DISPUTE OVER A NATIVE HAWAIIAN SACRED OBJECT CURRENTLY IN THE POSSESSION AND CONTROL OF THE MUSEUM OF NATURAL HISTORY AT ROGER WILLIAMS PARK PROVIDENCE, RHODE ISLAND

by Hui Mălama I Nă Kupuna O Hawai`i Nei and the Office of Hawaiian Affairs

October 15, 1996

CURRENT STATUS

Following the initial recommendation of the Native American Graves Protection and Repatriation Act (NAGPRA) Review Committee that the ki`i lă`au be expeditiously repatriated to Hawai`i nei, (based on the findings that the ki`i lă`au was a sacred object and that the Museum failed to prove that it had the right of possession), the City of Providence initiated suit in Federal Court against Bruce Babbitt, the Secretary of the Department of Interior, Hui Mălama, and OHA on November 21, 1997 .

In its complaint, the City of Providence alleges: (1) that the figure does not fall within any of the categories of "cultural items" under NAGPRA and therefore is under no legal obligation to repatriate the figure; (2) that the City has a right of possession to the figure, and is therefore under no legal obligation under NAGPRA to repatriate; and (3) that to the extent that NAGPRA imposes a legal obligation on the City to repatriate the figure without just compensation, such an obligation constitutes a taking in violation of the Takings Clause of the Fifth Amendment of the United States Constitution.

The matter is still pending in Federal District Court. Hui Mălama I Na Kupuna O Hawai`i Nei and the Office of Hawaiian Affairs continues to pursue the immediate repatriation of the ki`i lă`au.

RECENT EVENTS

In February 1996, the Mayor of Providence announced publicly that sale of a spear rest would be actively pursued. There was no formal notification or consultation with Hui Mălama or OHA. The Museum falls under the authority of the Department of Public Parks, City of Providence.

Hui Mălama and OHA stated their disagreement with the announced intention to sell by joint letter of March 14, 1996. In that missive, both Native Hawaiian Organizations urged Providence Mayor Cianci to take a cautious approach and provide ample time for the Native Hawaiian community to discuss this matter fully and to resolve whether NAGPRA was applicable. The Museum in turn agreed to temporarily halt the proposed sale while NAGPRA consultations were being conducted.

Hui Mălama and OHA asserted formal NAGPRA claims for the ki`i lă`au as cultural patrimony and as a sacred object by joint letter dated May 1, 1996. On May 23, 1996, representatives of Hui Mălama and OHA, the Museum, and the Providence Department of Public Parks met in New York City. Following an hour long meeting, the parties immediately traveled to Sotheby's where the Native Hawaiian representatives conducted an introduction and greeting ceremony and an inspection of the ki`i lă`au. Thereafter, the parties reconvened the earlier discussion.

The Native Hawaiian representatives again asserted NAGPRA claims but were unable due to time constraints and the prior inability to fully consult with Native Hawaiian cultural experts to satisfactorily substantiate the claims. The Museum/City representatives stated the opinion that regardless of the additional information, the claims would be rejected as it was of the opinion that the spear rest was not included in any applicable NAGPRA definition. The Native Hawaiian representatives requested any and all relevant documentation that was not already provided. Both sides agreed that the matter should be submitted to the NAGPRA Review Committee.

By letter dated May 29, 1996, the Museum formally rejected the NAGPRA claims asserted, requesting that the matter be submitted for consideration by the NAGPRA Review Committee. Hui Mălama and OHA submitted a joint letter dated August 2, 1996 to NAGPRA Review Committee Chairperson Tessie Naranjo, raising the issue of meaningful consultation and requesting an opinion on the following three questions:

1. Where a NAGPRA claim is formally denied prior to the substantiation by the Tribe or Native Hawaiian organization, does consultation require complete exchange of information by all the parties before a determination is rendered by the Museum or Federal agency?

2. In this instance, was the Museum's determination premature?

3. If the response is affirmative, then is a request for intervention by the Review Committee at this juncture equally premature?

By letter dated August 14, 1996 from Dr. Francis P. McManamon, National Park Service, Departmental Consulting Archaeologist, both Native Hawaiian Organizations were requested to submit information to facilitate the Review Committee's consideration of the dispute. That correspondence did not directly respond to the three questions posed in the August 2 letter. However, it did state that following receipt and evaluation, a decision would be made as to the most appropriate role for the Committee to take in facilitating resolution of the dispute.

Pursuant to the notice published Tuesday, August 20, 1996 Volume 61, Number 162, the Review Committee would meet to discuss inter alia "review of documentation related to a dispute over a Hawaiian object currently in the possession of the Museum of Natural History at Roger Williams Park."

In October of 1997, the NAGPRA Review Committee convened to consider a number of matters, including "a dispute over a Native Hawaiian sacred object currently in the possession and control of the Museum of Natural History at Roger Williams Park Providence, Rhode Island." The following represents a summary of the arguments presented by Hui Malama and OHA before the Review Committee.

EVIDENCE SUPPORTING IMMEDIATE REPATRIATION

The Native Hawaiian cultural item is known to us generally as a ki`i lă`au (wooden image), and more specifically as a ki'i `aumakua. Antiquity is clearly pre-contact, i.e. created prior to European arrival in 1776. The ki`i lă`au is currently under the possession and control of the Natural History Museum at Roger Williams Park, Providence, Rhode Island (Museum). The Museum assigned the ki`i lă`au accession number 9071 and catalog number E 2733. The ki`i la`au was likely received as part of a loan of South Seas objects from the Providence Franklin Society to the Museum in May 1916.

CIRCUMSTANCES SURROUNDING ACQUISITION UNKNOWN

The actual donor of the ki`i lă`au is unknown. Based on original donor records of the Franklin Society, the two most likely candidates are Miss Betty Earl, who on February 13, 1827 donated "an idol from Owyhee, Sandwich Is[.]" and Captain D. T. Aborn, who on August 11, 1829 donated "an idol from the Sandwich Islands." In the Museum's own words, "it is impossible to positively associate the spear rest with either donor. Recent examination of these records by museum staff have corroborated this uncertainty." Hence, the actual circumstances surrounding the transfer of the item out of Native Hawaiian control is unknown.

The collection history for the ki`i lă`au requires some clarification. In the photocopy of the catalog card provided by the Museum, acquisition is stated as a donation in 1916 from the Franklin Society. However, in subsequent documentation provided in July 1996, acquisition in 1916 is by loan. The Franklin Society did not dissolved itself until 1922.

Next, there is no documentation clearly stating at what point the loan of the South Sea objects from the Franklin Society to the Museum became a permanent transfer. In fact, nowhere has the Museum satisfactorily demonstrated clear and unabridged title to the sacred ki`i la`au. Moreover, assuming the ki`i lă`au was received as part of a loan in 1916, and then became the permanent property of the Museum, it is still unknown whom originally donated the ki`i lă`au to the Franklin Society, and how the ki`i lă`au was actually acquired.

We assert that the ki`i lă`au was once the possession of an kaua ali`i (warrior chief). Moreover, due to the profound nature and form of the ki`i lă`au, including its jutting chin, protruding chest, pearl shell eyes, bent knees, and dark blue face, there is a strong inference that the kaua ali`i was also an ali`i nui (ruling chief), "[t]his ki`i lă`au is not an ordinary spear holder because it is elegantly carved and has inlaid pearl shell eyes. ... Based on its appearance, this ki`i lă`au not only belonged to a kaua ali`i, but to one who was a ruling chief." Moreover, "[such] carved images, however, could only have been in the possession of families of considerable rank, wealth, and power." See, Cox and Davenport at 96.

The ki`i lă`au was lashed to the war canoe of the kaua ali`i and was used to secure, hold, and protect his nă ihe (short spears) and nă pololu (long spears). These spears were the life line of a kaua ali`i, used to defend his people, as well as to conduct war campaigns against his enemies. The width of the curved base represents the width of the war canoe gunnel, indicating that there was a second ki`i lă`au lashed to the opposite gunnel in order to hold the other ends of the spears. These spears were carried perpendicular to the length of the canoe.

The ki`i lă`au is not an ordinary support figure, but is an `aumakua image created by the kaua ali`i for the purpose of housing an ancestral spirit to care for his spears. The responsibility of guarding and protecting nă ihe of a kaua ali`i would only have been entrusted to an `aumakua of the kaua ali`i. "The ki`i lă`au is associated with a war god or an ancestral deity who excelled in warfare. It was the god that was holding the spears, his purpose being to imbue them with his mana (energy). The kaua ali`i was dependent on the god to give the necessary mana so that the spear would be fast, strong, and deadly accurate."

The fact that the ki`i lă`au was designed to hold, guard, and protect the spears of a kaua ali`i does not mean that it is "utilitarian" and therefore "secular," having no religious significance. Such statements reveal a fundamental misunderstanding of the importance of the function of the ki`i lă`au as well as the Western tendency to create differentiations where none exist.

FORM AND APPEARANCE

The form of the ki`i lă`au has been described in the following manner, "[i]ts singularity is that the body is carved in a style traditional to god images..." See, Edward Dodd, A Pictorial Peregrination Through the Shapely and Harmonious Often Enigmatical, Sometimes Shocking Realms of Polynesian Art, The Ring of Fire, Vol. 1 (1967) at 235, exhibit C. Furthermore, [t]his object also bears resemblance to certain of the personal god images (`aumakua), and sorcery images (kalai pahoa)." Important Tribal Art, Sotheby's, New York, Tuesday, November 18, 1986, item 41, "Hawaiian Islands Support Figure."

Pualani Kanaka'ole Kanahele, a Native Hawaiian religious leader stated in reference to the ki`i lă`au, "[t]his ki`i lă`au is associated with a war god or an ancestral deity who excelled in warfare. It was the god that was holding the spears, his purpose being to imbue them with his mana (energy). The kaua ali`i was dependent on the god to give the necessary mana so that the spear would be fast, strong, and deadly accurate. This god would be personal to the ali`i, usually an ancestor with exceptional warfare skills. This god was known as an `aumakua. The spear is the physical connection between the `aumakua and the kaua ali`i, through the ki`i lă`au." See, Statement of Pualani Kanaka`ole Kanahele Regarding the Significance of the Ki`i Lă`au (October, 1996) Hilo, Hawai`i ("Pualani").

The ki`i lă`au has a smooth head and eyes inlaid with mother of pearl shell, indicative of an `aumakua image: "[t]here are other characteristics that distinguish the `aumakua from the other images [support figures, temple, and akua]. In general, they lack the elaborate head dresses, being either bald or having human hair pegged into the head. A number of them have, or had, pearl shell set into the eyes." See, Cox and Davenport at 94. Furthermore, with respect to the particular use of pearl shell eyes, ". . . the figure is a god, and the artist gave it "spirit eyes," the customary symbols of super human power." See, Handy, et al, Ancient Hawaiian Civilization (1978) at 231. In addition, the knees are bent, chin and chest protruding, and face colored dark blue to black. The ki`i lă`au, with its curved base with noticeable lash marks near both feet, was a "triple spear rest for an Hawaiian chief, designed to be lashed to the gunwale of a war canoe."

For all the reasons, it is highly likely that the ki`i lă`au was once the possession of a kaua ali`i (warrior chief) based on its unique form and function and was used to hold, guard, and protect nă ihe (short spears) or nă pololu (long spears) while lashed to his war canoe.

`AUMAKUA

"`Aumakua worship is an ancient practice that prevailed in all levels of society. The carved images, however, could only have been in the possession of families of considerable rank, wealth, and power." These `aumakua are family or personal gods -- ancestral deities who are called upon by their descendants for guidance and protection. "The `aumakua were the ancient source gods `from time immemorial' (akua kumu kahiko mai na kupuna mai) -- the gods from whom the ancestors implicitly believed they had come [personified natural phenomena], or one from whom they had actually descended." See, Samuel Kamakau, Ka Po`e Kahiko (1987) at 28.

The `aumakua called by the kaua ali`i would have been a personal, family god. "This god [inhabiting the ki`i lă`au] would be personal to the ali`i, usually an ancestor with exceptional warfare skills. This god was known as an `aumakua." The kaua ali`i had the ki`i lă`au carved in preparation for warfare, created at the same time as the war canoe and other war implements. "An 'aumakua was called upon to inhabit the ki`i lă`au. Once the god took residence, the ki`i lă`au was ceremonially consecrated by the kaua ali`i through prayer and the feeding of fish, awa, and other nourishment. The ki`i lă`au was then lashed to the war canoe. Prior to battle, warriors consecrated their weapons including their war canoe to seek lokahi (balance) with their gods, clearing the way for success in battle."

Creation of such a ki`i lă`au could only have been commissioned by someone such as a high ranking kaua ali`i who was also an ali`i nui (ruling chief). "`Aumakua worship is an ancient practice that prevailed in all levels of society. The carved images, however, could only have been in the possession of families of considerable rank, wealth, and power."

FORM AND APPEARANCE

The ki`i lă`au has mother of pearl shell for the eyes, which are shiny, evidencing the way in which ancestral Hawaiians believed their deities saw the world, "[t]he mother of pearl eyes were intended to give the god vision and sight. In only special ki`i lă`au were the eyes inlaid with pearl shell. Hawaiians believed their gods saw the world through eyes that were shiny. It is particularly important during a battle that the god have clear visions of the battle field and all designated targets, for it is the god that is being relied upon to accurately guide the spear, and ensure the success in hitting the target. In addition, the inlaid pearl shell eyes were intended to make the god look whole and perfect. The ki`i lă`au was created as a place where the god would be enticed to dwell and to provide the services requested. Therefore, the ki`i lă`au had to be perfect." See, Pualani.

The ki`i lă`au stands in a bent knee position. This carving style is indicative based on the War God Ku, which strike an imposing posture with chin raised, chest protruding, and knees bent. "The bent knee position demonstrates a warrior going into battle. The bent knee position symbolizes balance, enhancing the ability to shift weight quickly when throwing or dodging a spear. Bent knees also demonstrated being prepared and grounded." See, Pualani. The dark blue painted face is an expression intended to intimidate, and put fear into people, "[t]he blue face is intended to resemble strangulation, symbolizing the look or face of death." Id.

The general provenance of the ki`i lă`au is Hawai`i (Sandwich Islands). In general, ki`i lă`au whose provenance is known have been removed from burial caves of ruling chiefs on the island of Hawai`i. Residing on Hawai`i island were the most aggressive of the ruling chiefs, including Alapa`i Nui, Kalaniopu`u, Keouakalanikupuapăikalaninui, and of course, Kamehameha. All were expert spear fighters. Warfare training was part of their Ku lifestyle. Protocols between warrior chiefs involve the parrying of spears thrust at them from close range. This exercise demonstrated both advanced skill and mana. Having this skill and a ki`i lă`au such as the one at issue demonstrated the chief's high level of mana, meaning he was lokahi (in balance) with his `aumakua leading to success in warfare. It is more likely than not that one of these aggressive ruling chiefs of Hawai`i island ordered the ki`i lă`au created, then summoned his `aumakua to reside with the intention of enhancing his mana to promote success in warfare.

This ruling chief had the authority to decide whether to be buried with the ki`i lă`au or to pass it down to the succeeding ruler. Burial with the ki`i lă`au at death, along with his other war implements, including the war canoe, would have honored his status as a warrior chief. Passing down of the ki`i lă`au to succeeding generations would have ensured the continued effectiveness of the ki`i lă`au during war campaigns to acquire land, or settle other disputes. In either case, the ki`i lă`au would ultimately have been placed in the burial cave of the ruling chief or one of his ruling lineal successors. These ruling Hawai`i island chiefs, while affiliated with different districts of the island, were in reality, through centuries of marriage for the purposes of acquiring mana, interrelated by blood and marriage.

THE APPLICATION OF NAGPRA:

I. The Ki`i La`au is a Sacred Object

NAGPRA and the regulations define the term "sacred object to mean: "items that are specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents. While many items, from ancient pottery shards to arrowheads, might be imbued with sacredness in the eyes of the individual, these regulations are specifically limited to objects that were devoted to a traditional Native American religious ceremony or ritual and which have religious significance or function in the continued observance or renewal of such ceremony. The term traditional religious leader means a person who is recognized by members of an Indian tribe or Native Hawaiian organization as (i) being responsible for performing cultural duties related to the ceremonial or religious traditions of that Indian tribe or Native Hawaiian organization, or (ii) exercising a leadership role in an Indian tribe or Native Hawaiian organization based on the tribe or organization's cultural, ceremonial, or religious practices."

In ascertaining whether the ki`i lă`au qualifies as a sacred object, the Review Committee should look to the particular cultural circumstances of the Native Hawaiian people, both at the time the ki`i lă`au was in use, and today, for what constitutes a sacred object will vary depending on the practices unique to the particular culture. the Senate Committee on Indian Affairs, during its consideration of the Native American Graves Protection and Repatriation Act, "made every effort to incorporate the comments and address the concerns of members of the scientific and museum communities with regard to the substantive definitions set forth in the Act, while at the same time recognizing that there are over 200 tribes, and 200 Alaska Native villages and Native Hawaiian communities, each with distinct cultures and traditional and religious practices that are unique to each community. Accordingly, the definitions of sacred objects, funerary objects, and items of cultural patrimony will vary according to the tribe, village, or Native Hawaiian community." See, Sen. Rept. 101-473 at 7.

This ki`i lă`au is a specific ceremonial object, especially created by the kaua ali`i to house an `aumakua who excelled in warfare, "[t]his ki`i lă`au is associated with a war god or an ancestral deity who excelled in warfare... This god would be personal to the ali`i, usually an ancestor with exceptional warfare skills. "

This ki`i lă`au was devoted to a religious ceremony or ritual, "[t]he ki`i lă`au was carved in preparation for warfare, at the time the war canoe was built. An `aumakua was called upon to inhabit the ki`i lă`au. Once the god took residence, the ki`i lă`au was ceremonially consecrated by the kaua ali`i through prayer and the feeding of fish, awa, and other nourishment. The ki`i lă`au was then lashed to the war canoe. Prior to battle, warriors consecrated their weapons, including their war canoe, to seek lokahi (balance) with their gods, clearing the way for success in battle." Moreover, the kaua ali`i who possessed the ki`i lă`au would have been considered a traditional religious leader under the terms of NAGPRA.

Native Hawaiians, as with many other American Indian tribes, did not draw a distinction between church and state. As a ruling chief, he was responsible for the performance of ceremonies and rituals in order to protect his people from harm, both physically and spiritually. Preparation for warfare for purposes of defense or acquisition necessarily entailed ceremonies to call upon nă akua and nă `aumakua for assistance to ensure the kaua ali`i success in battle. To do otherwise would have meant facing the wrath of a scorned akua or `aumakua, or the refusal of aid in time of great need.

The kaua ali`i needed the ki`i lă`au in order to help carry out his main cultural, ceremonial, and religious duties involving the protection of life, i.e. defending against attack or providing sufficient land in order to feed all whom he was responsible for. The immediate duties of the kaua ali`i to the ki`i lă`au involved ceremonial consecration to entice the `aumakua to come forward and inhabit the ki`i lă`au, ceremonial feeding to strengthen the god, prayers to constantly communicate the requested assistance, and continued care, "[t]he relationship between the kaua ali`i and the ki`i lă`au was one of interdependency and responsibility rather than ownership. It was the responsibility of the kaua ali`i to feed, nurture, and house the `aumakua residing within the ki`i lă`au. The kaua ali`i would pray to the `aumakua for the requested assistance and any assistance thus provided would benefit not only the kaua ali`i, but all of his people as well."

The sacredness of the ki`i lă`au went beyond its ceremonial use during warfare, "t]he ki`i lă`au is sacred in and of itself because it is imbued with an `aumakua residing within. When the `aumakua departed the ki`i lă`au, it left mana behind. This residual mana continued the sacredness of the ki`i lă`au, allowing for the `aumakua to be called back when needed. During times of peace, the ki`i lă`au would rest in the Hale Mua (Men's Prayer House). When the `aumakua departed, the ki`i lă`au would become inactive, until such time as the `aumakua returned."

The ceremonial, sacred relationship between the kaua ali`i and the ki`i lă`au was one that often continued beyond the death of the kaua ali`i. The kaua ali`i could request that the ki`i lă`au be buried with him, or he could pass it on to his lineal ruling successor, in the hopes that assistance which the `aumakua had provided to him in his lifetime would continue for the remaining members of his `ohana (family). Because `aumakua practice by Native Hawaiian religious leaders and other Native Hawaiian practitioners never ceased, this ki`i lă`au is needed by Native Hawaiian religious leaders in order to validate, strengthen, and continue traditional `aumakua practices today, "[t]he significance of the ki`i lă`au continues to this day. Native Hawaiians have continued the `aumakua practice, even after the abolition of the kapu system, abolition of the state religion, and centuries of Western missionary influence. We all have the right to call upon our `aumakua for guidance and assistance. Because this `aumakua practice is alive and well today, what affects the ki`i lă`au has a direct impact upon us, for what is done to one `aumakua can be done to another `aumakua. The ki`i lă`au and nă iwi kupuna (ancestral bones) both house our ancestral spirits. For the same reason that we repatriate nă iwi kupuna, we seek the return of this ki`i lă`au, with the same sense of responsibility for strengthening and maintaining our ancestral foundation."

There is religious significance in the continued observation of `aumakua practice and in the ceremonial role which the ki`i lă`au fulfills to those who practice traditional Hawaiian religion today. While not serving to imbue spears with mana, the `aumakua that summoned through use of the ki`i lă`au could be called upon to help sharpen the mind, tongue, and spirit of contemporary Native Hawaiian warriors preparing for a different kind of battle. The goal remains the same, the protection and defense of life and the maintenance of self identity.

While Native Hawaiians no longer practice the same style of warfare that existed in pre-European Hawai`i, warfare of a different kind persists today. In this modern day, battles continue to be waged to protect the boundaries of Native Hawaiian culture, traditions, and spirituality. Native Hawaiians engaged in modern day battles who practice traditional Native Hawaiian religions, can and will utilize the ki`i lă`au in ceremonies to summon the `aumakua in order to gain knowledge, skill, and strength necessary for success in battle.

The continued observance of such ceremonies for the ki`i lă`au signifies the traditional belief in the interdependence of the Hawaiian people with all those who had gone before them and who stand behind them, and the strength and confidence that comes from this understanding. Such ceremonies would entail the recital of genealogy to kahea (call) one's ancestors and the presentation of an offering of food or drink in order to entice the return of the `aumakua. A similar ceremony was conducted by Hui Mălama for the ki`i lă`au at Sotheby's on May 23, 1996 where each participant recited ancestral lines and conducted greetings. `Iliahi (sandalwood) and `awa were offered to entice the `aumakua to return. Knowledge, strength, clarity, and confidence were requested in order to continue a meeting with Museum officials regarding the importance of repatriating the ki`i lă`au. This same mana continues in ongoing battles to repatriate. Mana`o (thoughts; feelings) of Edward Halealoha Ayau.

There are numerous modern day examples of `aumakua practice:

* In order to receive ancestral assistance with these modern day battles, Native Hawaiians continue the `aumakua practice of kahea or calling to their ancestors by name and invoking pule (prayers) of honor. Hawaiians ask for `ike (knowledge), ikaika (strength), akamai (intelligence), maopopo pono (righteous understanding), `ike păpălua (inspiration), and mana (energy), tools necessary to address modern day battles. The creation of a house for the ancestral spirit has to be perfect so as to ensure the `aumakua might not only respond, but take residence. Ceremonial feeding, communication, and adornment are protocol responsibilities necessary to maintain the `aumakua.

* Moko Hăloa is a group comprised of Native Hawaiian men training in traditional male spirituality practices. Ancestors are constantly called upon to assist with spiritual development including constructing and maintaining an ahu (a mound of stones), some with a kuahu, where ceremonies are conducted to seek ancestral assistance. Kuahu function like ki`i lă`au in that both house ancestral deities called upon to help the living. Kuahu are upright stones used as focal points for prayers, and as a spiritual residence for the `aumakua. Kuahu are used by Moko Hăloa members to summon ancestors who do not have a high degree of mana like a ruling chief, but rather ancestors from recent times who are known to be able to provide the needed assistance. On the other hand, the ki`i lă`au is so profound, so perfect in form that it rises to the level of being an appropriate receptacle to call forth and retain the services of a high ranking ali`i who lived in traditional times.

* Ancestors are asked by Hui Mălama for assistance with reburial ceremonies to help provide intelligence so that the right decisions are made, physical strength to complete the task, righteous understanding to deal with any obstacles, and mana to help ensure that ceremonies are conducted correctly.

* In 1993, Ke Au `Ea ceremonies were held at Kilauea Crater, and in 1994 at the four points of Hawai`i island including Kohala (North), Kalae (South), Puna (East), and Kona (West) where hundreds of Hawaiians called upon their ancestors to provide mana for the Hawaiian people struggling to restore their rightful place in the sun.

* Mo`o Lono (Lono Priests) conduct annual makahiki ceremonies on the island of Kaho`olawe, invoking their ancestors for necessary assistance with the task of honoring Lono and requesting that he brings the rains necessary to green and heal the island after years of bombing by the Navy.

* Hui Mălama O Ke Kăneăki recently invoked their ancestors for kokua (assistance) necessary to lift all kapu placed on the heiau while restoration work is to be conducted in order to respect and protect all involved from past regulations imposed on the heiau.

* Pele dances and ceremonies continually conducted to honor the fire goddess are led by descendants seeking to pay tribute to the awesome creative and destructive powers of their ancestor, requesting her favor, and her inspiration, in the conduct of their spiritual lives.

In general, Native Hawaiians who call upon their ancestors for assistance and guidance are religious practitioners. Since `aumakua practices occur at the family level, each family defined its own ceremonial protocols necessary to call upon the `aumakua. These religious traditions were often handed down over generations. Mana`o of Pualani.

Relatives of the kaua ali`i who once possessed the ki`i lă`au and who are contemporary `aumakua practitioners also have an important role in the return and maintenance of the ki`i lă`au. Native Hawaiians recognize such individuals as "being responsible for performing cultural duties related to the ceremonial or religious traditions" pertaining to the ki`i lă`au, "[t]he ki`i lă`au houses an `aumakua spirit, to whom the kaua ali`i would ask for assistance. this is why bringing back ki`i lă`au are so important, for we are returning to Hawai` the houses for these spirits, so that they may no longer wander. Although we may not always know for whom these houses were built, our genealogy enables us to call forth our `aumakua. The ki`i lă`au, recognizing the name of one familiar to it, might thus become active once more."

The ki`i lă`au was created with a particular `aumakua in mind. That it once housed this `aumakua, and the residual mana that exists long after the `aumakua has departed, forever cements the relationship between the `aumakua and the ki`i lă`au. The relationship between the kaua ali`i and this ki`i lă`au is one of interdependency, responsibility, and respect and helps ensure that such an important object would have remained within the family of the kaua ali`i.

Given the nature of this relationship, and the burdens and responsibilities of care associated therewith, it is part of the practice of present day adherents of traditional Native Hawaiian religion for contemporary descendants of this kaua ali`i to seek the return of this ki`i lă`au, so they might again reactivate and commune with their ancestral deity.

Clearly, Congress intended to have the definition of sacred object uniquely applied to the religious belief systems of each Native community. The ki`i lă`au, as defined by Native Hawaiians, is sacred and descendants of the ruling chief who are traditional religious leaders have continued ceremonial use for the ki`i lă`au. It is therefore a sacred object intended by the framers of NAGPRA to be repatriated.
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II. The Ki`i La`au is an Object of Cultural Patrimony

NAGPRA and the regulations define the term to mean, "items having ongoing historical, traditional, or cultural importance central to the Indian tribe or Native Hawaiian organization itself, rather than property owned by an individual tribal or organization member. These objects are of such central importance that they may not be alienated, appropriated, or conveyed by any individual tribal or organization member. Such objects must have been considered inalienable by the culturally affiliated Indian tribe or Native Hawaiian organization at the time the object was separated from the group. Objects of cultural patrimony include items such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and other objects of similar character and significance to the Indian tribe or Native Hawaiian organization as a whole."

This ki`i lă`au is one of central importance to Native Hawaiians because it was possessed by a kaua ali`i who was also an ali`i nui for purposes of protecting his people. It was not a family `aumakua image which only benefitted the members of the immediate family, but instead was one of great importance upon which an entire district of Native Hawaiians relied upon for protection.

By its very nature, the ki`i lă`au could not have been alienated, appropriated, or conveyed because it could not be owned by any person, including the ali`i nui, "[t]The relationship between the kaua ali`i and the ki`i lă`au was one of interdependency and responsibility rather than ownership. It was the responsibility of the kaua ali`i to feed, nurture and house the `aumakua residing within the ki`i lă`au. The kaua ali`i would pray to the `aumakua for the requested assistance and any assistance thus provided would benefit not only the kaua ali`i, but all of his people as well. In Hawaiian thought, no one could ever "own" this ki`i lă`au." At the time the ki`i lă`au was removed from Hawai`i, it was considered inalienable by Native Hawaiians. Dodd described the ki`i lă`au as an, "undoubtedly authentic pre-European piece."

The first Europeans arrived in Hawai`i in 1776. Although it cannot be ascertained with any certainty, in view of the information available, it is highly likely that the ki`i lă`au was removed from Hawai`i shortly following European contact. Native Hawaiians maintained and continued `aumakua practices throughout this time period and beyond. These practices involved calling upon and maintaining connections with ancestral spirits through pule (prayer) and the recital of mo`oku`auhau (genealogy). This practice was referred to as kahea (calling). Ancestors were requested to protect, assist, and guide the living `ohana (family). Sometimes, the ancestral spirit was requested to harm others. In turn, the ancestor was restored to a functional role within the `ohana. In Hawaiian thought, death did not extinguish one's role in the `ohana. Survival of the Hawaiian race was a function of the growth and welfare of the `ohana. These `aumakua practices which prevailed at the time the ki`i lă`au was removed from Hawai`i, and which continue today, would have made any such alienation, even by a kaua ali`i who was an ali`i nui, inconceivable, for it would have amounted to an erosion of his `ohana and his people.

This ki`i lă`au has ongoing historical, traditional, or cultural importance central to Native Hawaiians today because it involves `aumakua practice, "[t]he significance of the ki`i lă`au continues to this day. Native Hawaiians have continued the `aumakua practice, even after the abolition of the kapu system, the abolition of the state religion, and centuries of Western missionary influence. We all have the right to call upon our `aumakua for guidance and assistance. Because this `aumakua practice is alive and well today, what affects the ki`i lă`au has a direct impact upon us, for what is done to one `aumakua can be done to another `aumakua. The ki`i lă`au and nă iwi kupuna (ancestral bones) both house our ancestral spirits. For the same reason that we repatriate nă iwi kupuna, we seek the return of this ki`i lă`au, with the same sense of responsibility for strengthening and maintaining our ancestral foundation."

III. The Ki`i Lă`au is an Unassociated Funerary Object

NAGPRA and the regulations define the term to mean, "items that, as part of the death rite or ceremony of a culture, are reasonably believed to have been placed intentionally at the time of death or later with or near individual human remains. Funerary objects must be identified by a preponderance of the evidence as having been removed from a specific burial site of an individual affiliated with a particular Native Hawaiian organization or as being related to specific individuals or families or to known human remains, "objects for which the human remains with which they were placed intentionally are not in the possession or control of a museum or Federal agency. Objects that were displayed with individual human remains . . . are not considered funerary objects."

It was a common practice for ruling chiefs to be buried with items that symbolized their mana and embellish their status as an ali`i. These items included war implements for a kaua ali`i, `ahu`ula (feather capes), mahi`ole (helmets) and attendants who were killed and placed with the ali`i to serve them in the next life. These were all called moe pu which means to place with at death. Great care was taken to hide the bones of an ali`i to protect them from desecration. However, many royal burial caves have been violated, with the chiefly remains and moe pu removed for possession, sale, or study.

`Aumakua images would clearly have been moe pu and therefore placed with the bones of a chief or his succeeding ruling descendant. Of the 24 known `aumakua images, the provenance of 18 is unknown, or where known, is undocumented in terms of the manner of collection. Of the remaining 6, 3 came from burial caves, 1 was likely to have come from a burial cave, and 2 came from Hale O Keawe, Honaunau, Kona, a repository for the remains of deified Hawai`i island chiefs. See, Cox and Davenport at 160 - 170.

The evidence demonstrates more likely than not that this ki`i lă`au was moe pu placed with the bones of the kaua ali`i as part of his burial ceremony because all ki`i lă`au whose provenance is known came from burial caves on the island of Hawai`i. Therefore, it is more likely that not that this ki`i lă`au came from a burial cave located on the island of Hawai`i. Moreover, the evidence demonstrates more likely than not that this ki`i lă`au was the possession of a kaua ali`i who was a ruling chief, and was placed with him at death. Therefore, it is more likely than not that the ki`i lă`au is from the burial cave of a ruling chief on the island of Hawai`i, "[r]esiding on Hawai`i nui kua uli was the last of the ruling chiefs who were the most aggressive in terms of warfare for the purpose of acquiring land. The ruling chief had the authority to decide whether to be buried with the ki`i lă`au or to pass it down to the succeeding ruler. Burial with the ki`i lă`au at death, along with his other war implements, including the war canoe, would have honored his status as a warrior chief. Passing down of the ki`i lă`au to succeeding generations would have ensured the continued effectiveness of the ki`i lă`au during war campaigns to acquire land, or settle other disputes. In either case, the ki`i lă`au would ultimately have been placed in the burial cave of the ruling chief or one of his lineal ruling successors.

Furthermore, Cox and Davenport state at 96, "`[a]umakua worship is an ancient practice that prevailed in all levels of society. The carved images, however, could only have been in the possession of families of considerable rank, wealth, and power." These facts collectively meet the burden of showing more likely than not that the ki`i lă`au was removed from the burial cave of a specific family namely, of the ruling chiefs of the island of Hawai`i. The ruling chiefs of the island of Hawai`i, while affiliated with different districts of the island, were in fact, through centuries of inter marriage for the purposes of acquiring mana, related as family.

Because the museum cannot ascertain with certainty the donor of the ki`i lă`au, much less the circumstances under which the ki`i lă`au was obtained, the museum cannot cite this lack of documentation as a means by which to shroud itself from the inference that the ki`i lă`au was removed from a burial site of a kaua ali`i who was also an ali`i nui.

IV. At Issue: Right of Possession

Hui Mălama and OHA have made a prima facie case that the Museum does not have right of possession. NAGPRA and the regulations define the standard of repatriation and the right of possession as, "[i]f 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 represents 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. For purposes of this section, "right of possession" means possession obtained with the voluntary consent of an individual or group that had authority of alienation. The original acquisition of a Native American unassociated funerary object, sacred object, or object of cultural patrimony from an Indian tribe or native Hawaiian organization with the voluntary consent of an individual or group with authority to alienate such object is deemed to give the right of possession to that object."

The nature of the ki`i lă`au reveals that it is an `aumakua image, created for the purpose of housing the ancestral deity of a ruling kaua ali`i. These `aumakua images were not considered alienable. The `aumakua residing within these ki`i lă`au were ancestral deities, direct ancestors to whom the descendants would call upon for guidance and assistance. Because of this relationship, the thought of alienating, selling, or transferring one's ancestor would have been unthinkable.

Neither the kaua ali`i, nor any of his immediate successors, could have "owned" this ki`i lă`au such that they would have had the authority to alienate, "[t]he relationship between the kaua ali`i and the ki`i lă`au was one of interdependency and responsibility rather than ownership. It was the responsibility of the kaua ali`i to feed, nurture and house the `aumakua residing within the ki`i lă`au. The kaua ali`i would pray to the `aumakua for the requested assistance and any assistance this provided would benefit not only the kaua ali`i, but all of his people as well. In Hawaiian thought, no one could ever `own' this ki`i lă`au... The very notion of buying and selling this ki`i lă`au is an insult and highly disrespectful to Native Hawaiians. To treat the ki`i lă`au in such a manner is harmful to us and our culture because we would have been reduced to buying and selling an ancestor, thereby eroding our genealogical connections, making us think less of ourselves."

As this ki`i lă`au was highly likely to have been separated from Native Hawaiians shortly following European contact, the prevailing value system and ongoing practices at that time were such that the ki`i lă`au would not have been considered alienable. No one, including the kaua ali`i, had the authority to alienate, therefore no one could have voluntarily consented to a transfer of possession.

Since it is highly likely that this ki`i lă`au was removed from the burial cave of the kaua ali`i or one of his immediate lineal ruling successors, no one removing an item placed within a burial cave as part of a burial ceremony could have had the authority to alienate the item. The removal of the ki`i lă`au from its burial cave meant that it was obtained without voluntary consent.

Based on these assertions, and all others contained herein, Hui Mălama and OHA have presented sufficient evidence, which standing alone before the introduction of evidence to the contrary, supports a finding that the Museum does not have right of possession. The fact that the Museum does not have any documentation to substantiate that the ki`i lă`au was obtained with the voluntary consent of an individual or group that had authority of alienation severely undermines the Museum's ability to rebut the prima facie assertion by claimants that the Museum does not have right of possession.

The Museum's Perspective

The Museum believes that NAGPRA does not apply to the ki`i lă`au and therefore it is free to sell it, "[c]learly the Spear Rest is not a religious item required by current Hawaiians for religious observation. Similarly, it is not a cultural item of such importance that no one person could have owned it individually (it is thought an individual chief owned ours)."

Moreover, the Museum asserts that the spear rest is a "utilitarian object," "made to perform a useful purpose: holding, most likely fishing spears." The Museum has made these assertions absent any meaningful consultation with any traditional Native Hawaiian religious leaders. Furthermore, the Museum admitted it was consulting an art dealer for advice on the use and function of the ki`i lă`au. The person was neither Native Hawaiian or trained in traditional Native Hawaiian spiritual culture and practice.

SUMMARY OF OUR MANA`O (THOUGHTS; FEELINGS)

We believe that the Native American Graves Protection and Repatriation Act applies to the ki`i lă`au identified as accession 9071 and catalogue number E 2733. We also assert that we asserted a prima facie case that the Museum never had right of possession, and that the Museum was unable to rebut the assertion, based on the fact that ue to its `aumakua nature, the ki`i lă`au could not have been alienated by any person for it would amount to erosion/death for the families;
that it is highly likely that the ki`i lă`au was removed from a burial site of a ruling chief and thus, the ki`i lă`au could not have been obtained from a person with the authority to alienate.

We believe the ki`i lă`au is a sacred object; an object of cultural patrimony; and an unassociated funerary object as defined by NAGPRA. Moreover, that the ki`i lă`au is not indispensable to the completion of a specific scientific study the outcome of which is of major benefit to the United States and that there has been no determination by a court of competent jurisdiction that the repatriation of the ki`i lă`au would result in a taking of property without just compensation within the meaning of the Fifth Amendment of the United States Constitution.

Most importantly, we strongly urge the Museum to undertake all necessary steps to permanently repatriate the ki`i lă`au to the joint custody of Hui Mălama and OHA.

Review Committee Findings and Recommendations

 In a Federal Register notice, the NAGPRA Review Committee made "Advisory Findings and Recommendations Regarding a Carved Wooden from the Hawaiian Islands" stating:

"After full and careful consideration of the information and statements submitted and presented by representatives of the City of Providence, RI, the Office of Hawaiian Affairs, and Hui Malama I Na Kupuna `O Hawai`i Nei, at its meetings on November 23, 1996 [sic] and March 27, 1997, the Native American Graves Protection and Repatriation Review Committee (NAGPRA Review Committee) considers:

(1) The Office of Hawaiian Affairs and Hui Malama I Na Kupuna 'O Hawai'i Nei are Native Hawaiian organizations;

(2) The carved wooden figure currently in the possession of the City of Providence (catalog number E2133) is a specific ceremonial object needed by traditional Native Hawaiian religious leaders for the practice of traditional Native Hawaiian religion by its present-day adherents;

(3) There is a relationship of shared group identity that can be reasonably traced between the Office of Hawaiian Affairs and Hui Malama I Na Kupuna 'O Hawaii'i Nei and the Native Hawaiians who created and used the carve wooden figure;

(4) The carved wooden figure cannot be identified as an item that, as part of the death rite ceremony of a culture, is reasonably believed to have been placed intentionally at the time of death or later with or near individual human remains;

(5) The carved wooden figure cannot be identified as an object of ongoing importance to a Native Hawaiian organization itself rather than property owned by an individual member; and

(6) There was insufficient information presented regarding the circumstances of the acquisition of the carved wooden figure to make an advisory finding concerning right of possession to the object as defined by NAGPRA and its implementing regulations.

In arriving at these advisory findings, the NAGPRA Review Committee noted that:

(1) The carved wooden figure is believed to have been collected in Hawaii.

(2) Several recognized authorities on Hawaiian sculpture, including William H. Davenport, Norman Hurst, Adrienne L. Kaeppler, Herb Kawainui Kane, and Rubellite Kawena Johnson, identified the carved wooden figure as a decorated canoe haka, a utilitarian object used to hold spears or fishing poles, rather than a sacred object.

(3) Edward Dodd, another recognized authority on Hawaiian sculpture, describes the carved wooden figure as a curious and rare mixture of utilitarian function with some stylistic features traditionally associated with god images.

(4) Pualani Kanaka'ole Kanahele, Kunani Nihipali, and Edward Halealoha Ayau are recognized by members of the Office of Hawaiian Affairs and Hui Malama I Na Kupuna 'O Hawaii Nei as traditional religious leaders responsible for performing duties related to Hawaiian ceremonial or religious traditions.

(5) The three traditional religious leaders identified the carved wooden figure as an 'aumakua, an ancestral deity who is called upon by its present day descendants for guidance and protection.

(6) Little is know regarding the circumstances of the carved wooden object's original acquisition in the 19th Century.

Based on these advisory findings, the NAGPRA Review Committee recommends that the City of Providence reconsider its determination regarding the definition of the carved wooden figure. The carved wooden figure should be considered a sacred object as defined by the Native American Graves Protection and Repatriation Act [25 U.S.C. 3001 (3)(C) and 43 CFR 10.2(d)(3)]. The NAGPRA Review Committee also recommends that the City of Providence repatriate the carved wooden object to a Native Hawaiian organization in the spirit of NAGPRA and its implementing regulations.

These advisory findings and recommendations do not necessarily represent the views of the National Park Service or Secretary of the Interior. The National Park Service and the Secretary of the Interior have not taken a position on these matters."

We continue to pray for the return of this sacred object.