Na Iwi O Na Kupuna O Mokapu v. Dalton
| Decision Date | 25 July 1995 |
| Docket Number | Civ. No. 94-00445 DAE. |
| Citation | 894 F. Supp. 1397 |
| Parties | NA IWI O NA KUPUNA O MOKAPU, Heleloa, Ulupa`U A Me Kuwa`A`Ohe, by and through their guardians, Hui Malama I Na Kupuna O Hawai`i Nei, a Hawai`i nonprofit corporation, Plaintiffs, v. John DALTON, in his capacity as the Secretary of the Department of the Navy and Bernice Pauahi Bishop Museum, a Hawai`i corporation, Defendants. |
| Court | U.S. District Court — District of Hawaii |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Paul F.N. Lucas, Native Hawaiian Legal Corporation, Honolulu, HI, for Na Iwi O Na Kupuna O Mokapu, Heleloa, Ulupa`U A Me Kuwa`A`Ohe.
Theodore G. Meeker, United States Attorneys Office, Honolulu, HI, Daria J. Zane, Environmental & Nat Resources Div., U.S. Dept. of Justice, Washington, DC, for John Dalton.
Alexander Marrack, Kelvin H. Kaneshiro, Gilbert D. Butson, Arthur B. Reinwald, Reinwald O'Connor Marrack Hoskins & Playdon, Honolulu, HI, for Bernice Pauahi Bishop Museum.
ORDER GRANTING FEDERAL DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF HUI MALAMA'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT
This court heard the parties' motions on July 10, 1995. Paul F.N. Lucas, Esq., and Alan T. Murakami, Esq., appeared on behalf of Plaintiff Hui Malama I Na Kupuna O Hawai`i Nei (hereinafter "Hui Malama"); Daria J. Zane, Attorney for the Department of Justice General Litigation Section, Environment and Natural Resources Division, and Theodore G. Meeker, Assistant United States Attorney, appeared on behalf of the Federal Defendant John Dalton (hereinafter "the Federal Defendant"). After hearing argument and reviewing the motions and the supporting and opposing memoranda, the court GRANTS the Federal Defendant's Motions for Summary Judgment, and DENIES Plaintiff Hui Malama's Cross-Motion for Partial Summary Judgment regarding Count II of the Complaint.
Congress enacted the Native American Graves Protection and Repatriation Act ("NAGPRA") on November 16, 1990. On March 25, 1992, the Federal Defendant awarded a contract to the Bishop Museum to prepare an inventory of the human remains disinterred from the Mokapu Peninsula (hereinafter "the Mokapu remains" or "the Na Iwi") in compliance with NAGPRA Section 3003. This was the first Department of Defense project falling under NAGPRA.
At the time the contract was awarded, there were no federal regulations or guidelines for preparing an inventory under NAGPRA. The proposed implementing regulations relating to NAGPRA were not issued until May 28, 1993, and as of this date are still not finalized. The Department of the Interior did not provide inventory guidelines and examples until March 1995.
The Mokapu remains represented the largest single group of Native Hawaiian remains housed at the Bishop Museum at the time of the inventory. The general objective of the Mokapu inventory was to provide an accurate list of the human remains and funerary objects from the Mokapu Peninsula, and to establish a minimum number of individuals represented by the remains. The enumeration of individuals was effectively to be a census, with morphometric and macroscopic assessments of sex, age, and distinguishing characteristics noted as aids to compare with the limited information contained in the previously prepared Osteology Catalog.1
Because several different research scholars, curators, and other staff listed the remains, the descriptions in the Osteology Catalog relating to sex, age, distinguishing physical attributes and pathological observations varied. Review of such data revealed a significant number of discrepancies between the accessions described as one individual and the remains actually present.2
The lack of a systematic curatorial program left the Mokapu collection in some disarray. At the commencement of the inventory, there was some confusion of skeletal parts within the collection of remains. The actual minimum number of individuals represented was not determinable based on the existing data. In addition, there was extensive commingling of remains within accessions. That is, though an accession listed only one individual, more than one individual was in fact often present.
As a result of the commingling and discrepancies between the remains and the records relating to them, the data contained in the Osteology Catalog could not be used to conduct a proper inventory. It became necessary to examine the Mokapu remains using standard physical anthropology techniques. The inventory report indicates that Bishop Museum employed such techniques. The museum performed no DNA analyses, nor did the museum conduct extensive metric or nonmetric analyses of the remains.3
During the inventory process, pursuant to Section 3003(b)(1)(A) of NAGPRA, consultations were held with, inter alia, Hui Malama. Formal meetings were held on March 25, 1992, January 13, 1993, and February 27, 1993. Telephone consultations also occurred periodically.
Among the issues specifically discussed during these consultations were the difficulties encountered by Bishop Museum. Bishop Museum advised Hui Malama that it intended to use current anthropological methods of determining age and sex to obtain a more accurate enumeration of individuals.
At the January 13, 1993 meeting, representatives of the Federal Defendant made presentations regarding the methodologies Bishop Museum was using in conducting the inventory and the status of the project. The Federal Defendant's representatives reported the preliminary results of the physical anthropological examinations relating to age, sex, skeletal completeness and recorded pathologies.
At the next meeting on February 27, 1993, the parties specifically discussed the discrepancies discovered in the curatorial records versus the actual remains and the problems associated with separation and commingling of the remains. Topics discussed included skeletal completeness, skeletal alteration, determinations of ethnicity, sex, and age, pathologies, and metric determinations.
Bishop Museum finalized the inventory, consisting of the narrative report and appendices, in January 1994. The Secretary of the Interior published the notice of completion in the Federal Register in accordance with NAGPRA. See 25 U.S.C. § 3003(d)(3). Potential claimants received copies of the inventory upon request. Distribution of the inventory to date has been limited primarily to: (1) claimants; (2) persons involved in this litigation; (3) Navy personnel; (4) the Review Committee and National Park Service Consulting Archaeologist pursuant to NAGPRA requirements; and (5) requestors under the Freedom of Information Act, 5 U.S.C. § 552. The inventory has not yet been published.
On June 14, 1994, Hui Malama brought suit against the Federal Defendant and the Bishop Museum for declaratory and injunctive relief.4 The complaint alleged: (Count I) — that the Federal Defendant failed to return expeditiously the Mokapu remains in violation of NAGPRA Sections 3005 and 3010; and (Count II) — that the Federal Defendant conducted additional scientific research on the Mokapu remains in derogation of alleged agreements between the Federal Defendant and Hui Malama and in violation of NAGPRA Sections 3003 and 3010. Complaint at 6-9.
Hui Malama's original Complaint prayed that the court: (1) declare that the Federal Defendant violated NAGPRA Section 3005 by failing to return expeditiously the Mokapu remains; (2) declare that the Federal Defendant violated NAGPRA Section 3003 by undertaking additional research on the Mokapu remains; (3) order that the results of the additional research be deleted from all published inventory reports; (4) order that the research information be placed under seal, subject to disclosure only upon the express written approval of Hui Malama; (5) order the expeditious return of the Mokapu remains to Hui Malama; and (6) grant Hui Malama its costs and attorney fees. Id. at 9-10.
The Federal Defendant filed its first Motion for Summary Judgment on January 27, 1995 (hereinafter "Federal Defendant's January Motion for Summary Judgment") regarding both Counts I and II of Hui Malama's Complaint. Hui Malama subsequently withdrew Count I regarding the request for immediate repatriation to Hui Malama. See discussion infra part I. Following settlement negotiations during Spring 1995, the Federal Defendant filed a second Motion for Summary Judgment on May 11, 1995 (hereinafter "Federal Defendant's May Motion for Summary Judgment"), addressing only the additional scientific research issue contained in Count II. Hui Malama also filed a Cross-Motion for Partial Summary Judgment on May 11, 1995, seeking summary judgment on Count II.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The moving party has the initial burden of "identifying for the court those portions of the materials on file in the case that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). In a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir.1989).
Once the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec., 809 F.2d at 630; Fed.R.Civ.P. 56(e). The opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support its legal theory. Intel Corp. v. Hartford...
To continue reading
Request your trial
-
Bonnichsen v. U.S., Dept. of Army
...Chatters to apply for an "ARPA" permit, which he did. Dr. Chatters then finished excavating the skeleton. 2. Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F.Supp. 1397 (D.Haw.1995), is the only published opinion that has considered whether NAGPRA absolutely forbids any handling, examination, o......
-
State v. Taylor
...was not Respondent's theory at that time. Hence, this theory also cannot validate the indictment."[T]he[ ] personal beliefs," Dalton, 894 F.Supp. at 1409 n. 9, of Native Hawaiian organizations such as Hui Malama, which may have had cultural ties to the artifacts, must be respected. However,......
-
Fallon Paiute-Shoshone v. U.S. Bureau of Land Man., 03:04-CV-0466-LRH(RAM).
...result in the correlating finding that the present dispute is therefore not ripe for review. 3. The case of Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F.Supp. 1397 (D.Haw.1995) is not to the contrary. In Dalton, the court faced a situation where a determination of cultural affiliation had b......
-
Navajo Nation v. U.S. Dep't of the Interior, CV-11-08205-PCT-PGR
...noted that steps taken leading to an agency action do not constitute the required final agency action); Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F.Supp. 1397, 1405 (D.Hawai'i 1995) (Court concluded that because the federal defendant had not yet made a decision in accordance with the NAGPR......
-
CHAPTER 4 ACCESS TO INDIAN LAND AND TITLE RECORDS: FREEDOM OF INFORMATION, PRIVACY, AND RELATED ISSUES
...242 (1994 & Supp. 1997). [153] See, e.g., United States v. Schlette, 842 F.2d 1574, 1581 (9th Cir. 1988); Na Iwi O Na Kupuna v. Dalton, 894 F. Supp. 1397, 1413 (D. Haw. 1995); Diamond v. Federal Bureau of Investigation, 532 F. Supp. 216, 226 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d......
-
Privatization and the Freedom of Information Act: an analysis of public access to private entities under federal law.
...by some other entity, [the court] must conclude that [the agency] controls these documents"); Na Iwi O Na Kupuna O Mokapu v. Dalton, 894 F. Supp. 1397, 1411 (D. Haw. 1995) (holding that inventory of Native American that remains under the Native American Graves Protection and Repatriation Ac......
-
Cultural resource preservation law: the enhanced focus on American Indians.
...organization. Id. (37) Id. § 3002(d)(1)-(2). (38) Id. § 3002(d)(3). (39) Id. § 3010. (40) Na Iwi O Na Kapuna O Makapu v. Dalton, 894 F. Supp. 1397, 1410 (D. Haw. (41) 256 F.3d 349 (5th Cir. 2001). (42) The Lipan Apache Band of Texas is not a federally recognized tribe. See infra note 65. (4......
-
Insiders and Outsiders: the Case for Alaska Reclaiming Its Cultural Property
...F. Supp. 234, 252 (D. Vt. 1992), aff'd, 990 F.2d 729 (2d Cir. 1993). [120] 18 F. Supp. 2d 25 (D.D.C. 1998). [121]Id. at 28-29. [122] 894 F. Supp. 1397 (D. Haw. [123]Id.at 1408. The court denied the remains standing because it found that the plaintiffs could not show that the remains suffere......