A federal appeals court yesterday questioned a Native Hawaiian group's definition of "loan" and whether the group could find the Big Island cave where it buried ancient funeral items if ordered to do so by the court, attorneys involved in the case said.

Hui Malama I Na Kupuna O Hawai'i Nei brought its case to the 9th U.S. Circuit Court of Appeals in San Francisco, claiming that a federal court order in Ho-nolulu in September lacked a factual understanding of the law.

Hui Malama had been ordered by U.S. District Judge David Ezra to return 83 burial items that the group sealed somewhere in the Kawaihae Caves. In 2000, the Bishop Museum loaned the items for a year to Hui Malama, but ever since the group has refused to return them, no matter who was asking.

According to a recording of the hearing, Judge Stephen Trott told Hui Malama attorney Alan Murakami that the group was misusing a law that seeks to protect native rights to cultural objects.

"The case to me gives every appearance, and I mean no disrespect, of your side trying to hijack a process that is supposedly to allow everybody who has a potential claim — and there seems to be many here — to come to the table and sort it out," Trott said.

The court asked tough questions.

"They were scrutinizing us," Murakami said. "There seemed to be a lot of deferral to Judge Ezra's perspective, which we were forced to try and disavow them of. A lot of the provisions he had in his orders are not based on facts."

Murakami said that he tried to persuade the judges to respect the federal law that applies to cases like this — the Native American Graves Protection and Repatriation Act, or NAGPRA for short.

"The whole NAGPRA philosophy is to give native peoples a greater hand into what happens to their objects," Murakami said. "It was a real challenge to try and portray what NAGPRA is all about."

The law provides a process for museums and federal agencies to return certain Native American cultural items — human remains, funerary objects, sacred objects, and objects of cultural patrimony — to lineal descendants, culturally affiliated Indian tribes and Native Hawaiian organizations.

Bishop Museum officials loaned the funeral items to Hui Malama, which signed a loan agreement. But the transfer raised concerns from other Native Hawaiian groups, and the refusal to return them led to two groups filing a lawsuit seeking the court order.

Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts filed a federal lawsuit in August against Hui Malama and Bishop Museum demanding the return of the funeral objects. Ezra ruled that the artifacts should be returned to Bishop Museum while Native Hawaiian organizations sort out claims to the artifacts and decide what should be done with them.

Sherry Broder, the attorney representing the two groups who filed suit, said the judges understood the application of the graves protection act.

"They had read all the papers and were familiar with the facts," Broder said. "I thought the questions they asked were very good."

Broder said the panel was concerned about the term "loan" as it applied to the documents signed in February 2000 by Hui Malama.

"They seemed to think a loan is a loan," she said. "They were concerned that people were saying that a loan was not a loan."

Broder said the museum agreed to the loan for the purpose of repatriating the items to Native Hawaiian groups. But once the process was started, additional groups claiming title to the objects came forward, she said.

No fewer than 13 groups have claims on the artifacts, which include carved wooden statuettes of family gods, or 'aumakua; carved bowls; a human-hair wig; gourds decorated with human teeth; tools; and pieces of feather capes.

The burial objects are known as the Forbes Collection and were taken from the Kawaihae Caves on the Big Island in 1905.

Hui Malama contends that the items were looted from the cave, then given to the Bishop Museum. The group contends that this means the museum had no right to possess the objects and had to turn them over to a Hawaiian claimant, through a loan or any other means.

"Not all Native Hawaiians agree that these priceless objects are funerary objects, and even if they are, not all Native Hawaiians agree that they should be buried," Broder said.

The panel asked Murakami if Hui Malama could find the items.

"It is not in dispute as to where they are," Murakami said. "But we are not going to say here is a map and X marks the spot, go rob the grave. That has happened before."

LindaLee Farm, the attorney who represented the Bishop Museum yesterday, said the appellate judges were interested in the loan process and the location of the items.

"I think it is important to know the location and condition of the items," Farm said. "And that is what Judge Ezra was seeking and he never got from them."

All parties involved said the case was on a fast track and expect a decision soon, possibly in a month or two.

Edward Halealoha Ayau, a spokesman for Hui Malama who attended the hearing, said he thought the judges had a difficult time understanding arguments that "are so deeply cultural."

"That is what we are up against," he said. "A Western objectifying of them as priceless rather than the possessions of the dead."

Still, Ayau remained optimistic and would pray to his ancestors for help.

"If the court rules against us, they rule against them," he said. "It is their burial site that is going to be desecrated against."

Reach Mike Gordon at mgordon@honoluluadvertiser.com.