[Senate Hearing 108-768]
[From the U.S. Government Printing Office]



                                                        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













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                      COMMITTEE ON INDIAN AFFAIRS

              BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

                DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,                KENT CONRAD, North Dakota
PETE V. DOMENICI, New Mexico         HARRY REID, Nevada
CRAIG THOMAS, Wyoming                DANIEL K. AKAKA, Hawaii
ORRIN G. HATCH, Utah                 BYRON L. DORGAN, North Dakota
JAMES M. INHOFE, Oklahoma            TIM JOHNSON, South Dakota
GORDON SMITH, Oregon                 MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska

         Paul Moorehead, Majority Staff Director/Chief Counsel
        Patricia M. Zell, Minority Staff Director/Chief Counsel

                                  (ii)





















                            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.



















 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 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; 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.

 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 organizations 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 full-fledged 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 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 
Associations, 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 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.
    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 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 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.
    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.
    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 
membership 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 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 organizations. 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.
    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 claimants 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 culture 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. 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 process, 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.
    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.
    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.
    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 
statement 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 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.
    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 teaching, 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.
    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?
    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 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.]
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                            A P P E N D I X

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              Additional Material Submitted for the Record

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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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