Bishop Museum

FINAL GUIDANCE
Native American Graves Protection and Repatriation Act October 7, 2004

On June 30, 2004, Bishop Museum ("Museum") issued an "Interim and Proposed Final Guidance" to clarify and enhance transparency of steps taken by the Museum to Implement the Native American Graves Protection and Repatriation Act ("NAGPRA or "Act"). The Interim and Proposed Final Guidance ("Proposed Guidance") was posted on the Museum's website and mailed to recognized Native Hawaiian Organizations ("NHOs") and a diverse group of additional interested parties. The Proposed Guidance requested comments until September 1, 2004, and stated that any comments submitted to the Museum Registrar would be carefully considered by the Museum in developing the Final Guidance presented here (hereafter "Final Guidance").

Twenty-seven written comments were submitted to the Museum Registrar. One comment was submitted in the form of a petition signed by 361 individuals, and several comments were submitted by the same individuals or groups. The principal issues raised by the comments, as well as comments from governmental officials, are discussed below by topic and include discussion of the Museum's responses to the issues.

Following review of issues raised in comments, the Final Guidance summarizes operational provisions of the guidance, drawing from the Proposed Guidance as revised based on points raised in the comments and reflections of the Museum board and staff. The Final Guidance does not restate the analyses provided in the Proposed Guidance, but rather amends and supplements those analyses. Both the Proposed Guidance, which is incorporated here by reference, and the Final Guidance will be maintained on the Museums website.

Native Hawaiian Organizations

Most comments received address the status of Bishop Museum as an NHO under NAGPRA. Ten comments support recognition of the Museum as an NHO, and 15 comments (including the petition referenced above) opposed such recognition. Comments in support of recognition reference the role of ali'i in the Museum's establishment, and other points. Comments opposing recognition question whether the Museum meets the definition of an NHO under NAGPRA and whether the potential for conflict in judging claims and making claims on objects in its collection should preclude claimant status by the Museum under NAGPRA. The Museum acknowledges concerns over potential conflicts, and has determined not to recognize itself in this Final Guidance to be a Native Hawaiian Organization for purposes of making claims under NAGPRA. This determination in no way means that the Museum is not committed as a primary purpose to serving and representing the interests of Native Hawaiians or to incorporating Native Hawaiians in its governance, staff and programs. Furthermore, this determination does not comment on the Museum's current or future status as a Native Hawaiian entity under laws other than NAGPRA.

Cultural Affiliation

Some have taken issue with the conclusion of the Proposed Guidance that all NHOs are to some degree culturally affiliated with Hawaiian NAGPRA cultural items insofar as all NHOs may be said to have affiliation with any objects of old Hawaii. The Proposed Guidance would focus inquiry on the degree or closeness of affiliation to objects among NHOs. This position was prompted by the difficulty in finding clear lines for determining whether cultural affiliation does or does not exist. Nevertheless, the Museum appreciates that NAGPRA may be read to require a determination more closely linked to the provisions of NAGPRA defining cultural affiliation. In light of these points, the Museum has reconsidered and does not conclude in this Final Guidance that all NHOs are also culturally affiliated with any Hawaiian NAGPRA cultural item. Instead, the Museum will review such affiliation on a case-by-case basis in the immediate future. The Museum may at some point develop additional guidelines on this point to facilitate review of claims. The Museum's own cultural affiliation with items in its collection as asserted in the Proposed Guidance is moot in light of the Museum's determination not to recognize itself to be an NHO for purposes of claims under NAGPRA.

The Proposed Guidance sets forth additional specific directions concerning priority of lineal descendants, skeletal fragments and loaned human remains, objects incorporating human remains, and potential funerary objects. With the exception of the Museum's potential role as a claimant, no comments addressed these provisions. The Museum believes that these directions are well founded, and they are incorporated in the operational provisions summarized below, with revisions addressing the revised treatment of the Museum.

Sacred Objects and Objects of Cultural Patrimony

A few comments took issue with the Proposed Guidance in concluding that the Museum does not have objects in its collections that are within the NAGPRA definitions for "sacred objects" and objects of "cultural patrimony."

As noted in the Proposed Guidance, the Museum has many objects in its collection of inestimable cultural significance. The Museum agrees with comments that make this point and also agrees with comments that stress the importance of Native Hawaiian access to these objects. The Museum's current exhibits and programs provide access to many cultural objects, and we will work with Native Hawaiians and others to enhance access to objects and to strengthen programs for Native Hawaiian involvement with them consistent with security and resources.

However, none of the comments offers information contrary to the fundamental premises in the Proposed Guidance's conclusion that the Museum holds no objects falling within these two categories as defined by NAGPRA. As discussed in detail in the Proposed Guidance, an object of cultural patrimony is defined by NAGPRA to mean

"an object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group.

In particular, this definition means that an object of cultural patrimony could not have been owned or given away by an individual, including the king of old Hawai`i who ruled over the area where the object was located. We do not believe that any such object exists in the Museum's collection.

As also reviewed in the Proposed Guidance, "sacred objects" must be "needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents." Some have opposed the Museum's interpretation on grounds that traditional Native Hawaiian religious leaders are practicing traditional Native Hawaiian religions in the process of religious revival. However, the Museum's perspective does not rest on this point. The central point of the Proposed Guidance, which the Museum reaffirms, is that the objects of Hawaiian antiquity used in ritual were newly made with regularity, and the power which the Hawaiian found in objects old and new was imbued through the complex rituals of the kapu system. The objects of antiquity in the Museum's collection are rare and priceless, and the Museum is committed to programs providing for Native Hawaiians access to and engagement with them. However, the Museum believes that any continuing or reviving traditional Native Hawaiian religious practices do not require use of these objects because the objects needed for these practices were newly made as required in old Hawai'i and can be newly made today.

In adopting these perspectives in the Final Guidance, the Museum does not intend in any way to limit or inhibit claims that an NHO may make for objects that it may consider "sacred objects" or objects of "cultural patrimony under NAGPRA. The Museum will consider any such claims and consult with any NHO that makes such claims. The primary purpose for setting forth the Museum's perspectives on these terms in this Final Guidance is to clarify the central threshold questions that the Museum believes must be answered if repatriation is to be required and to express a general view on what the answers to those questions are.

Right of Possession

Three comments addressed this issue, but misread the Proposed Guidance. The comments state that the Museum claims that it is the owner of all such objects in its collection. However, the Museum's position is that it has the right of possession of unassociated funerary objects (and sacred objects and objects of cultural patrimony if they were in the Museum's collection) if the Museum is the owner under Hawai'i State law. This interpretation is based on a detailed analysis of NAGPRA and its legislative history presented in the Proposed Guidance. The Museum intends to evaluate right of possession on a case-by-case basis with objective determinations as to ownership pursuant to NAGPRA's procedures.

Summary of Key Provisions

The Museum acknowledges concerns over conflicts in judging and making claims on objects in its own collection, and has determined not to recognize itself to be a Native Hawaiian Organization that may make claims pursuant to NAGPRA.
Bishop Museum will review the existence and degree of NHO claimant cultural affiliation on a case-by-case basis.
Bishop Museum recognizes the priority of proven lineal descendants in respect to claims for human burial remains and associated funerary objects. However, it should be noted that the Museum currently does not have possession or control of any Native Hawaiian burial remains or associated funerary objects for which lineal descendants have been ascertained.
Bishop Museum possesses some Native Hawaiian skeletal fragments and is holding other human burial remains temporarily for other NHOs and entities. The Museum will work with NHOs to facilitate repatriation of these fragments, and it will assist NHOs and other entities in the proper treatment of any human burial remains and associated funerary objects that the Museum currently holds for them.
Bishop Museum has in its collections objects that incorporate human remains but were generally not considered appropriate for burial in Native Hawaiian culture. These include objects such as containers, drums, bracelets, fishhooks and sashes embedded with teeth; kāhili or feather staffs with human long bones, and items such as combs and bracelets carved from human bone. Bishop Museum will conserve these objects in its collections and treat them with the great respect and sensitivity that they warrant.
Bishop Museum has possession of objects that may have once been buried with human remains and hence may be funerary objects as defined by NAGPRA. Bishop Museum will treat these objects with great respect and sensitivity and will apply applicable provisions of NAGPRA to any requests for repatriation by NHOs.
Although Native Hawaiian culture has produced many items of great cultural and religious value, the Museum believes that it holds no objects of cultural patrimony or sacred objects as these terms are defined by sections 2(3)(C) and (D) of the Act. To meet these definitions, objects of cultural patrimony must have been considered inalienable by any individual, including ruling kings, at the time of alienation, and sacred objects must be needed by traditional religious leaders for the practice of traditional Native American religions by their present day adherents. Past and present acts and practices do not support the conclusion that any Hawaiian cultural items meet these definitions. However, in adopting these perspectives in the Final Guidance, the Museum does not intend in any way to limit or inhibit claims that an NHO may make for any objects that it may consider "sacred objects" or objects of "cultural patrimony under NAGPRA. The Museum will consider any such claims and will consult with any NHO that makes such claims. The primary purpose for setting forth the Museum's perspectives on these terms in this Final Guidance is to clarify the central threshold questions that the Museum believes must be answered if repatriation is to be required and to express a general view on what the answers to those questions are.
Bishop Museum has right of possession of unassociated funerary objects in its collections (and sacred objects and objects of cultural patrimony if any are in the collections) if the Museum is the owner under Hawai`i State law. NAGPRA provides a procedure for assertions concerning right of possession and responses by the Museum.

This Final Guidance was approved by the Board of Directors of Bishop Museum on October 7, 2004.

William Y. Brown President & Chief Executive Officer Bishop Museum