Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 12, 1 December 1989 — Return and care of bones is seminar topic [ARTICLE]

Return and care of bones is seminar topic

By Ann L. Moore The bones must be returned. On that everyone participating in the Native Hawaiian Burials Seminar at the state capital agreed. The all day seminar Oct. 28 was co-sponsored by Hui Malama I Na Kupuna o Hawai'i Nei and the Office of Hawaiian Affairs. Fred Oaehola of Kamehameha Schools opened the seminar. He said the return and reburial of

Native Hawaiian bones is "one of the most heartrending issues of today." It was not hard to create legislation, Oaehola said, to protect the birthplace of Kamehameha, and laws ean be created to protect burial grounds. The controversy surrounding the bones represents an awesome challenge but not a new one, he said. "Mueh time and energy has been spent over the years. Emotions range from 'Don't dare touch the bones to 'It's an opportunity to learn from our kupuna.' This may be our last ehanee to study (the bones), with care and respect, to learn more about ourselves and our kupuna." Cachola said malama is needed and quoted Kamehameha's rallying cry to his troops: "Imua i no poki'i. E inu i ka wai awa awa ("Forward, forward by comrades. Drink the bitter waters.")." He concluded, "We must work. Perhaps drink the bitter waters, but be victorious." Dr. Terry Hunt, an archeologist from the University of Hawai'i, though participating as an individual, said archeologists are aware that works of the people of old are fast disappearing. They fight for the preservation of these fragile remains so generations to eome will have an opportunity to appreciate and leam from them. Nothingis sadder, he said, than the destruction of historic sites, burial grounds or artifacts so that another golf course or hotel ean be built. Hunt said that total preservation should be argued as mueh as possible. Archeology is a science he said and ideally science yields knowledge independent of politics, prejudice and popular misconceptions. Gaining new knowledge about the past is important. Samoans, for example, have added to an oral history of their origins with the evidence of archeology. Hunt said it is his belief that the respectful, nondestructive study of bones is critical and curation and protection is preferrable to re-burial. He noted Rev. Leon Sterling has suggested the information gleaned from human bones is a ho'okupu (gift of

respect) from those of the past to those of the present. He noted that Professor Ruby Kawena Johnson pointed to ancient bones as a means for the people of the past to reveal themselves. Studies of bones tell about ancient health, disease, diet, nutrition, life expectancy, child-bearing, fertility, social organization, pre-historical beliefs and the relatedness between Polynesians and other continued on page 3

Bones

from page 1 Pacific Islands peoples, he said. The work of medical anthropologist Rebecca Cann in respectful non-destructive osteological analyses must continue, he said, and preservation rather than reburial of bones already removed from the ground must be considered so future generations of young Hawaiian scientists in physical anthropology and genetics may ask their questions about the past. In cases where descendents document skeletal remains as their kin the decisions are theirs alone, Hunt said, but that is a different issue from the human remains from the prehistoric past. Mausoleums for the interment of ancient Hawaiian bones could be established for eaeh island, Hunt said, so they could rest on the land of their birth and be protected from being disturbed again in the future when activities might take plaee in ignorance of those resting below. In contrast, educator Edward L. Kanahele said "We have a ehenee but no ehoiee. Our only ehaee is to protect our kupuna." He said all Hawaiians possess mana, to a greater or lesser degree, alive or dead and that "all we do increases or decreases that mana." The kupuna, he said, nurture and educate and they are due respect and deference. "They link up with our sense of plaee and psychic halanee." Kanahele said, "Tampering causesdesecration. All our beliefs condemn tampering with the bones or the graves." He maintained that any tampering with bones has no justification in the Hawaiian religious system. The only exception was if bones had to be moved, he said,. then the family or a kahuna could move them. "Lokahi is broken when manipulahon of the bones or burial tampering is done. Manipulation of our beliefs is wrong," K^nahele said. The issue, he said, is value, spirit and religion not science, tourism and curiosity. Who owns the bones? Native burial rights and the law Walter Eeho-Hawk, a Native American lawyer told the seminar audience one of the permanent problems in race relations is the mistreatment of remains by the dominant culture. Between 600,000 and 2.5 million dead Indians have been dug up by people for their own motives. "It is an issue that lingers and lingers and every native group has been touched by it." The law, Eeho-Hawk said, plays a minor role but there are three areas relevant to the Hawaiian burials issues. One problem is that the present law has not always been applied to protect native people, he said. Laws abound in all states but the three types of law that apply are: eommon law, state law and federal law. Common law comes to us from English eommon law and is "judge-made" law, he said. Common law reflects the value-system of a society fairly equitably and generally changes with the needs of a society. Common law is applied unless

specific state or federal law is enacted to change it Common law defines a dead body, according to Black's Law Dictionary, as "a corpse, the body of a human being deprived of life but not entirely disintegrated." A skeleton is a dead person for purposes of the law, he said, and no one ean own a person when alive or after death. "A dead body is not property," Eeho-Hawk said, "you cannot buy, inherit or tax it." He went on to note that the rights of the next-of-kin for burial are recognized by the law. There is no 'finders-keepers' rule on burial goods. Burial goods were intended to remain with the corpse they belonged to, the person who furnished the grave, or the descendants, ĒehoHawak said. Private land-owners do not own the dead by possession, rather the landowner has an obligation to hold the body for the rightful descendants. A landowner's mineral and land rights do not include bones or remains. Common law imposes a limited trust on the landowners. Eeho-Hawk said there is a fiction that science has the right to exhume, carry away, retain or disinter. That argument has been rejected, he said. However, "science" does not confer the right to take away and retain dead people. Such a right is contingent upon the right of the next-of-kin to take and hold, he said. "Science flourished using next-of-kin (permission) except when it eame to native people. The eommon law has not been applied to native people." Cemetery rules and regulations protect graves, the dead and their grave-goods. The cemetery laws also provide for the burial of the poor. Public policy has established, by laws, that all dead bodies have a right to rest undisturbed. Native people, however, tend to have unmarked graves, Eeho-Hawk noted. They have no tombstones or fences. In some cases American Indian tribes have been forced to relocate from their aboriginal territories by the federal govemment whieh now claims the aboriginal lands were "abandoned," and the Indian remains on the aboriginal lands have been classified as sp»ecimens, historical objects, pathological material or archeological material, not as people. The federal govemment offers no grave protection to native people, Eeho-Hawk said. The Antiquities Act of 1905 interpreted "archeological resource" to include dead persons who became the property of the United States. However, he said, "I do not believe the Congress recognized they were departing from eommon law and reclassifying people as property of a federal agency, that is, the Smithsonian Institution . . . whieh has custody of thousands of dead bodies." The result of the law is absurd and shocking, he said, and new laws are an attempt to restore dignity to dead people who were taken as property. There is mueh debate in various states to bring the protection to native people and also try to bring in legitimate interests and studies where merited. Native people have been the recipients of racially disparate treatment and protection of native remains is a question of equal protection under law, Eeho-Hawk said. "Man has always buried the dead with reverence. Native people want the same legal

protection of their sensibilities for the living and the dead." "It falls to this generation to deal with the issue and apply the very best of today's ethics to the problem, a very serious problem" he said. In the afternoon session state Sen. Eloise Tungpalan and U.S. Senate committee staffmember Lurline McGregor spoke about two bills already in process whieh would give some protection to native remains, burying grounds and grave goods. The state bill (SB 1787) did not pass in the last legislation session. A federal bill was due for a vote in November and it deals with preservation but not with sites already disturbed. Another bill may be needed to address those sites already disturbed, she said. It does specify the retum of bones in the Smithsonian or any federally-funded museum to a "religious leader" or other designated agency. McGregor said if the Office of Hawaiian Affairs was designated as a religious leader for purposes of receiving the bones it could raise the issue of a church and state conflict. Another panel followed and carried on farranging discussion on all aspects of the return of Native Hawaiian bones. On the panel were Lydia Namahana Maioho, Dr. Donald Duckworth, Linda Kawai'ono Delaney, LaFrance Kapaka, Ross Cordy, Parley Kanaka'ole, Pualani Kanaka'ole Kanahele and Mililani Trask. During the panel discusssion Trask said she has "problems" with many sections of the proposed law especially with parts that eall for certification or religious leaders. She said the bill's designating the governor as the one to certify a religious leader "shows Inouye has not been hearing us." Trask said it is inappropriate for the federal govemment to define who Hawaiian religious leaders are. "No one (in government) defines a cardinal or bishop," she said. She favored the designation of HuLMalama I Na Kupuna o Hawai'i Nei (MINK) as the group to receive Native Hawaiian bones for burial. Kapaka said the Smithsonian bones must eome home. She said if people do not work together "we will be in our graves and our children will be here arguing about our bones." She said it is time "to point the finger at ourself." Delaney said when the bones are returned they will be treated respectfully and all are clearly identified by island. She asked, if the bones eame home tomorrow, are we ready? She said, "The burden is on ourselves. We have the cultural authorities, let us draw on them, let us not draw on the westem concept. Let us not be pulled flesh from bone. We are a family." For the Bishop Museum, Dr. Duckworth said the issue is one for the Hawaiian community. The museum has provided over 100 years of stewardship. Some families brought remains to the Bishop Museum rather than have them abused, he said. "We have never claimed we owned them, we just hold them." He said the museum will continue to work for reburial and will work with lineal descendants or people who hāve certified themselves through agencies and have the permission of the state to take custody. The museum stands ready to work with the Native Hawaiian community as far as possible, to implement decisions, he said. Maioho, curator of the Royal Mausoleum Mauna'ala, said care of the bones is a great responsibility and the burden of taking care of the bones is heavy. She said eaeh island should have curatorship of its own sites. "I'd say OHA is top of the list (for curatorship) but a lot of people don't want to hear that," she said. After further discussion, Eeho-Hawk noted the issue is particularly difficult for native people as they have no traditions to guide them since they did not dig up the dead. Near the end of the discussion, moderator Eeho-Hawk said concerning repatriationof Native American remains, "I saw my people lay down jealousies and points of view. It wasn't easy to do, but it has to be done." As Ka Wai Ola O OHA went to press notification was received, from Rep. Daniel Akaka, that the National American Indian Museum Bitt had passed both the U.S. House and Senate.