Musings: Proactive Preservation of Iwi Kupuna

No issue, aside from the related one of independence, has created as much painful turmoil as the treatment of Hawaiian burials, na iwa kupuna.

Ancient burials have been repeatedly disturbed during construction, often leading to emotional confrontations on how they should be handled. On Kauai, we saw that play out in a big way at Naue, where Joe Brescia was allowed to build his home directly atop burials.

At the time, Circuit Judge Kathleen Watanabe, who adjudicated much of the surrounding litigation, suggested those who sought greater protection for burials seek a legislative solution: “The authority of this court is not limitless,” Watanabe said, noting she did not have the power to write law.

Though a legislative overhaul of burial laws never occurred, the Kauai-Niihau Island Burial Council has come up with a pioneering approach to help avert those kinds of conflicts in the future. 

It went out into the community to determine the location of likely burial sites so they can be declared as previously identified. are located. That designation gives the KNIBC authority over burials on the site, rather than the State Historic Preservation Division.

I checked in with Mauna Kea Trask — he's on the KNIBC, along with Keith Yap, Janet Kaeo Bradford, Nathan Kalama, Barbara Say, Leiana Robinson and incoming member Wayne "Pala" Harada — for more details about what's going on. It's coming up for discussion tomorrow.

Q: Has this approach of using a "permissive interaction group" to identify potential burial sites been used before?  Why did you decide to take this particular approach, and also, what were your objectives?

A: To my knowledge the approach of using a “permissive interaction group” to identify burial sites has never been used before but it is provided for in HAR 13-300-31 (a) (1)-(4). The burial council decided to take this approach because we felt that we needed to be proactive in fulfilling our kuleana to na iwi kupuna.

Under Hawai‘i Administrative Rules (“HAR”) 13-300-24 the burial council has the following relevant powers:

1. To assist the department (“SHPD”) in the inventory and identification of native Hawaiian burial sites by providing information obtained from families and other sources (13-300-24(b)); 2. make recommendations to SHPD regarding appropriate treatment and protection of native Hawaiian burial sites, and any matters related to native Hawaiian burial sites (13-300-24 (c)); 3. maintain a list of appropriate Hawaiian organizations, agencies, and offices to notify regarding the discovery of native Hawaiian skeletal remains, any burial goods, and burial sites (13-300-24(d)); and 4. the council shall be authorized to take any other appropriate action in furtherance of the law and nothing in the law shall be construed to limit the authority of the council as to matters provided in chapter 6E.

The purpose of this permissive interaction group was to allow the KNIBC to perform its duties and responsibilities as stated under Hawai‘i Administrative Rules (“HAR”) 13-300-24 (b), (c), (d) and (h). (Cited above.) 

Our objective was to go out to the four main districts of Kaua‘i (Halele’a, Waimea, Kōloa and Kawaihau) to gather the mana’o of the native Hawaiian community regarding the issues as stated above. The permissive interaction group gathered the information from the community from Aug. 7, 2013 to Noc. 6, 2013. The results of this action were extremely successful and resulted in the gathering of legally admissible “kama’aina testimony” from the native Hawaiian community regarding the matters stated supra.

The results of the permissive interaction group were presented to the KNIBC on Dec. 18, 2013 and the KNIBC voted to recommend that the department recognize the burial sites as previously identified burial sites pursuant to HAR 13-300-31 (a) (1) – (4). 

Furthermore the KNIBC voted to recommend that the department take and consider the mana’o of the community regarding appropriate treatment of burial sites and the list of Hawaiian organizations to contact should native Hawaiian skeletal remains, etc., be discovered. At that time the KNIBC is also requesting that the Department treat the information gathered through oral testimony from the native Hawaiian community as confidential as it defines burial sites/locations.

Q: Can you provide a copy of the results, or is it posted online?

A: Due to the sensitivity of this information the burial council is treating the result as confidential under the law until we have a discussion with SHPD as to whether or not they will recognize the results of our outreach.

Q: Now that you have a list of these sites, will they be treated as previously identified burial sites? And is it correct that any discoveries on previously identified sites will require a Burial Treatment Plan and disposition by the Burial Council? Whereas if not previously identified, they would be treated as inadvertent, and under the auspices of SHPD staff?

A: To be clear the council only makes recommendations to SHPD to recognize previously identified burial sites. SHPD has not recognized the burial sites as of yet. Up until this time SHPD has historically only recognized previously identified burial sites after they are uncovered either by accident, erosion and other natural means, and construction. 

Obviously this approach does not best protect na iwi kupuna and also leads to much anger, frustration and divisiveness within the community. This new proactive approach has never been done before and we haven’t gotten a response from SHPD yet. We have agenda’d this item for our July burial council meeting and hope to have some feedback from the department at that time.

However, once recognized as previously identified the Council has the jurisdiction over all requests to preserve in place or relocate a previously identified burial site and it is correct that any act that could affect a previously identified burial site will require a BTP and disposition by the Burial Council. Whereas if not previously identified, they would be treated as inadvertent, and under auspices of SHPD staff.

Q: What kind of response have you been getting from general community, Hawaiians, developers, county? Is this having an impact on any projects?

A: The response from the community was positive at the meetings. We got a lot of great mana’o. All of the mana’o provided can legally be considered as kama'aina testimony and therefore admissible in a court of law under Keeliokalani v. Robinson; In re boundaries of Pulehunui; and Kanaina v. Long, 3 Haw. 332.

Q: Have there been any subsidiary benefits, like improved care taking of sites, access, more interest by community, people stepping forward to document other sites?

A: Not yet. SHPD is taking some time to process our request as it is a novel idea, albeit provided for in HAR 13-300-31(a)(1)-(4). We are hopeful that SHPD will recognize the results of our outreach and follow the recommendations of the kama'aina Hawaiians of these districts.

Q: And what's the latest?

A: We hope to have a great discussion with SHPD regarding this very important topic at our next meeting, 9 a.m. Wednesday, in the state Department of Transportation conference room at 1720 Haleukana St. in Lihue.