Paradise Almost Lost: Hawaii’s Bishop Museum Grapples with NAGPRA

This article was published in Museum, March/April issue of 2008.

On Feb. 26, 2000, a Saturday when most of the staff of the Bernice P. Bishop Museum in Honolulu was off, the museum’s vice president handed over a crate containing 29 of the museum’s most valuable items, known as the Forbes Collection, to Edward Halealoha Ayau, a well-connected young lawyer. Ayau promptly took the collection to the Big Island of Hawaii and put it back in the cave where it was found in 1905. (The Bishop is located on the island of Oahu.) He walled the entrance and set a booby trap inside.

The action ignited a furious debate and resulted in civil litigation, jail time for Ayau, accusations of theft and the disappearance from public view of some of the state’s most powerful art. The case highlights the strikingly different effects the Native American Graves Protection and Repatriation Act of 1990, known as NAGPRA, has had in Hawaii and in the rest of the United States.

For the American Indian communities for whom it was intended, NAGPRA has largely been a success. The act provides a mechanism for Native American tribes to regain possession of human remains and sacred and funerary objects held by U.S. museums. Thousands of remains have been returned by museums and properly interred by tribes, along with objects that have been placed in museums controlled by tribes.

Given that the nation’s 550-odd Native American tribes are legal and physical entities that have had two centuries of relations with the federal government, the question of to whom the objects should be returned has been generally uncontroversial. Dean Snow, president of the Association for American Archaeology, says funerary objects recovered from museums either have been kept by tribal leaders for ceremonies, put on exhibition or, in some cases, interred. “I’m not aware of any controversy over a tribe burying objects of great beauty or cultural value” in the continental U.S., he said. “Generally, NAGPRA has been a good thing.”

But Hawaii, which was an independent country rooted in a European-style feudal society until American businessmen engineered the overthrow of its monarch in 1893, doesn’t have tribes. So Congress simply defined “Native Hawaiian organizations” that can make claims for these objects as those that have some expertise in Native Hawaiian matters and in some way represent Native Hawaiian interests. It doesn’t even require that a Native Hawaiian organization have Native Hawaiian members.

More than a hundred of these entities have come forward to claim remains and objects under NAGPRA, some worth millions of dollars. Some groups have fought bitterly over the handling of bones and artifacts.

One organization, though, was given an advantage from the start. The legislation, which was largely the work of then-chairman of the Senate Indian Affairs Committee Daniel Inouye (D-Hawaii) named Hui Malama I Na Kupuna O Hawaii Nei (Group Caring for the Ancestors of Hawaii) as one of two Native Hawaiian organizations that could receive objects listed under the act, though others could qualify, too. Hui Malama was founded in 1989, the year before NAGPRA was passed. Its executive director, Edward Ayau, the man who would later return the Forbes Collection to the cave from which it was taken, was on the staff of the Indian Affairs Committee at the time the legislation was drafted.

While the repatriation of human remains caused no more controversy in Hawaii than it did on the mainland—some ceremonies had to be reinvented in both places—Ayau’s position on what constitutes funerary objects in Hawaii has set him apart from mainstream archeologists and many Hawaiians.

The latter groups say that in traditional Hawaiian society, bodies of native Hawaiians were usually buried secretly, with few personal objects. Ayau disagrees, maintaining that the objects found near bodies in the remote caves where they were placed are in fact funerary objects that should be returned to the cave with the remains. It was this interpretation that led to the confrontation.

Hawaiians traditionally believed that the spirit of a person, the “mana,” resides in the bones, particularly the shin and thigh bones. Sometimes the deceased was left to rot, then stripped of flesh. The skull and long bones were kept in the residence, distributed among relatives or placed secretly in a remote cave, wrapped in a plain bundle of bark cloth so foes could not find or identify them. The more powerful the deceased, the more secretive the burial and the site, since obtaining those bones would allow an opponent to insult and overpower the spirit of the deceased. Royalty were often baked in a pit over hot stones. Their flesh was removed and their unmarked bones stored in a remote location.

In addition, Hawaiians, who had no metal, primarily used human bones to make fishhooks and other tools. “The more powerful the man, the more fish they thought you could catch with a hook made from his bone,” says Yosihiko Sunoto, a Bishop Museum archaeologist. Conversely, they embedded teeth or bones from their slain enemies into wooden spittoons to denigrate their spirits. In the Bishop’s collections storage room stand several several tall, feather-topped staffs. One, owned by King Kamehameha I, who united Hawaii, has bone inlays of three chiefs he killed in battle in 1795.

The collection at the center of the controversy was discovered in 1905 in a cave at Kawaihae on Hawaii’s Big Island by three men: David Forbes, a 41-year-old Scottish plantation manager with an interest in Hawaiian art; his German accountant, Frederick Haenisch; and a friend, William Wagener. While many pieces had been hidden in caves only to be later stolen and sold on an emerging international market, this cave had been undisturbed for more than 100 years, Forbes realized. After going through an empty chamber, they entered a second one where they found a “beautifully shaped dugout canoe” covered by a “nicely finished and polished surfboard.” In the canoe rested the desiccated remains of a tall man, apparently a minor chief.

On the way out, the trio spotted a walled entrance to another chamber. They removed the wall of stones, crawled through a narrow passage and, Forbes wrote, “We found ourselves in the last resting place” of about 20 bundles of bones and skulls. The cave gave the trio a “weird feeling, so that but few words passed between us.” In that chamber they found the objects that would later be known as the Forbes Collection.

Among them, wrapped in bark cloth known as tapa, they found two striking female wooden figures with full heads of human hair and mother-of-pearl eyes, about two feet high. There were also two taller wooden sculptures believed to represent the war god Ku, which Forbes called an “awesome god of terror.” There were other objects in the hall, including a unique shark-tooth carving instrument with a handle made of a human clavicle and a konane board game with carved figures for support. Nearby lay what Forbes called “The most beautiful bowl I had ever seen. It was inlaid with human teeth and on each side were carved two images, male and female, that acted as a base.” Another bowl was inlaid with whale-tooth ivory and human bones. There was also a wig of human hair on a wicker support.

The trio left with the objects but no bones. For an appraisal and perhaps a purchase offer, Forbes naturally wrote to William T. Brigham, the director of the Bishop Museum—Hawaii’s pre-eminent museum, then and now.

The museum was founded in 1889 by a banker named Charles Reed Bishop five years after the death of his wife, Bernice Pauahi, a Hawaiian princess with vast land holdings, to house her collection of heirlooms and those of previous monarchs. It became a refuge for the cultural and religious objects that had been hidden since 1819, when Queen Kaahumanu, the widow of Kamehameha I, decreed that they should be destroyed and that the old, feudal order (which notably prohibited women from eating with men) should be abolished. (The first missionaries, New England Congregationalists, coincidentally showed up the next year.) Some of these objects were duly destroyed by her followers, some were hidden and later given to the Bishop while others were later destroyed by missionaries.

In addition to the world’s largest collection of Hawaiian artifacts, over time the Bishop amassed probably the biggest assemblage of ceremonial feather clothing in the world (brightly colored feather capes were used by royalty), along with the largest collection of Polynesian artifacts. It also became a natural history museum, with the country’s fourth-largest collection of specimens—24 million objects, including 14 million insects and 6 million shells.

Brigham, the museum’s director at the time, unsurprisingly indicated an interest in acquiring what Forbes and his partners had found. The wooden sculptures of women had “a freedom and individuality seldom seen in the images of the gods,” he wrote, estimating they were made in the late 18th or early 19th century. After discovering the value of their find, the trio split the collection into three lots and drew straws. Haenisch got the pair of war gods and the bone-inlaid bowl and promptly donated his share to the Bishop. Wagener got one of the female figures, the wig and the tooth-inlaid bowl with human figures, which he sold to the museum a year later.

Forbes drew the other female figure, the game board and the clavicle instrument, but he kept his share at his home in the Big Island, where he believed they should remain. After he died, his daughter honored his wish and, in the absence of an ethnographic museum on the Big Island, gave them to the visitor center of the National Park Service’s Volcano National Park. They were exhibited there until after the passage of NAGPRA, when Don Severson, a dealer in Hawaiian antiquities in Honolulu, appraised them for the Park Service. When he valued the woman and the board game at least $1 million each—they’re worth about $5 million each today, he says—the center had copies made and locked up the originals. Both copies were removed from view at the start of the controversy.

The other female statue, which was never reunited with its mate, became one of the Bishop’s signature pieces; a picture of it was placed on the cover of a museum brochure. The main objects in the collection were exhibited almost continuously beginning in 1906. In 1981 and 1982, they traveled to eight venues in the United States as part of the exhibition called “Hawaii, the Royal Isles.” When they returned, they were displayed for years in the museum’s Hawaiian Hall, now under renovation.

After NAGPRA passed in 1990, the Bishop dutifully started an inventory of objects to which the act might apply. Donald Duckworth, an entomologist and the museum director at the time, hired Ayau, Ayau’s sister and his girlfriend to work on the NAGPRA issues. This prompted a former Bishop archaeologist, Lloyd Soehren, to write a letter to the editor of a local paper questioning the wisdom of a museum whose mandate is to “collect, preserve and interpret objects of patrimony” in hiring a man whose goal is “just the opposite, to ‘repatriate’ and conceal such objects.” Duckworth, an AAM Board member from 1995–2001, says that enlisting the cooperation of Ayau’s Hui Malama was unavoidable, given the group’s prominence and pedigree.

In 1994, four organizations, including Hui Malama, applied to obtain repatriation of the Forbes Collection, by then appraised at about $20 million. Most said they wanted to conserve or exhibit the objects. At this point, Ayau’s group had been given more than 1,000 human remains—many from the Bishop—and reinterred them without controversy. The group also worked successfully with the Bishop on several other occasions to repatriate objects. Hui Malama says the figure has now climbed to 3,500 remains and objects from some 30 institutions ranging from the Smithsonian Institution to the British Museum.

Ayau argued the Forbes objects also should be put back in the cave because they were funerary in nature. The museum’s scholars disagreed.

Roger Rose, the foremost specialist of the collection and a Bishop staff ethnologist for 29 years, says the cave in which the Forbes objects were found is located a mile or so from a camp and shrine Kamehameha I used as a base to launched his invasions of Maui and Oahu in the late 18th century. “I think the female figures are representations of the goddess Kiha, who was very important to him, perhaps at the head of his pantheon,” Rose says. “The stick gods seem to be representations of Ku, the god of war. He believed that Ku helped him conquer the other islands and Kiha helped him hold them. They and the other objects were probably placed in the cave by his staff after his death,” following his widow’s 1819 decree that all sacred figures be destroyed. The uniqueness and the refinement of the game board and the clavicle instrument, which Rose believes may have been used to remove royal flesh in burial ceremonies, suggest they too were probably in the king’s compound before they were hidden in the cave.

Rose, who is finishing a book on the history of the Forbes collection, says the eight main objects found in the Forbes cave “are among the most beautifully crafted examples of Hawaiian carving.” He adds that the two female figures and the two stick figures of the god of war are among only six pairs of the 160 carved wooden figures from Hawaii to survive in the world today.

Given the importance of the Forbes collection, the Bishop Museum initially balked at handing it over to Ayau. Staff were concerned that its value would make it a magnet for thieves if it was placed in a cave whose location was no secret. It was the first time anyone in Hawaii had proposed to “repatriate” museum pieces to their caves of origin, and it caused much soul-searching in the Native Hawaiian community.

In a telephone interview, Ayau said the man in the canoe had been identified as Chief Mahi, who probably died around 1830. Ayau added that he believes all the objects in the other chamber of the cave were connected with Mahi’s body, which he called “standard burial practice.” He also claimed that the very taking of objects constituted theft by Forbes, and he accused the museum of having knowingly received and bought objects from grave robbers. (In fact, Hawaii had no antiquities law in 1905. The first law forbidding the removal of antiquities from caves was passed in 1906 in Washington, D.C.) Ayau’s lawyer, Moses Haia, added in an interview that even if the objects were not of funerary nature, “If we want to stay true to our ancestors who said we should destroy them, then we should do so.”

At a Feb. 16, 2000, meeting on the issue, Hawaiian elder Henry Auwae warned that the statues may have been used in witchcraft and returning them to the Kawaihae cave where they were found could be harmful. Within minutes, Edward Kanahele, a founder of Hui Malama who had just finished arguing for taking them back there, collapsed and died. “You have to be careful when you mess with that,” Melvin Kalahiki, head of Living Nation, another Native Hawaiian claimant, later commented.

Eight days later, the head of the Hawaiian Homes Commission, a state agency, wrote to Bishop Vice President Elizabeth Tatar, warning her not to give the collection to Hui Malama because the four claimants could not agree what to do with it. But on Feb. 26, Tatar—without Duckworth’s knowledge, he says; he was on the mainland that day—did just that, in violation of multiple museum rules, not least that such an action required the board’s approval. In total, she handed over more than 200 objects. The pieces not in the Forbes collection, returned by Hui Malama to a total of four caves, were mostly bits of tapa, matting, cordage and netting, which Rose describes as “of considerable ethnological interest” but modest monetary value.

The paperwork described the handover as a loan for a year, during which Hui Malama would keep the objects in a secure, above-ground location until the various claimant groups agreed on what should be done with them. Tatar reportedly said Hui Malama had assured her that the other claimants had signed off on the handover (they had not, and opposed it) and claimed she was deceived. She declined to be interviewed for this article.

Once the loan was reported in the news media, Hui Malama announced that the objects were already back in the cave. Although the organization had written in a federal grant report in September 1999 that it was “confident that by February 2000, [the objects] will be repatriated, for reunification with the ancestors’ bones,” the move caused a sensation.

Duckworth was pilloried in the press. One local daily called the handover “nothing short of disastrous,” while the other denounced Hui Malama for “theft by persuasion.” Duckworth apologized, but instead of firing Tatar, he punished employees who had condemned the “loan.” DeSoto Brown, the museum’s chief archivist, was suspended for ten days for disclosing it to the papers, while the public relations manager was fired for speaking out against it at a staff meeting. Twenty-one staffers who signed a protest petition were reprimanded.

A month after the handover, Ayau stopped by to visit Brown at the museum archives and demanded that he stop allowing people to see, and make copies of, pictures of anything found at the caves where the Forbes Collection artifacts were discovered. Brown recalls asking Ayau, “‘And what will we do with the pictures?’ He answered, ‘I would have them burned.’” Despite Duckworth’s backing of the no-showing policy (which he says he doesn’t remember), Brown says he refused to implement it and did not burn any pictures.

Eventually, the museum wrote a letter to the other claimants asserting it had fulfilled its obligations under NAGPRA and had no more responsibility in the matter. “The museum basically said, let the natives fight it out,” said Laakea Sugunumu, president of the Royal Hawaiian Academy of Traditional Arts, which worked hard to get the collection back. He called Hui Malama’s leaders “a bunch of schoolyard bullies” who “formed [the organization] for the express purpose of taking advantage of NAGPRA’s provisions and arbitrarily imposed their beliefs on everyone else while getting paid for their services.”

Duckworth retired in 2005. He was replaced by William Yancey Brown (no relation to DeSoto Brown), who would play a key role in recovering the objects.

Brown was a graduate of Harvard Law School with a PhD in ornithology from the University of Hawaii. He had founded the minuscule U.S. partner agency of the Convention on International Trade in Endangered Species, where, he recalled, he managed to heavily regulate fur exports, to the delight of environmentalists and to the consternation of the fur industry. “We were the mouse that roared,” Brown quips. He went on to serve four years as the science advisor to President Bill Clinton’s Interior Secretary, Bruce Babbitt.

At a wedding in early 2001, he happened to meet Duckworth and expressed interest in his job. According to Brown, after a 90-minute chat with the museum board’s search committee in Honolulu, he was hired. “I think they thought I was a very cooperative guy who would fit in with their plans, and in many ways, I didn’t,” he muses with a smile.

Brown, 59, is slight, affable and soft-spoken. He has a twinkle in his eye and a rich sense of humor and is polite and attentive to a fault. Those who know him well say he is surprisingly strong-willed and effective. “He’s the mouse that not only roars, but bites,” observes James H. Wright, a Honolulu lawyer who has worked with, but not for, Brown.

When Brown got to the Bishop Museum, he found it was in the red, its staff of about 200 demoralized and its reputation in tatters. So he spent the first year and half dealing with deficits and fundraising. When an aide told him that a dispute between Native Hawaiian groups over disposition of some museum artifacts had been satisfactorily resolved, he let the matter lie fallow.
But when Brown finally read up on the case, he thought that what the museum had done was “horrible,” he recalls. “I felt we had an ethical obligation to try to recover the objects and safeguard them for future generations.”

Although most people thought Hui Malama would never give up the collection, Brown talked the board into reversing its earlier decision and voting for recovery. But after Hui Malama refused, even hinting that to re-enter the newly sealed cave would be unsafe, the board would not let Brown sue the group. Twice, the NAGPRA Review Committee told Hui Malama to return the objects, and twice it demurred.

The controversial loan triggered a federal criminal probe by the Department of Interior’s Inspector General’s office. No charges were ever filed against Ayau by the Interior Department.

Enter Princess Abigail Kawananakoa, 81—a childless heiress to the Hawaiian throne, a leader in historic preservation and a racehorse-breeding multimillionaire. She called Hui Malama’s actions “a travesty that should never have happened,” insisted that idols were never used as funerary objects in Hawaii and spent more than $400,000 on a 2005 federal lawsuit against both Hui Malama and the museum for violating NAGPRA rules. According to Wright, her chief lawyer, Hui Malama ensured its defeat by telling a rather conciliatory federal judge that he had no right to interfere in Hawaiian religious matters and then staging a small riot in his courtroom. Ayau refused to say exactly where in the cave the objects had been placed and was jailed on a contempt charge for three weeks. During the suit, it also emerged that Hui Malama had lost all records of how it spent more than $1 million over ten years in federal grants, according to Wright.

After much acrimony, some of it public, the judge ordered the entire collection returned to the Bishop, a decision that was sustained on appeal. In September 2006, a museum team traveled to the cave and used a helicopter to recover the objects. “It took us a week to get them out. They were behind layers of concrete, and one of caves had a lethal booby trap,” Brown recalls. Anyone who entered the cave would fall eight feet and then be hit by falling rocks.

Brown predicts that with the claimants unable to agree, the collection will probably stay in the museum. When it might be exhibited again is anyone’s guess. In the meantime, it is now located in what he describes with satisfaction as “a very, very safe place.”

Betty Kam, the Bishop’s vice president for cultural resources, says 25 Native Hawaiian organizations have now formally laid claim to the Forbes collection. Some want the objects back in the cave, some want them exhibited and some want neither. The museum is in the process of determining which has the most merit, a process that should be complete “within a couple of years,” she says, adding, “What matters to us is the strength of their claim, not what they plan to do with the collection.” While Kam called NAGPRA’s intent “great,” she says the main problem for Hawaiian museums is how to interpret it—and more specifically, “to whom you give the objects back.”

William Yancey Brown left for Philadelphia in January 2007 to become president of the Academy of Natural Sciences. The Bishop Museum’s board, long widely perceived as a social club for the elite dominated by whites and Asians, as a result of Brown’s leadership is now much more engaged in the institution, and it has, for the first time, a Native Hawaiian majority, 15 out of 25. While The Honolulu Advertiser, one of the two local dailies, editorialized when Brown arrived that he had “very small shoes to fill,” when he left, it quoted the head of the museum search committee as saying they were looking for “someone exactly like William Brown.” It remains to be seen whether his successor, Timothy E. Johns, a respected former chairman of the state department of land and natural resources, will be able to safeguard and eventually exhibit the Forbes collection or resolve disputes among claimants as required under NAGPRA. He declined to be interviewed.

Meanwhile, another set of objects returned to Hui Malama under NAGPRA in November 2003 caused more controversy. The case involves 157 items from the collection of J. S. Emerson, the most extensive one of Hawaiian pre-contact, everyday objects. After the Peabody Essex Museum in Salem, Mass., and the Bishop Museum returned the Emerson items to Hui Malama, the group placed them back in the Kanupa cave in the Big Island, where they originally were found. In June 2004, the collection, with some objects still with Bishop Museum tags, was spotted for sale at Captain Cook’s Tiki Hut, an antique store on the Big Island operated by Daniel Taylor, 39, one of the island’s most active dealer in high-end antiquities. The collection, which included a hook-shaped ornament hanging on a necklace of braided human hair that Taylor priced at $40,000, was offered to a local coffee grower who alerted the interior department’s law-enforcement officials.

According to Wright, who assisted these officials in the case, it took two months for them to get the local police to seize the collection as it was being sold piecemeal—some pieces were offered on the Internet—and arrest Taylor. After he was briefly held and released with no charges in August 2004, according to court records, other federal and state officials tried to ensure he did not reveal his meticulous records showing to whom he had sold other stolen, rare and expensive artifacts, Wright says.

“Many of the pillars of the community had a lot to worry about,” he adds. Taylor was not charged until March 2006—with a single misdemeanor charge to which he pled guilty—and it wasn’t until June 2007 that he was sentenced to 11 months in jail. In October, because of an undisclosed neurological condition, he began serving his sentence in a federal medical facility on the mainland, according to court records. John Carta, a charter boat skipper who helped Taylor find the cave and remove the objects, was sentenced to a year but died of a heart attack before going to jail. He was 46.

NAGPRA Old and New
On Nov. 16, 1990, Congress signed into law the Native American Graves Protection and Repatriation Act (NAGPRA), landmark legislation that permanently altered the relationship between museums and Native Americans. Earlier laws, such as the 1906 Antiquities Act and the 1979 Archaeological Resources Protection Act amendments, had viewed Native remains and funerary objects found on public or Indian lands as archaeological objects to be managed for the purpose of scholarly study. NAGPRA, along with the 1989 National Museum of the American Indian (NMAI) Act, acknowledged for the first time that American Indians and Native Hawaiians had a right to their ancestors’ remains and the objects that were buried with them.
The 1990 act required museums and federal agencies to work with federally recognized tribes and Native Hawaiian organizations to determine the disposition of Native human remains and sacred and funerary objects taken from federal lands or located in museum collections. It established a mechanism for the return of remains and property to the descendants or culturally affiliated tribe of the deceased. It mandated that organizations prepare collection summaries and inventories to aid tribes in their research. And it created a review committee, comprised of seven representatives from the museum, academic and tribal communities, to monitor and review the implementation of the law.

Over the past 18 years, museums and Native groups have worked in partnerships to fulfill the law’s requirements. On the whole, the process has been beneficial, building productive relationships between museums and tribal groups. There are many instances in which human remains, sacred objects and objects of cultural patrimony have been repatriated. In other cases, native groups have asked museums to continue to serve as stewards of this material, working with tribal representatives to provide appropriate care. But with an estimated 200,000 remains in museum and federal collections there have been some instances in which the process has not been smooth. Disagreements have, on occasion, resulted in litigation, particularly over culturally unidentifiable human remains, which were not covered in the initial rules implementing the law.

Recently the National Park Service’s National NAGPRA Program began drafting a rule regarding implementation of NAGPRA with regard to culturally unidentifiable remains and associated funerary objects. In January, after consulting with the field and considering diverse viewpoints, including those of tribally governed museums and museums primarily dedicated to scientific research, AAM filed public comments expressing serious concerns about the proposed rule.

Two of the most problematic aspects of the proposed rule are the introduction of a new and undefined term—“cultural relationships”—and the expansion of the mandate for consultation to include non-federally recognized tribes. Various provisions of the rule would make it impossible for a museum to ever gain right of possession for unidentifiable remains and establish civil penalties should the museum fail to repatriate such material to some group. Many in the museum community fear that this could create a situation similar to that which contributed to the events described in the accompanying article. The underlying intent of NAGPRA is to ensure the return of human remains, sacred objects and objects of cultural patrimony to the right group or consortium of groups through a thoughtful, collaborative process. Ambiguity regarding who may present themselves as legitimate claimants and pressure for rapid resolution of competing claims can lead to exceedingly unfortunate results.

AAM is committed to expeditiously resolving the issues surrounding unidentifiable human remains and associated funerary objects but wants any new process to retain the respect and collaboration that are at NAGPRA’s core. For more information about NAGPRA, visit www.nps.gov/history/nagpra.

Christopher Pala, a former foreign correspondent, has been reporting from Hawaii for the New York Times and other publications since 2006. He is the author of The Oddest Place on Earth: Rediscovering the North Pole.

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