- John Dalton, individually and in his capacity as Secretary of the
Department of the Navy
- Bernice Pauahi Bishop Museum, a Hawai‘i corporation
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- Theodore G. Meeker, U.S. Atty, Honolulu, HI, for John Dalton
- Daria J. Zane, Environmental & Nat. Resources Div., U.S. Dept.
of Justice, Washington D.C., for John Dalton
- Alexander Marrack, Reinwald O’Connor Hoskins & Playdon,
Honolulu, HI, for Bernice Pauahi Bishop Museum
- Kelvin H. Kaneshiro Reinwald O’Connor Hoskins & Playdon,
Honolulu, HI, for Bernice Pauahi Bishop Museum
- Gilbert D. Butson Reinwald O’Connor Hoskins & Playdon, Honolulu,
HI, for Bernice Pauahi Bishop Museum
- Arthur B. Reinwald Reinwald O’Connor Hoskins & Playdon,
Honolulu, HI, for Bernice Pauahi Bishop Museum
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- On March 25, 1992 John Dalton (“the Federal Defendant”)
awarded a contract to Bishop Museum to prepare an inventory of a large
number of Native Hawaiian human remains, disinterred from the Mokapu
Peninsula in Kaneohe, in compliance with NAGPRA. Disorganization led
to inaccurate data and commingling of remains, which necessitated further
examination to meet the goals of the inventory preparation - determination
of the approximate number of individuals and their sex, age, and distinguishing
characteristics.
- In January 1994, the inventory was finalized, and the report was
published. In June 1994, Hui Malama I Na Kupuna O Hawai‘i Nei
(“Hui Malama”), a Native Hawaiian non-profit organization
whose function is to care for and protect Native Hawaiian remains, brought
this suit alleging two counts: 1) Federal Defendant violated §§
3005 and 3010 of NAGPRA by failing to return expeditiously the Mokapu
remains; and 2) Federal Defendant violated §§ 3003 and 3010
of NAGPRA, and an agreement with Hui Malama, by conducting additional
scientific research on the Mokapu remains. Hui Malama requested the
Court order (in addition to making a declaration of the above violations)
the results of the additional research be deleted from all publications
and placed under seal, to expeditiously return the Mokapu remains, and
to grant Hui Malama its costs and attorneys’ fees.
- Count I (violation of § 3005 and 3010) was dropped, although
not formally, when Plaintiffs learned of the existence of fourteen other
possible claimants. The Court stated that until the Federal Defendant
actually repatriated the remains, there was no final agency decision
to be challenged; hence Count I was not properly before the Court. Therefore,
the Court granted Defendants’ motion for summary judgment on Count
I.
- The Court first addressed standing issues before examining Count II.
The complaint listed the remains themselves (“Na Iwi” means
“the bones” in Hawaiian) as Plaintiffs, for according to
Hawaiian custom, human remains are spiritual beings that possess all
the traits of a living person. The contention was that physical examinations
of the bones were a desecration, and that the remains had suffered an
injury to their spiritual well being. The argument, therefore, was that
the remains had standing to bring suit. Plaintiffs cited several cases
involving non-human plaintiffs such as animals or ecosystems, but the
Court distinguished them by saying that in those cases, the standing
of the non-human plaintiff had not been challenged and that they all
involved more than one named plaintiff. Also, each involved a living
entity capable of suffering an injury in physical, demonstrable terms.
The Court stated that entities without any observable attributes of
life are generally not afforded a legally protected interest for standing
purposes, and that inanimate objects should be granted legal status
for standing only when they act as surrogates for the interests of living
things. Furthermore, Plaintiffs offered no evidence that Defendants
intentionally or incidentally caused any harm to the well being of the
Mokapu remains. Hence, the Court denied standing to the Mokapu remains.
- Next the Court addressed whether Hui Malama had standing to bring
suit. Hui Malama argued that two provisions of NAGPRA granted standing
to Hui Malama. First, the group claimed that its inclusion in the definitional
section of the Act conferred legal standing. The Court disagreed, stating
that this was a mere recognition of the group as a party with interests
in Native Hawaiian matters in general. Hui Malama also argued that as
a corporation, it qualifies as a “person” who may sue under
NAGPRA. The Court agreed, and acknowledged that Hui Malama met the requirements
of an organization able to sue on behalf of its members (Hunt v. Washington
Apple Advertising Comm’n, 432 U.S. 333 (1977)). The first requirement
is that the members must have standing to sue in their own right. The
Court recognized an alleged injury arising out of the traditional Hawaiian
belief that harm will befall those charged with the duty of protecting
the remains of ancestors, should those remains be desecrated. Second,
the organization’s goals as plaintiffs must be consistent with
the organization’s purpose. Here, Hui Malama’s desire to
have the research results expunged was related to its stated purpose
of protecting Native Hawaiian remains. Finally, the participation of
the members must be required for litigation, as it was in this suit.
- Count II alleged that additional scientific research was done on the
remains and that this violated two sections of NAGPRA (3003 and 3010),
and an agreement between Hui Malama and the Federal Defendant. However,
Hui Malama presented no evidence of any agreement between it and the
Federal Defendant. The Court also found no violation of Count II under
§ 3010 of NAGPRA, stating that that section did not create any
sort of trust relationship between the federal government and Hui Malama,
as asserted by Hui Malama. The Court found that § 3010 was drafted
to recognize a special relationship between the government and Native
American and Native Hawaiian groups so as to ward off potential claims
to repatriation by any other group.
- The remainder of the opinion is a lengthy consideration of Count II
under the Freedom of Information Act (“FOIA”). Based on
FOIA, the Court denied Plaintiffs’ requests 1) to delete and place
under seal certain information in the report; 2) to declare that Federal
Defendant violated § 3003 of NAGPRA; and 3) to award costs and
attorneys’ fees.
- Under FOIA, every government agency must make its records available
to any person upon request. For materials to qualify as “agency
records,” they must be created or obtained by the particular agency
from which the request is made, and they must be within the agency’s
control at the time of request. The Mokapu inventory met these qualifications,
and therefore, was subject to disclosure.
- There were two exemptions that both parties agreed could have potentially
applied to the Mokapu inventory - exemptions 3 and 6. The Court found
that neither applied to this case. Exemption 3 provides that disclosure
is inapplicable to withholding statutes, for example the Census Act,
when nondisclosure is explicitly provided for in the language of the
statute. NAGPRA § 3003 deals with inventories and does not explicitly
exempt any information contained in inventories from disclosure. Hui
Malama argued that the statutory definition of an inventory as a “simple
itemized list” impliedly prohibits the inclusion of other information.
The Court disagreed, ruling that this definition merely served as an
expression of the minimum requirements expected of participating agencies
and museums.
- The other possible exemption (exemption 6) provided for the withholding
of personnel and medical files that might constitute an invasion of
privacy. However, the Court stated that this exemption was intended
to protect information regarding particular living persons, especially
information that could be used to identify particular persons, such
as home address, wage information, or religious affiliation. Hence,
the exemption did not apply to a group of human remains.
- Hui Malama requested that the court use its equity power in spite
of FOIA to prevent the release of inventory information. But the Ninth
Circuit held that the Court could only exercise its equity powers to
prevent disclosure under FOIA in extreme or exceptional circumstances
(see Weber Aircraft Corp. v. United States, 688 F.2d 390 (9th
Cir. 1974)). Since Hui Malama failed to prove that dire consequences
would result from the permitting of disclosure of the inventory report,
the Court could not prevent disclosure.
- Hui Malama again raised the argument that NAGPRA’s definition
of an inventory as a “simple itemized list” precludes inclusion
of other information. The contention was that Congress intended to prohibit
the disclosure of information regarding sex, age, and pathology. Again,
the Court stated that the definition was intended to reduce time and
cost burdens on the agency or museum undertaking the inventory task.
In fact, the Court stated that Congress impliedly approved of inventories
that contained more detailed information because they would further
NAGPRA’s goal of accurate and efficient repatriation.
- Hui Malama argued that Defendants already knew that the remains were
Native Hawaiian remains from Mokapu, and that any further examination
of the remains was unwarranted, since NAGPRA § 3003 prohibits additional
research after the completion of inventory. However, the additional
research was necessary to correct the mistakes that were discovered
during the course of the inventory preparation so that the remains could
be repatriated to the correct party.
- Finally, the Court noted that even if it had found that the Federal
Defendant violated NAGPRA, NAGPRA does not override FOIA. There is nothing
in the language of the statute or in the legislative history to evince
intent by Congress to limit disclosure of information under NAGPRA provisions.
- The Court GRANTED Defendants’ motion for summary judgment on
Counts I and II and DENIED Plaintiff’s cross-motion for summary
judgment on Count II along with Plaintiff’s requested relief.
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