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Applying NAGPRA in Hawaii

HONOLULU – The Native American Graves Protection and Repatriation Act is largely considered a success in the mainland United States, not only for the Native tribes for which it was intended, but also for archaeologists.

The act provides mechanisms for museums to return human remains, funeral objects and sacred objects to the Native communities where they originated. Thousands of objects and bones have been returned and reburied without controversy.

But in Hawaii, home to the act’s sponsor, Sen. Daniel Inouye, who is of Japanese descent and was chairman of the Indian Affairs Committee when it passed in 1990, it has caused deep divisions within the Native Hawaiian community and resulted in the disappearance from public view of some of the islands’ most beautiful works of art.

On the mainland, where the 560-odd Native tribes are legal and physical entities, museums had no problem identifying to whom the bones and objects should be returned. And many of these communities have clear traditions of burying their dead with funerary objects.

But Hawaii has no distinct tribes, so deciding “to whom you give the objects back” has been a major problem, said Betty Kam, vice president for cultural resources of the Bishop Museum in Honolulu, the main repository of Hawaiian and Polynesian art and culture.

The act gave one Hawaiian lawyer who was working in Washington on Inouye’s staff, Edward Ayau, an advantage from the start. It names the organization he founded while the act was being drafted, Hui Malama I Na Kupuna O Hawaii Nei (“Group Caring for the Ancestors of Hawaii”), as one of two Native Hawaiian organizations habilitated to receive objects listed under the act (the other is the state Office of Hawaiian Affairs), though other organizations could qualify, too.

When Ayau returned to Hawaii after the act’s passage, his position on what constitutes a funerary object there set him apart from mainstream archaeologists and many Hawaiians, who hold that Hawaiians almost never used funerary objects and were buried in secret so that their enemies could not appropriate their long bones, in which their spirit are believed to reside. Usually, nothing to identify the bones was placed near them, they said. Ayau, in contrast, asserted that in the remote caves where many bodies were placed, the objects found near these bodies are in fact funerary objects that should be returned to the cave with the remains.

In the mid-1990s, after asking for, receiving and re-interring thousands of bones without controversy, Ayau set his sights on the most important collection of Hawaiian objects – the Forbes Collection, after the man who discovered them in 1906 in a cave that also held human remains. Most of these objects were at the Bishop Museum. They included a 18th-century female wooden figure about 2 feet high, today valued at $5 million; a shark-tooth carving instrument with a handle made of a human clavicle; and a wooden bowl inlaid with human teeth with images, male and female, that acted as a base.

Roger Rose, the foremost specialist of the collection and a Bishop staff ethnologist for 29 years, said the eight main objects found in the Forbes cave “are among the most beautifully crafted examples of Hawaiian carving,” among only 160 carved wooden figures from Hawaii to survive in the world today.

In a telephone interview, Ayau insisted that the objects in the Forbes cave were connected with the remains of a chief found there in a canoe, which he called “standard burial practice.” He also claimed that the very taking of objects constituted theft by Forbes, and he accused the museum of having knowingly received and bought objects from grave robbers. (In fact, Hawaii had no antiquities law in 1905. The first law forbidding the removal of antiquities from caves was a federal one passed in 1906.)

Ayau was backed by Inouye, Hawaii’s most influential politician who effectively controlled much of the federal money to the state – including to the Bishop Museum, on the board of which sat Jennifer Sabas, his Hawaii chief of staff, until 2004.

Still, the museum’s management refused to hand them over, arguing that they were placed in the cave for safekeeping long after the bones were put there.

In 2000, Bishop Museum Vice President Elizabeth Tatar handed over the collection, along with nearly 200 other objects, to Ayau, who promptly placed it in the cave and booby trapped it, causing a firestorm of protests. Donald Duckworth, the museum’s president, claimed ignorance of the handover (he was on the mainland at the time); but instead of firing Tatar, he punished employees who condemned it.

The Interior Department launched an investigation. On March 26, 2004, Ayau, after being interviewed by investigators from its Inspector General’s office, e-mailed Patricia Zell, chief counsel to Inouye on the Senate Indian Affairs Committee in Washington, D.C.: “We request that Senator Inouye contact the IG to terminate the criminal investigation.”

Zell replied, “I will print out your note and give it to the Senator. I don’t know whether anyone can call off an IG investigation – but I guess we’ll see.” Both e-mails are posted at as part of the record of a later civil lawsuit. No charges were ever filed against Ayau by Interior.

Duckworth’s successor, William Y. Brown, made getting the objects back a centerpiece of his five-year tenure. He found an ally in Princess Abigail Kawananakoa, 81, seen by some as the heiress to the Hawaiian throne, a leader in historic preservation and a racehorse-breeding multimillionaire. She called Hui Malama’s actions “a travesty that should never have happened,” insisted that idols were never used as funerary objects in Hawaii and spent more than $400,000 on a federal lawsuit against both Hui Malama and the museum for violating NAGPRA rules.

Ayau was jailed for three weeks on contempt charges for refusing to disclose the objects’ location. Following a court order, a museum team traveled to the cave in 2006 and used a helicopter to recover the objects.

Their final disposition has still not been decided, a process that Kam said could take several years, during which the objects will not be exhibited.

Three years ago, Inouye held hearings in Hawaii on whether to amend the law to reflect conditions there and whether to grant the Bishop Museum the status of a Native Hawaiian group under NAGPRA, which he strongly opposed. Despite many complaints of how the law affected Hawaii, he declined to take any action and later resigned from the chairmanship of Indian Affairs.

His spokesman sidestepped questions about his support of Hui Malama and issued a written statement saying that the “senator believed that this was inherently a Native Hawaiian issue and that all sides needed to work together to resolve it. That is what ultimately happened.”