Below are three astounding documents that provide strong evidence that Bishop Museum and Hui Malama worked very closely together to ensure that the Forbes Cave artifacts would be given to Hui Malama. The rights of other claimants were trampled by hasty actions done in secret, in violation of NAGPRA regulations. Bishop Museum officials agreed with Hui Malama’s political/ideological agenda, and took steps to make sure Hui Malama would get the artifacts. That’s the theory convincingly set forth in these documents. Before providing the documents, here are several paragraphs of explanation and analysis.
The Forbes Cave artifacts were “loaned” to Hui Malama, who falsely stated that the other claimants were agreeable to the “loan.” But Hui Malama, and probably Bishop Museum, were fully aware all along that the “loan” was actually a permanent repatriation and reburial, and the artifacts would never be returned to Bishop Museum or made available to the other claimants to verify what had happened. The shared purpose of Bishop Museum and Hui Malama was to “liberate” the Forbes Cave artifacts from Bishop Museum and give them to Hui Malama for re-burial, despite strong opposition from competing claimants and strong differences of opinion between supporters of preserving valuable artifacts for future generations vs. supporters of re-burying artifacts where they were originally found.
Bishop Museum wanted it to appear to the public, to other claimants, and to NAGPRA officials, that Bishop Museum had been deceived by Hui Malama into believing that the museum was merely making a “loan” of valuable artifacts to Hui Malama when in fact Hui Malama intended all along to keep the artifacts permanently (and Bishop Museum apparently knew that and condoned it). Thus, Bishop Museum would be seen by the public as a victim of theft by deception rather than as a perpetrator, and Hui Malama would gain stature as a fierce fighter for the spiritual values of returning bones and artifacts to their originally intended resting places. Hui Malama would also gain perceived legitimacy and political power as the unchallengable spokesman for the “Native Hawaiian nation” and defender of the bones of the ancestors.
There are two conflicting views of the concept of “theft” in relation to bones and artifacts. (a) Hui Malama’s political position is that removal of bones and artifacts from their original places of interment is both desecration and theft, whether done by ordinary grave-robbers or by scientists and scholars. NAGPRA, passed in 1990, leans in the direction of supporting that view, by requiring that bones and some kinds of artifacts be taken out of museums and given to the lineal descendants or to certified representatives of “tribes” or “indigenous” groups. Thus restitution is made for the original theft, and the spirits of the ancients can rest in peace. But when there are competing individuals or groups claiming to be descendants or to be rightful representatives of tribes, then NAGPRA imposes requirements on museums for determining who should be given the bones and artifacts. (b) Another view of “theft” is that it is theft to steal (directly or by deception) bones or artifacts from museums that have been entrusted with their safekeeping. Some Bishop Museum artifacts are hundreds of years old and would be worth millions of dollars if offered for sale. Future generations (both ethnic Hawaiian and non-Hawaiian) need the ability to see ancient artifacts, to learn from them and be inspired by them. If one claimant conspires with a museum to take artifacts in violation of the due process rights of competing claimants, that is stealing from those other claimants. And it is also theft from future generations whose legacy has been stolen.
In the Forbes Cave controversy the NAGPRA law was both a facilitator of improprieties and a source of protection against them. NAGPRA sets forth stringent procedures for adjudicating conflicting claims. That made it difficult for Hui Malama and Bishop Museum to accomplish their shared goal of giving sole possession of all the artifacts to Hui Malama for immediate reburial despite strong opposition from other claimants. An elaborate deception, carried out hastily and secretly, was needed to fool both the opposing claimants and the general public. However, the NAGPRA law also made it easy to carry out the deception, when Bishop Museum was able to insist on following some of the NAGPRA-mandated procedures that would force secrecy and would also make it difficult for competing claimants to satisfy their burden of proof.
There are rumors that Hui Malama might have sold some of the millions of dollars worth of artifacts to collectors in order to enrich its institutional treasury or its individual leaders, or that Hui Malama might have allowed “thieves” to plunder the cave and its artifacts in return for kickbacks. It is hard to disprove such rumors when the artifacts have allegedly been reburied in a way that makes them inaccessible. If the artifacts were indeed reburied and thieves were secretly allowed to take and sell them, and if the theft was later discovered, the public might believe that Bishop Museum had lost its artifacts because of deception by Hui Malama (converting a museum “loan” into a permanent repatriation); and the public might believe Hui Malama had lost its artifacts because of thieves. Thus nobody could really be held responsible. Politicians call this sort of thing “plausible deniability.” On the other hand, claimants competing against Hui Malama might create false rumors that artifacts have been sold or stolen, in order to force Hui Malama to produce the artifacts. Once artifacts have been produced, the claimants could then demand they be returned to Bishop Museum until stringent procedures are followed to determine which claimants should have custody of the artifacts; and by this process the competing claimants could hope to get possession of some or all of the artifacts presently lost to them. The situation is extremely complex!
The documents below were obtained by website editor Ken Conklin from sources that must remain confidential. None of these documents were sent to me by the people who created them nor by the people who were originally intended to receive them. The documents were sent to me by third parties who are personally known by me as being reliable. These third parties do not wish to be identified, and also will not disclose how thay obtained the documents. But document 1 should be easily verifiable merely by asking the institutions and persons named in the document as senders and recipients; and document 3 is a publicly verifiable announcement of a meeting of a government agency. Document 2 is a description of some laws and reports which should be verifiable from public sources, together with some legal analysis of how certain facts fit certain laws. The documents are copied exactly as I received them, with no additions or deletions of content other than the identification of who sent them to me. Paragraph breaks and formatting may differ from the original documents, because e-mail tends to scramble formatting and I needed to reinvent some formatting as seemed appropriate to the content.
These three documents should be read in conjunction with the published articles that traced the controversy as it unfolded. The dates and names in those published articles will lend credibility to the theory set forth in these documents. The published articles are listed in chronological order to facilitate such comparison. Please see:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html
===== Document 1 =====
Royal Hawaiian Academy of Traditional Arts
835 Ahuwale Street, Honolulu, Hawaii 96821
* Phone: (808)377-5611
* Fax: (808)377-5635
March 1, 2003
John Robbins Assistant Director,
Cultural Resources Stewardship and Partnerships
National Park Service
United States Department of the Interior
1849 C Street, N.W.
Washington, D.C. 20240
Dear Sir:
This is being submitted as further information and documentation to be
transmitted to the NAGPRA Review Committee for consideration. There seemed to
be so many confusing and conflicting pieces to this puzzle, making it almost
impossible to understand what really took place, much less why. However, in
retrospect, there were a number of occurrences that strongly indicate that the
Bishop Museum entered into a deliberate program, intended to benefit Hui Malama
and itself, by utilizing strategies intended to deceive the claimants, officials
overseeing NAGPRA and the general public, as well. Once that is understood,
everything makes perfect sense. We believe that the purely objective scrutiny
of all of the facts can only lead any reasonable person to conclude that Bishop
Museum never intended to follow the NAGPRA requirements and procedures, nor did
it intend to recover the items that it "loaned" to Hui Malama.
Once the Bishop Museum announced its decision to recognize all thirteen
claimants as a group to which it would repatriate the subject items, an effort
to expedite the required process was undertaken. By itself, this would not bear
any great significance but combined with everything else, it does.
NAGPRA regulations indicate that the recognition of multiple claimants subjected
the museum to Section 7(e) of the Act instead of Sections 7(a)(1) and 7(a)(2)
which pertain to "a particular" tribe or organization being named. Section 7(e)
addresses competing claims and says, in part, that if unable to clearly
determine the most appropriate claimant, the "museum may retain such item until
the requesting parties agree upon it disposition or the dispute is otherwise
resolved pursuant to the provisions of this Act or by a court of competent
jurisdiction."
The "loan" of the items to Hui Malama was fraught with very suspicious actions
taken by the Bishop Museum. First of all, the four recognized claimants at that
time had not agreed that this should take place. Furthermore, the museum turned
the items over to Hui Malama quite secretly, on a Saturday, when this activity
would not be noticed. The museum violated its own established procedures, as
outlined in its "Policy Statement on Loans From the Collection." Its
Board of Directors was unaware of this loan and documents were signed by
unauthorized museum staff. Furthermore, there was no provision allowing for
making loans "pending completion of NAGPRA repatriation," which was the reason
stated on the shipping invoice. Any legitimate loan of this
magnitude would behoove the museum to determine that all of the loaned items
would be properly cared for in a secure, environmentally controlled facility.
The steps necessary to insure the proper care and safekeeping of all items were
not taken, which logically indicates to us that the museum was not concerned
since it never expected the items to be returned to its care.
In March of 2000, a newspaper article reported that the Office of Hawaiian
Affairs (OHA), one of the four claimants, had sent a letter to Robert Stanton,
Director of the National Park Service, expressing their concerns about the
"loan," stating that it "appears to be a violation of NAGPRA.” The letter also
noted that they (OHA) were recently told by the museum "that the cultural
resources had been re-buried in an unknown location by the loan recipients,
precluding repatriation to any other claimants." An April 6, 2000 newspaper
article reported that Bishop Museum officials said that "the loan was made after
Hui Malama assured them that it was unanimously agreed to by the four
claimants."
There was no such agreement.
A letter of inquiry, dated April 7, 2000, was sent to Donald
Duckworth from Robert Stanton as a result of OHA's letter to him. In a letter to Director Duckworth, dated April 13, 2000, from Katherine H.
Stevenson, National Park Service Associate Director, she stated that she had
sent an earlier letter requesting that Duckworth respond to National Park
Service Director Robert Stanton's letter and that they were looking forward to
his response. She also expressed her hope that Dr. Duckworth "will take every
possible step to recover and take back into direct care by the Museum, any
artifacts that may be covered by NAGPRA that may have been given to other
organizations without following the proper procedures required by NAGPRA." A
subsequent letter from Stevenson to Duckworth, dated June 2, 2000,
stated that they were still awaiting a response to Director Stanton's April 17,
2000 letter. She pointed out that it was obvious that there was no agreement
between the claimants regarding the "loan." She added that the museum was still
within the period where additional claimants could come forward when the "loan"
was made.
In a letter dated June 8, 2000, Director Duckworth stated:
"Regarding the Museum taking steps to recover and take back into direct care
these items, we have begun those steps. You may be aware through recent news
coverage that on April 27, the Bishop Museum board of directors unanimously
authorized the Museum administration to call for return of the items loaned out
on February 26, 2000. We sent a letter to the four currently recognized
claimants, requesting that they state their positions on the loan recall in
writing by July 1, 2000. On July 1, unless there is consensus by the four that
the items should remain where they are, the Museum will immediately require
their return."
In a letter to Director Duckworth, dated July 19, 2000, Assistant
Director Stevenson stated:
"I understand that the four claimants did not reach consensus by July 1, and I
strongly urge you to honor your commitment to recover immediately and take back
into direct care the Kawaihae Cave Complex human remains and funerary objects.
Please notify me when the museum has completed recovery and has direct physical
possession and control of the human remains and associated objects, and please
describe for me the museum's plan regarding the Kawaihae Cave Complex NAGPRA
claims."
We are not aware of any response to this by Bishop Museum. In spite of Director
Duckworth's commitment in his June 8th letter, he did not require the immediate
return of the items.
The academy contends that the Bishop Museum was well aware of Hui Malama's
intent to re-bury the "loaned" items. Hui Malama was very open and adamant
about their intent and beliefs and for the museum to claim ignorance is
unrealistic and unbelievable. In my letter, dated September 6, 2001, to Guy
Kaulukukui, the museum's NAGPRA representative, I asked some very poignant
questions, including: "In addition, knowing full well the position of Hui
Malama regarding all items involved, did the museum realistically and honestly
expect the return of said items upon the expiration of the loan agreement?
After Hui Malama declined to honor the terms of the loan agreement, why did the
museum assume the responsibility of recovery and not pursue any other action, as
the seemingly injured party to said agreement?"
These questions were never
answered. I sent a subsequent letter, dated October 14,
2001 requesting that he respond to my previously ignored questions. I never
received any response.
It is important to note that this "loan" took place
while the museum was still in the process of identifying legitimate claimants.
This "loan" had the very real and expected effect of granting total control to
and realistically, repatriating the items only to Hui Malama, denying the rights
of the other claimants that were duly recognized at the time, as well as the
additional nine claimants who were eventually recognized.
We further submit that Bishop Museum had planned to use NAGPRA to relieve
itself of any responsibility for the recovery of the subject items and had
purposely deceived the majority of the claimants into believing that the museum
would, in fact, honor its commitment. Throughout this entire process, there was
never any indication at all that the museum was considering shirking its
self-imposed responsibility for the recovery. I made it very clear that the
planning and organization of the recovery should be ongoing but asked that the
actual recovery be temporarily suspended to allow the claimants an opportunity
to attempt to reach agreement.
In retrospect, unbeknownst to me at that time
was that the claimants who adamantly argued the necessity to temporarily suspend
the recall were those few claimants who supported Hui Malama. This eventually
proved to be a significant part of the museum's hidden plan.
I was invited by Guy Kaulukukui to accompany him on a site inspection of the
caves, which took place on December 13, 2000. Also with us were two contractors
who, supposedly, would be handling the actual recovery. I was again invited to
go on a subsequent site inspection with Kaulukukui and a couple of other
claimants, including Hui Malama leaders. I missed the flight due to traffic but
it is significant to note that this site inspection took place on April 16,
2001, which was four days after the alleged repatriation date of April 12, 2001,
after which, the museum would eventually declare, the museum no longer bore the
responsibility for the recovery.
It is obvious to us now that an important part
of their strategy was for the museum to maintain the appearance of preparing for
the recovery of the items until they reached the point of so-called,
"repatriation."
The museum indicated that it was legally bound to follow NAGPRA procedure but
assured us that this would not affect their responsibility for the recovery,
should the claimants so decide. The museum's April 12, 2000 letter to the claimants reported the museum's alleged "repatriation" and
stated at the end, in part: "The group must notify the Museum if repatriation
and final disposition of the human remains and funerary objects require recovery
from their present location. The request to recover the human remains and
funerary objects must be in writing from the group's spokesperson and include
the signatures of all the group representatives who are making the request."
I
informed Kaulukukui that I saw no reason to submit such a letter and considered
this request to be divisive, particularly at a time when I was working hard at
attempting to unify the claimants. I said that I would not do this. Sometime
later, I was told that a letter requesting recovery, signed by me and simply
listing the other claimants supporting this, without their signatures, would
suffice. I maintained my position that this was not necessary, was divisive in
nature and would not be forthcoming from me. These seemingly insignificant
occurrences, again, in retrospect, were actually crucial to the museum's plan..
Throughout the consultation period, I held numerous meetings with all of the
claimants, individually as well as in groups over a period of months. Kaulukukui
and I were in constant contact throughout. On August 2, 2001, I met with
Kaulukukui at the museum in preparation of the agreed to August 4th deadline for
the claimants to inform the museum of our intentions. I told Kaulukukui that it
was a very worthwhile and productive process but the issue was one that
unanimous agreement regarding final disposition was unattainable. A major
accomplishment was that the claimants unanimously agreed with the content of our
Document of Truth and Agreement. I told Kaulukukui that therefore, the museum
was now free to proceed with the recovery of the items. He did not balk at all
and we even discussed the claimants' obligation to continue to meet during and
after the recovery process was completed, to determine final disposition. The
museum had also indicated that we would issue a joint statement at a joint press
conference on or about August 5th.
I formally submitted our documents and
decision to the museum on August 4th but never heard anything from Kaulukukui
until the late afternoon of August 7th, when I finally tracked him down. All he
said was that he had just faxed something to me that had been mailed to all of
the claimants earlier in the day.
This letter, which came as a complete
surprise, stated that the museum could not and would not attempt recovery of the
items because repatriation had taken place on April 14, 2001 and therefore, as
of that date, the museum "considers its role and statutory responsibility under
Section 10.10(d) of NAGPRA to be complete." The museum also stated that the
alleged repatriation transferred ownership to all of the claimants and because
of that, the museum had no legal authority to attempt recovery without the
unanimous consent of the claimants, something that was known and accepted to be
virtually unattainable.
I believe that this was carefully planned by the museum
and that the letters that were sent out to the claimants had already been
prepared for distribution beforehand. It seems that the museum was just waiting
for our agreed to period of discussion to expire so that it could distribute its
final edict and divest itself of all responsibility. In retrospect, I recall a
discussion I had with one of the primary leaders of Hui Malama, in which I was
explaining the Document of Truth and Agreement and that the museum would have to
continue with the recovery process. He, I think inadvertently, mentioned that
as of the alleged April repatriation, the museum had no obligation to do so. It
seemed to be a slip of the tongue, so to speak, and he started to discuss some
other topic. His statement held no real significance to me at the time it was
made, but the final position formally taken by the museum in its April 7th
letter indicates to me that Hui Malama was aware of the museum's plan to absolve
itself of any responsibility in this matter by, eventually, declaring that
position.
I believe that the museum's intent was established early on, perhaps
at the time it decided to recognize multiple claimants. Furthermore, there was
no indication that the museum fully intended to abide by its commitment and was
thwarted from doing so by some unexpected declaration, by its legal counsel,
that it could not legally do so. A reasonable assumption is that if the museum
had suddenly and unexpectedly received this unforeseen revelation by its legal
counsel, it would have expressed something in the form of an apology or claim
that it didn't know that it would no longer have any legal authority to effect
recovery. The museum simply sent its letter to all of the claimants which, in
our estimation, conveyed a message which said , "It's not our problem or
responsibility anymore because we followed the law and through no fault of our
own, the problem now belongs to you claimants and so don't bother us with this
matter anymore!"
As I previously stated, a fair, reasonable and objective review of everything
that transpired indicates that the museum simply carried out a systematic plan
to absolve itself of any responsibility and/or expense in this most important
and significant matter and to deflect any blame for this towards NAGPRA and/or
the claimants themselves. We consider the museum's actions and behavior to be
deceitful, without honor or integrity, and most deplorable.
SUMMARY
What appeared to be a confusing series of events, was, in actuality, a
deliberately planned program designed and carried out by the museum. In the
beginning, when there were only four recognized claimants, the museum's quandary
was to figure out a way to appease Hui Malama. The other three claimants would
not agree with Hui Malama's intent to rebury everything. Coupled with this was
the museum's realization that there would definitely be other claimants coming
forward, which would further complicate matters, as under Section 7(e) of
NAGPRA, the items would most likely have to remain as part of its collection.
Their solution was to make the "loan" which could, if necessary, be explained
away with an apology that it was an unfortunate, but honest and well-meaning,
series of misunderstandings and mistakes.
Why would Bishop Museum choose to do
this? It was a combination of factors, including intimidation, the museum's
conclusion that it would be politically and financially beneficial to do so, and
provide a way to get rid of this problem, sit back and watch the natives fight
amongst themselves. The museum would be able to blame this most unfortunate
situation, in part, on NAGPRA.
As earlier expressed, this "loan" was, in
reality, final disposition. The items would be taking a one-way trip so all
normal procedures were ignored. This also explains why the museum did not
pursue legal action against Hui Malama for refusing to return the "loaned" items
but instead, assumed full responsibility for the recovery of the items.
The
next step was to get to the point of so-called "repatriation." Once there, all
they had to do was to establish the claimants' failure to reach unanimity. This
would trigger the excuse that, unfortunately, they could not legally do anything
further and walk away clean. They needed and therefore pursued the letter from
me that would then allow them to deal the final blow and blame the claimants and
NAGPRA. The end result would be that Hui Malama would get what they wanted, the
museum would conveniently escape the responsibility and expense of recovery, the
majority of the claimants would be upset but think that there was nothing that
could be done and eventually, the entire matter would be forgotten.
We beg to
differ.
Please feel free to contact me if you have any questions. I end with what I
stated in my October 14, 2001 letter to Kaulukukui in
which I protested and characterized the museum's position as being "a travesty
and will be dealt with, not only by those organizations and members who have
been injured, but by the ancestors and Higher Powers as well. If there is
anything in life that reflects the absolute truth, it is that we are all
accountable for our actions."
Sincerely,
L. La'akea Suganuma
Designated Representative
=========================================
===== Document 2 =====
FORBES CAVE: STATUS OF REPATRIATION, February, 2003
In the "Notice of Intent to Repatriate Cultural Items from Kawaihae, Kohala,
Island of Hawaii, HI, in the Possession of the Bernice Pauahi Bishop Museum,
Honolulu, HI" the Bishop Museum labeled the Forbes Cave items "unassociated
funerary objects" (Federal Register, March 9, 2001; vol. 66, no. 47, p. 14201).
In this notice, a revision of one published on April 15, 2000, the Museum
named nine claimants in addition to the original four, for a total of 13
claimants for the items from Forbes Cave, aka Kawaihae Cave Complex, aka Honokoa
Gulch Caves. By recognizing multiple claimants, the Museum was subject to
Section 7(e) of the Native American Graves Protection and Repatriation Act
(NAGPRA) (See Appendix A) instead of 7(a)(1) and (2), which would have required
identifying "a particular.Native Hawaiian organization."
According to Section 7(e), If the ".museum cannot clearly determine which
requesting party is the most appropriate claimant, the museum may retain such
item until the requesting parties agree upon its disposition or the dispute is
otherwise resolved pursuant to the provisions of this Act or by a court of
competent jurisdiction. At the time that the Museum turned over the Forbes Cave
items to Hui Malama i na Kupuna o Hawai`i Nei (Hui Malama) (February 26, 2000),
the then four claimants (See Appendix B) had not agreed upon the disposition of
the items. One of the claimants (The Department of Hawaiian Home Lands, DHHL),
in a February 29 letter to the Museum and a March 23 letter to then National
Park Service (NPS) Director Stanton, stated that, contrary to Hui Malama's
statement to the Museum, DHHL had not agreed that the Forbes Cave items were to
be "loaned" to Hui Malama.
Soon after February 26, Hui Malama claimed that the items had been placed in
Forbes Cave and that the entrance to the cave had been sealed with a stone
masonry wall. Though the mouth of the cave apparently has been sealed, no one
outside of Hui Malama is known to have seen the items since they were carried
out of the Museum on February 26. The "loan" expired one year later and is not
known to have been renewed.
On March 30, 2000 Museum Director Donald Duckworth publicly admitted that he had
been "misled" by Hui Malama regarding what Hui Malama intended to do with the
Forbes Cave items. (Apparently, Hui Malama had not told Director Duckworth that
the items would be placed where the Museum and other claimants would have no
access to them.) Director Duckworth (April 18, 2000) apologized publicly for
the error. Hui Malama refused to return the items to the Museum.
The great significance and value of many of the "loaned" items is well known.
Bishop Museum's written policy in effect at the time of the "loan" stated that
decisions regarding the loan of such valuable items must be reviewed by the
Museum's Board of Directors, a procedure that evidently was not followed.
Standard ethical museum practice would have ensured that, if loaned, the items
would be guaranteed a secure, environmentally-controlled storage facility at
least as capable of preserving the items as that of the Bishop Museum. Storing
such items in a cave, where deterioration is accelerated and the likelihood of
vandalism or theft increased would not normally be considered appropriate.
The National Park Service (through its National NAGPRA Program) is the agency
within the Department of Interior that is responsible for assisting "Native
Hawaiian organizations with the NAGPRA process" and recognizing "the ownership
rights of lineal descendants, Indian tribes, and Native Hawaiian organizations
to certain Native American cultural items with which they are affiliated" and
providing "administrative and staff support to the Native American Graves
Protection and Repatriation Review Committee" (See Appendix C).
In a letter dated June 8, 2000 to NPS Associate Director Kate Stevenson in
response to two of her letters and one from NPS Director Stanton, Director
Duckworth stated: "Regarding the Museum taking steps to recover and take back
into direct care these items, we have begun those steps. You may be aware that
on April 27, the Bishop Museum board of directors unanimously authorized the
Museum administration to call for return of the items loaned out on February 26,
2000. We sent a letter to the four currently recognized claimants, requesting
that they state their positions on the loan recall in writing by July 1, 2000.
On July 1, unless there is consensus by the four that the items should remain
where they are, the Museum will immediately require their return."
In a letter dated July 19, 2000, Associate Director Stevenson stated: "I
understand that the four claimants did not reach consensus by July 1, and I
strongly urge you to honor your commitment to recover immediately and take back
into direct care the Kawaihae Cave Complex human remains and funerary objects.
Please notify me when the museum has completed recovery and has direct physical
possession and control of the human remains and associated objects, and please
describe for me the museum's plan regarding the Kawaihae Cave Complex NAGPRA
claims." Associate Director Stevenson was correct that the claimants did not
reach consensus.
Between August and December, 2000, the Museum voluntarily recognized nine
additional claimants for the Forbes Cave items and rejected several others that
had applied (See Appendix B). Some of the recognized claimants believe that
some of the rejected claimants are at least as qualified as claimants that the
Museum recognized. The Museum also rejected claims submitted by two individuals
as lineal descendants.
Section 7(d) requires that a museum subject to NAGPRA "shall share what
information it does possess regarding the object in question with
the Native Hawaiian organization to assist in making a claim under this
section." In the case of the Forbes Cave items, the major part of the available
information is available only through inspection of the items themselves.
Because the Museum had not recovered the items it did not provide an opportunity
to inspect the items to any of the nine claimants that were recognized in 2000,
or to any of the candidate claimants whose claims were rejected by the Museum.
In late 2000, the Museum began developing detailed plans to recover the items
from the cave and return them to the Museum.
Beginning as early as March and throughout the rest of the year 2000 the
recognition by Director Duckworth and the Board of Directors of the Museum's
responsibilities under NAGPRA is demonstrated by (1) Director Duckworth's
admission that Hui Malama had "misled" him regarding Hui Malama's intentions;
(2) Director Duckworth's apology; (3) Director Duckworth's commitment to
"immediately require" the return of the items; (4) at least one formal
request by the Museum Board of Directors to Hui Malama for return of the items;
(5) the acceptance of nine additional claimants (which indicates that the
Museum expected to have the items returned so that the new claimants could
inspect them before the repatriation process); (6) the Decision of the
Museum's Board of Directors at their meeting of September 20 to recall the
"loan"; and (7) the Museum's preparations for recovery of the items.
In December, 2000, the group of claimants asked the Museum to continue recovery
planning so that the recovery could take place following further consultation
among the group. The Museum never put its recovery plan into action. Instead,
it stated that as of early April, 2001, repatriation had been completed and that
all its legal responsibilities under NAGPRA had been fulfilled.
It is questionable whether the Forbes Cave items have been repatriated. (The
delivery of the items to Hui Malama in 2000 is consistently called a "loan" by
the Museum, not a repatriation.) The term "repatriation" is not defined in the
law. However, the more common word "return" is used repeatedly. The context of
this term makes it clear that "return" serves as a synonym of "repatriate" and
that "return" means actually delivering or handing over to claimants the
physical items that are subject to NAGPRA.
Section 7(a)(3) states in full: "The return of cultural items covered by this
Act shall be in consultation with the requesting lineal descendant or tribe or
organization to determine the place and manner of delivery of such items." With
regard to the Forbes Cave items, (1) the Museum has not consulted with at
least 9 of the 13 claimants regarding physically turning over the items to them;
(2) the Museum has not determined a place or manner of delivery of the items
to the claimants; and (3) the Museum has not delivered any items to 12 of 13
the claimants. None of these steps have taken place because the Museum has never
retrieved the objects from their present location. ----- In addition to possible
violation of NAGPRA, Title 18, U.S.C., Section 668, Theft of Major Artwork might
also apply to the Forbes Cave "loan" and subsequent events (See Appendix D).
APPENDIX A PUBLIC LAW 101-601--NOV. 16, 1990 NATIVE AMERICAN GRAVES PROTECTION
AND REPATRIATION ACT [104 STAT. 3048 PUBLIC LAW 101-601--NOV. 16, 1990] Public
Law 101-601 101st Congress An Act Nov.16,1990 To provide for the protection of
Native American graves, ----------- and for other purposes. [H.R. 5237] .
25 USC 3005. SEC. 7. REPATRIATION. (a) REPATRIATION OF NATIVE AMERICAN HUMAN
REMAINS AND OBJECTS POSSESSED OR CONTROLLED BY FEDERAL AGENCIES AND
MUSEUMS.--(1) If, pursuant to section 5, the cultural affiliation of
Native American human remains and associated funerary objects with a
particular Indian tribe or Native Hawaiian organization is established, then
the Federal agency or museum, upon the request of a known lineal descendant
of the Native American or of the tribe or organization and pursuant to
subsections (b) and (e) of this section, shall expeditiously return such remains
and associated funerary objects. (2) If, pursuant to section 6, the cultural
affiliation with a particular Indian tribe or Native Hawaiian
organization is shown with respect to unassociated funerary objects,
sacred objects or objects of cultural patrimony, then the Federal agency or
museum, upon the request of the Indian tribe or Native Hawaiian
organization and pursuant to subsections (b), (c) and (e) of this section, shall
expeditiously return such objects. (3) The return of cultural items covered
by this Act shall be in consultation with the requesting lineal descendant
or tribe or organization to determine the place and manner of delivery of such
items. (4) Where cultural affiliation of Native American human remains and
funerary objects has not been established in an inventory prepared pursuant
to section 5, or the summary pursuant to section 6, or where Native
American human remains and funerary objects are not included upon any such
inventory, then, upon request and pursuant to subsections (b) and (e) and, in
the case of unassociated funerary objects, subsection (c), such Native
American human remains and funerary objects shall be expeditiously returned
where the requesting Indian tribe or Native Hawaiian organization can show
cultural affiliation by a preponderance of the evidence based upon
geographical, kinship, biological, archaeological, anthropological, linguistic,
folkloric, oral traditional, historical, or other relevant information or
expert opinion. (5) Upon request and pursuant to subsections (b), (c) and (e),
sacred objects and objects of cultural patrimony shall be expeditiously
returned where-- (A) the requesting party is the direct lineal descendant
of an individual who owned the sacred object; (B) the requesting Indian
tribe or Native Hawaiian organization can show that the object was owned or
controlled by the tribe or organization; or (C) the requesting Indian tribe
or Native Hawaiian organization can show that the sacred object was owned or
controlled by a member thereof, provided that in the case where a sacred
object was owned by a member thereof, there are no identifiable lineal
descendants of said member or the lineal descendent, upon notice, have failed to
make a claim for the object under this Act. (b) SCIENTIFIC STUDY.--If the
lineal descendant, Indian tribe, or Native Hawaiian organization requests the
return of culturally affiliated Native American cultural items, the Federal
agency or museum shall expeditiously return such items unless such items
are indispensable for completion of a specific scientific study, the outcome
of which would be of major benefit to the United States. Such items shall be
returned by no later than 90 days after the date on which the scientific study
is completed. (c) STANDARD OF REPATRIATION.--If a known lineal descendant
or an Indian tribe or Native Hawaiian organization requests the
return of Native American unassociated funerary objects, sacred objects or
objects of cultural patrimony pursuant to this Act and presents evidence
which, if standing alone before the introduction of evidence to the contrary,
would support a finding that the Federal agency or museum did not have the
right of possession, then such agency or museum shall return such objects
unless it can overcome such inference and prove that it has a right of
possession to the objects. (d) SHARING OF INFORMATION BY FEDERAL AGENCIES
AND MUSEUMS.--Any Federal agency or museum shall share what information it
does possess regarding the object in question with the known lineal
descendant, Indian tribe, or Native Hawaiian organization to assist in
making a claim under this section. (e) COMPETING CLAIMS.--Where there are
multiple requests for repatriation of any cultural item and, after complying
with the requirements of this Act, the Federal agency or museum cannot clearly
determine which requesting party is the most appropriate claimant, the
agency or museum may retain such item until the requesting parties agree
upon its disposition or the dispute is otherwise resolved pursuant to the
provisions of this Act or by a court of competent jurisdiction. (f) MUSEUM
OBLIGATION.--Any museum which repatriates any item in good faith pursuant to
this Act shall not be liable for claims by an aggrieved party or for claims
of breach of fiduciary duty, public trust, or violations of state law that
are inconsistent with the provisions of this Act.
APPENDIX B
RECOGNIZED FORBES CAVE CLAIMANTS AND THEIR VOTES ON
RECALL OF THE FORBES
CAVE ITEMS:
(Written responses by the 11 Claimants to the Bishop
Museum, September 15,
2000) (According to Honolulu Advertiser, September
23, 2000)
KEY TO VOTES:
(YES) Voted in favor of recall and return
of the "loan" to the
Bishop Museum.
(YES*) Voted in favor of recall and
relocation to somewhere on
Hawaii Island.
(ZERO) Did not submit any written vote
(NO) Voted no recall of the "loan."
"Original" Four:
Hui Malama i Na Kupuna o Hawaii Nei (Hui Malama):
(ZERO);
Office of Hawaiian Affairs (ZERO);
Department of Hawaiian Home Lands (NO);
Hawai`i Island Burial Council (ZERO);
Additional Claimants recognized as of 23 Aug, 2000
Hawaiian Genealogy Society (- Amelia Gora) (YES);
Kekumano `Ohana (- Cy Harris) (YES);
Keohokalole `Ohana (YES*);
Na Papa Kanaka o Pu`ukohola Heiau. (- Melvin
Kalahiki) (YES*)
Nation of Hawaii (Dennis (Bumpy) Kanahele) (ZERO);
Royal Hawaiian Academy of Traditional Arts (- Laakea
Suganuma) (YES);
Van Horn Diamond `Ohana (Van Horn Diamond, spokesman)
(YES)
VOTE TOTALS:
YES: 6 (including 2 for relocation to Hawaii Island)
NO: 1
VOTE NOT SUBMITTED: 4
Additional Claimant recognized by the Bishop Museum (November 1, 2000):
Pu`uhonua o Waimanalo - Dennis (Bumpy) Kanahele?
Additional Claimant recognized by the Bishop Museum (December 6, 2000): Native
Hawaiian Advisory Council - Elizabeth Pa Martin
Claimants rejected by the Bishop Museum as of August 17, 2000 (See Honolulu
Advertiser, August 17, 2000):
E Nana Pono -- James K. Mee, Herb Kane
Hale o na Ali`i o Hawai`i -- Kealoha Kuhea (Claimed as a lineal descendant)
Moa Bartholomew Brumaghim (Later said to have withdrawn)
Temple of Lono -- Clive Cabral, President
(Note: Nation of Hawai`i was also rejected by the Museum August 16, 2000, but
was accepted on August 23, after additional documents were submitted. Bishop
Museum Press release dated November 1, 2000 indicates that "Pu`uhonua o
Waimanalo" had been approved as a claimant.)
(Note: The Museum had rejected or ignored the claims as lineal descendants by
Papa Auwae and Mel Kalahiki earlier in 2000.)
APPENDIX C
Excerpts from National NAGPRA Homepage; National Park Service; National Center
for Cultural Resources. http://www.cr.nps.gov/nagpra/
"The National NAGPRA Program assists the Secretary of the Interior with some of
the Secretary's responsibilities under the Native American Graves Protection and
Repatriation Act, and focuses on NAGPRA implementation outside of the National
Park System. National NAGPRA is a program of the National Park Service's
National Center for Cultural Resources. "Among its chief activities, National
NAGPRA develops regulations and guidance for implementing NAGPRA; provides
administrative and staff support for the Native American Graves Protection and
Repatriation Review Committee; assists Indian tribes, Native Hawaiian
organizations, and museums with the NAGPRA process; provides NAGPRA training;
and manages a NAGPRA grants program that supports repatriation activities. "Many
of the links from the National NAGPRA web site go the National NAGPRA Database
hosted at the Center for Advanced Spatial Technologies, University of Arkansas,
through a cooperative agreement with the National Park Service.
********* "Mission: The National NAGPRA program carries out some of the
Secretary of the Interior's responsibilities under the Native American Graves
Protection and Repatriation Act. NAGPRA provides a process for recognizing the
ownership rights of lineal descendants, Indian tribes, and Native Hawaiian
organizations to certain Native American cultural items with which they are
affiliated.
"As the newest NCCR initiative, the National NAGPRA Program was created to
facilitate implementation of NAGPRA in a way that meets the diverse needs of
tribes, museums, and federal agencies. Responsibilities of the program include:
- Drafting regulations that serve to guide implementation of the statute -
Administering the NAGPRA Grants Program - Publishing Federal Register notices
on behalf of museums and Federal agencies - Maintaining informational
resources, such as the Native American Consultation Database - Offering
training opportunities for individuals who wish to better understand and
implement NAGPRA - Providing administrative and staff support to the Native
American Graves Protection and Repatriation Review Committee
"Partnerships: "The National NAGPRA Program works to raise public awareness of
repatriation by engaging professionals and the public through meetings,
conferences, the Web, and the media. By forging lasting partnerships with other
members of the cultural resources community, National NAGPRA seeks to develop a
network of resources in support of responsive and effective cultural resources
stewardship.
"Contact: Robert Stearns, Manager, National NAGPRA program, (202) 343-5266,
Robert_Stearns@nps.gov."
*************************************
APPENDIX D
Title 18, U.S.C., Section 668, Theft of Major Artwork states in full: Sec. 668.
Theft of major artwork ·
(a) Definitions. - In this section - · (1)
''museum'' means an organized and permanent institution, the activities of which
affect interstate or foreign commerce, that - · (A) is situated in the
United States; · (B) is established for an essentially educational or
aesthetic purpose; · (C) has a professional staff; and (D) owns, utilizes,
and cares for tangible objects that are exhibited to the public on a regular
schedule. · (2) ''object of cultural heritage'' means an object that is -
· (A) over 100 years old and worth in excess of $5,000; or · (B)
worth at least $100,000. ·
(b) Offenses. - A person who - · (1)
steals or obtains by fraud from the care, custody, or control of a museum any
object of cultural heritage; or · (2) knowing that an object of cultural
heritage has been stolen or obtained by fraud, if in fact the object was stolen
or obtained from the care, custody, or control of a museum (whether or not that
fact is known to the person), receives, conceals, exhibits, or disposes of the
object, shall be fined under this title, imprisoned not more than 10 years, or
both.
===============================
===== Document 3 =====
FORBES CAVE ISSUE TO BE CONSIDERED BY NAGPRA REVIEW COMMITTEE: MAY 9-11, 2003
The NAGPRA (Native American Graves Protection and Repatriation Act) Review
Committee has placed the Forbes Cave issue on the agenda for their May 9-11 2003
meeting, in St Paul, MN.
The Native American Graves Protection and Repatriation Review Committee was
established under NAGPRA "to monitor and review the implementation of the
inventory and identification process and repatriation activities." Review
committee members are appointed by the Secretary of the Interior from
nominations by Indian tribes, Native Hawaiian organizations, traditional Native
American religious leaders, national museum organizations, and scientific
organizations.
The Review Committee meets twice a year and usually considers only one major
"dispute" per meeting. The main dispute is presented by both sides one day of
each meeting. Forbes is to be the main issue at this coming meeting.
On June 1, 2002, Van Horn Diamond, representing his own claimant organization
(the Van Horn Diamond `Ohana) as well as about six other claimant organizations,
briefed the committee about the Forbes Cave case.
Early this year, the Review Committee staff designated the Forbes Cave issue as
the dispute to be considered at the upcoming meeting. This appears to represent
a reversal of the previous opinion, which was that the repatriation process had
been completed and there was nothing further to discuss.
La`akea Suganuma will be representing most of the Forbes Cave claimants at this
meeting. La`akea, a grandson of Mary Kawena Pukui, is a member of and acts as
the designated representative of the Royal Hawaiian Academy of Traditional Arts,
one of the claimants recognized by the Bishop Museum in 2000. The claimant
organizations that he will not be representing include Hui Malama i na Kupuna o
Hawaii Nei, the organization to whom the Bishop Museum "loaned" the Forbes Cave
objects, and at least two others, both led by Bumpy Kanahele.
At the request of the Review Committee, La`akea has provided documents,
newspaper clippings, etc. that will be copied and provided to all committee
members. Probably the Committee will provide copies of all the documents to the
Bishop Museum as well.
*******************************************
The NAGPRA Review Committee's URL:
http://www.cr.nps.gov/nagpra/review/index.htm.
The Review Committee's dispute resolution procedures are at
http://www.cast.uark.edu/other/nps/nagpra/DOCS/rcdp.html
NAGPRA can be found at:
http://www.cast.uark.edu/other/nps/nagpra/DOCS/lgm003.html
NAGPRA regs were revised last year: [Code of Federal Regulations] [Title 43,
Volume 1][Revised as of October 1, 2002] From the U.S. Government Printing
Office via GPO Access [CITE: 43CFR10.1
============Document End
[NOTE FROM KEN CONKLIN, WEBSITE EDITOR: FOLLOWING IS THE OFFICIAL ANNOUNCEMENT OF THE MEETING OF THE NAGPRA REVIEW COMMITTEE IN ST. PAUL, MN. MAY 9-11, AS TAKEN FROM THE FEDERAL REGISTER FOR APRIL 8, 2003. Anyone can verify this meeting notice online by going to:
http://www.access.gpo.gov/su_docs/aces/aces140.html
and for DATE put in 04/08/2003 and for TERMS put in "Review Committee"
(use the quotation marks) ]
[Federal Register: April 8, 2003 (Volume 68, Number 67)]
[Notices]
[Page 17082-17083]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08ap03-119]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
National Park Service
Native American Graves Protection and Repatriation Review Committee: Meeting
AGENCY: National Park Service, Interior.
ACTION: Notice.
-----------------------------------------------------------------------
Notice is here given in accordance with the Federal Advisory
Committee Act, 5 U.S.C. Appendix (1988), of a meeting of the Native
American Graves Protection and Repatriation Review Committee.
General Information: The Review Committee was established by the
Native American Graves Protection and Repatriation Act of 1990
(NAGPRA), 25 U.S.C. 3001 et seq. Review Committee members are appointed
by the Secretary of the Interior. The Review Committee is responsible
for monitoring the NAGPRA inventory and identification process;
reviewing and making findings related to the identity or cultural
affiliation of cultural items, or the return of such items;
facilitating the resolution of disputes; compiling an inventory of
culturally unidentifiable human remains and developing a process for
disposition of such remains; consulting with Indian tribes and Native
Hawaiian organizations and museums on matters
[[Page 17083]]
within the scope of the work of the committee affecting such tribes or
organizations; consulting with the Secretary of the Interior in the
development of regulations to carry out NAGPRA; and making
recommendations regarding future care of repatriated cultural items.
The Review Committee's work is completed during meetings that are
open to the public. The next scheduled meetings are in St. Paul, MN,
May 9-11, 2003, and Albuquerque, NM, November 21-23, 2003. Final dates
for the Albuquerque meeting will be confirmed during the St. Paul
meeting.
Transcripts of Review Committee meetings are available
approximately 8 weeks after each meeting at the National NAGPRA program
office, 1201 Eye Street NW, Washington, DC. To request electronic
copies of meeting transcripts, send an e-mail message to
nagpra[llddash]info@nps.gov. Information about NAGPRA, the Review Committee, and Review
Committee meetings is available at the National NAGPRA Website, http://www.cr.nps.gov/nagpra
; for the Review Committee's meeting protocol,
click ``Review Committee,'' then click ``Procedures.''
Indian tribes and Native Hawaiian organizations that are
considering visits to museums or Federal agencies in Review Committee
meeting locations for the purpose of transfers of repatriated cultural
items may wish to schedule transfers to coincide with Review Committee meetings. The National NAGPRA program awards repatriation grants to
assist with the costs of repatriation transfers. Information about
NAGPRA grants is posted on the National NAGPRA Website at http://www.cr.nps.gov/nagpra
; click ``NAGPRA Grants.''
St. Paul, MN, meeting, May 9-11, 2003: At the invitation of the
Minnesota Indian Affairs Council, the Review Committee will meet on May
9, 10, and 11, 2003, in the Town Square A Room in the Radisson City
Center Hotel St. Paul, 411 Minnesota Street, St. Paul, MN 55101,
telephone (651) 291-8800, Web http://www.radisson.com/stpaulmn
[llddash]citycenter.
Meeting sessions will begin at approximately 8:30 a.m. each day,
and will end at approximately 5 p.m. on May 9 and 10, and approximately
12 noon on May 11. The agenda for the meeting in St. Paul will include
National NAGPRA program reports on implementation; consideration of a
dispute between the Royal Hawaiian Academy of Traditional Arts and the
Bishop Museum; discussion of regulations, dispute resolution
procedures, and the Review Committee's 2002 report to the Congress; and
presentations and statements by Indian tribes and Native Hawaiian
organizations, museums, Federal agencies, and the public.
To schedule a presentation to the Review Committee during the St.
Paul meeting, submit a written request with an abstract of the
presentation and contact information. Persons also may submit written
statements for consideration by the Review Committee during the St.
Paul meeting. Send requests and statements to the Designated Federal
Officer, NAGPRA Review Committee (1) by U.S. Mail to the National Park
Service, 1849 C Street NW (2253), Washington, DC 20240; or (2) by
commercial delivery to the National Park Service, 1201 Eye Street NW,
8th floor, Washington, DC 20005. Because increased security in the
Washington, DC, area may delay delivery of U.S. Mail to Government
offices, copies of mailed requests and statements should also be faxed
to (202) 372-5197.
No special lodging arrangements have been made for this meeting. A
variety of accommodations are available in St. Paul and nearby
communities.
Albuquerque, NM, meeting, November 2003: The Review Committee is
scheduled to meet in Albuquerque, NM, November 21-23, 2003. Final dates
for the Albuquerque meeting will be confirmed during the St. Paul
meeting. A subsequent Federal Register notice will be published that
includes final meeting dates, location, agenda, and other details for
the Albuquerque meeting.
Dated: March 3, 2003.
John Robbins,
Designated Federal Officer, NAGPRA Review Committee.
[FR Doc. 03-8506 Filed 4-7-03; 8:45 am]
BILLING CODE 4310-70-S
======================
OR
GO BACK TO OTHER TOPICS ON THIS WEBSITE