Native American Graves Protection and

Repatriation Review Committee

Dispute Findings

Native American Graves Protection and Repatriation Review Committee Findings and Recommendations and Minority Opinion Regarding a Dispute Between the Royal Hawaiian Academy of Traditional Arts and the Bernice Pauahi Bishop Museum
August 20, 2003

FR Doc 03-21335
[Federal Register: August 20, 2003 (Volume 68, Number 161)]
[Notices]
[Page 50179-50180]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20au03-78]

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DEPARTMENT OF THE INTERIOR

National Park Service

Native American Graves Protection and Repatriation Review
Committee Findings and Recommendations and Minority Opinion Regarding a
Dispute Between the Royal Hawaiian Academy of Traditional Arts and the
Bernice Pauahi Bishop Museum

AGENCY: National Park Service, Interior.

ACTION: Notice.

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SUMMARY: At a May 9-10, 2003, public meeting in St. Paul, MN, the
Native American Graves Protection and Repatriation Review Committee
considered a dispute between the Royal Hawaiian Academy of Traditional
Arts (Honolulu, HI) and the Bernice Pauahi Bishop Museum (Honolulu,
HI). The dispute focuses on whether an appropriate repatriation
pursuant to the Native American Graves Protection and Repatriation Act
has been completed between the Bishop Museum and 13 culturally
affiliated Native Hawaiian organizations for 83 cultural items that
were recovered in the early 20th century from the Kawaihae Caves
complex on Hawaii Island, HI. The Review Committee considered written
and oral presentations by both parties, and responses to questions
posed to both parties. Following is background information on the
dispute, the Review Committee's findings and recommendations, and the
minority opinion of a Review Committee member.

SUPPLEMENTARY INFORMATION: Background. The National Park Service
publishes this notice as part of its administrative and staff support
for the Review Committee. The findings, recommendations, and minority
opinion are those of the Review Committee and do not necessarily
represent the views of the Secretary of the Interior or the National
Park Service. Neither the Secretary of the Interior nor the National
Park Service has taken a position on these matters.
The Native American Graves Protection and Repatriation Act (NAGPRA)
(25 U.S.C. 3001 et seq.) directs the Secretary of the Interior to
establish and maintain an advisory committee of seven private citizens
nominated by Indian tribes, Native Hawaiian organizations, and national
museum organizations and scientific organizations. Review Committee
responsibilities include ``facilitating the resolution of any disputes
among Indian tribes, Native Hawaiian organizations, or lineal
descendants and Federal agencies or museums relating to the return of
such items including convening the parties to the dispute if deemed
desirable'' (25 U.S.C. 3006 (c)(4)). The Review Committee's dispute
procedures are available online at www.cr.nps.gov/nagpra (click on
``Review Committee,'' then click on ``Procedures'').
The following background information regarding this dispute was
developed from materials submitted by the Royal Hawaiian Academy of
Traditional Arts and the Bernice Pauahi Bishop Museum.
On February 26, 2000, the museum loaned 83 items from the Kawaihae
Caves collection to Hui Malama I Na Kupuna o Hawai'i Nei, a Native
Hawaiian organization. Hui Malama I Na Kupuna o Hawai'i Nei was one of
four culturally affiliated Native Hawaiian organizations then
recognized by the museum under NAGPRA. At the time of the loan, not all
four of the culturally affiliated Native Hawaiian organizations were
aware of or concurred with the loan or other terms or conditions of
transfer. Hui Malama I Na Kupuna o Hawai'i Nei claims that the 83 items
were then sealed in 1 of the Kawaihae Caves, on Hawaii Island, HI.
On April 5, 2000, notices of inventory completion and intent to
repatriate for human remains and funerary objects were published in the
Federal Register (volume 65, number 66; FR Doc. 00-8350 and FR Doc. 00-
8351) on behalf of the museum. The notices listed 4 Native Hawaiian
organizations as culturally affiliated, and included the 83 items on
loan to Hui Malama I Na Kupuna o Hawai'i Nei.
In August 2000, 7 additional Native Hawaiian organizations were
determined to be culturally affiliated by the museum. Later that year,
2 more Native Hawaiian organizations were determined to be culturally
affiliated by the museum, bringing the number of culturally affiliated
Native Hawaiian organizations to 13. Members of several of the 13
culturally affiliated Native Hawaiian organizations asked to view the
83 items on loan to Hui Malama I Na Kupuna o Hawai'i Nei. The museum
declined to grant this request.
On September 18, 2000, the museum's board of directors voted to
recall the loan of the 83 items and Hui Malama I Na Kupuna o Hawai'i
Nei was informed of the museum's decision. Hui Malama I Na Kupuna o
Hawai'i Nei did not return the items in response to the recall.
On March 9, 2001, revised notices of inventory completion and
intent to repatriate were published in the Federal Register (volume 66,
number 47; FR

[[Page 50180]]

Doc. 01-5940 and FR Doc. 01-5941) on behalf of the museum. The notices
listed 13 Native Hawaiian organizations as culturally affiliated. On
March 12, 2001, the museum notified the 13 culturally affiliated Native
Hawaiian organizations that the revised notices had been published.
On April 12, 2001, the museum informed the 13 culturally affiliated
Native Hawaiian organizations that the museum had completed the NAGPRA
requirements for repatriation to the 13 organizations. The museum
requested that the 13 organizations notify the museum if repatriation
and final disposition would require the recovery of the subject items
from their ``present location.''
On August 7, 2001, the museum informed the 13 culturally affiliated
Native Hawaiian organizations that the museum had repatriated the human
remains and funerary objects to the 13 organizations on April 12, 2001,
and that final disposition was the responsibility of the 13
organizations. The museum also stated that its role and statutory
responsibility under 43 CFR 10.10 (d) was completed.
Between August 2001 and March 2002, the Royal Hawaiian Academy of
Traditional Arts, one of the culturally affiliated Native Hawaiian
organizations, continued to discuss the status of the repatriation with
representatives of the museum.
On March 18, 2002, the museum sent an e-mail message to the
academy, which stated that ``the museum has completed its statutory
responsibility under NAGPRA,'' and considered the matter closed. On the
same day, the academy wrote to the Review Committee, requesting that
the Review Committee consider a dispute between the academy and the
museum.
Findings and Recommendations. On May 9-10, 2003, the Review
Committee considered the dispute as presented by representatives of the
Royal Hawaiian Academy of Traditional Arts and the Bernice Pauahi
Bishop Museum, and, by a 6-1 vote, made the following findings and
recommendations --
``The dispute seeks to establish whether an appropriate
repatriation occurred between the Bernice Pauahi Bishop Museum and 13
claimants for 83 items described as ``human remains'' and ``funerary
objects'' recovered from the Kawaihae Caves complex (Forbes Cave) in
Hawaii in the early 20th century.
``The 13 claimants are the culturally affiliated Native Hawaiian
organizations listed in 2 Federal Register notices: FR Doc. 01-5940 and
FR Doc. 01-5941. The 83 items are those listed in the museum's shipping
invoice BP-20194, dated February 26, 2000.
``Having reviewed documentation submitted by the Royal Hawaiian
Academy of Traditional Arts, 1 of the 13 claimants, and the museum, as
well as having considered their oral presentations, the Review
Committee finds that --
``1. The repatriation process used by the museum for the 83 items
was flawed and remains incomplete.
``2. The place and manner of return for the 83 items has not been
determined consistent with NAGPRA (25 U.S.C. 3005 (a)(3) and 43 CFR
10.10 (d)).
``3. The museum is responsible for the completion of the
repatriation process for the 83 items.
``The Review Committee recommends that --
``1. The museum renew the consultation process for repatriation of
the 83 items.
``2. The museum recall the February 26, 2000, loan of the 83 items
to Hui Malama I Na Kupuna O Hawai'i Nei.
``3. The 13 claimants in the consultation process be treated in a
respectful and equitable manner.
``4. The 83 items be made available to all parties in the
consultation.
``The Review Committee commends the Royal Hawaiian Academy of
Traditional Arts and the Bernice Pauahi Bishop Museum for their
willingness to continue consultation and for their positive attitude
towards finding the most appropriate repatriation and disposition
solutions.''
Minority Opinion by Ms. Rosita Worl. ``The Review Committee
recommended that a museum reopen a final decision and begin anew. I am
unable to support the findings and recommendations of the Review
Committee based on my understanding of NAGPRA, and thus offer a
minority opinion.
``NAGPRA provides that a decision is final when a museum makes a
determination that an item meets a NAGPRA category and that it is
culturally affiliated to groups with standing to make a claim, the
culturally affiliated groups exercise their right to claim, the notice
is published in the Federal Register, the 30-day period lapses without
controversy, and the item is transferred to the claimants.
``In 2001, 13 Native Hawaiian organizations filed claims for 83
human remains and funerary objects under the control of the Bernice
Pauahi Bishop Museum. On March 9, 2001, the museum published notices in
the Federal Register of its determination that the 83 objects satisfy
the statutory definitions of human remains and funerary objects and
that the cultural items are culturally affiliated with the 13
claimants. No additional claimants came forward following publication
of the notices. In a letter dated April 12, 2001, the museum
repatriated the 83 human remains and funerary objects identified in the
March 9, 2001, notices to the group consisting of the 13 claimants. The
letter stated `[w]ith completion of repatriation, the legal interest in
these human remains and funerary objects is transferred to the group.
Final disposition is now the responsibility of the group.'
``The place and manner of repatriation are to be resolved by the
museum and the claimant, but in this instance a claimant or claimants
were already in possession. NAGPRA does not require that loans be
recalled as a predicate to a determination and publication of a notice.
A museum can maintain possession of an item during the pendency of a
dispute. In this instance, the museum was notified that an agreement
was reached and the museum then sent out a letter indicating that the
matter was now in the hands of those asserting the claim. The museum
obligation was then completed and any future dispute between the 13
claimants does not include the museum.
``The decision of the Review Committee grants a museum request to
rethink a previous published decision. In so doing this, the Review
Committee has granted the desires of one museum to the detriment of all
museums that have an interest in the finality of decisions and the
minimization of risk and cost in repatriation. NAGPRA expressly
protects museums in 25 U.S.C. 3005 (f), and the findings and
recommendations of the Review Committee seek to nullify that provision
which is outside of the Review Committee's statutory authority.
``The minority opinion is that the Bernice Pauahi Bishop Museum is
no longer a party in any dispute among the claimants as to the final
resting place of the human remains and funerary objects. Whether the
Review Committee may now assist the 13 claimants in resolving the
dispute among them is a separate matter.''

Dated: June 12, 2003.
/s/ Armand Minthorn,
Chair, Native American Graves Protection and Repatriation Review
Committee.
[FR Doc. 03-21335 Filed 8-19-03; 8:45 am]

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