[Federal Register Volume 68, Number 161 (Wednesday, August 20, 2003)]
[Notices]
[Pages 50179-50180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21335]


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DEPARTMENT OF THE INTERIOR

National Park Service


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

AGENCY: National Park Service, Interior.

ACTION: Notice.

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

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

[[Page 50180]]

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

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