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97–601 PDF 2005

S. HRG. 108–768

APPLICATION OF NATIVE AMERICAN GRAVES

PROTECTION AND REPATRIATION ACT IN THE

STATE OF HAWAII

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

ON

OVERSIGHT HEARING TO RECEIVE TESTIMONY ON THE APPLICATION

OF THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION

ACT IN THE STATE OF HAWAII

DECEMBER 8, 2004

HONOLULU, HI

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

Statements:

Ayau, Edward Halealoha, on behalf of Charles Maxwell, Hui Malama

I Kupuna Nei, Hoolehue, Holokai, HI ......................................................... 4

Chinen, Melanie, administrator, State Historic Preservation Division,

Kapolei, HI .................................................................................................... 5

Diamond, Van Horn, Honolulu, HI ................................................................. 15

Harris, Cy Kamuela, Kekumano Ohana, Honolulu, HI ................................ 20

Inouye, Hon. Daniel K., U.S. Senator from Hawaii, vice chairman, Committee on Indian Affairs ............................................................................... 1

Kalahiki, Melvin, Na Papa Kanaka o Pu’ukohola Heiau, Kaneohe, HI ...... 22

Lapilio, Lani Ma’a, Honolulu, HI .................................................................... 17

Mun, Esq., Ronald, deputy administrator, Office of Hawaiian Affairs,

Honolulu, HI .................................................................................................. 3

Sang, Anthony H., chairman, State Council of Hawaiian Homesteads,

Waimanalo, HI .............................................................................................. 6

Suganuma, La’akea .......................................................................................... 18

APPENDIX

Prepared statements:

Aila Jr., William J. ........................................................................................... 68

Ayau, Edward Halealoha ................................................................................. 34

Chinen, Melanie ................................................................................................ 33

Cypher, Mahealani ........................................................................................... 69

Diamond, Van Horn, Honolulu, HI ................................................................. 45

Harris, Cy Kamuela ......................................................................................... 64

Johnson, Rubellite ............................................................................................ 73

Kane, Micah A., chairman, Hawaiian Homes Commission .......................... 77

Kawananakoa, Abigail Kinoiki Kekaulike, president, Na Lei Alii

Kawananakoa ................................................................................................ 78

Kuhea, Kealoha (with attachment) ................................................................. 82

Lapilio, Lani Ma’a ............................................................................................ 57

Maxwell, Charles Kauluwehi ........................................................................... 34

Sang, Anthony H. ............................................................................................. 42

Suganuma, La’akea .......................................................................................... 60

Additional material submitted for the record:

Letters ............................................................................................................... 86

Note.—Other material submitted for the record will be retained in

committee files.

(1)

APPLICATION OF NATIVE AMERICAN GRAVES

PROTECTION AND REPATRIATION ACT IN

THE STATE OF HAWAII

WEDNESDAY, DECEMBER 8, 2004

U.S. SENATE,

COMMITTEE ON INDIAN AFFAIRS,

Honolulu, HI

The committee met, pursuant to notice, at 8:30 a.m., East West

Center, 1777 East West Road, Honolulu, HI, Hon. Daniel K. Inouye

(vice chairman of the committee) presiding.

Present: Senator Inouye.

STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM

HAWAII, VICE CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

Senator INOUYE. The Committee on Indian Affairs of the U.S.

Senate meets this morning to receive testimony on the application

of the Native American Graves Protection and Repatriation Act,

NAGPRA, in the State of Hawaii.

As some of you are aware, this act has its origins in a bill that

was introduced in 1987, and was the subject of much discussion on

this committee in February of that year. At that hearing, the Secretary of the Smithsonian Institution testified that the Smithsonian had in its possession 18,500 human remains of American Indians, Alaska Natives, and Native Hawaiians.

Although these numbers were shocking, the committee subsequently learned that there were museums and scientific institutions throughout this land that also had Native American human

remains and sacred objects in their collections that were being held

for purposes of scientific research.

The same bill was the subject of another hearing in May 1987,

and at that time, the president of the American Association of Museums called upon the committee to delay further consideration of

the bill, so that a national dialog could be initiated between Native

Americans and the museums and scientific institutions that had an

interest in retaining these remains and artifacts.

The committee did forebear on further action, and a year long

national dialog proceeded in which many sensitive issues were discussed. Although the parties did not reach agreement on all matters, there was consensus developed on the set of principles and

cultural artifacts.

Those principles formed a backdrop for the development of the

bill that was enacted into law in 1990 as the Native American
2

Graves Protection and Repatriation Act. The act is designed to facilitate the repatriation by Indian tribes, Native Hawaiian organizations, and individual Native American lineal descendants of the

remains of their ancestors, as well as funerary objects, sacred

items, and objects of cultural patrimony.

It was several years before the Department of the Interior promulgated regulations under the act, and so we have now had approximately a decade of experience in seeing how well the application of the act achieves the objectives for which it was enacted.

In the State of Hawaii, because there was no counterpart of an

Indian tribal government to serve as the principal agent for repatriation actions, the legislation contained a definition of a native

Hawaiian organization, and the act’s regulations define the term

‘‘lineal descendants.’’

As the Department of the Interior has applied the act, a lineal

descendant must establish a direct and uninterrupted chain of

legal title to human remains, sacred items, and funerary objects.

This is a very high standard to meet. But because the Department places a higher priority on the repatriation petitions of lineal

descendants, higher than those of Indian tribes and Native Hawaiian organizations, it is a very critical, important standard. Because

they are communally owned, the Department does not consider objects of cultural patrimony proper subjects of repatriation to lineal

descendants.

The committee convenes this hearing today principally because of

concerns that have been expressed to the committee, that the act’s

definition of Native Hawaiian organization may warrant further

consideration and possible refinement.

Accordingly, through the oral testimony presented this morning

and the written testimony that may be submitted to the committee

before the record of this hearing closes on January 4 of next year,

we hope to learn more about how well the act is working, as it is

applied in the State of Hawaii; and whether, in addition to the definition of Native Hawaiian organization, there are other parts of the

act that require amendment.

After the hearing record closes in January 2005, the committee

will review all of the testimony that it has received, and will make

the recommendations it has received available to the public, so that

further input on suggested amendments of proposals may be fully

aired.

The committee recognizes that various Federal and State agencies in Hawaii have done their level best to implement this act in

the spirit in which it was intended. Along the way, there have been

some bumps in the road, but it is clear that sincere people have

dedicated considerable time and effort to assure that Native American human remains, and sacred items, funerary objects, and objects of cultural patrimony covered by the act find their proper resting place.

So with that, I would like to call upon the first panel. I have

been told that all panel members are here. The deputy administrator of the Office of Hawaiian Affairs of Honolulu, Ronald Mun;

Edward Ayau, speaking for Charles Maxwell of the Hui Malama I

Kupuna O Hawaii Nei of Hoolehue, Molokai; the administrator of

the State Historic Preservation Division of Kapolei, Melani Chinen;
3

and the chairman of the State Council of Hawaiian Homesteads,

Waimanalo, Tony Sang.

May I first call upon Mr. Ronald Mun.

STATEMENT OF RONALD MUN, ESQUIRE, DEPUTY ADMINISTRATOR, OFFICE OF HAWAIIAN AFFAIRS, HONOLULU, HI

Mr. MUN. Thank you, Senator and members of your staff. My

name is Ronald Mun. I am here on behalf Clyde Namu’o, who is

the administrator of the Office of Hawaiian Affairs. We would first

like to thank you for this opportunity to provide comments regarding the proposed amendment to the Native American Graves Protections and Repatriation Act.

The effort to hold hearings in Hawaii is very much appreciated,

given the importance of this historic legislation in providing the

means for the Native Hawaiian community to provide culturally

appropriate care, management, and protection in effectuating our

most sacred ancestral responsibilities.

It is our understanding that the committee is open to all recommendations for substantive changes to NAGPRA, but that there

will be a special focus on the definition of ‘‘Native Hawaiian organization.’’

The definition of Native Hawaiian organization is a very important and very critical component of NAGPRA, as it often provides

the only way for our Native Hawaiian community to make recognizable claims for Native Hawaiian remains, funerary objects, sacred objects, and items of cultural patrimony.

The unique circumstances surrounding Native Hawaiian burial

practices, such as secreting burial site identification and utilizing

communal burial areas such as sand dunes, can make claims on

lineal descent very difficult to establish under the current act and

associated regulations.

Current State of Hawaii law, chapter 6E, Hawaii revised statutes, sets forth, we believe, a more relaxed standard for the recognition of claimants in ancestral burial matters in recognition of

the unique aspects of the Hawaiian culture pertaining to death and

burial. There exists more emphasis on the individual and family

claimants, rather than the Native Hawaiian organizations, in recognition of the important role the family maintains in the disposition and treatment of the deceased.

Given the importance of the definition of ‘‘Native Hawaiian organization’’ in implementing the act for the benefit of the Native Hawaiian community, we would hope the committee looks at the current definition and whether it meets the special and unique circumstances of our people.

I must emphasize that the Board of Trustees for the Office of Hawaiian Affairs has yet to take a formal position on any proposed

changes to NAGPRA. A position regarding suggested amendments

may become available prior to the January 4, 2005 deadline for the

submission of such testimony, which is contingent, of course, upon

the will of the Board.

Once again, I thank you for this opportunity to present testimony.

Senator INOUYE. I thank you very much, Mr. Mun. May I now

call upon Edward Ayau.
4

STATEMENT OF EDWARD HALEALOHA AYAU, FOR CHARLES

MAXWELL, HUI MALAMA I KUPUNA NEI, HOOLEHUE,

HOLOKAI, HI

Mr. AYAU. Aloha, Senator Inouye and the staff of the Senate

Committee on Indian Affairs. I’m here to testify on behalf of

Charles Maxwell, of the Hui Malama I Kupuna O Hawaii Nei,

Hoolehue.

The legislation is clear that the law is intended to rectify past

problems committed against America’s first peoples, including Native Hawaiians. Congress did not intend museums to claim cultural

items as Bishop Museum attempted to do with the passage of its

Interim Guidance.

Had Bishop Museum’s Board and its director adopted the proposed interim Guidance as their Final Guidance, Hawaiian cultural

values would have suffered, Congressional intent would have been

undermined, and NAGPRA would have been turned on its head.

Nonetheless, Bishop Museum’s unsuccessful efforts help highlight

the need to revise and strengthen the NAGPRA definition of Native

Hawaiian organization.

Furthermore, the response from the National Park Service to the

questions that you posed in your letter of August 5, 2004 relating

to Bishop Museum’s Interim and Proposed Final Guidance demonstrates that the broad language of the definition may be interpreted in ways that were not intended; in particular, the opinion

of the NPS that a museum that designates itself as a Native Hawaiian organization may then become an eligible claimant to repatriate cultural items from other museums.

Both the Bishop Museum Interim Guidance and the response

from the National Park Service establish the imperative need to

amend the definition of Native Hawaiian organization. In our testimony, we provide both amendments for the committee’s consideration.

I was on the staff back in 1990, trying to come up with a definition of a Native Hawaiian organization. I remember our thinking

back then was to make it broad, so that it would be flexible.

In the amendments that we are proposing, we take the position

that the definition should, in fact, be more narrow; and that one

of the missing components in the original definition was the specific inclusion of Native Hawaiians in these Native Hawaiian organizations. Under the current definition, that’s not a requirement.

So the definition that we propose reads as follows: ‘‘Native Hawaiian organization’’ means any organization which (A) has a primary and stated purpose, the practice of Native Hawaiian cultural

values; (B) has a governing board comprised of a majority of Native

Hawaiians and (C) has demonstrable expertise in Native Hawaiian

cultural practices relating to the care of human remains, funerary

objects, sacred objects, and cultural patrimony, and shall not include any federally-funded museum or Federal agency.’’

We include the last part to address the vision that was raised

and the vision that was expressed. Also, in response to criticisms

about our inclusion in our new definition, it’s not important that

we be specifically identified in the definition as a uniform organization. But what we want the focus to be on, rather than on organiza-
5

tions that represent general points, but on organizations who were

organized for the specific purpose of cultural practice.

We believe this to be a more appropriate approach, based on Hawaiian value, [phrase in native tongue], which translates to, from

the work, the knowledge; and from the knowledge, ‘‘the understanding.’’

The idea is that organizations who have been conducting this

type of cultural practice, over time, gained the necessary understanding that is required in providing appropriate treatment.

We also think it is important that the definition make it clear

that the organization be comprised of Native Hawaiians. I think for

purposes of the Native Hawaiian definition, that probably is the extend of my oral comments.

The second amendment that we would want to propose has to do

with civil penalties against Federal agencies. As you know, currently, NAGPRA does not provide for civil penalties against federally-funded museums. The statute says that the penalties are intended to be punitive.

That was included as a means by which to ensure compliance.

But at the same time there were concerns about applying the same

civil penalties and procedures to Federal agencies.

In our experience, we have had difficulties with Federal agencies,

including the Hawaii Volcanoes National Park and the U.S. Army

with respect to the Wai’anae Army Recreation Center.

Even though NAGPRA allows a Plaintiff to file a dispute against

a Federal agency with the NAGPRA review committee, the committee’s recommendations are advisory only. So the Federal agency

could, if it wanted to, choose not to adopt the recommendations.

So short of going to court, which is considerably costly, we recommend that there be a discussion within the Federal agencies.

This is not to say that all Federal agencies are not complying. I am

not saying that at all. I am saying that there needs to be some kind

of mechanism within NAGPRA for those Federal agencies that are

not complying. Providing a civil penalties procedure is one such

way for the committee to engage in a discussion with Federal agencies to try and develop language or a mechanism by which

NAGPRA compliance can be had.

With that, I would conclude my comments. I just want to say,

thank you, Senator Inouye for, what is it, 18 years of service on

the Select Committee on Indian Affairs, that then became a fullfledged committee and for your commitment to not just Native Hawaiians, but to Indian country for all these years.

[Prepared statement of Mr. Ayau appears in appendix.]

Senator INOUYE. Thank you very much. May I now call on the

Administrator, Melani Chinen.

STATEMENT OF MELANIE CHINEN, ADMINISTRATOR, STATE

HISTORIC PRESERVATION DIVISION, KAPOLEI, HI

Ms. CHINEN. Good morning, Senator Inouye and the staff of the

Committee on Indian Affairs. My name is Melanie Chinen, and I

am the newly-appointed Administrator of the Department of Land

and Natural Resources’ State Historic Preservation Division.

Thank you for inviting me to participate in this important hearing in which your committee will consider testimony as to whether
6

or not the definition of ‘‘Native Hawaiian organization’’ contained

in the NAGPRA should be amended.

The issue before the committee is whether or not the current definition allows those who should be eligible to assert claims under

NAGPRA the right to do so. As currently written, Native Hawaiian

organizations are defined as those that (1) serve and represent the

interests of Native Hawaiians, (2) have the primary purpose of providing services to Native Hawaiians, and (3) have expertise in Native Hawaiian affairs. This definition precludes individual who are

not associated with a Native Hawaiian organization from making

claims under NAGPRA, unless they are able to provide sufficient

evidence for their claims. We have already heard testimony this

morning that that is a rare occasion.

Although Hawaii law and our administrative rules do not explicitly provide for the repatriation of human remains and burial artifacts, they do provide descendants the right to participate in discussions relating to historic burials when they are able to demonstrate either a cultural or lineal association to these burials. I

will limit my testimony to the State’s experience working within

this broader definition of eligible claimants as it relates to burial

matters.

The inclusion of individual descendants, specifically cultural descendants, in the discussion of burial matters often results in multiple claims and recommendations that at times have conflicted

with each other in the State of Hawaii. This need not be viewed

negatively as the inclusion of various viewpoints has helped to

strengthen many of our burial plans.

However, the broad inclusion of cultural descendants, meaning

those who are able to demonstrate that their ancestors lived in the

Ahupa’a in which a burial is located, has caused many challenges

to the decisionmaking process.

The Division is currently reviewing the strengths and weaknesses of our system in which individuals are able to assert claims

under Hawaii’s burial laws, and we are not prepared to formally

recommend any amendment to NAGPRA at this time.

I would like to extend to you the offer to assist your committee

as you also review your definition at the Federal level, and as you

continue to examine how NAGPRA can best accommodate those

who should be eligible for repatriation claims.

In conclusion, Senator, I would like to thank you for providing

me the opportunity to testify and for bringing this important matter to the people of Hawaii for their consideration. The State Historic Preservation Division stands ready to assist and support your

committee, and we look forward to working with you.

[Prepared statement of Ms. Chinen appears in appendix.]

Senator INOUYE. Thank you very much, Ms. Chinen. Now may I

call on Chairman Tony Sang.

STATEMENT OF ANTHONY H. SANG, CHAIRMAN, STATE

COUNCIL OF HAWAIIAN HOMESTEADS, WAIMANALO, HI

Mr. SANG. Aloha kakahiaka, good morning, Vice Chairman

Inouye, members of the Senate Committee on Indian Affairs, and

staff. Welcome home, Senator Inouye, and welcome to our visitors.

On behalf of the State Council of Hawaiian Homestead Associa-
7

tions, mahalo, thank you very much for holding this hearing here

in Hawaii.

I am Anthony Sang, and I am Chairman of the State Council of

Hawaiian Homestead Associations, also known as the SCHHA. The

SCHHA thanks you for this opportunity to testify before the Committee on Indian Affairs to share the mana’o of our 24 homestead

associations, representing more than 30,000 homesteaders who are

Native Hawaiian beneficiaries under the Hawaiian Homes Commission Act of 1920.

We thank you for including our recent testimony in the record

for this hearing. But I would like to briefly share two stories that

that put NAGPRA into conflict, and leave the remaining time for

you to ask questions which you may have for us. I would also be

happy to provide supplemental written testimony, if necessary.

My first story relates to how the ’ohana, our present day descendants and their families or kupuna, who have come and gone

before us. They are unable to fulfill their kuleana, their responsibilities and duties to their iwi kupuna, to their ancestral remains.

NAGPRA gives top priority to only those descendants who can

trace directly and without interruption to a known Native American individual. Most often, we will not have any information to

identify the individual whose remains are at issue. Although there

are some specific instances where a mo’olelo, a story, has been

passed down through the generations, telling of the final resting

place of some iwi kupuna, generally, there is no written or oral history of where of where na iwi of a specific individual has been buried.

The above standard almost guarantees that in the next priority

level recognition, Native Hawaiian organizations will have top priority among all claimants. Thus, the ’ohana excluded above must

now try to fit in to the definition of Native Hawaiian organization,

perhaps creating a legal fiction, just for the purposes of NAGPRA,

in order for the ’ohana to fulfill their kuleana to na iwi kupuna.

We believe that Congress intended to recognize and help perpetuate our Native Hawaiian cultural traditions. We do not believe

that Congress intended to create new legal hurdles for our ’ohana.

Thus, we recommend that the Committee insert the ’ohana priority

level below, the meaning of descendent; and above, the Native Hawaiian organization.

We also suggest changes in the definition of Native Hawaiian organizations for the purposes of NAGPRA to ensure that such Native Hawaiian organizations have expertise in cultural and burial

matters, and be comprised of and be composed of and control their

records by Native Hawaiians.

My second story relates to land excavations and inadvertent discoveries on Hawaiian Homelands, which are classified as tribal

lands under NAGPRA. We have had two recent inadvertent discoveries in the Hawaiian homestead communities. While the first discovery has been resolved, we are in limbo, without any updated information, on the status and proposed resolution of the second discovery.

While we wait for more information, we are asked many questions on what is it going to be. We cannot be responsible to our

community and those who may have possible claims. We strongly
8

would encourage greater consultation, which would improve communication and cooperation. Otherwise, there is a greater feeling

of discontent and mistrust, as people feel that they are being left

out of the loop.

We, as Native Hawaiians, all have our respective kuleana to protect all iwi kupuna, our ancestors’ remains, and to protect our island, our land. We urge you to consider our suggestions contained

in our written testimony, so that through NAGPRA, the United

States can help and respect our Native Hawaiian cultural traditions.

Mahalo again for this opportunity to testify on behalf of the State

Council of Hawaiian Homestead Associations. We would be happy

to answer any questions, supplement our testimony, engage in further discussions, and work with the Senate Committee on Indian

Affairs and Congress to implement the above recommendations, as

well as other changes identified by the members of our community

and under consideration by the Senate Committee on Indian Affairs; mahalo.

[Prepared statement of Mr. Sang appears in appendix.]

Senator INOUYE. I thank you very much, Chairman Sang. Now

if I may ask a few questions.

Mr. Mun, in your testimony, you have indicated that there is a

growing need to accommodate family members to participate as

equals with Native Hawaiian organizations in the process of

NAGPRA. Does OHA have any rules or existing policies designed

to accommodate the needs of family members?

Mr. MUN. Thank you, Senator; I think at one time it was envisioned that OHA, within the process, would be a placeholder. In

other words, where families could not be located, or families were

unaware that certain remains were discovered, I think OHA would

be in the process and would be a placeholder for them. When and

if they discovered or were made aware that certain remains were

found, OHA would basically step aside and they could come into

the shoes of OHA, which is the process.

So I think, yes, there was maybe not a formal policy, but that

was the role that OHA would play in the process, as a placeholder

for families that were either unaware or not located.

Senator INOUYE. All right, do you have any other policies that

have been adopted by your Board; anything that could withstand

scrutiny by the courts?

Mr. MUN. I am not aware of any formal policies. As I said in my

testimony, we have not taken any formal position on any amendments. I am unaware of any formal policy. I will certainly, before

January 4, present any materials that we may have on record to

the committee.

Senator INOUYE. Have you had any family organizations approach OHA?

Mr. MUN. I occasionally have, Senator.

Senator INOUYE. And what have you done for them?

Mr. MUN. It is my understanding, Senator, that we have on occasion, when we were approached and they had the documentation

or the lineage, attempted to assist them, to the limits of our resources.
9

Senator INOUYE. All right, thank you very much. I will be looking

forward to your response to the question as to whether you do have

policies that can withstand scrutiny by the courts.

Mr. MUN. All right.

Senator INOUYE. May I ask Mr. Ayau, what status would you

give families as claimants under NAGPRA?

Mr. AYAU. Well, as we have seen in one of the cases with the

U.S. Marines in Wai’anae, the Marine Corps, after the U.S. Navy,

identified families as Native Hawaiian organization claimants.

You know, I can say that was something that was intended at

the outset when the definition was drafted. Because the idea was,

as you stated earlier in your opening comments, that in lieu of a

formal tribal government for Native Hawaiians, the idea was to try

and find a somewhat similar entity or a form of that. So the idea

was to approach it from the perspective of an organizational structure.

But in that case, the Marines said, well, families are submitting

claims. Although they are not able to establish the high standard

of a lineal descendant, they nonetheless should be afforded recognition. So the families are recognized as Native Hawaiian organizations in that particular case.

I think maybe the best approach, and it was also pointed out in

the testimony, is the term ‘‘relaxed standard’’ of lineal descendant

under State law, under State regulation. The challenge here under

NAGPRA is that lineal descendant, the definition, is so stringent

for the smallest claims like that one.

I remember being in the community and wrestling with that.

One, that in Hawaii, it would probably preclude a lot of Hawaiians

from being able to make a claim, as long as you had to know the

identity of the individual, and that was almost impossible. The

Bishop Museum in on record as saying that it knew of only two individuals in its collection of human remains in which they knew

the identity of the individual.

So maybe one of the approaches that the committee might want

to take is to look at possibly relaxing the stringent standard of the

Senate to allow that to qualify.

Senator INOUYE. Well, that is what we are here for. But as you

may recall, the Department of the Interior insisted upon this high

standard.

Mr. AYAU. Right.

Senator INOUYE. So we are now looking at it, after 10 years, to

see if the changes are justified.

Now if the families are allowed as claimants, and there is a conflict between the families and Hui Malama as to certain protocols

or practices or rituals, how would you resolve this?

Mr. AYAU. That is kind of up to them to demonstrate that these

are their iwi kupuna. Then we have to defer. It is that straightforward. It is that simple.

Senator INOUYE. We have a challenge here, as you know. The

phrase, ‘‘lineal descendant’’ is not defined in the bill, in the law.

The two words, ‘‘lineal descendant’’ have been defined in the regulations of the Department the Interior. So it poses a special problem and a special challenge for all of us here. If we are to change
10

that, we could legislatively do it. But at the present time, it is governed by regulations of the Department of the Interior .

So with that, may I ask another question? In your testimony, you

suggest amending the definition of Native Hawaiian organization,

making a claim under NAGPRA to have as a primary purpose the

practice of Native Hawaiian cultural values.

In your view, how would a Federal agency or museum distinguish among several Native Hawaiian organization claimants, each

holding to and practicing a different set of Native Hawaiian cultural values?

Mr. AYAU. Well, you are asking me how the agency itself distinguishes?

Senator INOUYE. No; they are all claiming that they are practicing Native Hawaiian cultural values, practices, and protocols. They

may differ from yours.

Mr. AYAU. Right, but I would say, from the museum or Federal

agency perspective, as long as they satisfy that condition, then you

go on to the next one, to see if they satisfy them, as well. Then if

they do, then you accord them a Native Hawaiian status.

Senator INOUYE. Well, obviously, these questions point out the

complexity of the problem before us, and it will take a lot of work,

and some collaboration. Otherwise, we will not get anywhere.

Mr. Ayau, in your testimony, you also stated that the definition

of Native Hawaiian organization should also be amended to require

that the organization also possess a proven history of expertise in

Native Hawaiian cultural practices, specific to the care of the

NAGPRA defined items, and not be a Federal agency or museum.

Now if NAGPRA were amended to allow families to make claims

for remains, but does not satisfy the definition of lineal descendants, would you place this on these family members, as regards

their proven history of expertise in Native Hawaiian cultural practices, as pre-conditions?

Mr. AYAU. But if they are family, then that is their expertise, in

terms of caring of their kupuna. It is a given.

Senator INOUYE. So you would give greater weight to the claims

of a lineal descendant or family member higher than a Native Hawaiian organization?

Mr. AYAU. If they are able to establish that, that these are their

iwi kupuna, then yes. There is a difference between someone who

is claiming that those remains are their kupuna, and someone who

is able to demonstrate that they are.

Senator INOUYE. I thank you very much, Mr. Ayau.

Ms. Chinen, you have suggested that the State’s definition of cultural descendance does not indicate, but you do not indicate whether the use of that definition is advantageous or disadvantageous;

why?

Ms. CHINEN. As I stated in my testimony, we believe that their

strength, it allows for input from the Hawaiian community. Because a lineal claim is so difficult to make, we do support the greater community having a say or having an opinion as how the burials

in the State of Hawaii should occur.

But we have also asked, in meetings and numerous discussions,

some of the very questions you are raising here this morning as to

families that dispute. In our eyes, they are equal and they are all
11

cultural. If there is a lineal claim, our rules require us to give higher preference in decisionmaking to those family desires. But in

most cases, those that come before us are equal in our eyes, in that

they are related to cultural.

Very often, and right now, we are in the middle of a very controversial case, where there are two main family members that disagree on how to go about a burial. What we have tried to do is to

listen to both sides. The question that you asked Mr. Ayau as to

who would have priority when everybody is equal, we go back and

we try to work with them to come to resolution.

For us, we have a little bit of an out, because of the way our

rules are written. We are only required to get input and recommendations; the final decisionmaking, like we do with our burial

consults, if it is a pre-determined burial, or with the State Historic

Preservation Division if it is an inadvertent find.

So we try to look at what is culturally accepted to most and what

is reasonable within our rules, because our rules also prescribe certain steps on how you go about working with some of these burials,

and we always go back to look at that.

Senator INOUYE. How does the State process determine whether

a family claimant is qualified to be a family claimant?

Ms. CHINEN. Well, there are two different processes. One would

be, for the lineal, the definition of State law or State administrative

rule is that they must be able to show a link to an ancestor. That

would be part of our documentation. We would look at records of

these.

We are also able to take into consideration oral history. The way

our rules are written, the burden of proof upon the Department is

a reasonable belief that there is a claim. So, again, we would look

back to marriage records, birth records, death records, property

right ownership, and what not. So we do have a process in place.

Senator INOUYE. Under your definition, do you give legal status

to hanai-ed children?

Ms. CHINEN. For cultural, they could be considered; for lineal, because there would be a blood relationship, yes, if they are able to

show the claim that that was their ancestor. The base argument

is whether or not they would have to identify a particular individual that is related by name.

That is something that has been represented publicly and, I

think, incorrectly, just so we could go and have a discussion with

our attorney general’s office on what does it mean to be a lineal.

What we got from our definition and what the courts would look

at in interpreting that is that you must be able to show a link that

is your family member, ancestor blood line. But you do have to

state the specific individual by name. That has been something

that has kind of been up in the air in the past, where people agreed

they would have to identify the exact individual that had been

disinterred from the site.

Senator INOUYE. So under your definition, in order to qualify,

there must be some blood relation?

Ms. CHINEN. For lineal, and that’s the difficult one. Very often,

families may not have passed down the oral tradition or have

records to support that.
12

Senator INOUYE. So if a family should adopt someone outside the

family, that adoptee does not qualify?

Ms. CHINEN. Are you talking about where a grandmother may

take her granddaughter or grandson away from them?

Senator INOUYE. An outright adoption.

Ms. CHINEN. An outright adoption—probably not, because our

definition requires a genealogical link for lineal. But for cultural,

as long as they affirm that area, as long as they can show that

their family entered into the area, and often it is a pretty large

land area. So very often, that is one of the dilemmas of the State.

We may have 50, 60, 70 people coming forward and making

claims to burial rights. As I discussed, very often, because everybody has their own tradition, their recommendations may be in

conflict with one another. That is something that we try to work

with the family to resolve these.

Senator INOUYE. I thank you very much, Mr. Chinen. I think we

had better work together on this.

Ms. CHINEN. Yes.

Senator INOUYE. Chairman Sang, why do you think it is crucial

to include a definition of family members in the act in addition to

lineal descendants or Native Hawaiian organizations?

Mr. SANG. Well, first off, Senator, I think I am able to answer

that question. I think the citation that we make on the recommendation dealing with the family members having some kind

of recognition from NAGPRA is very important.

Because there may be certain instances where the families are

not sure about making a claim, but would like to. Although they

are not from the area, they have been there as long-time residents;

and because of the loss of oral history, they will not have that kind

of information available.

But having a history of residing in the area for many, many

years, the family themselves lack that expertise or lack that type

of information to come forward and to make a substantial claim.

I think it figures heavily.

In the two cases that I was involved in, that I know of, there was

this whole tribal family that lived right across the street from

where the remains were discovered, so it was advertently. These

people, the whole family, prior to the Homestead interim, they

were living on a beach, and this was a Hawaiian community living

on a beach, and this was in the early 1900’s; probably late 1800’s.

So there may not have been variables. But those that were involved or those that had information on how fast, you know, my

questions to some of the families, they have no information going

back that far, to come forward and make claims for the iwi.

Senator INOUYE. In your testimony, you used the phrase ‘‘’ohana

family.’’ What is your definition of the ’ohana family?

Mr. SANG. Well, the ’ohana family—’ohana is the Hawaiian word

for family.

Senator INOUYE. Oftentimes, in the use of that word, it is rather

broad, is it not?

Mr. SANG. It could be as broad as you want to make it.

Senator INOUYE. So it could include family?

Mr. SANG. Yes; your immediate family.
13

Senator INOUYE. And it could family members who are not blood

related?

Mr. SANG. Sometimes, yes, sometimes this can include someone

not related by blood.

Senator INOUYE. Would it suffice if you said that a family member is one who can trace his or her ancestry through that area?

Would that suffice, that he came from the waimanalo area?

Mr. SANG. Would that suffice to be able to make a claim?

Senator INOUYE. Yes.

Mr. SANG. I think, in some way, it should allow for that kind of

provision. But I think there are certain steps that need to be verified, so that they can follow the correct procedure and process.

Senator INOUYE. Well, we have received testimony from the

DHHL. Obviously, that department would have some important involvement in this process. Would you care, or would any one of you

care, to send questions that I can submit to DHHL? It may be difficult for you to do that, but I can do that. Would you like to do

that, so they can be part of the dialog here?

Mr. SANG. Well, I think if you want to send it to them, you are

going to send it to them. The first case of inadvertent discovery occurred when the Department was involved in developing the Hula

Housing in Lanen Hall. At that time, I think if I remember correctly, there were three sets of remains that were discovered. They

went through the process, I guess, cultural and whatever.

We had a meeting, and the person in charge was an archeologist

who said the bones were over 50 years old. Therefore, it came

under restricted district law. The response for them to be re-interred was the responsibility of the Department of Hawaiian Homelands.

It was recommended by the chairman at that time, that the Department create a burial ground. I did not oppose that. I thought

that was a very good idea. The only thing that I did oppose was

the set of bones that the archeologist said was over 50 years old.

At that time, I think if you go back, and I’m counting his time, it

was back in the 1950’s, in the early 1950’s, I guess.

So my question to the person was, do you know exactly whether

or not these bones are Hawaiian or are of Hawaiian origin? Do you

have anything to support that question? He said he could not answer that question.

So my question to them was, well, if you are going to insert these

bones into a Hawaiian burial ground, my intentions are very good.

Do we know that they are interred Native Hawaiians, or could it

be other ethnic races? They could not answer the question, but they

went ahead with the process.

I think there should be a limit. Because the Hawaiian Homelands consists of 200-something acres. That is a lot of land, and

with the Department’s plan for land use and developing new homes

and houses for our people, this is going to occur over and over and

over. There should be a process, if it is under the authority of the

Department of Hawaiian Homelands; therefore, it is considered

tribal lands. So that process should be initiated to help individual

families, too.

Senator INOUYE. Two of you have suggested that in order to

qualify as a Native Hawaiian organization, Native Hawaiian mem-
14

bership in that organization should constitute a majority. I believe

you said that, Mr. Ayau and Mr. Sang. How would that improve

the process?

Mr. SANG. First of all, this was not an improvement issue, as

much as it was to make clear that organizations who are not comprised of Native Hawaiians, who had very few Hawaiians, especially in their leadership capacity.

You know, NAGPRA is intended to address the concerns of native people: American Indians, Alaskan Natives, and Native Hawaiians. So that element that we are suggesting is consistent with,

this is a law to rectify the rights of Native Hawaiians. We are not

saying the entire organization. We are saying the leadership, the

governing board or the governing body, should be comprised of Native Hawaiians. This is who this law is intended to help.

Senator INOUYE. I asked that question because at this moment,

we are very heavily involved in the passage of what is known as

the Akaka bill. If that bill becomes law, it could very well provide

a level of sovereignty in which that sovereign entity, the Native

Hawaiian Government, can determine who is a citizen and who is

not a citizen, because that is the right of a sovereign.

Technically, I could be adopted or made a member of an Indian

tribe. They can do that. I suppose, as a sovereign, the new Hawaiian Government can do that.

Now would that person who is not a Native Hawaiian, in blood

or ancestry, would he qualify as a Native Hawaiian in your majority membership?

Mr. SANG. It is up to the choice of the organization. What we are

saying is that whatever the organization’s membership is comprised up, its leadership should be the majority.

Senator INOUYE. This shows we have got our work cut out for us.

But we also, do not want to cause any undue problems in the

Akaka bill.

Well, I have one more question for you, Chairman Sang, if I may

ask. You have indicated a need for more consultation by the Department of Hawaiian Homelands with Native Hawaiians under

NAGPRA, as it relates to their responsibilities to tribal lands defined in the act.

What is your view about the Department’s execution of their

present duties under the act, and why do you suggest there is a

need for greater consultation?

Mr. SANG. I just want to go back to what I said earlier, that the

Department’s plans to accelerate housing for our people is a very

broad, tremendous effort that is being put forth to our people. In

developing these lands for homes or for agriculture or for whatever,

it is going to involve excavation.

To give you an example, for myself, I do not even know what is

buried under the ground. There is a possibility that more bones

will be discovered. We feel that we need to have an open door communication between the Department and we who represent the

members of our organization and future beneficiaries that may be

coming on the land, as far as it relates to be able, under NAGPRA,

to claim those people.

Senator INOUYE. As I indicated in my opening statement, the

record will be kept open until January 4, 2005. May I suggest that
15

when we share with you the recorded testimony, that you look it

over to see if you want to make changes to that.

Furthermore, if I may, I would like to submit to all of you questions, and I hope that you can respond to them. Because at this

moment, there may be certain legal technicalities that may not be

properly clarified. So we would like to do it after consultation with

our legal staff. Would that be okay if we submitted questions?

With that, I would like to thank the panel for the assistance you

have given us, and we invite you to submit supplemental testimony, if you so wish. I would suggest that when the hearing record

is complete, we will share it with you and you look it over. Thank

you very much.

Our next panel is made up of the following ladies and gentlemen:

Van Horn Diamond, Lani Maa Laipilio, Laakea Suganuma, Cy

Kamuela Harris, and Melvin Kalahiki. May I first recognize Van

Horn Diamond.

STATEMENT OF VAN HORN DIAMOND, HONOLULU, HI

Mr. DIAMOND. Good morning, Senator. Thank you very much for

this opportunity to provide testimony of behalf of the Van Horn Diamond Ohana, a NAGPRA-recognized claimant in regards to 84

items, artifacts, as well as the repatriated na iwi kupuna in

Kokapu, Oahu.

In saying that also, I would like to underscore the point that the

testimony being provided by us is only for our ohana. I think that

is important to say.

With regard to the NAGPRA law, despite being well meaning,

presently, it does not, in our opinion, fully address the needs of the

Hawaiian people regarding the repatriation of Hawaiian artifacts

and iwi.

First, NAGPRA doe not fully respond to the concept of Hawaiians

position in society. Clearly, one such fact is the key of the importance of the family. Presently, this is happening, but not commensurate with its importance. So therefore, the need needs to be

pushed.

Family kuleana is an essential principle for Native Hawaiians,

especially with regard to caring for artifacts, hence their repatriation and reinternment, when reinternment is warranted. Accordingly, the law needs to focus on how to continue to advance the

family, taking its rightful responsibility with regard to artifacts.

NAGPRA must also provide incentives for Native Hawaiian organizations so they can use this process, as well.

One of the concerns is that the Native Hawaiian definition currently, from our perspective, is self-defeating, in that it is too

broad. In the larger testimony, the comparison, the definition is

such that it is broad enough to have side by side, a semi trailer,

a hummer, three volkswagens, all passing through the definition at

the same time.

Indicative of that presently is the Native Hawaiian organization

definition, in terms of how persons have been recognized by the

Native Hawaiian organizations. Using a good example would be,

you have families like the Diamonds. You also have the Hawaiian

Civic Club, all together being recognized as Native Hawaiian orga-
16

nizations. Yet, in terms of having to demonstrate that they are culturally affiliated, we are different.

So families are then having only co-equal status with organizations. Yet, from a perspective of being recognized, families ought to

have a standard of being perceived organizations. Therefore, that

is why we are stating with it this broad. I am not so sure that anyone can provide an answer as to how great the boundaries are, at

this point, other to raise the awareness.

There at least is an indication of an effort to provide two definitions and two categories of descendants in the State law, one is individual and one is cultural, and they are not perfect. They need

to be worked on. But at least in that arrangement and under the

rules that identifies, for example, that yes, there is preference

given to individuals.

Then there is cultural. Then there is another category which

identifies the rules that, for example, an entity is an appropriate

Hawaiian organization by virtue of how far, and any other organization would be recognized by their count in that category would

be an appropriate Hawaiian organization.

Then there is a third one that the department has, and that is

an appropriate ethnic organization, which is not limited to Hawaiians. But using an analysis, an appropriate ethnic organization

within the Hawaiian community might be the Native Hawaiian

Chamber of Commerce. Then you would have cultural descendants

by virtue of the definition, at least by genealogy and by geography,

that have a chance of having a standing that is separate from that

limitation. It also kind of identifies where they are at.

Presently the law of NAGPRA puts all of these folks in one definition. I am hoping that in the discussions and whatever can come

about, there will be an opportunity to have that.

The other advantage that I believe that is available under the

state is that there is one place that everyone goes in order to

achieve recognition. Under NAGPRA, for example, depending on

where the artifacts or the remains happen to be, whoever is the

repatriator assumes the responsibility of trying to determine

whether or not someone is a Native Hawaiian organization, per the

definition, and then has cultural solution status to be connected to

that item. That is a two-prong thing. We all have to do that in

order to qualify. So that is one piece.

The other thing that is a problem, I believe, is that because we

are all lumped under that one definition, there is the opportunity

that is one to repatriate, because we are all in the same category.

If they choose to, they do not have to go through the extra steps

of really making the distinction between the people that are coming

forward, once they are defined as a Native Hawaiian organization.

They can just then make a determination that globally they are repatriated, and then play ‘‘Pontius Pilot’’ and that has happened already.

That happened at Kawaihae, and that also happened at Palau,

because everybody was identified. Even though some families are

challenging the determination by the Duckworth Museum, they

still did that. They made a global determination, and then they

said, this is it.
17

The other side bite to that is that around January and February

in 2000, an advisory opinion was issued with regard to the Park

Service v. Hopi Indians. In that determination, which we heard

part of it in Washington, DC in September, it was determined that

the Advisory Opinion also identified that consultation, for repatriation purposes, had to be one-on-one, with each one recognized by

the claimant.

That did not happen with regard to Palau. All that happened

was, it was globally. In other words, all those who were recognized

came from discussions. There was not a one-on-one conversation

with each and every one of them.

Now admittedly, there is admittedly a fact, and that is that with

the rendering of that decision in January 2000, when some of us

were involved. Still, by having all these categories of organizations,

we have a problem.

So if I can summarize, the challenge for 2004 going forward is

to see how we can accord the family standing beyond [inaudible],

and that is very hard to do; and give them standing that is separate from this broad category in the final position; or do something,

as well, within the Native Hawaiian organization definition. Because [inaudible] they are different from a Hawaiian Civil Club,

who may be involved [inaudible] . So I thank you very much.

[Prepared statement of Mr. Diamond appears in appendix.]

Senator INOUYE. I thank you, Mr. Diamond. May I now recognize

Lani Maa Lapilio.

STATEMENT OF LANI MAA LAPILIO, HONOLULU, HI

Ms. LAPILIO. Distinguished Vice Chairman Inouye and the Committee on Indian Affairs and staff, aloha kakahiaka kakou. It is

with deep respect and great appreciation that I greet you and commend your leadership and sincere efforts in the drafting and implementation of the NAGPRA, and especially for your continuing concern for its proper implementation.

I am Lani Ma’a Lapilio, here today as an individual to offer a

historical perspective on how the NAGPRA was administered by

the Office of Hawaiian Affairs in the early 1990’s as well as my

thoughts on the definition of Native Hawaiian organization.

I was very fortunate to have worked with the Native Hawaiian

Historic Preservation Council as their legal counsel for over 10

years. Much of the Council’s work during this time focused on the

implementation of the act, reviewing inventories, summaries, and

filing claims.

The Council began as a statewide kupuna council that provided

advise on cultural issues to the OHA Board of Trustees. This

group, led by kupuna such as Aunty Namahana Maioho, Leon Sterling, Aunty Gladys Brandt and many others, some of whom are in

this room, viewed this law as such a tremendous opportunity for

all Hawaiians to finally bring our iwi kupuna and na mea kapu

home from mainland and local institutions.

In the early 1990’s, right after this law became effective, OHA

and Hui Malama I Na Kupuna were very active in filing claims

and pursuing repatriation from institutions nationwide. Many Hawaiians were still unaware of this law, and it was the mana’o of

the OHA that they would undertake this responsibility as claim-
18

ants until families could come forward and represent themselves in

this process.

OHA’s primary role, as you heard earlier this morning from Ron

Mun, was that of a placeholder, whereby OHA would file as a

claimant Native Hawaiian organization, and allow families to be

involved in the process without having to file as a Native Hawaiian

organization. In this manner, OHA also acted to preserve the right

of families to come forward and claim their kuleana at a later time.

Since then, more Native Hawaiian families have and continue to

gain awareness, both of the law and of their kuleana, and are

starting to get more involved in the process. They are filing claims

and representing themselves, which was the goal of the OHA at

that time.

With regards to the definition of Native Hawaiian organization,

I understand the concern of those who feel the current definition

is too broad. In general, I am in favor of keeping the law broad,

so as not to preclude any potential claimant from entering the process. There were many people who thought long and hard about this

law and regulations, and by keeping the law broad you are able to

better meet challenges that are presented by increasingly complex

conditions.

However, if it is true that families with close cultural affiliation

are not being allowed to participate in the process, then I think the

definition of Native Hawaiian organizations should be amended to

include them. I believe that families should be accorded a proper

place, perhaps even have priority over Native Hawaiian organizations, in the hierarchy of claimants with standing.

Under the current law, there are three entities that may be accorded standing: Lineal descendant, Indian tribe, and Native Hawaiian organization. Now that families are beginning to become

more aware of the importance of their kuleana and are beginning

to come forward to assert their claims under this law, it may be

appropriate to specifically include them in the process by either expanding the current definition of Native Hawaiian organization; or,

if more appropriate, to add a new category for Native Hawaiian

families that wish to assert claims for iwi kupuna or certain

NAGPRA-covered objects and items.

In closing, thank you for coming home to hold these hearings and

listening to what the community has to say. I support any effort

made by this distinguished committee to ensure that the NAGPRA

program is administered with objectivity, cultural sensitivity, and

in keeping with the spirit and intent of the act. Mahalo and thank

you for the opportunity to testify.

[Prepared statement of Ms. Lapilio appears in appendix.]

Senator INOUYE. I thank you very much. May I now call upon

Mr. Suganuma.

STATEMENT OF LA’AKEA SUGANUMA

Mr. SUGANUMA. Good morning, Senator, my name is La’akea

Suganuma, and I am the president of the Royal Hawaiian Academy

of Traditional Arts, wherein I carry the title of ’Olohe Aiwaiwa.

Our primary function involves the teaching and preservation of

the Hawaiian fight art of ku-ialua, commonly referred to as lua.

However, we are heavily involved in many other aspects of our cul-
19

ture and traditions, as many of our instructors and students, from

all islands, are practitioners of numerous traditional disciplines.

My first encounter with NAGPRA began over 4 years ago, when

the academy was recognized as a claimant in the ongoing

Kawaihae Caves Complex, also known as Forbes Cave matter.

On the other hand, my education in the beliefs, spirituality, traditions, great wisdom, and dignity of our Hawaiian culture began

shortly after birth, when I was given to my grandmother, Mary

Kawena Puku’i to raise, in the household of George and Pat

Namaka Bacon, my foster parents. There is no one, absolutely no

person, who honors, respects, and has unconditional aloha for our

ancestors and culture more than I do.

I believe that NAGPRA was enacted with good intent, to address

the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations, to certain Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony with

which they are affiliated. My observation is that it has worked well

with Native American and Native Alaskan tribes, but it has not

worked well in Hawaii.

The primary purpose of this hearing is to examine proposed

changes to the definition of Native Hawaiian organization, which

are necessary. There are differences between our culture and Native American cultures that also warrant revisiting the definitions

used to categorize the various types of objects.

However, the primary reason that NAGPRA is not fulfilling its

intent in Hawaii is the fact that all federally-recognized tribes have

a governing body that is authorized to represent and make decisions on behalf of the members of the tribe. Hawaiians were never

organized in tribes and, at this time, have no governing body that

speaks for our people.

In other words, if an object is determined to be of a certain tribe,

it is repatriated to the tribe, whose leaders decide its fate. It can

be left where it is, as has happened, placed in a tribal museum,

given to a particular family, et cetera. The key here is that the decision is made by a recognized governing authority of the tribe.

Here in Hawaii, because we are not tribal, nor do we have a government, actual and legal ownership has been transferred to a few,

without regard for the Hawaiian people as a whole. Two organizations, in particular, were named in the act itself, and must be removed to eliminate any further appearance of favoritism.

Because of this naming, one organization, whose spokesman was

involved in the development of NAGPRA, was formed for the express purpose of taking advantage of its provisions and has dominated NAGPRA-related activities without regard for the wishes

and beliefs of all others, including those with familiar ties, which

is contrary to our traditions.

This group has arbitrarily imposed their beliefs on everyone else,

while getting paid for their services and receiving substantial sums

in the form of grants and reimbursements from the Federal Government. We view their motivation as financial rather than cultural.

The decision of a few has fostered tragic consequences. In the

case of Kanupa Cave, its so-called permanent seal was breached

and precious ancient objects appeared in the black market for sale.
20

We would ask for your assistance, Senator Inouye, in looking into

the investigation that ensured and whose results have seemed to

have been quietly shelved.

While Native American tribes are building museums to house

their treasures, repatriation has been depleting what little we have

left and exposing them to deterioration and/or theft. Moreover,

ownership has been transferred to a few, who can do whatever they

want to do, including selling these treasures.

The U.S. Census 2000 reported a total Hawaiian population of

401,162, of which 60 percent or 239,655 of us live here in Hawaii.

Yet, the fate and ownership of what should be considered national

Hawaiian treasurers is being given to a small handful of individuals.

Although we Hawaiians value these cultural objects much differently, the fact is that some of these items, which are literally

prices and worth unimaginable sums of money to international collectors, now below to and are controlled by a few.

Ancient bowls, gourds, spears, images, kapa, et cetera, are now

owned by those who took advantage of the provisions of NAGPRA.

The acquisition of some of these items would make a thief instantly

wealthy, a very tempting situation. I am sure this was not the intent of NAGPRA. Thus, NAGPRA, as well intended as it was, has

had a devastating effect on the Hawaiian people.

I believe that this damage must and can be undone, or minimized, by recalling all previously repatriated objects, not iwi, to be

held in trust until these matters are resolved. There should and

will someday be a museum controlled by Hawaiians, where our

treasures would be housed, protected, cherished, and loved, with

pride in the accomplishments of our ancestors. Thank you.

[Prepared statement of Mr. Suganuma appears in appendix.]

Senator INOUYE. I thank you very much, Mr. Suganuma. May I

now call on Mr. Harris.

STATEMENT OF CY KAMUELA HARRIS, KEKUMANO OHANA,

HONOLULU, HI

Mr. HARRIS. Aloha, Senator Inouye and committee members. I

would like to thank you for the opportunity to present my feelings

and thoughts on this matter regarding NAGPRA, its administrative

rules, and how they do not apply to Hawaiian burial beliefs and

practices.

My name is Cy Kamuela Harris, and I represent my family, the

Kekumano Ohana, which is a recognized NAGPRA claimant in

Mookapu, and Kawaihae claims, as well as Waikiki on the State

level. I submit to you these ideas to balance the word of the law

and some of its definitions regarding Hawaiian burials in the

NAGPRA process.

First, remove the names of Hui Malama and OHA from being

used as examples of Hawaiian organizations. The intentions of

these Hawaiian organizations, which may have been noble and selfless in the beginning, have changed. It seems to me that this honor

is best served by other Hawaiian organizations who are better examples or not listed at all.

The reason for this is, it makes them an authority by association

with the definition. It gives them an unfair advantage in the proc-
21

ess, and it gives the impression of a rubber stamp of approval. The

families are coming forward to accept this responsibility, as well.

Second, change the definitions to include the Hawaiian Perspective of Burial Customs and Practices. Ohana or family values are

not unique to only Hawaii and Hawaiians. It is a principle which

insures the respectful treatment of burials at the very least. This

feeling of family is missing in the spirit of NAGPRA and its administrative rules and definitions.

I believe the current definitions do not fit Hawaiians. Hawaiians

are trying to fit the definitions. There are many definitions which

do not reflect Hawaiian ways of thinking, but I think the most important one is lineal claimant.

This idea of family most of all is what is lacking and is the root

of Hawaiian thinking. The definitions need to include this perspective in the rules in order for lineal claims to take the lead as the

rules are presently written.

The common element in mind is families, not native Hawaiian

organizations, to make the final decisions with regard to burials.

If this is not changed, then the definition of Hawaiian organization

becomes very important, as this will be the highest level of

NAGPRA claim any Hawaiian will receive with regards to Hawaiian burials, based on a lineal history.

This inadequacy is putting the decisions into the hands of Hawaiian organizations like OHA and Hui Malama, instead of the Native Hawaiians families that should rightfully decide these matters.

The effect of this has caused a delay to thousands of families iwi

from being put to rest; not because Hawaiians cannot get together

and make a decision. It is the system failing from the definition or

lack thereof. You could also argue that this is an example of how

a Hawaiian organization refuses to relinquish the decision to families.

On the NAGPRA level, the Mookapu iwi are still waiting patiently for their turn to be interred, because there are no recognized lineal claimants. Even claimants who base their claim on

genealogy are only considered Hawaiian organization status, fighting against organizations.

Some of these organizations push their protocols and burial practices with total disregard for family opinions or decision capabilities, and have their own agenda based on Federal grant money, not

Hawaiian principles.

Hawaiian burial practices have always been based on family and

decided by family; which is to say that not all knowledge comes

from one source, but many. This has been an issue in dealing with

organizations instead of money.

I am sure I do not have to tell you how Hawaiians are related

to each other. But if family steps forward with genealogy to claim

connections to iwi, you can bet the percentages are high that they

are family. Their intentions are honorable to do the right thing and

prevent the wrong thing.

Kawaihae Cave or the Forbes Cave is an example of how a Native Hawaiian organization was allowed to do the wrong thing. I

am speaking about what has become public knowledge through the

media, that one claimant has decided the matter for all.
22

Hui Malama, along with the cooperation of the past administration of the Bishop Museum, attempted to circumvent the NAGPRA

process. In the museum’s attempt to correct its public image without changing the outcome, and ignoring the results of a vote taken

by the majority of claimants, it lied. After agreeing to the recovery

of sacred objects and iwi, the museum informed us that repatriation had taken place, and if we wished to take this further, then

we could do so in a court of law or through the NAGPRA review

process.

Fortunately, the current administration is more understanding of

NAGPRA and its rules. So began the quest by Laakea to correct

the wrong. The rest is history. The decision that the museum

rectifies this wrong is on the right track, but far from over.

From the perspective of Ohana, the correct thing to do is to bring

the family, to show our aloha, to malama them and have the

chance to decide where and how they should be treated for burial.

But most organizations do not believe this is necessary. The fact

of the matter is, the families never had a chance for closure, let

alone the participation in the burial process.

These sacred objects were meant to be found and shared for all

the people of Hawaii to cherish and admire at the very least, not

buried in a cave or being sold on the black market; their security

always in question. The system cannot allow one organization to

make a decision of this magnitude, ever. Thank you very much,

Senator.

[Prepared statement of Mr. Harris appears in appendix.]

Senator INOUYE.I thank you very much, Mr. Harris. Now may I

call on Mr. Kalahiki.

STATEMENT OF MELVIN KALAHIKI, NA PAPA KANAKA O

PUUKOHOLA HEIAU, KANEOHE, HI

Mr. KALAHIKI. Aloha ka kou a pau loa, Senator Inouye and committee members; Mahalo piha for the opportunity to share my

mana’o with you. My name is Melvin Lonokailohia Kalahiki. I represent Na Papa Kanaka o Pu’ukohola Heiau and I sit on the Council of Chiefs.

This heiau at Kawaihae, island of Hawaii, was built by Kamehameha I. Today, it is known as the Temple of State, for it was here

that the unification of the islands began. It is presently under the

care of the National Park Services.

The mission of Na Papa Kanaka is to preserve and protect the

history and culture of the heiau. Each August we come together in

full ancient ceremony and protocol, and this puts life back in the

heiau.

I was raised in this area by my grandfather, William Pauo Mahi

Naule Akau, I was raised with Hawaiian values in a setting that

was surrounded by Hawaiian history. I have devoted the major portion of my life to working within my culture.

It is my feeling that NAGPRA should be amended to include

those organizations that have a valid claim. This does not need to

be a complicated procedure and the results should be very simple,

keeping in mind that the Hawaiian people are not structured in the

same fashion as American Indians or Alaskan Natives.
23

On the other side, we should be made aware of the criteria for

selecting a claimant. If genealogy is used, be sure it reflects the

birth origin.

A few years ago, I was attending a meeting up in Waimea that

was called by Hawaiian Homelands, the Department of Land and

Natural Resources, and the Bishop Museum. The topic was in regard to the Honokoa Cave artifacts.

At that time, the Honokoa Cave artifacts were still in the Bishop

Museum, and the iwi kupuna were in Hilo. Everyone there had a

strong opinion regarding the artifacts. At the meeting, I remember

that Papa Awai felt strongly that the iwi kupuna in Hilo should

be returned to their resting place in Kawaihae, and the majority

of kupunas agreed. I am very sorry to say that Papa Awai has

since passed away.

Also, Auntie Marie Solomon of Kohola voiced her mana’o of the

artifacts. She said that they should and must be seen by future

generations; to see them and to take pride in their workmanship.

She felt saddened that her parents were never able to see such

beauty created by their ancestors. She said that the powers that he

that were in that room would not listen to her mana’o. Now Auntie

Marie has been lost to us, too. Both Papa Awai and Auntie Marie

asked that I remember their words and speak for them wherever

I go.

I also gave my mana’o that night. I felt, and still feel, that the

artifacts must be kept out and safe. I worried that they may fall

into the hands of grave robbers and appear on the open market.

I feel they will be safe at Bishop Museum for awhile until there

is a suitable place to malama them.

True to the worries and concerns of Auntie Marie and me, the

worst has come true. A loan was given and they were returned to

Honokoa, sealed and delivered, ignoring all concerns of the kupuna

of Kawaihae, Kohala, and Waimea. Hawaiians have a word for all

of this. It is the word maha’oi. The kupunas have spoken to the

wind. This is exactly why NAGPRA needs to be amended to address this type of concern.

On behalf of the Na Papa Kanaka o Pu’ukohola Heiau, we thank

you for this meeting, and we appreciate your time.

Senator INOUYE. I thank you very much, Mr. Kalahiki. Before

proceeding with the questions, I would like to once again advise all

of you that the hearing record will be kept open until January 4,

2005.

Those of you here in the audience, if you wish to submit testimony on your own, feel free to do so, provided you get it to us before January 4, 2005. I can assure you that it will be made part

of the hearing record.

May I now proceed with a few questions here. Assuming that the

Akaka bill is successfully enacted into law and a Native Hawaiian

Government is formed, a sovereign entity is formed, under the provisions of that law, what standing, if any, should this Government

have in the NAGPRA process? I think all of you have touched upon

specifically Hui Malama or OHA. Should this Government, made

up of Hawaiians, receive special recognition under the act, Mr. Diamond.
24

Mr. DIAMOND. Based on the intent of the Akaka bill, and what

I understand would enable the Hawaiian people to come together

and then to assist them in what they need to put together, that

would provide the catalyst for self-government. It would seem to

me that it moves to the emergency and would take shape. It would

probably become a government entity; and if so, it would have [inaudible] NAGPRA.

Senator INOUYE. Would it be a status equal to a family or superior to a family?

Mr. DIAMOND. I would think that if it’s government, then it

would [inaudible]. I would hope that it would be responsive to the

Hawaiian people, and that it would accord the regard for the

kuleana of families.

Senator INOUYE. Ms. Lapilio, do you have any views on this?

Ms. LAPILIO. Thank you, Senator, I agree with Van Diamond’s

comments, that there would be a great need for families to also assist this new government and be a part of the process; and that

families would be accorded the first involvement and participation

for their relatives and ancestors under the intent and spirit of

NAGPRA, as it was intended.

So I believe that there is a role for the Government, and there

will also be a very important role to assist in the process of repatriation, the same as it is now.

Senator INOUYE. Mr. Suganuma, would you care to share your

thoughts?

Mr. SUGANUMA. Yes, Senator; I agree. I think that if there is a

representative body of the people with the authority, then they

would take that position. I would think if it was a truly Hawaiian

entity, that they would indeed work with the families, because that

is a very important part of our culture. The people would expect

and demand that that happen. So I would hold the position that

relative to the tribal governments that exist now, we should make

the administration in NAGPRA different.

Senator INOUYE. Mr. Harris.

Mr. HARRIS. Well, I would have to agree with everyone. As long

as they kept it the same way, what we were talking about as far

as family comes first, I do not see any problem.

Senator INOUYE. Mr. Kalahiki

Mr. KALAHIKI. I would agree. I think if the entity was voted in

by the Hawaiian people, I do not think Hawaiian people would

have any disagreement as to the laws of NAGPRA. It would come

down to the Hawaiian entity, I think. But I no negative feelings on

what we are doing here, to date.

Senator INOUYE. The Akaka bill, as drafted, sets forth a definition of Native Hawaiian. What is your definition of a Native Hawaiian? Must he have a blood quantum of 50 percent or more?

Mr. KALAHIKI. Senator, I posed that question some time back

with my grandfather. His answer was just like this. He told me,

you know me. You know my mother. You know my grandfather,

and that was all. He did not want to reveal his genealogy. The

statement he made after that was, genealogy, some day it is going

to split.

For that, I found out that there were other Hawaiians that felt

the same way, you know, about genealogy. He also made a state-
25

ment that, you are known by your works, you know, by what you

do. So that was his comment, and I agree with him.

Senator INOUYE. Would any of you like to comment on that?

Mr. HARRIS. Yes, Senator; I disagree with this blood line. I think

it is very divisive, and it is not a basic Hawaiian principle. If you

look at true Hawaiian principles, they do not believe in this type

of blood dividing.

What I was taught is, as long as you have one drop of Hawaiian

blood, then you are Hawaiian; and if you are [native language]

then you are Hawaiian. Because you take on the family [native language] under their protection, and that is what makes a family,

thank you.

Senator INOUYE. Mr. Suganuma.

Mr. SUGANUMA. I agree with Mr. Harris that as long as you have

a descendant from anyone, anytime you have Hawaiian blood, as

far as Hawaiians are considered, you are Hawaiian, period; 50 percent is unacceptable.

Mr. DIAMOND. A while ago, like about 1982 or so, was went I

went to work for [inaudible]. It was right after the constitution was

amended to enable the Office of Foreign Affairs to be established.

If I recall correctly, one of the things that came about in discussion was that the blood quantum was an invention, and an invention of the Western model, and not necessarily Hawaiian. One of

the things that the Congressional delegation was doing, from about

1978 or even a little bit earlier, going forward, there was a definition that did not attack blood quantum. It established a cut-off

time with regard to being able to use one family genealogy to [inaudible].

If anyone was able to show that connection to the Hawaiian people before that time line, then regardless of quantum, they would

be Native Hawaiian or Hawaiian. It provided the support. Going

forward, it provided the basis for the funding.

So the blood quantum in that particular instance was not what

you thought it was, although it was [inaudible]. So even there,

there is always the historical effort.

Even historically, if I recall correctly, there was an effort to have

the [inaudible], back in the 1920’s. So blood quantum, per say, is

not a magic word.

Senator INOUYE. Well, I made a slight error here. A lineal descendant, under the Akaka bill, would be one who can trace his ancestry to a Native Hawaiian who was eligible to reside on lands set

aside under the Hawaiian Homes Commission Act of 1921. The alternative threshold to come within the definition of Native

Hawwiian is that if you can trace your descendency to a Native Hawaiian who resided in Hawaii as of January 1, 1893.

But as you know, if a Native Hawaiian Government is reorganized constitutions can be amended. At the present time, if you can

trace lineal descendancy to someone who was a Native Hawaiian

before or on January 1, 1893, you would qualify as Native Hawaiian under the definition in the to Akaka bill.

Well, I have a few other questions. Mr. Diamond, you suggest

that the law should be amended to provide families a higher status

than a Native Hawaiian organization. Do you believe that there is
26

a consensus of Native Hawaiians in Hawaii on this proposed status?

Mr. DIAMOND. I do not know. I cannot answer that. I would hope

that it would be. I am operating on the premises of what I understand from my own family; that a family and kuleana and the responsibility to move forward. In viewing with other entities, that

responsibility, you know, we need to pursue and do the best we can

to achieve it.

Part of the precedent though, I understand, is going back to the

State law, where lineal the descendant and cultural descendant

has first call. Absent a lineal descendant and a cultural descendant, in terms of preference, you should be an appropriate Hawaiian

organization, under the definition. We will move forward in that regard.

So from that perspective, I would suggest and I would hope that

people would want to give to families that opportunity to make the

move, and then there will be support. An organization can support

it, and I would think they have a corresponding responsibility to

articulate why.

In fact, there was this conversation involving a couple, when

there was some disagreement and there was an organization that

was taking a particular stand. Some of us indicated, if that organization had a different point of view and they feel strong enough

about it, it is incumbent upon them to try to educate those of us

who do not understand it, in order for us to see whether or not we

can accomplish that.

I would hope that in exchange, organizations would be supportive

of them and their kuleana; and if they cannot, then that exchange

will help reach it.

Senator INOUYE. Do the other members of the panel wish to comment on this? Should families have a superior standing to a Native

Hawaiian organization, or would you disagree?

Mr. Suganuma.

Mr. SUGANUMA. I think in our culture, the family is most important. One of the remarks I made to the Kawaihae claimants, when

we had a meeting, is that if anyone could step forward and show

that they are a direct descendant, and family is involved, then all

bets are off. Everybody step back, because the family takes precedence, always.

Mr. HARRIS. I would have to agree totally that family should definitely be a higher rank than Native Hawaiian organizations.

Senator INOUYE. Ms. Lapilio, do you have any other views?

Ms. LAPILIO. I think that that is the beauty of the consultation

process under this act. If it is a fair and open process, then when

these views are exchanged, I believe that our cultural principles of

ohana, as first and foremost, will surface, prevail.

You know, that is, I think, one of the special things about this

law. It does provide for that process, and if it works well, that is

where you can come forward and present your affiliation and your

evidence of the cultural affiliation that is provided for under this

act.

Senator INOUYE. Mr. Kalahiki.
27

Mr. KALAHIKI. I also agree. I belonged to many organizations

over the years. We all worked together for the common good of Hawaiians.

But I think when things come down, you know, a group of Hawaiians should make the decisions. In the overall, it is their responsibility for that decision to be made.

Senator INOUYE. Ms. Lapilio, in your testimony, I believe you

stated that we should leave the definition of Native Hawaiian organization as is. Is that correct?

Ms. LAPILIO. Well, what I meant to say was that I would ask

that there be great caution exercised in amending the act. If there

was a way to include the Native Hawaiian organization and Native

Hawaiian families, perhaps that is just a very simple approach.

But if that would be workable, that was my suggestion.

I am in favor of including Native Hawaiian families. However,

you know, I just wanted to have some kind of reassurance that it

would not cause any consequences as a result of amending the law.

Senator INOUYE. I suppose this depends upon legislative intent

and interpretation. But the law, as enacted, in defining Native Hawaiian organization, does not require membership of Native Hawaiians. Should that be changed?

Ms. LAPILIO. I have just one thought, Senator. I am not sure that

we have passed this through the Department of Justice, which was

my initial concern about having a membership requirement of Native Hawaiian. However, you would know that better than we

would. I understand the concern. But again, I am hopeful that in

the consultation process, this will all be worked out and factored

in.

Senator INOUYE. I do not suppose that you would go so far as to

say that the interpretation should be that an organization which

practices Native Hawaiian culture and rituals, but not made up of

Native Hawaiians, would qualify?

Mr. SUGANUMA. I think probably that is more of a legal question,

because it depends on the definition and the court system.

I would think that under the circumstances, any organization

that would be involved in these things, I would hope, would be Hawaiian. I do not know of any organization made up of non-Hawaiians who practice traditional Hawaiian traditions, et cetera. I am

not aware of any.

But I believe that this question itself is more of a legal question,

rather than a cultural question. You know, under the kingdom,

there were a lot of citizens of the kingdom that were not Hawaiian.

They spoke Hawaiian, practiced the culture. So it is an interesting

question, but I think it is a conflict between culture and legal.

Senator INOUYE. I asked that question because it is not altogether unrealistic. Because when the Kuhio bill was enacted into

law and the Hawiian Homes Commission was formed, if you look

back, most if not all of the commission members were non-Hawaiian. But that organization was looked upon by others as being a

Native Hawaiian organization.

Mr. HARRIS. Senator, personally, I would have to agree that if an

organization is virtually doing things that are Hawaiian, then they

should be recognized as a Hawaiian organization. From my teach-
28

ing, there is a principle that if you are a living, speaking Hawaiian,

then you are a Hawaiian organization. To me, it is that simple.

Mr. DIAMOND. If you are looking and applying it to the NAGPRA

law, one of the things that I go back to, that I think all of us had

to qualify to, it is two prong. The first step of it, the definition of

a Native Hawaiian organization, and that we know.

But the second piece, which should have co-equal standing or

value, is the organization has to demonstrate that it has a direct

cultural affiliation with whatever item it is. Now given what the

advisory meeting rendered back in 2000, it is for each item that

would be subject to repatriation.

So it is not simply the competition of the organization, per se,

and how it is structured and its membership. It also has to go to

the next step. It has to be connected culturally with the item. If

it is not, then it is not going to happen. If the object is for repatriation purposes, then it is both.

Senator INOUYE. How did you react to OHA’s statement that it

served as a placeholder for families?

Mr. HARRIS. I fail to see any example of that. I do not have any

example of OHA being a placeholder for families.

Senator INOUYE. Do all of you agree with that?

Mr. KALAHIKI. Well, just to shed some light on OHA, I put that

in perspective, because Hawaiian people want to do what is right

within the system. I would like to say that I was involved in that

process, the legislation process.

But you know, we sat around a table and defined this. So at the

legislative hearing, we had a room up on the first floor. So we were

looking for the best. They had only 20 percent. We were asking 75

or 50.

So what I am saying is that the organization was still on the

premise that it would represent us. That is the straight-away on

that, on the idea. But today, that is the only thing we have.

I would like to say something pertaining to Hawaiian organizations. There was a Hawaiian organization that was working with

a legal firm. But we had some problems that we needed overcome.

What they did was, apuno, apuno. Do you understand what is a

apuno? It is making light in Hawaiian. All the things that were revealed stayed on the table.

But the director of apuno, did not understand the process, and

we told him about this. He went off and used that for him. What

happened, everybody on the table went for him and got him out of

his job. He lost his job because of it. He did something that was

against Hawaiian tradition. So I think I would say that in a Hawaiian organization, Hawaiians should be completely up front.

Senator INOUYE. Mr. Suganuma, I believe in your testimony, you

stated that repatriation rights should not be transferred to a Native Hawaiian organization that does not speak for all Hawaiians.

Do we have any organization that speaks for all Hawaiians?

Mr. SUGANUMA. No; well, the thing is, the differences we have

here, between us and the other Native Americans and Native Alaskans who are covered by the act, are particularly in that area. Currently, there is no entity or body that speaks for Hawaiians. That

is what I see as the major problem.
29

Senator INOUYE. If the Akaka bill becomes a reality, would the

sovereign entity created under that law qualify as one that speaks

for all Hawaiians?

Mr. SUGANUMA. I would think, if it is set up properly and the

people were involved in the election process and everything else,

they would be the governing entity of the people.

Senator INOUYE. Do you have any disagreement?

[No response.]

Senator INOUYE. Mr. Kalahiki, in what situation, if any, would

you support hiding cultural objects from being available to Hawaiians to view and experience their power and beauty and manao?

Mr. KALAHIKI. You know, I know the concerns about the artifacts. In fact, I went up to [inaudible ] four times. My last trip up

there was August 25.

We are in the process of putting together a plan for housing. But

it is in the planning stages. I feel that it should be seen, for those

artifacts.

In our family in Hawaii, we have artifacts, and we are proud of

them. So to answer your question, I think it should be kept, for

when a family wants to see it, it is there.

Senator INOUYE. Mr. Suganuma, you stated, I believe, that tragic

consequences resulted from the recognition of certain organizations

as Native Hawaiian organizations. What are the tragic consequences you speak of?

Mr. SUGANUMA. The tragic consequences were based on the decision made by the organizations that were recognized. They made

the decision to put everything back into the cave where they came

from. As a result of that, thieves broke in and took the items. They

were thought to be on the black market for sale.

We still do not know what happened to the investigation. It just

kind of disappeared. We do not know as to how many were sold or

not sold. What I am saying is that there was a decision made by

a minute fraction of the population to do this, which resulted in

very tragic consequences, that were not represented to other people.

I would like to also say something else about your question. To

me, it is not a question of showing the artifacts or displaying the

artifacts. It is a matter of truly respecting the wishes of the ancestors, because nothing can be discovered without their permission.

On a higher level of understanding, they made the decision for

their descendants that these things be there. Otherwise, they

would not be there.

So it is not a matter of our deciding to show these things. It is

a matter of their deciding that they should be shown. It is also a

matter of Hawaiian is a state of being. I know many that believe

that blood is placed in men. I will repeat the language. It is a state

of being, and if you function with the aloha, that should be given

much consideration.

Senator INOUYE. In defining those tragic consequences or giving

an example, for the record, who conducted the investigation?

Mr. SUGANUMA. As far as we know, it was sort of joint State and

Federal Government. But I think Federal investigators took precedent, and the State was just assisting.

Senator INOUYE. What is the status now?
30

Mr. SUGANUMA. Nobody knows.

Senator INOUYE. Can any of you enlighten us?

[No response.]

Senator INOUYE. Mr. Harris, you spoke of the family, saying that

the family should have a status superior to that of Native Hawaiian organization. Could you give me some examples of how a family

member claimant group might view the burial and other issues differently than a Native Hawaiian organization like OHA or Hui

Malama?

Mr. HARRIS. Well, yes, I can, Senator. Take, for instance,

Mokapa. An organization has suggested that the burial process be

with kapa. They also wanted to have the burial mount or platform

built.

Now our family decided that this is not necessary; that the iwi

could be wrapped in muslim, and that would be sufficient, and

placed in a cave. This is still being discussed.

Now the organization did not step aside for the family to go

ahead and make this decision. They are still pushing their plan for

a platform. There is a great cost for them to not just make kapa,

but bring kapa from the tonga or some other type of kapa. This is

not Hawaiian kapa. As well as making all this, it would take a lot

and the cost is tremendous, according to their figures.

But as far as the muslim goes, there is very little cost involved;

and, in fact, the families could themselves pay for the cost. All that

would be needed would just be the bodies to be moved.

Senator INOUYE. Before adjourning this hearing, do any of you

have a final statement to make, any closing remarks? Mr. Van

Horn Diamond.

Mr. DIAMOND. Thank you very much; first of all, I would thank

you very much for inviting us all and providing us the opportunity

to provide testimony and respond on this particular matter, the

Native Hawaiian organization definition and all that relates to

that, as a result.

I also want to thank you very much. This comment, I really did

not plan on saying, but I choose to. We all appreciate your caring

for the people of Hawaii. Moreover, we are mindful and have not

forgotten, when you help enable the families to repair and heal

themselves. We will always be thankful for that.

Then with regard to this one simple basic fact, I would like to

summarize where I am coming from. The goal of today, with our

participation with regard to this, is to protect and perpetuate our

essence, thought the proper use of repatriation. So I thank you

very much for that opportunity for us to share that. We hope we

have contributed. I think we have all learned a lot today, and we

will try to add to our remarks before January 4th; thank you very

much, Senator.

Senator INOUYE. Thank you.

Mr. Harris.

Mr. HARRIS. Senator, it seems to me like you have received all

of this here with an open heart. I really appreciate this opportunity.

I think that you already are on the right track, just hearing some

of the questions that you had for some of us. I think you know the
31

direction that we need to go in. I really appreciate this opportunity;

thank you.

Senator INOUYE. Mr. Suganuma.

Mr.SUGANUMA.I think it has already been said, but we really appreciate you allowing us to share with you, and I know that you

have an understanding of these things; thank you.

Senator INOUYE. Thank you.

Ms. Lapilio.

Ms. LAPILIO. Mahalo, Senator, for being here and for hearing

from our Native Hawaiians; and also for your care and compassion

for our people. Also, for the other organizations in this room, we

encourage them to please provide testimony. You have heard the

concerns and we need your help. Please put forth your manao into

the record; thank you very much.

Senator INOUYE. Mr. Kalahiki.

Mr. KALAHIKI. I, too, Senator, want to thank you for coming in

to bring a change and for making a way for us to come together

on behalf of the people of Hawaii. I will be submitting more ideas

before the deadline. We all need to work together. We need each

other more than anything for our people; thank you.

Senator INOUYE. Before adjourning, I would like to once again remind all of you that if you wish to submit testimony for the hearing record, you may do so. But please do so before January 4, 2005.

I would like to thank the participants today from this panel and

the first panel for your candor and your passion. The committee appreciates it very much. We will do our very best to work through

all of the different views and come up with hopefully a solution

that all of us can agree upon. With that, mahalo to all.

[Whereupon, at 10:40 a.m., the Committee was adjourned.]

(33)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF MELANIE CHINEN, ADMINISTRATOR, DEPARTMENT OF LAND

AND NATURAL RESOURCES’ STATE HISTORIC PRESERVATION DIVISION, HONOLULU, HI

Good morning Senator Inouye and members of the Senate Committee on Indian

Affairs. My name is Melanie Chinen, and I am the newly appointed administrator

of the Department of Land and Natural Resources’ State Historic Preservation Division [SHPD]. Thank you for inviting me to participate in this important hearing in

which your committee will consider testimony as to whether or not the definition

of ‘‘Native Hawaiian organization’’ contained in the Native American Graves Protection and Repatriation Act [NAGPRA] should be amended.

The issue before the committee is whether or not the current definition allows

those who should be eligible to assert claims under NAGPRA the right to do so. As

currently written, Native American organizations are defined as those which: No.

1, serve and represent the interests of Native Hawaiians; No. 2, have the primary

purpose of providing services to Native Hawaiians; and No. 3, have expertise in Native Hawaiian Affairs. This definition precludes individuals who are not associated

with a Native Hawaiian organization from making claims under NAGPRA.

Although Hawaii law and administrative rules do not explicitly provide for the repatriation of human remains and burial artifacts, they do provide descendants the

right to participate in discussions relating to historic burials when they are able to

demonstrate either a cultural or lineal association to these burials. I will limit my

testimony to the State’s experience working with this broader definition of eligible

claimants as it relates to burial matters.

The inclusion of individual descendants in the discussion of burial matters at both

the cultural and lineal level often results in multiple claims and recommendations

that at times conflict with each other. This need not be viewed negatively as the

inclusion of various viewpoints has helped to strengthen many of our burial plans.

However, the broad inclusion of cultural descendants, those who are able to demonstrate that their ancestors lived in the Ahupa’a in which the burial is located, has

caused challenges to the decisionmaking process. The SHPD is currently reviewing

the strengths and weaknesses of our system in which individuals are able to assert

claims under Hawaii’s burial laws and is not prepared to formally recommend any

amendments to NAGPRA at this time.

I would like to extend an offer to assist your committee as you review the current

Federal law and continue to examine how NAGPRA can best accommodate those

who should be eligible for repatriation claims.

Thank you for providing me the opportunity to testify and for bringing this important matter to the people of Hawaii for their consideration. The SHPD stands ready

to assist your committee and looks forward to working with you.
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