The Reburial of Bones

Hawaii’s Preservation Laws Include Burial Councils For The Islands That Are Consulted When Ancient Remains Are Found

by Vicki Viotti for the Honolulu Star-Advertiser (9/23/12):

Hinaleimoana Wong-Kalu feels comfortable with kupuna who have left this world, so much so that the spot she chose for an interview was the grassy cemetery up Alewa Heights where her great-grandparents are buried.

It’s the notion of disturbing iwi, the buried remains of such ancestors, that is the source of discomfort for Wong-Kalu, who chairs the Oahu Island Burial Council, and most people who have made this issue a center of their lives.

So the recent ruling of the Hawaii Supreme Court brought her relief. The justices ordered that an archaeological survey ultimately aimed at protecting burials along the route of the planned Honolulu rail project must be finished along the entire 20-mile alignment before the project proceeds. Soon afterward a bone fragment was found by crews doing the archaeological survey on Halekauwila Street, a find the state is now investigating.

"On the side of the council, I do make it a point to communicate that the council has a responsibility to ensure protection and respect for iwi kupuna," she said. "And now there is a sense of justice prevailing over this topic, because we told them from the very beginning, state law says you are required to complete your survey. This is one whole project."

The issue of historic preservation is a key element in the controversial rail project because, as the route approaches the Honolulu terminus at Ala Moana Center, it passes through one of the largest concentrations of iwi in the state: Kakaako. This district, say the experts, was once an area of sand dunes, and the sandier soil is where Hawaiians preferred for burial sites because it wasn’t appropriate for other uses and it was easier to dig there.

In addition, central Honolulu, supplied with drinking water in multiple springs, was densely populated for centuries, said Jonathan Likeke Scheuer, vice chairman of the council, which now stands at the center of the discussion. And in the view of the council, that fact should have weighed heavily in the alignment of this segment, he said, which is why the survey should have been done much earlier.

"The core issue is rail could theoretically take a number of routes to get between Kapolei and Honolulu," Scheuer said. "The exposure of burials would be significantly lower if you go more mauka."

There are five island burial councils, representing Oahu, Maui and Lanai, Kauai and Niihau, Hawaii island and Molokai. They have been major players in various developments that encounter burial remains.

There are federal as well as state burial-protection laws that are key to the legal battle that was fought to the state’s high court. But it’s the state’s laws that created the burial councils, with the idea that they could help determine the best course of action when remains were encountered.

This means locating descendents; traditionally, the disposition of remains was entirely a family responsibility. However, it’s rare that someone can prove to be a true “lineal descendant” of the person whose remains were found. Instead, invariably people step forward to be recognized as “cultural descendants” under state law, by demonstrating that their ancestors lived in the general region of the burial find.

The law gives recognized cultural descendants rights to consultation about what to do with the bones but far less prerogative than a lineal descendant would have.

However, that certainly doesn’t mean cultural descendants have no influence. In fact, protests raised by these petitioners brought several of the past controversies into the forefront. Paulette Kaanohi Kaleikini was a cultural descendant in some of the cases — the Walmart and Ward Villages projects come to mind — and was the plaintiff whose lawsuit drew down the definitive Supreme Court ruling.

What happens next? In the case of the Halekauwila iwi, the State Historic Preservation Division, part of the Department of Land and Natural Resources, will work with the project’s archaeological consultant to evaluate the remains. According to the administrative rules devised under the law, skeletal remains that are in a “burial context” — if there are other remains or related objects buried nearby, perhaps — that gives greater weight to the argument that it should remain in place.

Or, it could be found to be a bone disassociated from burial sites. That can happen in redevelopment of long-urbanized areas. Decades ago, the area was built up using a lot of filler soil taken from elsewhere, and bone fragments sometimes are moved along with the excavated soil to the new site.

Pua Aiu, the division chief, was unavailable for comment, but on Friday, department spokeswoman Deborah Ward said no decision had been made.

The burial council has jurisdiction over any burial located during the survey, determining whether it remains in place or is relocated. And those burial sites will be classified as “previously identified,” in any future construction, their location noted, said David “Kimo” Frankel, the attorney for Kaleikini in the rail lawsuit.

That distinction is critical under the state law and rules. The burial council has jurisdiction over previously identified burials, consulting with descendants over how to proceed, whether an unearthed set of remains should be left in place or be reburied elsewhere, Frankel said. This can be a long process, as seen in past cases such as the Walmart and Ward Villages projects.

Assuming rail construction proceeds as planned, any other burials not noted in the survey will be considered “inadvertent discoveries,” and decisions on their disposition will be made by the Historic Preservation Division, which works under tighter time limits set by law.

But there will be consultations with the burial council in any case. Wong-Kalu said she’s been assured the council will be kept in the loop throughout.

Wong-Kalu said she’s dismayed when onlookers to the process, rail proponents and critics alike, say the council is part of the opposition to the project. That, she said, is not its function.

"The burial council is not in opposition or support of the rail, or any other project going on," she said. "We are mandated to ensure that proper respect, care and protection of iwi kupuna are carried out."

Wong-Kalu did acknowledge frustration with the project, particularly its planners’ determination to conduct the archaeological survey phase by phase. Many from the council advised otherwise, from the start, she said.

Among them was Kehaunani Abad, who was a council member when she made a legal declaration to the state court in Kaleikini’s lawsuit. Now Abad, no longer on the council, is director of community engagement for the Office of Hawaiian Affairs. She declined to be interviewed on the issue last week, saying OHA had not taken a position on rail. Unless pressed to do so by its beneficiaries, she said, OHA would prefer to yield the advocacy role to the burial council.

But Abad, whose doctoral degree is in anthropology with a specialization in Hawaiian archaeology, made an assertive case in a declaration document to the state court for a strict adherence to the law, doing a full survey early in the planning process. That, she wrote, allows far better accommodation than simply moving the elevated rail’s support piers.

"Given the number of burials that are likely to be encountered and the extent of excavation that will be required for this project, the relocation of specific piers will not likely adequately protect the burials found along the corridor," she wrote at the time. "In other words, more fundamental options would need to be considered to protect the burials — including the route and the technology employed."

There’s a fierce tension between Western approaches and the Hawaiian notion of giving so much deference to ancient burials in urban planning. Scheuer, who is not of Native Hawaiian ancestry, acknowledges that.

But his years working in Hawaiian issues — Scheuer was formerly director of the OHA land management division — have left an impression. And, he said, respect for remains is a human value that should be broadly accepted.

"Yes, they’re Hawaiian burials, but it’s a kuleana that all of us hold," he said. "The ultimate act of conquest is to treat a people like they were never there."

BURIAL COUNCILS UNDER LAW

The five island burial councils, whose deliberations are given significant weight in decisions about burials located in construction sites, were established after the 1990 enactment of Hawaii Revised Statutes Chapter 6E, the historic preservation law.

Other facts about their history and role:

» Those who want to learn more about their original chartering can search for the statute and then for section 43.5. Duties and powers are set out further in the Hawaii Administrative Rules, Title 13, Chapter 300.

» Each island council comprises representatives from that island’s regions, as well as representatives of the landowner interests.

» Regional representatives, who serve without compensation, are appointed by the governor from a list of at least nine candidates provided by the Office of Hawaiian Affairs.

» The councils generally schedule monthly meetings. But in recent years, a difficulty in filling positions on some councils has caused quorum problems and the postponement of several meetings.

» The primary responsibility of the council, according to the rules, is “to determine preservation or relocation of previously identified Native Hawaiian burial sites.” However, the State Historic Preservation Division, the overseeing agency, consults with them on other burials at least 50 years old, where the ancestry is found to be Native Hawaiian. More recent burials are the jurisdiction of the county police.

» According to the division website, about 3,000 sets of Native Hawaiian skeletal remains have been re-interred, “thanks to the collaborative efforts of the division, various Hawaiian organizations, and property owners.”


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