today. Like I said, people still don’t
14 believe that we’re — we’re having this discussion
15 about title because even today’s generation it’s been
16 perpetuated for generations. You can’t own certain
17 things like this. You cannot own Kalaina Wawae. You
18 can’t own Nanahoa. Nobody owns any of these stones
19 or any of these sacred objects that are continue — or
20 have been continuously looked after.
21 Kalaina Wawae was fine when it was looked after
22 by Hawaiians. When foreigners came in, when the
23 cattle ranchers came in, all of these other people
24 came in, that’s when it started to disintegrate and
25 that’s where its preservation was threatened, its
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1 existence was threatened. And even after it was
2 removed from the island, that didn’t resolve
3 anything. I mean, I’ve witnessed it, the
4 mistreatment.
5 And now that it’s back in an area that is free
6 from cattle and Molokai people, not so much
7 Hawaiians. We’re not talking about everybody in the
8 state. We’re just talking about Molokaians.
9 Molokaians are in control, and they have worked hard
10 to get them home and we appreciate the cooperation of
11 the museum, but we’ve taken the initiative to educate
12 our communities and our children. We have
13 demonstrated that.
14 Some of the students that are here were part of
15 that repatriation. They helped place the stones that
16 built that pipi (phonetic). I mean, and it’s — they
17 go out and they tell their friends and their cousins,
18 I mean, it’s the same, the same cultural practices
19 400 years ago are continuing today. It’s — we live
20 it. We don’t — and we didn’t bring our Ph.D. people
21 to come in and scientifically say why this makes
22 sense. We can’t because we live it. And it’s — I
23 mean, like I say it’s just — no one imagines or can’t
24 fathom that someone could own any, whether they’re
25 ali’i or not.
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1 VERA METCALF: Thank you. I believe we’re almost
2 out of time. Do you have a comment, Rosita?
3 ROSITA WORL: I have one question, and hopefully
4 it can be answered simply and shortly. Insofar as
5 that memorandum of agreement, I understand from the
6 readings that initially Hui Malama board of directors
7 agreed to that MOA on the condition that it would
8 return home and that it would not — that it couldn’t
9 be removed. And the difference now is in the — well,
10 the — as I understand, the MOA went forward but then
11 Hui Malama was taken out of the agreement and then
12 the condition that the Bishop Museum could remove the
13 — the object. And what — what happened in that
14 process, because it seemed like you were going
15 towards something that you all agreed to, that it was
16 going to return, and then what happened?
17 WILLIAM BROWN: Well, on the matter of — the
18 discussion originally included three parties, the
19 Bishop Museum, the Hui Malama here today, and the Hui
20 Malama ’o Mo’omomi. And at the beginning of the
21 discussion I was open to having an agreement that
22 included all three. But the board, and I as a board
23 member, discussed it, and the board was uncomfortable
24 accepting any agreement in writing, any promises in
25 an agreement in writing that the Hui Malama here
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1 might make, because the Hui Malama had signed a loan
2 agreement on Kawaihae Caves representing they would
3 return objects and did not and have said they didn’t
4 ever intend to return them.
5 And that — so I mean, be candid, the board — the
6 board first decided this is not required by NAGPRA,
7 this is not an object of cultural patrimony as
8 defined by NAGPRA so what we’re doing is something on
9 a voluntary basis with an important object to return
10 it to Molokai. And then the question was who would
11 be a partner that it could trust, that it could work
12 with. And it chose not to include the Hui Malama
13 present here today.
14 On the language concerning the potential to
15 return, I think — there’s no one on the board of the
16 Bishop Museum that expects the stones ever to be
17 returned. We just thought as a museum —
18 EDWARD HALEALOHA AYAU: They have been returned.
19 WILLIAM BROWN: Returned to the Bishop Museum
20 from Mo’omomi. The reason why we wanted that, and it
21 was something that museums think about, was we were —
22 we just thought decades from now there might be an
23 issue of vandalism, things might change, and we
24 wanted to retain that authority to protect the stones
25 if something totally unanticipated happened, which we
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1 don’t expect.
2 VERA METCALF: One more comment or question.
3 DAN MONROE: I’d like to applaud the Bishop
4 Museum for taking a broader, in this case, view of
5 the responsibilities to study, protect, and
6 interpret, preserve. Obviously you were moved by the
7 fact that these belonged in a certain place, which
8 was not in the basement of the Bishop Museum, and
9 took steps along with the board to assure that they
10 were returned. And it came very close to arranging
11 in partnership with many groups who obviously have a
12 deep and abiding care about the future of these — how
13 do you pronounce it?
14 HALEALOHA WAWAE: Kalaina Wawae.
15 DAN MONROE: Kalaina Wawae. Everyone shares here
16 in their future. So I would just — not on the basis
17 of the technicalities of whether or not they’re
18 cultural patrimony or they’re not cultural patrimony,
19 it just seems very, very unfortunate, let me say,
20 that you came, all of you, so close and the
21 impediments to overcoming an agreement that would, in
22 fact, protect these in the future seem at least to
23 some of us I think so small that I’d just like to
24 comment, one, to commend you all, and two, to suggest
25 that perhaps a renewed effort in a spirit of
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1 conviction and good faith that you’ve shown to this
2 point could, in fact, resolve this matter outside of
3 all of the technical requirements that come to bear
4 in this context.
5 VERA METCALF: Thank you, Dan.
6 Rosita, did you have a question?
7 ROSITA WORL: I just wanted to ask Hui Malama, on
8 that MOA that was signed there was an additional
9 notation that it was signed under protest. And was
10 that agreed to by — I’m sorry, I don’t — the other
11 Hui Malama? And I don’t understand the relationships
12 there.
13 EDWARD HALEALOHA AYAU: The other organization is
14 Hui Malama ’o Mo’omomi. During the video
15 presentation, the man wearing the cap and the yellow
16 shirt, that’s Mac Poepoe. He’s the head of that
17 organization, and he was with us when we went to pick
18 them up. So, you know, thinking for three months
19 that we had reached this agreement and that, you
20 know, the key issue again being that although we
21 didn’t like the idea that the museum was going to
22 retain ownership, we weren’t worried about that
23 because there was a provision there that said consent
24 from the two other organizations was required if the
25 museum wanted to remove them. Well, this wouldn’t be
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1 a problem if they didn’t take that out. That’s the
2 problem.
3 So when we read that, you know, we’re standing
4 there. Uncle Mac is like, well, what do you want me
5 to do? I said that’s your call for Hui Malama. Our
6 people are expecting the stones home. Let’s proceed
7 with doing that, but you know, sign it under protest
8 because of the removal — we weren’t even told this
9 was going to happen. We found this out because they
10 sent the agreement to us and the signatory line was
11 missing. And I think this can all be resolved if
12 Bishop Museum either, A, agrees that this is cultural
13 patrimony. If they won’t, B, rescinds that clause
14 that they can unilaterally remove Kalaina Wawae from
15 Molokai, transfer title to Hui Malama ’o Mo’omomi.
16 If you’re willing to do that, because without that
17 there’s no guarantee. They’ve changed their minds
18 before. We cannot fathom that happening again,
19 because if it does there’s going to be a showdown
20 there over Kalaina Wawae. I mean, I’m glad they’re
21 saying they have no intentions of doing it, but
22 they’ve changed their minds and we cannot — just
23 close the loop is what we’re saying, please.
24 WILLIAM BROWN: Madam Chairwoman, just to note,
25 really you should contact Mr. Poepoe if you want his
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1 view. I wasn’t present at the transfer. I
2 understand that Mr. Ayau is the one who signed the
3 protest, not Mr. Poepoe. And I understand Mr. Poepoe
4 is happy where things are now. He doesn’t want to
5 take sides but is happy. But you should get that
6 from him.
7 VERA METCALF: Thank you.
8 MIKIALA AYAU-PESCAIA: I think he demonstrated.
9 I don’t know if you want to go back and review that
10 testimony again. He shares his view on this very
11 issue in the movie.
12 VERA METCALF: Thank you.
13 EDWARD HALEALOHA AYAU: That’s why we included
14 him.
15 MIKIALA AYAU-PESCAIA: That’s why we interviewed
16 him. He wasn’t able to be here today.
17 VERA METCALF: Well, I believe we have a last
18 presentation here with our final dispute. Thanks to
19 the Review Committee members and to Hui Malama and to
20 Bishop for your information. And I’m sure we’ll have
21 additional questions and comments in the next couple
22 of days.
23 WILLIAM BROWN: Thank you very much.
24 DAN MONROE: Thank you.
25 VINCAS STEPONAITIS: Thank you.
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1 VERA METCALF: You’re welcome. With that, I’ll
2 turn it over to Madam Chair.
3 ROSITA WORL: And thank you, Madam Chair, for
4 keeping everyone to their schedule. And now we’ll go
5 into our third dispute and Mr. Monroe will chair that
6 dispute.
7 GARRICK BAILEY: Are we doing to have a break?
8 VINCAS STEPONAITIS: No break?
9 ROSITA WORL: Ten-minute break.
10 DAN MONROE: Thank you.
11 BREAK
12 ROSITA WORL: We will call the Review Committee
13 meeting back to order. We will now begin our third
14 dispute, and Dr. Monroe will be chairing this
15 portion.
16 PRESENTATION OF EVIDENCE REGARDING DISPUTE BETWEEN
17 HUI MALAMA I NA KUPUNA O HAWAI’I NEI AND HAWAII
18 VOLCANOES NATIONAL PARK REGARDING ITEMS FROM A CAVE
19 AT KAWAIHAE
20 DAN MONROE: Thank you. And we will begin
21 immediately. And if we could, could we have
22 Volcanoes National Park please introduce yourselves
23 and then if you would give your testimony. And is
24 your microphone working? Good. Thank you.
25 HAWAII VOLCANOES NATIONAL PARK
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1 CINDY ORLANDO
2 CINDY ORLANDO: Aloha. Aloha. My name is Cindy
3 Orlando. I’m the Superintendent at Hawaii Volcanoes
4 National Park, and thank you so much for the
5 opportunity to be here today. I’d like to introduce
6 our cultural resource program manager, Laura Carter-
7 Schuster, and our Native Hawaiian cultural liaison,
8 Keola Awong. Though I will briefly summarize the
9 events of the past decade, let me assure you that it
10 is these two who represent the institutional history
11 of this issue within Hawaii Volcanoes National Park.
12 DAN MONROE: Please go ahead.
13 CINDY ORLANDO: Let me first begin by thanking
14 you for the time that you give to this important
15 committee. Prior to arriving at Hawaii Volcanoes
16 National Park in late March of 2004, I served in
17 Washington, DC for the National Park Service. And I,
18 like Tim, was the Federally Designated Official for a
19 secretarial advisory committee like yours. I know
20 how very important the committee is for the service
21 and for the Secretary to provide advice and
22 recommendations to us on difficult issues such as
23 this.
24 What we have made available today are two
25 documents. The first, previously provided to you, is
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1 the latest version of a summary of the administrative
2 record related to cultural items in our collection
3 that came from a cave in Kawaihae on Hawaii Island
4 known as Forbes Cave. An abbreviated summary is
5 noted in my letter of January 29th, 2005, to the
6 National NAGPRA Program Manager, which I understand
7 was also provided to you. The second is a matrix of
8 communications and responses relative to those
9 matters and includes 46 Native Hawaiians and Native
10 Hawaiian organizations who are potential claimants to
11 these objects.
12 I will speak broadly to the draft administrative
13 record contents. And please excuse me, I am in the
14 middle of a very bad sinus infection, so I hope I can
15 speak through this. First, let me say that review
16 and update of the record is ongoing because the
17 decision making process is not complete. As
18 presented, the record also includes reference to
19 other materials removed from Forbes Cave that are not
20 in the possession of Hawaii Volcanoes National Park.
21 This material has been included because it provides
22 information that may help in informing those involved
23 in the Hawaii Volcanoes National Park NAGPRA
24 consultation process.
25 The draft administrative record has been
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 111
1 prepared and provided because I believe it reflects a
2 rational basis for decisions that were made and
3 appropriately based, based on the goals of the NAGPRA
4 law. The record also highlights the importance of
5 our ongoing consultation and evidence gathering, as
6 the issue has become, as you know, increasingly more
7 complex over the past few years.
8 Since 1995 when consultation first began, every
9 effort was made to be inclusive and to give all
10 members of the Native Hawaiian community an
11 opportunity to respond. The quality and nature of
12 the consultations began to change, however, in the
13 early part of 2001 when a greater number of Native
14 Hawaiians and Native Hawaiian organizations got more
15 involved. Participation then by many potential
16 claimants, both organizations and individuals,
17 increased as these potential claimants have come to
18 understand and exercise their right to fully
19 participate in the NAGPRA process.
20 As the responses became more diverse and more
21 detailed, we recognized the need to research the
22 collection. We contracted for a report that would
23 document how the Forbes Caves items may have
24 functioned in the past and how they may be valued by
25 contemporary Native Hawaiian organizations and
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1 individuals. A partial draft of that report, known
2 as the Rose Report, has been provided to you and will
3 soon be finalized. I have to stress that the report
4 is not complete and it is still being edited.
5 However, we realized then, as we do now, that we
6 could not make a well-informed decision about
7 categories without this consultation or related
8 research. We hope that you concur with this approach
9 and we are open to suggestions from you as we
10 continue our consultations with the Native Hawaiian
11 community.
12 On March 1st, 2005, as a part of our continuing
13 NAGPRA consultation, we mailed copies of this draft
14 Rose Report to all potential claimants, both
15 individuals and organizations that we had previously
16 consulted with, as well as additional parties. Since
17 this report presents evidence of what the collection
18 might represent, we have asked the parties for their
19 opinion as to whether or not any or all of these
20 items are subject to NAGPRA and why and their opinion
21 of the potential classification of the objects into
22 categories. We have also requested evidence to
23 support their claim of a cultural affiliation to the
24 items in the collection as either a Native Hawaiian
25 organization or through lineal association.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 113
1 Responses are due within 60 days of the request, and
2 as I understand, we have already been getting some
3 responses coming in and I understand we’ll also be
4 hearing oral testimony from some of the parties that
5 have been contacted.
6 Once we receive this information, we propose to
7 convene a meeting of all claimants and potential
8 claimants to collectively discuss this issue. At
9 such time we would hope to make a determination and
10 present it to the advisory committee to seek further
11 advice. And we would welcome your assistance and
12 participation. In any regard, as superintendent, it
13 is my responsibility to ensure that we continue to be
14 inclusive, and I assure you that we will be
15 responsive to any and all requests relative to this
16 important issue.
17 In conclusion, we have not delineated cultural
18 affiliation yet, nor have we determined specific
19 categories of the objects. We continue to gather the
20 factual information necessary to make a determination
21 and we are still going through the NAGPRA
22 consultation process. As you will hear over the
23 coming days, there are many points of view, and we
24 look forward to working with you on this important
25 issue going forward. Thank you.
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1 DAN MONROE: Thank you. Are there any additions
2 to your testimony? That’s it?
3 CINDY ORLANDO: Yes, that’s it.
4 DAN MONROE: Very good. Could we hear from Eddie
5 with Hui Malama, please? Could we — because I’m sure
6 we’re going to have questions again, and I apologize
7 for displacing you.
8 GARRICK BAILEY: In the meantime, a suggestion,
9 you know, maybe for tomorrow since we’re going to be
10 doing the same thing, that we should set up a third
11 table for —
12 DAN MONROE: That would be way too easy.
13 VINCAS STEPONAITIS: Although —
14 DAN MONROE: That’s way too easy.
15 VINCAS STEPONAITIS: I think tomorrow on the
16 agenda, if I’m not mistaken, we’re going to be
17 hearing from other affected parties probably one at a
18 time. So I don’t know if that’s —
19 GARRICK BAILEY: But we might — we’re going to
20 need more tables than I think that we have.
21 VINCAS STEPONAITIS: Can’t hurt. Can’t hurt.
22 GARRICK BAILEY: Can’t hurt.
23 DAN MONROE: Good. Eddie.
24 HUI MALAMA I NA KUPUNA O HAWAII NEI
25 EDWARD HALEALOHA AYAU
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 115
1 EDWARD HALEALOHA AYAU: This dispute involves a
2 classification of five cultural items as unassociated
3 funerary objects as defined by NAGPRA. The five
4 items were looted from an ali’i burial cave in
5 Honokoa Gulch, now known as Forbes Cave, and later
6 donated to Hawaii Volcanoes National Park by
7 Mrs. Harry Forbes Edmondson, the daughter of David
8 Forbes, in 1956. The five cultural items include,
9 one, a ki’i la’au or carved wooden image of a woman,
10 a konane board made of wood with carved figures at
11 the base, a cutting tool made of a human clavicle or
12 iwilei and a shark tooth, an ipu or gourd with cord
13 and shell stopper, and a kupe’e made from rock oyster
14 shell.
15 Hawaii Volcanoes National Park completed a
16 NAGPRA inventory dated June 28th, 1996, which lists
17 only one of the five items from Forbes Cave. This
18 item is referred to as a cutting tool that is made
19 from a human clavicle. A month later, Hawaii
20 Volcanoes National Park produces a “Hawaii Parks
21 NAGPRA Cultural Affiliation Project Draft Final
22 Report,” and this was done by June Noelani Cleghorn,
23 dated July 1996, which includes a list of NAGPRA-
24 related items with 53 cultural items, 5 of which
25 originate from Forbes Cave, Kawaihae, Hawaii.
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1 The Cleghorn report states in part, “HAVO
2 Accession 01, This accession includes five items
3 which were originally collected in 1906 by David
4 Forbes from Forbes Cave, located in Kawaihae ahupua’a
5 on North Kohala, Hawaii Island. HAVO acquired these
6 items in 1956 when they were gifted to the park by
7 David Forbes’s daughter, Mrs. Harry Forbes Edmondson.
8 The five items were identified as follows: carved
9 wooden image, female; carved wooden konane game
10 board; cutting tool made from human clavicle and
11 shark’s tooth; gourd with shell stopper; and kupe’e
12 made from rock oyster shell.
13 “The cutting tool, identified as HAVO 01-03,
14 falls into the NAGPRA category of human remains since
15 it is specifically identified human bone which was
16 then crafted into a tool. The NAGPRA categories into
17 which the remaining four items in this accession fall
18 remain unclear.”
19 “The original disposition of these items was in
20 a chamber, within Forbes Cave, which also housed
21 bundles of human remains,” and here she cites
22 Brigham’s 1906 report. “However, beyond a sketch by
23 David Forbes of their physical location within the
24 chamber, there is no indication by Forbes nor any
25 archaeological data which would indicate any
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1 association between these items and the bundles of
2 human remains.
3 “Due to the paucity of archaeological data
4 accompanying these items, the NPS feels it
5 appropriate for these Native Hawaiian organizations
6 to define the NAGPRA category for each item,”
7 unquote.
8 Hui Malama proceeds then, after receiving this
9 report, to define the five cultural items from Forbes
10 Cave as funerary objects on three occasions by
11 submitting reports with evidence, documents, and
12 arguments as to why we assert that the five cultural
13 items are funerary. This very same information was
14 submitted to the Bishop Museum in order to establish
15 that the cultural items that the museum held from
16 Forbes Cave were also funerary objects. We provide
17 Hawaii Volcanoes National Park with three submissions
18 in order to establish that the cultural items are
19 funerary. Including, one, a letter dated November
20 19th, 1999, to Bryan Harry; two, a letter dated
21 November 29th, 1999, to Bryan Harry which included the
22 replacement report; and then a letter and revised
23 report on January 9th, 2001, which was hand-delivered
24 to then National NAGPRA Program Leader John Robbins.
25 However, Hawaiian Volcanoes National Park has
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1 yet to respond directly to the evidence and arguments
2 submitted by Hui Malama to establish the funerary
3 nature of these items. This forms the basis of the
4 current dispute with Hawaii Volcanoes National Park.
5 This lack of response was highlighted by a letter
6 from NPS Pacific Area Director Bryan Harry to
7 Dr. William Brown dated March 5, 2004, in which
8 Director Harry states, quote, “We are treating some
9 park collections that Hui Malama has requested in a
10 similar manner. In our case, our position is that
11 there is yet insufficient evidence that the objects
12 in the collection belong to any NAGPRA category.
13 None of the dozens of potential claimants consulted
14 have produced such evidence,” unquote.
15 The only National Park collection being
16 requested by Hui Malama for repatriation is the five
17 cultural items from Forbes Cave in the collection of
18 Hawaii Volcanoes National Park. So in this
19 backhanded manner, Hui Malama finds out that the Park
20 Service’s response to the numerous information that
21 we submitted as part of our claim was being rejected,
22 and that they deemed it insufficient. Hence we filed
23 this dispute on November 23rd, 2004, to seek the
24 committee’s assistance to resolve the issue whether
25 the five cultural items from Forbes Cave in the
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1 collections of Hawaii Volcanoes National Park qualify
2 as unassociated funerary objects under NAGPRA.
3 I’d like to now recognize — have two expert
4 witnesses to testify on that very issue. First,
5 starting with Dr. Ty Kawika Tengan.
6 TY KAWIKA TENGAN
7 TY KAWIKA TENGAN: Hello, committee members. My
8 name is Ty Kawika Tengan. I’m an assistant professor
9 in ethnic studies and anthropology. I participated
10 in various repatriation and reburial activities
11 between 1995 and 2001 on Maui and Oahu, and since
12 2001 have researched, taught, and lectured and also
13 moderated panels discussing burial practices until
14 the present.
15 Today I’d like to give some testimony on the
16 funerary status of the objects from the Forbes Cave,
17 and then I think it’s really important to look in
18 historical precedents to really discern what are and
19 are not traditional practices because there’s been a
20 lot of speculation as to whether or not there were
21 even funerary objects to begin with as part of the
22 culture. Today I give affirmative testimony on the
23 status of objects from Forbes Cave. The plan and
24 sketch of the cave by David Forbes reveal that all
25 objects in chamber C are in close physical proximity
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1 to numerous burial bundles, skulls and bones wrapped
2 in kapa, and a burial gourd containing an infant.
3 This satisfies the criteria of, quote, “with or near
4 individual human remains.”
5 The point of contention for some parties appears
6 to be whether or not these items were placed, quote,
7 “intentionally at the time of death or later,” end
8 quote, with these iwi, which is ancestral remains,
9 and as, quote, “part of the death rite or ceremony of
10 a culture,” end quote. An article on burial
11 practices penned by L. W. K. Kaaie on March 20, 1862,
12 in the Hawaiian language newspaper Ka Hoku o ka
13 Pakipika states that, quote, “If the dead had any
14 possessions, money, clothing, and other articles,
15 they are buried with him. Vegetable, food, fish and
16 tapa are also left with him,” end quote. The same
17 article appears in the Fornander Collection under the
18 name S. Kamaka. Mary Kawena Pukui in The Polynesian
19 Family System in Ka-’u also mentions that when a body
20 is secretly buried in a cave, quote, “The various
21 belongings he loved in life were put in the cave with
22 him,” end quote. There is clear evidence then that
23 objects were placed with burials as part of the
24 Hawaiian death rite.
25 In relation to Forbes Cave, others have argued
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1 that the position — possessions of ali’i, or the
2 chiefs, would not be deposited with ali’i burials
3 since they might identify said burials to those who
4 would desecrate them. However, history reveals this
5 assertion to be false. Samuel M. Kamakau, the most
6 prolific Hawaiian historian of the 19th Century, wrote
7 a great deal on the burial practices of the ancients,
8 the translation of which appears in the book Ka Po’e
9 Kahiko The People of Old in a section entitled
10 “Disposal of Corpses.” Kamakau notes that there,
11 quote, “are many ways of disposing,” kanu ana is the
12 Hawaiian word, “of corpses,” end quote, and then
13 proceeds to describe a variety of traditions from
14 different islands. Along with the authors cited
15 above, he too notes the occurrence of funerary
16 objects.
17 For the purposes of understanding the Forbes
18 Cave, we may look to a story that Kamakau relates
19 about the plundering of a chiefs’ burial pit in
20 Waimea, Hawai’i, whose proximity to Kawaihae warrants
21 comparison. Kamakau relates that Dr. John Pelham,
22 also known as Dr. Pili, followed the family of a
23 deceased chief who was a patient of his while they
24 secreted his body to a hidden burial cave. Dr. Pili
25 later returned armed with a gun, which you need to
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1 wonder why he’s armed with a gun, and accompanied by
2 a servant to find, quote, “Innumerable helmets
3 (mahiole), long feather capes (’ahu’ula), short capes
4 (’ahu), implements of war (mea kaua), and valuables
5 of every description in profusion, and they saw the
6 remains of ancient chiefs together with innumerable
7 kahilis, kapas, and mats,” end quote. Amongst these,
8 quote, “treasured possessions of the chiefs,” end
9 quote, Kamakau lists, quote, “the famous pololu
10 spears of Makakuikalani and Kanaloakua’ana Puapuakea
11 that they used in the battle of Pu’oa’oaka, and the
12 la’au clubs of Kamalalawalu and Lonoikamakahiki.”
13 Dr. Pili later removed iwi, bones, from the cave
14 and planned to return to remove the moepu, the
15 funerary objects. Shortly after however, the burial
16 cave was consumed in fire destroying everything
17 within. Kamakau suggests that the reason for the
18 fire was, quote, “perhaps it was felt that the things
19 would be taken and belittled; or perhaps it was
20 because a malihini,” or stranger, “had seen these
21 things,” end quote. And indeed, even more would see
22 them since, quote, “Dr. Pili had coveted to take
23 these as exhibits to his native land of England,” end
24 quote. Any claims that funerary objects were not
25 placed with chiefs, or that it is okay to take moepu
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1 found in burial caves, are soundly debunked by this
2 story that reveals, quote, “what trouble can come
3 from abusing the bodies of the dead,” end quote.
4 Finally, the question on the nature of images as
5 funerary objects has also been raised. Again,
6 Kamakau addresses this when he states that, quote,
7 “objects with supernatural force (mana kupua) were
8 placed in them,” the burial caves, “with watchmen of
9 kupua powers to take care of them,” end quote.
10 Indeed, it is the presence of the deities in the
11 burial caves that insures, “they are in the care of
12 the gods (ua molia i ke akua),” end quote. In the
13 aforementioned sketch of Forbes Cave, the images of
14 the gods are placed in front of the burials in a way
15 that suggests they are there as protectors of the
16 cave.
17 In light of the preponderance of evidence cited
18 above, I urge the committee and Hawaii Volcanoes Park
19 to classify the items as funerary. Thank you.
20 DAN MONROE: Thank you.
21 EDWARD HALEALOHA AYAU: Now turn over the
22 remainder of the time to Dr. Kehau Abad.
23 KEHAUNANI ABAD
24 KEHAUNANI ABAD: Aloha no kakou. Mahalo nui for
25 this opportunity to offer testimony today. I do so
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1 in the capacity of a Native Hawaiian and a
2 professional archaeologist. I was raised in a
3 Hawaiian household that was often engaged in learning
4 about, caring for, and documenting wahi kupuna, or
5 ancestral sites, particularly ones in Kohala, my
6 kulaiwi or ancestral homelands. Much of my cultural
7 understandings and sense of responsibility to speak
8 on the issue before you come from Hawaiian values
9 arising from such experiences. My archaeological and
10 formal Hawaiian studies training and research have
11 focused on ali’i, heiau, and burial sites.
12 The question at hand as to whether the five
13 items held by the Hawaii Volcanoes National Park are
14 funerary objects appears to hinge on the issue of
15 intentionality. For it is not disputed that the
16 items came from the cave in Honokoa that Forbes
17 looted and that human remains were in close proximity
18 to the items.
19 The pivotal question appears to be this: were
20 the items placed in the cave due to their
21 relationship to the individuals interred there, or is
22 the relationship between the items and those buried
23 in the cave purely happenstance, a coincidence of two
24 different groups using the same cave for unrelated
25 purposes?
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1 Those who have argued the latter have suggested
2 that the objects were secreted away when the kapu was
3 abolished in 1819 so that the items would be saved
4 from destruction. Yet only one of the five items in
5 question, the ki’i aumakua, would have faced such a
6 threat. Native Hawaiian and Western accounts of that
7 period describe how heiau structures and ki’i were
8 burned, but other objects that were not directly
9 involved in traditional worship were not harmed.
10 Hence, this argument makes no sense for most of the
11 items in the assemblage.
12 Brigham comes to this same conclusion, reporting
13 the following: It has been suggested that the items
14 form the paraphernalia of a temple and were hidden at
15 the time of the general destruction of the idols in
16 1819 in the hope that the storm would blow over and
17 better times ensue, but there is absolutely nothing
18 in the collection to support such a view.
19 If the majority of the items found in the cave
20 were not hidden as a result of the kapu abolition,
21 one might still contend that the ki’i aumakua might
22 have been interred under that circumstance. Yet this
23 argument too seems strained at best. If individuals
24 were hiding beloved aumakua and akua in the cave that
25 also happened to contain human remains, then why
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1 would they have placed them in such close proximity
2 to the iwi, given the defiling nature of human
3 remains? Why would they have placed the ki’i in and
4 amongst the funerary objects of the individuals
5 interred there? Why didn’t they pick another cave
6 that didn’t intrude upon burials? The lack of
7 sufficient answers to such questions reveal the
8 inadequacy of this explanation.
9 Someone might therefore suggest that all the
10 objects came to reside in the cave not due to the
11 kapu abolition and a desire for continued traditional
12 spiritual practices, but because the person who
13 possessed the objects wished to place them in a
14 secure setting, making them available for future
15 generations for purely secular purposes, perhaps
16 involving their value as art forms. If so, then why
17 didn’t they place the objects in a different cave out
18 of simple respect for those interred in the cave?
19 Why wasn’t there assembled a larger sample
20 representing Hawaiian skill and ingenuity, given that
21 the possessor of the items was obviously of chiefly
22 rank who would have had access to any number of
23 examples of Hawaiian artistry? Why didn’t the
24 possessor of the objects handle them in ways that
25 others had cared — that others had when caring for
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1 precious objects, which ultimately brought a large
2 and wide array of objects to remain to this day in
3 the hands of caring family members or formal
4 institutions that curate such objects? Again, this
5 scenario seems unlikely.
6 Yet another argument used to distance the items
7 from their funerary provenance reflects the
8 supposition that nothing was placed with chiefly
9 remains that could identify that chief to his enemies
10 who might then desecrate his bones. This view
11 ignores the well-documented fact that ali’i were most
12 definitely buried with items that would have been
13 recognizable as theirs among those of ali’i society
14 where such items were actively used during the
15 ali’i’s lifetime. Kamakau describes an incident that
16 you just heard about from Dr. Tengan, and I’ll just
17 add that the helmets, capes, kahili, kapa, and mats
18 would typically have displayed decorative patterning
19 or other specific aspects of workmanship
20 distinguishing them as unique and belonging to a
21 specific ali’i. Kamakau’s description of the spears
22 of Makakuikalani, Kanaloakua’ana Puapuakea, the clubs
23 of Kamalalawalu and Lonoikamakahiki underline that
24 truth.
25 In more general terms, Kamakau also records that
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1 “all the favorite articles of the living person were
2 laid” with them when they were buried. In describing
3 the cave of Pohukaina on Oahu, Kamakau further writes
4 that “this is a burial cave for chiefs, and much
5 wealth was hidden away there with the chiefs of old.”
6 Indeed, precious and personal moepu commonly were
7 laid to rest with the deceased, especially in the
8 case of ali’i. As these examples document — as these
9 examples document, arguments that suggest otherwise
10 are highly inconsistent with well-known Hawaiian
11 burial practices.
12 Also inconsistent with Hawaiian cultural
13 perspectives is any argument that would suggest that
14 moepu would have been placed — would have had to have
15 been placed in the closest of proximity to the
16 remains of a deceased individual in order for them to
17 be considered moepu. Rather, Hawaiian notions of
18 kapu places, sacred or restricted spaces, whether
19 referring to burials, heiau, or the area surrounding
20 a high-ranking ali’i, involve the concept of a
21 central sacred focal point exuding mana that creates
22 a wide zone of kapu space associated with that focal
23 point. For instance, the mana emanating from the iwi
24 in a burial cave would define the entire cave as a
25 burial. This would be parallel to the area
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1 surrounding a heiau luakini, which for instance in
2 the case of Hikiau in Kealakekua, Kona, resulted in a
3 large wall being built about 360 feet from the actual
4 heiau structure which defined the sacred space
5 associated with that heiau. Similarly kapu was the
6 space surrounding an ali’i ni’aupi’o, one of the
7 highest sacred rank, that in the case of a ruling
8 chief’s residence was delineated by a sacred aha
9 cordage stretched between the pulo’ulo’u posts
10 outside the entrance to the enclosure of his house.
11 Following this pattern of Hawaiian thinking, there is
12 no reason to believe that the only space where moepu
13 might have been placed would have been in immediate
14 contact with the iwi.
15 Unlike the above hypothesized scenarios, one
16 that is far more in line with known facts is that the
17 objects in question, as with those from the same cave
18 determined to be funerary objects by the Bishop
19 Museum, were the moepu of one or more of the
20 individuals interred in the cave. They are not
21 random set — they are not a random set of artifacts.
22 They are all not items that would have been equally
23 threatened by the kapu abolition. They are objects
24 that would have been the highly personal possessions
25 of someone of chiefly rank, aumakua to remain with
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1 them to guide a transition, a papamu that would have
2 logged hundreds of hours of play as an ali’i hones
3 his skills to strategize in the battlefield or in the
4 complex political context of chiefly circles, a
5 kupe’e worn by one interred or by a loved one of one
6 interred, a possible war implement that might have
7 brought a chief success in a crucial engagement, a
8 water gourd that was always immediately at hand to
9 quench the thirst of this chief.
10 These are items that were to remain with their
11 ali’i. They do not belong to the Hawaii Volcanoes
12 National Park. They do not belong to the people of
13 Hawaii. They do not belong to all Native Hawaiians.
14 They are moepu that, following Hawaiian cultural
15 values, the dictates of NAGPRA, and rules of common
16 decency, should return to their rightful owners.
17 Mahalo.
18 DAN MONROE: Thank you. Any additional
19 testimony?
20 EDWARD HALEALOHA AYAU: No.
21 REVIEW COMMITTEE
22 DAN MONROE: Thank you all for your testimony.
23 Let’s turn it over now for questions on behalf of the
24 Review Committee. Garrick.
25 GARRICK BAILEY: First question, and I didn’t
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1 catch your name, the first speaker.
2 TY KAWIKA TENGAN: My name is Ty Tengan.
3 GARRICK BAILEY: Ty.
4 TY KAWIKA TENGAN: Tengan.
5 GARRICK BAILEY: Tengan. Okay. In your — what
6 you said is very important because what you have done
7 is you’ve said there are — there are objects buried
8 with ranking individuals. And some of the examples
9 you gave were quite interesting about the capes and
10 spears and — now, those are to be expected. I mean,
11 if you’re going to do it with a chief or a ranking
12 person, you’re going to expect to have the capes and
13 that part. What about the objects from Forbes Cave?
14 Are there other cave burials in which such objects
15 appear? That’s — I mean, is this unique or not? And
16 if it’s not unique, can you give us some examples of
17 similar objects that appeared in burials?
18 KEHAUNANI ABAD: I hope you would allow me to
19 reference the other objects that were found in the
20 cave, besides just the five that we’re talking about,
21 as certainly they would be considered under the same
22 sort of analysis.
23 GARRICK BAILEY: Yes.
24 KEHAUNANI ABAD: Let me take something as, I
25 guess, of least worth in the set of objects. I think
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1 what you’re looking at is that the highly valued
2 items like feathered capes would be found with ruling
3 chiefs. But let me give you an example of glass
4 beads. There are a number of glass beads found in
5 this collection, suggesting an early historic burial.
6 Glass beads are one of the — are the most common
7 artifact found in early historic burials, and they
8 are regularly found with burials both associated with
9 maka’ainana as well as ali’i. I can give you some
10 examples of burials in, I believe in Aniho’omanu
11 (phonetic), burials in Anahola, on Oahu, burials at,
12 let’s see, certainly Kalailoa (phonetic), and the
13 list could go — it could be quite extensive. And
14 these are just off the top of my head. If you talk
15 to folks who know this sort of subject well, they’ll
16 tell you it’s a very prominent sort of item in there.
17 So it comes on that other set of the spectrum, right,
18 something that’s of lower value.
19 GARRICK BAILEY: Just remember, I’m a cultural
20 anthropologist. I have no cultural knowledge of
21 Hawaii and Hawaiian burial practices at all. I’m
22 just trying to form — and this is one of the issues
23 that has been raised and one of the issues that to me
24 seems to be important, that these do not appear to be
25 the types of objects that would be placed in a
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1 burial. And that’s — so that to me is one of the
2 issues that you have to answer and say — and convince
3 — not convince, but to show me that this — this is
4 not an unusual situation in this regard. And that
5 we’re dealing with the types of objects, not the
6 number of objects. It’s the — for example, and we’re
7 just dealing with the five in this particular case.
8 KEHAUNANI ABAD: Okay.
9 GARRICK BAILEY: I can understand your argument
10 about the gourd. That’s reasonable. The cutting
11 tool is reasonable. The statue of the woman, can she
12 be identified as to a particular type of individual
13 and how that would be — how that would fit?
14 TY KAWIKA TENGAN: I just want to respond as
15 well. I think with regards to the example of
16 Dr. Pili, the point that he makes of valuables of
17 every description in profusion is important. Even if
18 he doesn’t enumerate them explicitly, it may be
19 inferred that they are there. But also important I
20 think is the fact that he also notes, as I mentioned
21 on the final paragraph, objects with supernatural
22 force, and we can assume that they’re ki’i that have
23 this supernatural force, these images of the gods
24 ,were placed in the burial caves with watchmen of
25 kupua powers to take care of them.
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1 And this is part of the rite, even if it doesn’t
2 necessarily show up with these other lists of the so-
3 called precious treasures above. This is still part
4 of the rite that is documented, that you do have
5 these there that establish the sacred nature of that
6 space. And I think that needs to be understood as
7 part of the context in which we understand the larger
8 cultural processes of the rites related to the burial
9 caves and to make them sacred and to have them as a
10 place that are protected. So in that case, I think
11 there is a strong example there.
12 GARRICK BAILEY: Okay.
13 DAN MONROE: Other questions?
14 VINCAS STEPONAITIS: Yes. I again have some
15 questions, just about clarification. I’m looking at
16 the letter that you wrote on November 23rd, and I just
17 want to make sure that I understand what you feel
18 should be done. In the letter, if I understand it
19 correctly, you say that for these five items, you
20 believe one should be classified as human remains and
21 the other four as funerary objects. What I thought I
22 heard you say today was that you want all five
23 classified as funerary objects. I just wanted to
24 clarify that point.
25 EDWARD HALEALOHA AYAU: Part of the confusion, I
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1 guess, in the case is the status of the iwilei or the
2 human clavicle. Initially, Hawaii Volcanoes National
3 Park identified it as human remains. So without the
4 benefit of any response when we submitted our initial
5 three claims, we didn’t know whether or not they were
6 only going to consider it as human remains or whether
7 the object was also being considered as funerary
8 objects. So when we initially filed our claims for
9 them we identified them as either, because we didn’t
10 know whether these are human remains, which makes the
11 items associated, or cultural — I mean a funerary
12 object, which makes the items unassociated.
13 VINCAS STEPONAITIS: So what would your current
14 request be or — I mean, in terms of a resolution?
15 EDWARD HALEALOHA AYAU: That the items be
16 identified as unassociated funerary objects, that —
17 I’m sorry, that the human clavicle be identified as
18 an unassociated funerary object. In the alternative,
19 if that’s not accepted, that it certainly be
20 identified as human remains.
21 VINCAS STEPONAITIS: Okay. And I also have a
22 question for the folks from the park. You said that
23 you have not yet made a decision about the
24 classification of these items. When do you
25 anticipate making a decision? Do you have a timeline
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1 in mind or is it open-ended?
2 CINDY ORLANDO: No, It’s not open-ended. I
3 appreciate the question, however. We did send out
4 correspondence to all potential claimants and
5 interested individuals March 1st, and we asked for a
6 60-day response time. We are starting to get
7 responses from individuals who are interested in this
8 particular issue.
9 VINCAS STEPONAITIS: So but do you have — so when
10 you get the responses, what’s your timeline?
11 CINDY ORLANDO: It’s our anticipation that once
12 we receive all of the responses what we’re proposing
13 is to convene a meeting with all of the potential
14 claimants and interested individuals and at that
15 point try to make a determination as to the cultural
16 affiliations and/or categories, and then come back to
17 the NAGPRA Review Committee with any need for further
18 advice from all of you.
19 VINCAS STEPONAITIS: I guess let me just
20 reiterate my question. What I heard was a set of
21 steps, but I still — I’m trying to get a sense of
22 time.
23 CINDY ORLANDO: Well — well, maybe by the end of
24 the year. Is that reasonable? At 60 days from —
25 VINCAS STEPONAITIS: I’m not asking anyone to
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1 sign an agreement here. I’m just asking for your
2 general sense.
3 CINDY ORLANDO: I think that would be — that
4 would appear to be a reasonable time frame, assuming
5 we can pull — as I mentioned, we’ve got 46 potential
6 claimants, pulling everybody together and trying to
7 reach some consensus.
8 VINCAS STEPONAITIS: I guess the reason I ask the
9 question is that I wonder what your time frame is
10 versus the time frame it would take us to sort of
11 come to a determination and publish a Federal
12 Register notice. I mean, if this was going to
13 happen.
14 LAURA CARTER-SCHUSTER: May I respond? I think
15 when you ask for a definite timeline, I think it’s
16 very difficult in a situation like this where you
17 have individuals that are going through a process of
18 making a decision about their future. And I think
19 it’s very difficult to put a timeline in terms of
20 individual feeling for a particular item. It’s a
21 process that each person that is coming forward to us
22 is going through.
23 So I, you know, as Cindy said, I mean, there’s
24 certain things of the law that we need to follow.
25 But at the same time, I think that the consultation
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1 process is as long as it is as it takes for those
2 individuals and the organizations to come to their
3 own conclusion about these items. It’s not for us,
4 necessarily, to make a decision at this point and —
5 or is it, I think, for us to make a decision in terms
6 of yes, we’ll get it done by the end of the year. I
7 think we really want to allow the claimants, both the
8 individuals and the organizations, to come together
9 and make their own conclusions on this. So it is
10 with that that we would go forward and we have been
11 moving forward since we’ve initially started
12 consultation in 1995.
13 DAN MONROE: Madam Chair.
14 ROSITA WORL: Thank you, Mr. Chair. First of
15 all, I would like to, if we could, get a copy of your
16 statement, I’m sorry. I didn’t get your name, but I
17 think you had a lot of important information there
18 that would benefit us in our deliberations.
19 I have a couple of questions from the Park
20 Service. And I — first of all, I appreciate your
21 process which seems to be very thorough and quite
22 lengthy. And it seems to be, from my perspective,
23 from my experiences with museums and other agencies,
24 it seems to be very different in terms of your trying
25 to resolve the classification of the objects,
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1 identifying all potential claimants rather than
2 responding to repatriation claims. And I’m just
3 wondering how you see that process. I mean, it is
4 different from other agencies where I don’t know of
5 others that have spent how many years in this
6 consultation process and not yet wanting to respond
7 to repatriation claims in a timely manner, I guess,
8 you know, maybe.
9 CINDY ORLANDO: You know, I think I tried to
10 reference in my remarks the fact that early in 2000
11 the process became much more complicated as more
12 Native Hawaiian individuals and organizations became
13 interested and wanted to exercise their right as part
14 of potential claimants as well. I am not familiar
15 with what other agencies do ,and so I can’t really
16 respond to the distinction between what we are doing,
17 except that as I understand the law we are required
18 to consult and this is part of that, absolutely.
19 ROSITA WORL: Right.
20 CINDY ORLANDO: And let me please assure you that
21 there will be timely responses to any requests as we
22 go forward. And I think Keola would like to comment
23 as well.
24 KEOLA AWONG: Aloha. One difficult thing is is
25 NAGPRA and the fact that, you know, the Native
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1 Hawaiian organization, we don’t have tribal leaders
2 here. And to reach out into the community is mainly
3 the way to go about it, I think. And taking the time
4 to go to the community, it takes a lot of time, which
5 is why it’s hard to answer your question with a
6 timeline.
7 ROSITA WORL: I guess the point is that I wanted
8 to say is that it seems as if it’s different in terms
9 of trying to identify all potential claimants, and
10 that’s the difference that I see.
11 But the second question that I have is I’ve
12 noticed that in this dispute, as well as in another,
13 is that there’s some sort of relationship with the
14 Bishop Museum and where you give advice to the Bishop
15 Museum insofar as how to proceed with repatriation.
16 I’m just wondering if you would elaborate on that for
17 us.
18 CINDY ORLANDO: That is not my responsibility to
19 give advice to the Bishop Museum.
20 ROSITA WORL: Okay. I’m sorry then. I was just
21 reading from a letter that where —
22 CINDY ORLANDO: That letter was not written by
23 the park, nor did we see the letter until it was
24 submitted to us in your package.
25 VINCAS STEPONAITIS: I assume that that letter
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1 comes from someone higher in the National Park
2 Service bureaucracy over your park, is that —
3 CINDY ORLANDO: Previously that’s correct. I
4 think that organizationally we’ve clarified — we’ve
5 clarified that for the public and hopefully for you
6 all as well. I report directly to the regional
7 director in Oakland, who reports to the Deputy
8 Director and Director in Washington, DC, and
9 ultimately the Secretary of the Interior.
10 VINCAS STEPONAITIS: I would just — this harks
11 back to our last face-to-face meeting where I think I
12 actually made a request on behalf of the committee to
13 get an organizational chart, which someday I would
14 like to see. But that’s another matter.
15 CINDY ORLANDO: Okay. I’d be happy to make sure
16 that somebody —
17 ROSITA WORL: Yes, I guess I just have some —
18 CINDY ORLANDO: — gets that to you.
19 ROSITA WORL: So is the Pacific Area Director,
20 NPS, is that — who is that? Where is that? That’s
21 not you.
22 CINDY ORLANDO: No, that’s not. I’m the
23 superintendent at Hawaii Volcanoes.
24 ROSITA WORL: And by the way, we do have the
25 organizational chart.
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1 VINCAS STEPONAITIS: Oh.
2 DAN MONROE: Do you have other questions?
3 ROSITA WORL: No.
4 EDWARD HALEALOHA AYAU: And I think part of
5 what’s spurred this dispute is, you know, Hawaii
6 Volcanoes National Park acknowledges that they have a
7 consultation responsibility. We submitted the claim
8 in 1999 initially. We’ve never received a response
9 that addresses the information and the documentation
10 in the claim that we filed. You know, we did it
11 twice in ‘99 and again in 2001. We have yet to
12 receive a direct response and so, you know, part of
13 what we’re seeking in terms of resolution is — I
14 fully understand what Superintendent Orlando is
15 saying and what their responsibilities are with
16 regard to receiving additional claims and conducting
17 consultation.
18 We want them to respond to what we submitted in
19 terms of if consultation is going to be meaningful,
20 then respond back to us that either, yea, we agree,
21 or no, we don’t. The only way — the only direct
22 response we ever received in it was that October — I
23 mean, that March 5th letter, I think, from Bryan Harry
24 to Dr. Brown. I mean, it wasn’t even to us. And
25 which now we know they didn’t accept the information
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1 that has been submitted. And that’s what this is
2 about. We’re asking for the consultation to be
3 meaningful. If someone submits information that
4 don’t send them back a letter saying, please submit
5 us information once you think this – we did, three
6 times. This is the fourth time we’ve done it.
7 DAN MONROE: I have a couple of questions. Since
8 1995, how many consultation meetings have you held?
9 LAURA CARTER-SCHUSTER: Do you want me to speak
10 to that?
11 CINDY ORLANDO: You can speak to that, but I
12 wanted to just respond to Eddie’s comment, if I
13 could, before we get into that question because I
14 don’t want to lose that. We did not — we did not
15 respond, the National Park Service did not respond,
16 and I acknowledge that and we will respond to you.
17 We did respond collectively to a number of claimants.
18 We do have that in the matrix I provided to you, and
19 again, we acknowledge the fact that you did not get a
20 personal response.
21 DAN MONROE: In how many years?
22 CINDY ORLANDO: Well, we did respond, again,
23 collectively to the group in, I think, April of 2001.
24 Again, I’ll defer to my colleagues. April of 2000,
25 excuse me, and then again in 2001. And if you look
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1 at the matrix we provided we have a summary of all of
2 the communications between the Park Service and not
3 only Hui Malama but other Native Hawaiian
4 organizations and individuals and interested folks.
5 DAN MONROE: In that matrix, how many direct
6 meetings have you held with Hui Malama or any other
7 claimants?
8 CINDY ORLANDO: Well, do you want to speak to
9 that? It’s hard being the new kid on the block.
10 KEOLA AWONG: We’ve had five — five potential
11 claimants that have come to see the items and have
12 also voiced their — their mana’o or their thoughts on
13 these items. So they’ve come individually, and
14 they’ve come down to see the collection and I’ve let
15 them in on each account.
16 DAN MONROE: So just one little last refinement.
17 So a representative of the park has met with
18 claimants to discuss their claims, or a
19 representative of the park, which is it, has been
20 there to listen to what they have to say, which?
21 LAURA CARTER-SCHUSTER: Both, excuse me, if I can
22 answer to that question. We have had certainly not
23 anything formal. We haven’t had a notice of a formal
24 meeting, and that was because we have just in the
25 last few years been able to identify. We needed to
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1 know ourselves what we had, and so we have been going
2 through in terms of trying to apply the standard of
3 the law and the process of NAGPRA and look at all of
4 the different lines of evidence to understand what it
5 is that we actually have in our collection. And part
6 of doing that, in order to find out who we need to
7 consult with, we do need to reach out. And that was
8 primarily with a letter.
9 So we sent out 128 letters of — letters to all
10 individuals and organizations in Hawaii. And of that
11 128, we had 10 responses. Hui Malama was not one of
12 them, just to – just to point that out. We have sent
13 a number of letters to Hui Malama and others where we
14 don’t have — we didn’t get responses but we do have
15 the return receipt. So we know that there has been –
16 and that was our formal portion of it.
17 Informally, as Keola has said, we have a number
18 of meetings with individuals that come to us and say
19 – they call up, and we have always been open. We
20 have always had an open policy and saying, if you
21 want to come. We welcome you whenever we have an
22 opportunity. Both Keola and I have been attending
23 Hawaiian Island Burial Councils for years, and the
24 meetings. And we communicate at those meetings to
25 individuals that talk to us. They come up to us. We
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1 go to them. So there’s an awful lot of exchange.
2 It’s on a very informal basis, but we are moving
3 forward. And a lot of it is, as Cindy has pointed
4 out in her testimony, is that it’s the education.
5 It’s understanding that Federal involvement with a
6 Federal law. That is unheard of in Hawaii. I mean,
7 we don’t — it doesn’t — because we’re an island in
8 the middle of the Pacific, we rely primarily on our
9 families here, not on the Federal government to come
10 in and say, you know, this is what you should be
11 doing.
12 DAN MONROE: I’d just observe that it’s a big
13 country. There are lots of Federal agencies
14 throughout the country. They’re all different, but
15 nonetheless, it’s still a Federal law.
16 Garrick.
17 GARRICK BAILEY: One of the — and I think you
18 should aggressively go out and try to involve various
19 Native Hawaiian groups and talk to them. But – and I
20 think this is one of the things that is getting Vin
21 is where is the direction? You can talk for the next
22 20 years and then what happens to all these ideas? I
23 mean, I will guess that they all see – there’s a lot
24 of different points of view and perspectives. I
25 mean, somebody is going to come in and say, it
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1 doesn’t look like anything I would have buried with
2 my grandfather. Others will say it is. I mean, what
3 do you do when there’s disagreements? And there’s
4 going to be legitimate disagreements and you can go
5 on, as I said, for 20 years and then where? And so
6 what is the — in many ways it’s — I think it’s — I
7 commend you for doing it, but on the other hand, this
8 has to do with other issues that we’re going to get
9 to, and that is where is the ultimate authority as
10 far as Native Hawaiians are concerned? There isn’t
11 one.
12 LAURA CARTER-SCHUSTER: That’s correct.
13 DAN MONROE: Go ahead, Vin.
14 VINCAS STEPONAITIS: I have two questions, which
15 I hope are quick questions. A number of the
16 arguments we’ve heard or a number of the things we’ve
17 heard from this table were responses to ideas
18 presented in the Rose Report, which I did get a copy
19 of and I appreciate that. Can — can you tell me
20 something about who Mr. Rose is and what his
21 background is in writing this report, just so I know?
22 LAURA CARTER-SCHUSTER: Dr. Roger Rose has — was
23 up until – I’m not sure what the year was that he was
24 released from employment at Bishop Museum, but he had
25 been the curator of the collection for the Forbes
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1 Cave collection at the Bishop Museum for nearly 28
2 years, just shy of 28 years. And he has his
3 background is in anthropology, starting back when I
4 was quite young. But it was quite, quite, quite a
5 long history of association with Hawaiian artifacts,
6 as well as Hawaiian culture and anthropology.
7 VINCAS STEPONAITIS: And I also have a quick
8 question for this table, as a fellow archaeologist, I
9 want to ask the archaeologists at this table a
10 question. We often — as we’ve been hearing testimony
11 and reading things, I get sometimes two seemingly
12 conflicting ideas. I mean, at certain times things
13 are presented as being patterns that are across the
14 Hawaiian Islands, all ali’i did this, and other times
15 I hear very strongly the message that each island is
16 different. And I know that things can change through
17 time. So I just wondered if you could comment on
18 that, specifically with reference to the testimony
19 you gave a few minutes ago. I mean, these patterns
20 that you’re talking about, are they — that you’re
21 argued, are they island-wide or are they based on a
22 specific island only? And I guess this question
23 could go to both.
24 KEHAUNANI ABAD: If you’re particularly looking
25 at the examples that we brought up from Kamakau, the
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1 most extensive example comes from an area very close
2 to the site in question. Waimea is part of the same
3 moku of kohala (phonetic), so it’s extremely
4 relevant. Another more general example that I cited
5 in my testimony comes from Oahu where Kamakau is
6 again making the point that valued items in profusion
7 were deposited with the remains of ali’i. I’m not
8 sure if that’s the issue that you’re most interested
9 in.
10 VINCAS STEPONAITIS: Yeah. That’s a good answer.
11 But – and then what about the sort of the temporal
12 aspect of it?
13 KEHAUNANI ABAD: Certainly you see that through
14 time there’s — it would be hard to date all of these
15 items, but I think if anything you would see most
16 likely a pattern of increased secrecy in burial. You
17 would see a pattern of continuity in the most core
18 concern to take care of these ali’i and honor them in
19 every way possible. I’m not sure exactly. If you
20 could ask a more specific question, I’d be happy to
21 address that. I’m not sure —
22 VINCAS STEPONAITIS: Well, I think — I guess
23 then, but is the — these items, do they date from the
24 historic period or is there a certain span of time
25 involved?
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1 KEHAUNANI ABAD: I can imagine — the notion of
2 depositing valuable items with chiefs, is that a — is
3 there a temporal difference in the pattern there? Is
4 that —
5 VINCAS STEPONAITIS: Let me ask a better
6 question.
7 KEHAUNANI ABAD: Okay.
8 VINCAS STEPONAITIS: I realize my question was
9 very vague. Is there a chance that the cave was used
10 over a long period of time and that there may be
11 different events that sort of occur in the cave? Do
12 you see what I mean?
13 KEHAUNANI ABAD: I understand. The temporal —
14 VINCAS STEPONAITIS: It’s been argued that there
15 are sort of different things going on at different
16 times and that these all sort of come together in
17 this one physical space. Looking at it as an
18 archaeologist, would you say that it’s all sort of a
19 very tight assemblage in time or —
20 KEHAUNANI ABAD: Extremely tight. Extremely
21 tight, and the reason for that — reasons for that
22 include the fact that there’s — from the little that
23 we do know about the burial bundles there, they were
24 highly uniform. They represented skulls and long
25 bones wrapped similarly in kapa. Teeth were
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1 uniformly missing, suggesting that all of these
2 individuals underwent a similar process. In being
3 interred — in going through the mourning of a chief,
4 there’s every reason to believe that they have a
5 direct relation to the individual buried in the — in
6 burial chamber B. The 18 individual burial bundles
7 in chamber C would certainly be seen as moepu’u,
8 death companions of the chief, interred in the wa’a
9 in burial chamber B.
10 VINCAS STEPONAITIS: Thank you.
11 DAN MONROE: I have a couple of other questions
12 regarding the Rose Report. Do you really — do you
13 consider that report to be the primary vehicle by
14 which you’ve tried to understand the significance of
15 these objects?
16 CINDY ORLANDO: Well, I think as a document that
17 brings certainly a full range of information together
18 in one place, I think it does help us certainly make
19 a decision. The material itself cannot really be
20 seen as individuals. You were asking us about the
21 individual pieces, and it’s really the (comment
22 inaudible) that is of value here. And the — to speak
23 to your question, yes, the report provides that basis
24 and context of the collection, so it certainly helps
25 us move forward.
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1 And I’d like to answer a question, with the 27
2 years of archaeological work that I’ve done in Hawaii
3 here, I’d like to answer your question regarding —
4 VINCAS STEPONAITIS: Sure. I would welcome that.
5 CINDY ORLANDO: — regarding the burial cave or
6 the cave that we’re speaking of. And it is, this
7 particular cave from the information that we have,
8 which is very little, it’s been very disturbed over
9 the years from the very beginning from 1905 on. So
10 the context in there in terms of archaeological
11 context is very difficult to discern. But by looking
12 at the artifacts, the historic artifacts, whether
13 they’re beads or whether they’re ceramic shards, or
14 whether it’s a Chinese fan that’s hand-painted, those
15 things can be — you know, you can get a core date,
16 sort of a, you know, a time when they would have come
17 into the islands and time after. And so in terms of
18 historical burials, what I have seen in my experience
19 in doing analysis of burial materials here in the
20 islands, it has been that as you get into the 19th
21 Century you see a lot of items like people are buried
22 in shirts and things like that. And so you see a lot
23 of Western items. You see a lot more beads. Beads
24 start coming in after the 1830s. So it’s this early
25 — this collection here is, as the archaeologist at
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1 the end here says, is that it is a tight – there are
2 — some of the items do present themselves into a
3 tight range, but not all of them.
4 DAN MONROE: Just —
5 VINCAS STEPONAITIS: Can I just ask one more
6 question before we lose this thought?
7 DAN MONROE: Quickly.
8 VINCAS STEPONAITIS: That all the items in
9 question — you’re talking about all the items in the
10 cave or just the five?
11 CINDY ORLANDO: I’m just talking about — not only
12 the five, but it’s the full complement of the Forbes
13 Cave collection itself.
14 DAN MONROE: I would argue that actually you have
15 to do look at the claims on a one-by-one basis. It’s
16 not the collection as a whole as you just stated.
17 I have some observations to make. I’ll make
18 them quickly regarding the Rose Report, which you
19 mentioned you would appreciate observations, and it
20 really is an observation on my part individually as
21 to the process by which you’ve been going forward.
22 And it doesn’t prejudice the outcome of this
23 discussion. But I would say it would be very good to
24 have participation by a broader range of experts in
25 the report. You’ve got a heavy loading of experts
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1 from — not from the — not from the Native Hawaiian
2 community.
3 I think that it’s a bit strange that this is a
4 161-page report that ends with the notion that there
5 is some kind of analogy between removing human
6 remains and associated or unassociated funerary
7 objects from a cave and the notion that that’s in
8 some sense the equivalent to or that it’s analogous
9 to salvaging things from a shipwreck. I think that
10 it would make sense to give some consideration to the
11 fact that clearly those who were involved in this
12 process thought it was illegal. It’s documented at
13 the Bishop. It’s frequently documented, and there’s
14 no mention whatsoever of that as a consideration.
15 There are a couple of other issues I think that
16 are pertinent that you may want to consider as you go
17 forward in this process, depending on what we do with
18 this in terms of disposition. But it seems to me
19 that there is considerable latitude for more direct
20 consultation, not for just acquiring information, and
21 for acquiring information, when you acquire it, from
22 a broader base of folks.
23 I also have one question that’s a more technical
24 one. It’s important. I’m not sure that the
25 committee picked up on it. But we received just
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1 before your testimony this document, which is from
2 the Solicitor’s Office, I assume, on the status of
3 public lands. It was dated August 6, 2002. Could
4 you give me very concisely a background as to why we
5 received that at this point? Why wasn’t that in our
6 packet?
7 VINCAS STEPONAITIS: Can I just clarify? That
8 came, I think, in the same Fed Ex package that
9 arrived before the meeting.
10 CINDY ORLANDO: Yes.
11 VINCAS STEPONAITIS: So this —
12 DAN MONROE: Is that correct?
13 CINDY ORLANDO: Yes.
14 VINCAS STEPONAITIS: I saw it. I had it with me
15 on the plane.
16 CINDY ORLANDO: It was according to our records
17 sent out earlier. We brought additional copies today
18 for the public.
19 DAN MONROE: And so this is information that’s
20 long been available and accessible?
21 LAURA CARTER-SCHUSTER: Yes.
22 CINDY ORLANDO: Yes, now —
23 DAN MONROE: I’ll come back to that point. I’ll
24 come back to that point. Are there any other
25 questions on the part of the committee?
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1 ROSITA WORL: I mean, we just might note for the
2 record that what we’re referring to is the record and
3 the subject is on the status of public lands in
4 Hawaii. That’s what we’re talking about here.
5 DAN MONROE: Right.
6 ROSITA WORL: That we — that the committee has
7 just now received, except for Vin. I guess he was
8 able to receive it before.
9 GARRICK BAILEY: I had it for some time. I don’t
10 remember. I guess I’ve received so many
11 communications. I’m guessing a week, week and a
12 half. I was really surprised that this issue hadn’t
13 been raised earlier, because we are dealing with the
14 status of land and land ownership at particular
15 times. And I was — I thought it was quite
16 interesting that Hawaii is more like Texas in regard
17 that there is no — there are no Federal lands. There
18 are only state lands, which has all sorts of legal
19 implications as far as Federal laws are concerned.
20 DAN MONROE: We may wish to come back to that.
21 Just one last question on the Rose Report. You note
22 in the report — or the author notes, not the park,
23 that there was, in fact, a Republic of Hawaii law not
24 regularly enforced dealing with disinterment of human
25 bodies. And presumably it’s that law that the Bishop
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 157
1 Museum and the, quote, “discoverers,” unquote, of
2 this cave kept referring to in their communications
3 with one another because they understood in their
4 minds at least that what they were doing was illegal.
5 What is the park’s position on that legally? I
6 mean, one could make a case that if that law was in
7 place that, in fact, the acquisition of these remains
8 and other objects was illegal.
9 CINDY ORLANDO: Excuse me. I’d like to introduce
10 our solicitor, Kim Fondren. You mentioned the L
11 word, and that triggers our solicitor.
12 DAN MONROE: Right. And we have about three
13 minutes to answer that question. I’m sorry.
14 KIMBERLY FONDREN: Perfect, because you asked a
15 really hard question and I don’t want a lot of time.
16 Yeah, I’m Kimberly Fondren. I work in the
17 Solicitor’s Office. I should explain I don’t
18 normally work in front of the committee. I normally
19 do compliance work.
20 I have only been assigned to this issue for
21 about two and a half weeks, so I am almost as
22 ignorant as anybody in this room, but I’m trying to
23 learn fast. I have reviewed a lot of the documents.
24 At this point in time, I don’t consider them to be
25 determinative. I don’t mean that I won’t get there.
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 158
1 I’m just saying that as of now, given the documents
2 that we’ve had to review, I don’t think that the
3 matter is a settled matter. I certainly think there
4 are some issues in the correspondence between the
5 people at Bishop that raise questions. I think that,
6 you know, we’re going to have to figure that out. I
7 think it is a matter for the Solicitor’s Office and
8 not necessarily for the park. And I am in the
9 process of diligently working on that, given that I
10 have, as I said, been assigned to this for two and a
11 half weeks and I’ve been trying to clean up an
12 administrative record. I’m doing what I can.
13 Yes, Ma’am.
14 ROSITA WORL: Who was providing legal counsel
15 then before you?
16 KIMBERLY FONDREN: I don’t know who that was,
17 ma’am. It wasn’t —
18 ROSITA WORL: I mean, you were —
19 KIMBERLY FONDREN: It wasn’t me. I have worked
20 in the Solicitor’s Office for 12 years. I normally
21 do compliance work for the Bureau of Land Management
22 in the past and the Fish and Wildlife Service, and I
23 recently started doing work for the Park Service.
24 I don’t think as a legal question it’s actually
25 ever been addressed. I mean, I think that’s probably
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 159
1 unfortunate, but I don’t think it’s happened. I
2 can’t find any evidence that it’s happened.
3 DAN MONROE: It’s interesting that’s the case and
4 I appreciate your candor —
5 KIMBERLY FONDREN: Yes.
6 DAN MONROE: — because one could make a case,
7 unless there is some set of factors or conditions
8 that are not known, that the park has no right of
9 possession whatsoever, and that these things if they
10 were acquired in violation of this law were not
11 legally required. So understand you haven’t looked
12 at that. You’re going to look at it, and you’ve
13 answered my question.
14 KIMBERLY FONDREN: That’s exactly — I mean, if
15 the issue is what one can make a case about, one can
16 make a case about every single issue involved in this
17 particular set, collection. And I have, at this
18 point, about ten years of experience doing NAGPRA
19 collections. This is a very royaled and complicated
20 set of issues, even by the standards, I think, of
21 NAGPRA. It does need to be looked at. It needs to
22 be looked at quickly and it needs to be looked at
23 thoroughly, and to the extent I’m allowed to, and I
24 expect to be not only allowed but encouraged by the
25 toe of a boot to do so, I expect I’ll be looking at
Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298 160
1 it both ways.
2 DAN MONROE: Very good. I thank you for your
3 answer.
4 KIMBERLY FONDREN: Yes, sir.
5 DAN MONROE: I thank everyone for their
6 testimony. It’s 5 o’clock. I’m turning this over to
7 the Chair.
8 EDWARD HALEALOHA AYAU: One last thing. Where
9 can we get a copy of this report that you’re all
10 referring to?
11 CINDY ORLANDO: It’s available on the table.
12 ROSITA WORL: Well, okay. Thank you very much.
13 Well, thank you very much for your patience and your
14 testimony here. I want to just remind folks that we
15 will convene tomorrow sharply at 8:30. The affected
16 parties and members of the public may wish to
17 testify. We’ll have an hour allocated for each of
18 the dispute cases tomorrow and we’ll see you tomorrow
19 morning. Thank you very much.
20 MEETING RECESS
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Lesa K. Hagel Consulting Rapid City, South Dakota (605) 342-3298