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NAGPRA Issues in Hawaii, 2012


(c) Copyright 2012, Kenneth R. Conklin, Ph.D. All rights reserved

Coverage of NAGPRA-related topics in Hawaii first came to this website in 2003 when the national NAGPRA review committee decided to devote its national meeting to the Forbes Cave controversy. Forbes cave was the most intensively covered topic from 2003 to 2007. But other topics also came to public attention, including Bishop Museum, the Emerson collection repatriated and reburied at Kanupa Cave, the discovery of ancient bones during a major construction project at Ward Center (O'ahu), construction of a house built above burials at the shorefront at Naue, Ha'ena, Kaua'i; etc.

The Forbes cave controversy up until the NAGPRA Review Committee hearing in St. Paul, Minnesota, May 9-11, 2003 was originally described and documented at:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html

The conflict among Bishop Museum, Hui Malama, and several competing groups of claimants became so complex and contentious that the controversy was the primary focus of the semiannual national meeting of the NAGPRA Review Committee meeting in St. Paul, Minnesota May 9-11, 2003. A webpage was created to cover that meeting and followup events related to it. But the Forbes Cave controversy became increasingly complex and contentious, leading to public awareness of other related issues. By the end of 2004, the webpage focusing on the NAGPRA Review Committee meeting and its aftermath had become exceedingly large, at more than 250 pages with an index of 22 topics at the top. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

That large webpage became so difficult to use that it was stopped on December 29, 2004; and a new webpage was created to collect news reports for NAGPRA issues in Hawai'i during year 2005. An index for 2005 appears at the beginning, and readers may then scroll down to find the detailed coverage of each topic. For coverage of NAGPRA issues in Hawai'i in 2005 (about 250 pages), see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 another new webpage was created, following the same general format. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

For year 2007, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html

For year 2008, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/big60/nagprahawaii2008.html

For year 2009, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09a/nagprahawaii2009.html

For year 2010, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09a/nagprahawaii2010.html

For year 2011, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09/nagprahawaii2011.html

NOW BEGINS 2012


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LIST OF TOPICS FOR 2012: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfold during 2012.

(0) Occasionally an article is published that deals with general procedures or issues related to Hawaiian burials, not specifically focused on the rail project, the Kawaiaha'o controversy, etc.

(1) Kawaiaha'o Church construction project. On April 19, 2009 the Honolulu Advertiser reported that a large number of burials were uncovered on the grounds of Kawaiaha'o Church during construction to build a large activity center to replace the recently demolished Likeke Hall. Many of the burials date from the 1820s. Most were Christian burials in caskets, some of which had been buried stacked on top of each other in the 1820s. Some were Caucasian, some Hawaiian. See NAGPRA 2009, item #5. There were no newsworthy items on this topic in 2010. Two lawsuits were underway to halt construction in 2011; see NAGPRA HAWAII 2011 item #2. News continues in 2012.

(2) The Honolulu rail project is likely to encounter ancient Hawaiian burials during construction. The construction and associated archeological surveys will be done in phases, starting in the west, but likely burials would be in the final phase, in the east. Should all archeological surveys be done before any construction, to ensure the route could be changed if necessary to avoid burials? And if burials are found, should they be moved or should they stay in place and the route be changed? This was topic #6 in the NAGPRA compilation for year 2010, and #1 for 2011 because the first NAGPRA-related topic raised in 2011 was this one. During 2011 small trenches were dug in places along the rail path to discover whether there were burials that might warrant project redesign. More news during 2012. In August 2012 the Hawaii Supreme Court ruled that the circuit court made an error when it had ruled that construction could begin on early segments of the rail project without yet having completed archeological surveys for the entire project. Case remanded to circuit court for further proceedings. In mid-September 2012 a bone was found on the rail path in Kaka'ako, and construction on the entire project was halted.

(3) In 2010 a new rule was adopted interpreting the NAGPRA law to mean that if remains are held by museums or are newly discovered, and those remains are not culturally identifiable as belonging to an existing tribe, then the local tribe currently controlling the area where the remains were found shall be presumed to have a right to take control of those remains. The result is that anthropologists are no longer able to do forensic research. In Hawaii this rule has little impact because all ancient remains in Hawaii are presumed to belong to native Hawaiians. See also NAGPRA 2010, item #5. More news during 2012.

(4) NAGPRA-like issues on the U.S. mainland, or in other nations, reported in American media. (a) Authorities in New Zealand on January 23 received 20 ancestral heads of Maori ethnic people once held in several French museums as a cultural curiosity. France long resisted handing over such cultural artifacts, but a law passed in 2010 paved the way for the return of the Maori heads, traditionally kept as trophies from tribal warfare; (b) "Why are the Poarch Creek Indians of Alabama digging up Creek graves at Hickory Ground so they can build a casino? This is an insult to everything we stand for as American Indians, and it affects my people in in its insensitivity and ignorance. It gives our enemies the ammunition they need to discredit all of us and our attempts to preserve and protect our sacred graves."; (c) Archeologists believe they know where the bones of King Richard III [Lionheart] were buried in 1485 below what is now a church parking lot in England, they dug up the bones and will do skeletal analysis and DNA tests; (d) The University of Uppsala (Sweden) is returning 3 skulls it received in 1884 which were taken from Tahiti or Marquesas Islands.

(5) A new 13-acre Maui Lani Center is under construction across from Baldwin High School along Kaahumanu Avenue. At least 19 burials have been discovered in sandy areas and more are expected. A lawsuit has been filed.

(6) On Kaua'i a jury found a Wailua man guilty of stopping a DLNR construction dig for the Kaumuali'i Comfort Station project near kupuna burials at Kaumuali'i Park and Old Smith Landing in Wailua. Before the trial began, Chief Judge Randal Valenciano informed both attorneys that evidence and questioning could not involve the issue of nationalism or sovereignty. He said the court would not decide the legitimacy of citizenship to any group or kingdom, but would view anyone living in the state as being subject to state laws.

(7) A burial plan is being developed by the Office of Mauna Kea Management, with public hearings.

(8) Low-key protests being voiced over improper treatment of a skull found in Kahuku Plantation

(9) Earl Arakaki, lifelong resident of Ewa Beach, O'ahu recalls how dirt, including burials, from an old cemetery in Waipahu was dug up and used for fill in the football field constructed at Campbell High School. He personally saw numerous human bones in the dirt. For many years people joked that the school colors, orange and black, are appropriate for Halloween; and the school's poor record in football is due to bad luck from the desecration of the bones.

(10) Kewalo Development LLC, an affiliate of Honolulu-based Alexander & Baldwin Inc. is developing Waihonua, a high-rise condo building in Kewalo basin in Honolulu. Numerous sets of human remains have been discovered on several different occasions, including burials that appear to be ali'i because they had whale-tooth pendants. The developer has been working cooperatively with the Oahu Island Burial Council.

(11) In Kailua (O'ahu) the site formerly occupied by Holiday Mart and then by Don Quijote was slated to be razed and a new Target store built. But ancient burials have been discovered, causing redesign and endless delays.

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(0) Occasionally an article is published that deals with general procedures or issues related to Hawaiian burials, not specifically focused on the rail project, the Kawaiaha'o controversy, etc.

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http://www.staradvertiser.com/editorialspremium/20120923_The_reburial_of_bones.html
Honolulu Star-Advertiser, September 23, 2012

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

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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By Vicki Viotti, vviotti@staradvertiser.com

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http://www.staradvertiser.com/editorialspremium/guesteditorialspremium/20121029_Burial_laws_should_be_grounded_in_history_and_presentday_reality.html?id=176210081
Honolulu Star-Advertiser, October 29, 2012, READER COMMENTARY

Burial laws should be grounded in history and present-day reality

By Roy L. Benham

Hawaii would be well served if a review of laws governing burial discoveries were undertaken, as the Star-Advertiser has suggested ("Laws protecting iwi need review," Star-Advertiser, Our View, Oct. 5). The review should be mindful of the impact of burial laws on the improvements necessary for a growing community, while being mindful of history and tradition.

In pre-contact Hawaii, the iwi (bones) of family members were not as important as the individual's spirit (uhane). Upon death, the family gathered around the body of the departed to chant and to ensure the uhane would go to the gathering place on an island where the spirit would meet with the Akua who would escort him or her to po — the Hawaiian heaven.

After the family mourning period was complete, one family member was assigned the task of burying what was left of the body, primarily the iwi.

Because the ancient Hawaiians believed that if someone living wished to cause something bad to happen to the family of the deceased that individual could find the bones and use them to cause bad events to befall the family. Therefore, one member of the family was chosen to dispose of the bones, and no one else would know where the bones were buried.

Obviously, the easiest place to bury bones was in the sand. Sandy areas were, and are, found on all the habitable islands and this is where most of the bones were buried.

For the high chiefs, the process was slightly different. To ensure no one would know where a high chief's bones were buried, the chief designated someone to hide his bones. Most were hidden in unknown caves. That person was then obligated to kill himself to assure no one would find the bones of the chief. It was an honor to be chosen to hide the chief's bones and that person was assured a journey to po.

To this day, no one knows where the bones of Kamehameha I were hidden. However, the important thing was that his spirit went to po. The belief that bones needed to be hidden is the reason there were no pre-contact native Hawaiian cemeteries. If by chance bones were discovered, they were carefully reburied near where they were found.

The idea among some Hawaiians today, that we should not disturb any bones discovered in the course of approved construction activities, is unrealistic. Considering the amount of construction necessary on these islands in the 21st century, we will revisit the burial laws. Already, there are many bones that rest under our buildings and highways. But the spirit uhane is free and can never be bothered.

To delay progress for fear of disturbing ancestral bones (iwi kupuna) is not the consensus of all Hawaiians. We should follow the example of our ancestors when burials are discovered. It should be permissible to remove bones encountered during construction activities, as long as the discovered bones are carefully reburied as near to the original location as possible.

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Roy L. Benham served as a member of the original board of trustees for the Office of Hawaiian Affairs. He also supported the Department of Education Hawaiian Studies Program in the areas of Hawaiian history as a kupuna in the elementary schools.

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http://issuu.com/kawaiola/docs/kwo01112_final_web/1#download Ka Wai Ola (OHA monthly newspaper), November, 2012, pages 18 and 22

Bones of the Ancestors
2 Court cases bring iwi to the fore

by Lisa Asato and Garett Kamemoto

At the bustling corner of Halekauwila and Cooke streets in Kaka'ako, cars zip past a stretch of sidewalk covered in steel plates and orange traffic cones, where the first human remains has been uncovered in the city's ongoing $5.3 billion rail transit project. Since the September discovery, more human remains have been unearthed along the intended route, including an intact burial in the "flex," or fetal-like position indicative of a pre-contact burial.

Less than half-mile away, a parallel story is playing out at another project, at Kawaiaha'o Church, which in the process of constructing a $17.5 million multipurpose center has uncovered more than 600 burials since 2009.

Construction on both projects have stopped as a result of recent actions by two state courts favoring Native Hawaiian plaintiffs who sued. The courts determined the State Historic Preservation Division had erred in approving the projects without first requiring an archaeological inventory survey for historic properties, including unmarked burials -- putting protections of iwi küpuna, or Native Hawaiian remains, at risk.

The laws in question are designed to protect unmarked burials. In the Hawaiian context, disturbing burials is seen as doing spiritual harm to the küpuna and their living 'ohana, said Kai Markell, compliance manager for the Office of Hawaiian Affairs and former burials program lead at the State Historic Preservation Division.

Before Western contact and well into the 19th century, 'ohana would kanu, or plant, the remains of loved ones. Mana concentrated in iwi küpuna, ancestral remains, would imbue the 'äina and spiritually nourish the living community. Under the protection of their 'ohana, iwi küpuna and 'äina would become one.

Such connections are why the Hawaiian community most often seeks to keep iwi küpuna in place. "Generally you don't want to move a burial," Markell said. "Even the law recognizes the priority is for preservation in place."

Ashley Obrey, a Native Hawaiian Legal Corp. attorney on the rail case, called the court actions a victory for küpuna and the Hawaiian people. "The courts' decisions are a direct result of Native Hawaiians living up to their kuleana to mälama iwi, protect our ancestral foundation and ultimately preserve our identity," Obrey said. NHLC, with lead attorney David Kimo Frankel, represented both cases.

On rail, the state Supreme Court in August unanimously ruled in favor of plaintiff Paulette Ka'anohiokalani Kaleikini, saying the approval process was flawed and the project shouldn't have been allowed to begin. Construction has stalled until an archaeological inventory survey, or AIS, is completed for the entire 20-mile route. (The city had been taking a phased approach, saying it would do an AIS for the final phase – which runs through iwi-rich Kaka'ako -- while construction was ongoing in the initial phases on the project's west end.)

Hinaleimoana Wong-Kalu, chair of the O'ahu Island Burial Council, which has decision-making powers on whether iwi found during an AIS are preserved in place or relocated, said the city had stated on several occasions that the phased approach would "afford the greatest protection to the iwi." "However, what exactly constitutes that protection to the iwi?" she asked. "And that's where we differ. When we participate in a project, we look forward to the project having done their homework determining that there are iwi resources here, here and here. If it turns up all the iwi that it should, it allows us to say you need to redesign your project. That's what they didn't want to allow us to do. They had already determined that this alignment would be the best."

Since then, the city has hired Dan Grabauskas as CEO of the Honolulu Authority for Rapid Transportation, or HART. Wong-Kalu described Grabauskas as a positive influence on the project. He has shown a sensitivity, sincerity and "depth of understanding" to Hawaiian community concerns, she said. "I feel like he's the best thing that happened to the project" as far as leadership style, approachability and his "genuine concern for anything that could come under the auspices of a Hawaiian context."

Grabauskas said he will continue to work with the state "and other stakeholders to ensure that iwi küpuna are treated with sensitivity and great respect." The Kawaiaha'o Church case, on the other hand, isn't described in similar terms of aloha. Plaintiff Dana Naone Hall, a former chair of the Maui/ Läna'i Island Burial Council, said the State Historic Preservation Division, among others, shares responsibility with the church for the hewa (wrong) that's resulted.

"One would think that when the burial numbers started to mount into the several hundred that there might have been some twinges of conscience and a desire on the part of the parties supporting the disinterment to reassess further excavation," she said. "And the fact that that never occurred and that it took three years of legal pursuit to finally stop the disinterments, at least for the time being, is one of the most shocking aspects of this case." In September, the state appeals court granted an injunction stopping construction at the historic Kawaiaha'o Church until a ruling is made on Naone Hall's appeal of a circuit judge's dismissal of her lawsuit. Any work that could disturb iwi must stop, the court said in its unanimous Sept. 28 order, which cited the high court's ruling on rail.

"It gives me a great sense of relief that in the interim no more burials will be disturbed at Kawaiaha'o," said Naone Hall, a cultural descendant to Native Hawaiian burials in the area. She said she's grateful to the Intermediate Court of Appeals for reaffirming that there is "a vital public interest in protecting burial sites and human skeletal remains regardless of race, religion or cultural origin."

Naone Hall, who has family buried at the cemetery but outside the project footprint, said the church has dug up "close to 700" burials -- 69 during sewer-line trenching in 2009, after which the church halted work, and 620 more found at the multipurpose center site since work resumed in 2011. In addition, thousands more "unassociated bones" have been dug up, according to her tally culled from archaeologists' weekly reports: "I noted down for every week the number of supposedly unassociated bones and bone fragments that were collected, and that number exceeds 4,000," she said.

David Kauila Kopper, an NHLC attorney who represented Naone Hall, said the church's use of an exemption to state burial law as a "known, maintained, actively used cemetery" is erroneous. The cemetery distinction doesn't apply to the construction site, because burials had been removed from there in 1940 in order to make room for Likeke Hall. "The building of Likeke Hall served to terminate any cemetery function of the area," he said, adding, "It was a meeting hall. They had dances there." Likeke Hall was razed in 2007 to make room for the larger multipurpose center. A Kawaiaha'o Church attorney did not respond to requests for comment.

SHPD administrator Pua Aiu, asked to respond to critics of SHPD's handling of the two cases, wrote in an e-mail that the agency has "a very broad mandate that is required to balance the needs and wants of several different constituencies." "Our goal is to preserve, to the extent that we can, historic properties. At the same time, the law allows for continued development to meet the needs of the population in general, and of individual landowners." As far as guiding principles the agency uses in weighing and approving projects where iwi are expected to be found, she said: "SHPD follows the laws to the best of its ability. In rail, in the absence of state law, the agency looked to the federal law for guidance. The Supreme Court read the law differently, and now we have better guidance." She said neither case should affect how SHPD handles future projects: "Kawaiaha'o is a unique case and the rail decision was limited to the issue of phasing. While we obviously will not be allowing phasing under our current rules, other aspects of our work should not be affected."

Before the project began, OHA had provided a $1 million grant for the multipurpose center's construction. Kaleikini, the rail plaintiff, says Kaka'ako, on O'ahu's southern shore, once served as a "breadbasket" for Native Hawaiians. "There were many fishponds in the land; the land was fertile," she said. "There was a lot of Native Hawaiians living in (what is now) the urban corridor. The ali'i compound was in this area. "In those days, where they lived was where they died and where their families buried them." There is general agreement that Kaka'ako is an area rich in burials; past projects have indicated as much.

[End page 18, begin page 22]

"With rail, it's a very expensive project," Kaleikini said. "Because the public is paying for the rail, they would say move the küpuna, move that iwi because we need to finish this rail. That would be the public demand at that point, so what option do the iwi have?"

But Grabauskas said doing the archeological surveys now "allows us to make any necessary design changes along the rail alignment … to avoid potential burial sites or culturally sensitive areas."

For Kaleikini, preserving in place is always the goal -- no matter if it's a single burial or a concentration of them. She's participated in so many reburials that she's lost count. And, she said, even though she's against relocating iwi kupuna, if they have to be relocated, she participates in their reburial. "That's the other side of our kuleana," she said. "We're going to fight to preserve in place, and if it turns out they get relocated, the next turn I'm going to fight for is to put them back as soon as possible." "It's not like we look forward to handling iwi küpuna because it's a very sensitive spiritual thing to touch the iwi," said Kaleikini. "And it's not something you'd like to just get up and go do. That's why we press for preserving in place so we don't have to go and touch their bones, disturb them and disturb everything around them." When relocations occur, she said, it's essential that those responsible for the relocation also "come out to mihi (to seek forgiveness) … before we rebury them." But for every case that receives public scrutiny, many others are settled without public controversy.

Some developers reach out to the community early in the process. In mid-October, when the Howard Hughes Corp. presented its new vision for its 60-acre Ward Village in Kaka'ako to the Hawai'i Community Development Authority, Wong-Kalu told the authority the corporation has shown a "great degree of integrity" in dealing with cultural descendants and soliciting their input. For its part, the corporation said it has been meeting with various organizations and cultural descendants for months. "While it is exciting to be part of the transformation of Kaka'ako, we knew that with this opportunity comes a great responsibility to be good stewards of the 'äina," said Nicholas Vanderboom, the corporation's vice president for development. "We are committed to treating all burial sites with respect, recognizing the personal significance they hold for descendants." Such early consultation is often key to having successful outcomes, said Markell, OHA's compliance manager. "There are many cases where the landowner working with the descendants or working with … the burial council came to successful resolution of their projects."


===============

(1) Kawaiaha'o Church construction project. On April 19, 2009 the Honolulu Advertiser reported that a large number of burials were uncovered on the grounds of Kawaiaha'o Church during construction to build a large activity center to replace the recently demolished Likeke Hall. Many of the burials date from the 1820s. Most were Christian burials in caskets, some of which had been buried stacked on top of each other in the 1820s. Some were Caucasian, some Hawaiian. See NAGPRA 2009, item #5. There were no newsworthy items on this topic in 2010. Two lawsuits were underway to halt construction in 2011; see NAGPRA HAWAII 2011 item #2. News continues in 2012.

http://www.civilbeat.com/articles/2012/01/13/14538-judge-rejects-complaint-against-kawaiahao-church/
Honolulu Civil Beat, January 13, 2012

Judge Rejects Complaint Against Kawaiahao Church

By Chad Blair

A Circuit Court judge on Friday rejected claims by a Maui activist that Kawaiahao Church had violated state laws in its plan to construct a multipurpose center on church grounds.

But the decision doesn't mean construction can move forward. The case is one of two stemming from the construction plans. In the other case, last month a judge granted a preliminary injunction and ordered the church not to start building.

The Friday case concerned Dana Nanoe Hall, who sued the state in 2009 citing 10 complaints against Kawaiahao. Among them were that the church has failed to conduct an environmental assessment for the project, did not obtain the necessary permits and had failed to protect Native Hawaiian rights.

Hall sought an archeological survey of the site before construction continued. She argued that the grounds were a burial site before Christian missionaries arrived in Hawaii.

The church argued that the burial remains, discovered during construction, are exempt from the state's Native Hawaiian burial law because the remains are Christian burials of Hawaiians located primarily in a church cemetery.

The ruling by 1st Circuit Court Judge Karl Sakamoto was not immediately available Friday.

Civil Beat left a message with David Kimo Frankel, the Native Hawaiian Legal Corporation attorney representing Hall.

But, in response the ruling, Kawaiahao Church Kahu Curt Kekuna issued a press release in which he said, "Based on what we heard from the court, we are pleased with the court's ruling. However, we will await the written ruling and confer with our legal counsel before deciding what our next steps might be."

Hall is a Native Hawaiian who engages in traditional and cultural practices, including malama iwi, or caring for ancestral remains. Hall said members of her family are buried at Kawaiahao.

The state's Department of Land and Natural Resources was sued because it is charged with implementation of state historic preservation, which includes a burial sites program.

Kawaiahao is an historic Congregational church with congregation that includes many Hawaiians.

The court had previously found that Hall lacked standing in the case and failed to produce factual evidence to support her claims.

The new multipurpose center is being constructed on the a site of a structure that was demolished.

Other Judge, Other Case

The other lawsuit against Kawaiahao, filed by Paulette Kaleikini, charged that the church was moving forward with construction on the multipurpose center without complying with a state agreement to relocate graves to another part of the church's cemetery. Kaleikini also claimed ancestors were interred on church grounds.

"We are doing what the judge directed us to do, which is complete all excavation and do a decertification process so the excavation site is no longer a cemetery," said John Williamson, a spokesman for Kawaiahao. "It has added some time to the project."

In a second statement released late Friday, Kekuna said the church was "saddened that we could not find a solution that was acceptable to all interests outside of the courtroom," adding that the church had tried "very hard to balance" the needs of the church and its congregation "and to be sensitive to the concerns raised" by some Hawaiians.

"Obviously this has been very difficult," said Kekuna, "but we hope with the court's ruling today we will be able to proceed in full compliance with both Judge Sakamoto and Judge Nacino's order," said Kekuna.

Circuit Court Judge Edwin Nacino made the ruling in the Kaleikini case.

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http://www.staradvertiser.com/newspremium/20120217_Burial_removals_draw_protesters_to_church.html?id=139427643
Honolulu Star-Advertiser, February 16, 2012

Burial removals draw protesters to church
Demonstrators say Kawaiaha'o should stop disinterments at its building site

By Andrew Gomes

Nearly 40 demonstrators, some in skeleton costumes, protested the rising number of Native Hawaiian burial disinterments at Kawaiaha'o Church on Wednesday outside the historic institution known as "the Westminster Abbey of the Pacific."

The group, mostly University of Hawaii students, held signs and chanted in Hawaiian to voice their objections to the removal of iwi kupuna, or ancestral remains, being carried out by Honolulu's oldest church to make way for a $17.5 million multipurpose building.

More than 238 burials have been removed from the site with state permission.

Most disinterments have occurred since November, rising the ire of Native Hawaiians who say cultural tradition calls for them to protect their ancestors' remains from disturbance even if they were buried in a Christian cemetery at a church established in 1842.

A Star-Advertiser story disclosed on Monday the disinterment count through Jan. 21 reported to state officials by an archaeologist hired by the church. The church declines to disclose such figures. A more up-to-date count hasn't been available from the State Historic Preservation Division, but 14 burials a week have been unearthed on average over the past few months.

Protesters displayed more than a dozen signs with names of families with burials at Kawaiaha'o — Pilali, Ka'ahea, Adams, Shaw, Kapena, Kakelaka, Kuaea, Kanaumu, Godfrey, Buckle — to raise awareness about who might have relatives being disturbed.

The group also carried signs urging the church to cease disinterments. "Stop Digging Kawaiaha'o," read one. "There's life in the bones," read another.

Some signs were more cutting, such as one in the shape of a coffin with the words "GRAVE RAIDERS" intersected on a cross.

"We are here to stand for who we are as a people," said Zurishaddai "Z" 'Aki, 25, one of several members of the UH student group Makawalu who donned skeleton masks to emphasize the connection to their cause.

"We came out today to show we're not forgetting about our kupuna," said Punahele Kealanahele-Querubin, 21, a senior in UH's Hawaiian Studies program. "We still carry the values that we have had for hundreds of years. To give up those values is giving yourself up as a Hawaiian. It's just hewa (wrong). Just hewa."

Kahu Curt Kekuna, Kawaiaha'o's senior pastor, disagreed. He noted that Hawaiian remains, including royalty, have been moved in the past. He said he respects his Hawaiian culture but has a higher duty to his Christian faith that regards spirits of the buried as eternally being with God.

"I just pray for the iwi," he said.

Kekuna said he doesn't know how many more burials remain on the site, but that a new resting place on church grounds is being designed to honor the disinterred.

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http://www.mauinews.com/page/content.detail/id/558224/Appeal-latest-in-Honolulu-church-remains-dispute.html?nav=5031
The Maui News, February 17, 2012

Appeal latest in Honolulu church remains dispute

HONOLULU (AP) - A Hawaiian cultural specialist who has relatives buried on the grounds of a historic Honolulu church has filed an appeal in another effort to halt further excavation of burials there.

Dana Naone Hall of Maui filed an appeal Feb. 1 claiming that a Circuit Court judge erred in a previous ruling that state law protecting Native Hawaiian burials didn't apply to Kawaiahao Church because the burials were in a Christian cemetery. She also contends that state officials approved disinterment of graves without following laws that protect iwi, or Hawaiian burials.

Hall and other Native Hawaiians say cultural tradition calls for them to protect their ancestors' remains. Her appeal is the latest legal challenge to constructing a $17.5 million multipurpose building for Honolulu's oldest church, which is referred to as the Westminster Abbey of Hawaii. Her 2009 lawsuit against the project was recently dismissed.

Work was halted in 2009 after 69 sets of human remains were unearthed. Work resumed last year with excavation done by hand after state officials approved disinterment. According to reports from the archaeological firm working for the church, the number of burials removed from the project site through Jan. 21 is 238, the Honolulu Star-Advertiser reported this week. The church declined to provide figures on burial removals.

The church's senior pastor, Kahu Curt Kehuna, said the church has followed the law and expects to prevail in the appeal. "Kawaiahao Church looks forward to continuing with the multipurpose center project as it is key to the church's ability to fulfill its religious mission and to serve the community," he said.

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http://www.staradvertiser.com/businesspremium/20120422__Kawaiahao_OHA_split_over_burials.html?id=148368555
Honolulu Star-Advertiser, April 22, 2012

Kawaiaha'o, OHA split over burials
The church is wrong to disinter iwi to build a multipurpose center, the state agency says

By Andrew Gomes

As Kawaiaha'o Church continues to excavate human burials in preparation for building a multipurpose center, a rift has emerged between Hawaii's oldest church and the Office of Hawaiian Affairs, which helped finance the $17.5 million project.

The Office of Hawaiian Affairs, which donated $1 million in 2007 for the multipurpose building, recently chastised Kawaiaha'o leaders for pushing ahead with disinterment, and expressed regret at not making its gift contingent on the church following usual practices under a state law created to protect and respect Native Hawaiian burials. As of this month the church has removed about 400 burials.

OHA, a state agency that works for the betterment of Native Hawaiians, also has raised questions as to whether the church properly spent its grant. OHA communicated the concerns in a pair of letters sent to Kawaiaha'o on Feb. 23.

Disinterment work began last year after controversial decisions by the state Department of Health and a state court judge cleared the way.

Protesters have rallied outside the church, objecting to what Hawaiian cultural tradition considers desecration of ancestral remains, or iwi kupuna, resting in unmarked plots on the site slated for the new building.

"After months of observing Kawaiaha'o Church's handling of the iwi controversy, I write on behalf of our trustees to express our despair and disappointment with the church's decision to proceed with disinterment, under the legal justification of the Department of Health's ruling, despite violating centuries old Hawaiian cultural burial protocols and traditions," said the letter signed by OHA board Chairwoman Colette Machado.

"We are particularly disappointed that church leaders chose at times to pit Christian teachings against Hawaiian burial law with respect to processes and protocols guiding disinterment and reburial," the letter continued.

OHA disagrees with the court ruling and Health Department approval that determined the burials didn't deserve protection under state law regarding Hawaiian remains because they are on cemetery grounds. Under the burial law, lineal and cultural descendents of iwi are given a say through county burial councils in whether burials should be relocated or left undisturbed.

OHA's criticism of Kawaiaha'o followed a letter it received from the church Jan. 11. The church's letter complained about an OHA employee testifying as an expert witness for someone who sued the church to prevent construction of the multipurpose building.

"Given the grant agreement with OHA, Kawaiaha'o Church does not understand why a representative of OHA would provide expert testimony against Kawaiaha'o Church and impede the church's ability to move forward with the proj ect or to fulfill its obligations under the OHA grant," said the letter signed by Frank Pestana, chairman of the church's board of trustees, and senior pastor Curt Kekuna.

The OHA employee is Kai Markell, a cultural specialist and director of the agency's Native Rights, Land and Culture division. Part of Markell's job involves monitoring construction proj ects for compliance with the burial law.

Markell testified in a lawsuit Paulette Kaleikini filed in November. Kawaiaha'o Church said in the letter that Markell also provided information to another proj ect opponent, Dana Naone Hall, in an earlier suit. Markell also had served on a committee the church formed to build a consensus plan for dealing with the iwi issue before it decided to push ahead with disinterment.

Kaleikini's suit sought to prevent the church from building the multipurpose center on top of the burials, a plan the church had pursued but later abandoned.

OHA defended Markell and called Kawaiaha'o's letter a surprising and disappointing attack against its employee.

"Mr. Markell's testimony on Hawaiian practices and traditions should not have hurt Kawaiaha'o Church as long as it was following the law and honoring those practices," said the Jan. 30 letter signed by Machado and OHA interim CEO Richard Pezzulo.

"One would think that Mr. Markell's conclusion would be well known to you and that you would have taken all reasonable steps to make certain that kupuna buried in the footprint of the proposed building and elsewhere on church grounds would be identified and sanctified in a culturally sensitive manner," OHA's letter said.

OHA suggested the church could better spend its efforts reconciling with descendants of the burials so the expansion can be completed in a pono, or moral, manner.

As part of OHA's response regarding Markell's testimony, the agency also noted that it was reviewing the church's compliance with its grant.

In a Feb. 23 follow-up letter, OHA said the church maintained poor records and spent the grant inappropriately on nonsecular aspects of the project as well as pre-construction activities including archaeological surveys.

OHA doesn't intend to seek repayment of its grant, in part because litigation would be costly. The agency in fact still supports the concept of a multipurpose center, which is intended to benefit church members as well as community organizations — nonsecular and secular interests that include OHA beneficiaries.

OHA officials have met with church leaders since late February in an effort to find common ground, but differences over disinterment remain.

Kekuna, in a statement last week to the newspaper, said, "OHA officials and Kawaiaha'o Church have been in contact with each other and we both agree the highest priority must be given to treating any disinterred na iwi kupuna with respect and dignity."

The church plans to reinter remains elsewhere on its grounds, and said remains are being cared for respectfully.

Through April 7 the church has disinterred 398 burials by hand, according to reports filed with the state by church contractor Cultural Surveys Hawaii.

More recent reports, which are filed weekly, were not available from the state Historic Preservation Division, and the church is not making the reports available.

AT THE CENTER OF THE CONTROVERSY

Kawaiaha'o Church began work to develop a new building for its congregation and the broader community more than five years ago.

The two-story project is designed to include 30,000 square feet of space for classrooms, conference rooms, a commercial kitchen, a library, bookstore, church archives and a small museum of church antiquities.

Envisioned to broaden the mission and membership of the 159-year-old church sometimes referred to as "the Westminster Abbey of the Pacific," the $17.5 million complex wasn't controversial until trenching work for utilities in January 2009 unearthed 69 sets of human burials.

The project site is adjacent to the landmark sanctuary, largely on a spot previously occupied by Likeke Hall, a structure built in 1926 and expanded in 1940 on land once used as a cemetery.

Likeke was demolished in 2008. Because 117 bodies were unearthed in 1940 when Likeke was expanded, church officials recognized a probability that burials would be encountered.

Kawaiaha'o Church was built in 1842, and burials on the Likeke site are estimated to date from sometime prior to the early 1900s.

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http://www.hawaiinewsnow.com/story/19413914/kawaiahao-church-unearths-nearly-600-burials
Hawaii News Now (KGMB and KHNL), August 29, 2012

Kawaiahao Church unearths nearly 600 burials

HONOLULU (HawaiiNewsNow) - An excavation team has found nearly 600 sets of remains in the very spot where the historic Kawaiahao Church plans to build a multi-purpose center, and Hawaiian activists say it's one of the largest burial discoveries in state history.

Hawaii News Now has obtained an email from the church's consultants that shows that they have unearthed as many as 579 remains at the site of the church's proposed $17.5 million center.

Moses Haia, executive director of the Native Hawaiian Legal Corp., said he believes that many are ancient Hawaiian burials.

"Given the information you have, it's alarming, troubling. It's hard to comprehend," Haia said.

Church officials told the state that most of the burials were found in coffins and are not of pre-contact Hawaiians. In a statement released today, William Haole, chairman of the church's board of trustees had this to say:

"Kawaiahao Church is following the procedures set forth by the Department of Health and the State Historic Preservation Division of the Department of Land and Natural Resources and in accordance with the direction of the court."

A church spokesman says all those remains are being stored on the property. Descendants of those that can be identified have been contacted, the spokesman said.

Dana Naone Hall, former chair of the Maui-Lanai Island Burial Council, unsuccessfully sued Kawaiahao Church over its handling of the remains.

Hall, who is appealing the decision, says the Kawaiahao discovery is the largest since the burials discovered at Honokahua on Maui back in the late 1980s.

About 2,000 ancient Hawaiian remains were discovered at the Maui site and the protests over the handling of the iwi later resulted in the passage of the state's landmark burial law.

"It's quite shocking that it continues on and I believe the governor should step in and do something about prevent the further desecration of burials," said Hall.

Known as the "Westminster Abbey of Hawaii," Kawaiahao is one the state's oldest and most recognized churches.

The church is listed on the national and state registers of historic places and is the final resting place of King William Charles Lunalilo.

The planned two-story construction project replaces Likeke Hall, which was torn down in 2008.

The 30,000-square-foot building -- which will include classrooms, conference rooms, a $1 million kitchen and space for wedding receptions -- was originally scheduled for completion in June 2010.

The discoveries at Kawaiahao Church will be closely watched by the local development community.

With a dozen new projects underway or on the drawing board in Kakaako, most experts believe more remains will be unearthed in the area.

The city's rail route goes through Kakaako. And the project is facing months of construction delays after the state Supreme Court ruled against the city's fragmented effort to find Hawaiian remains.

To view the email from the church's consultants regarding their findings, click here
https://docs.google.com/file/d/0Bz5wyVXhL3wjM0lXU0phUTV1SHM/edit?pli=1

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http://www.staradvertiser.com/editorialspremium/20120830_Letters_to_the_editor.html
Honolulu Star-Advertiser, Thursday August 30, 2012Letters to Editor

Kawaiaha'o Church iwi are sacred, too

I am no fan of rail. However, I must ask, which is worse: accidentally uncovering long-forgotten unidentifiable iwi or knowingly and willingly digging up more than 100 known, identified and beloved family members in the name of progress?

The burial grounds of the Westminster of the Pacific, Kawaiaha'o Church, are sacred. Many of the alii are entombed there. These final resting places are dug up, disturbed and the remains reburied. What credibility does the Hawaiian community have when it disrespects its ancestors in this way?

Maybe those in authority at Kawaiaha'o can make room for the forgotten iwi that may be finally found and give them a respectful undisturbed place to rest in peace.

Pauline Arellano
Mililani

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http://www.staradvertiser.com/editorialspremium/letterspremium/20120903_letters_to_the_news.html?id=168305226
Honolulu Star-Advertiser, Thursday August 30, 2012

Letters to the Editor

Kawaiaha'o handles iwi with respect

I am sick and tired of hearing from people like Pauline Arellano who keep condemning Kawaiaha'o Church for continuing its plan to move iwi from one part of the graveyard to another ("Kawaiaha'o Church iwi are sacred, too," Star-Advertiser, Letters, Aug. 30).

In 1824, when King Kamehameha II and his wife Kamamalu died of measles in London, their embalmed bodies were brought back to Hawaii and were buried in a newly built mausoleum at Pohukaina, which is where Iolani Palace is located today. Over time, iwi of various other dead alii, some as far away as the island of Hawaii, were relocated there as well. This relocation was not organized by foreigners, but by the alii themselves, who embraced the idea of bringing these chiefs together, even if it meant digging them up from their original sacred burial places.

In 1865, most, but not all, of the iwi from Pohukaina were moved to Mauna Ala, commonly known today as the Royal Mausoleum, in a sacred night ceremony involving dozens of alii and kahuna.

I believe that Kawaiaha'o Church has acted, and will continue to act, with all of the same reverence and cultural sensitivity that our beloved kupuna exhibited in times past.

Nanette Napoleon
Kailua

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http://www.staradvertiser.com/businesspremium/20120922_OHA_probes_age_of_burials_unearthed_by_Kawaiahao.html?id=170808766
Honolulu Star-Advertiser, September 22, 2012

OHA probes age of burials unearthed by Kawaiaha'o

By Andrew Gomes

The state Office of Hawaiian Affairs is questioning the age of human burials — to date, more than 600 sets of remains — removed by Kawaiaha'o Church in preparation for building a $17.5 million multipurpose center.

The state agency advocating for Native Hawaiians sent a letter this week to the state Department of Land and Natural Resources requesting detailed information about the burials to show whether they are all Christian burials, as the church contends, or whether some predate the church and should be protected by Hawaii's historic burial law.

Kawaiaha'o was established in 1842 to become Hawaii's first church, and it has been allowed to disinter an unlimited number of human remains, or iwi kupuna, under an exemption to the burial law that gives special protections to traditional Hawaiian burials.

The exemption applies to known and actively maintained cemeteries, and was approved by DLNR and upheld by a Circuit Court judge.

But OHA questions whether the church is digging up burials that predate Kawaiaha'o's existence, especially given the "exceedingly large" number of remains, which includes 605 burials and thousands of individual bones as of Sept. 9.

"Since the historical record indicates that the area contained burial sites prior to the establishment of Kawaiaha'o Church, questions of this nature are warranted," OHA said in its letter dated Sept. 17.

OHA is asking DLNR to obtain details about the burials such as their depth, position, orientation, whether they are in a coffin and whether artifacts are present. Other details that could help date burials such as the presence of remains of animals, plants and ref use in proximity to burials are also being sought.

Kawaiaha'o is required to notify DLNR's State Historic Preservation Division of burial findings weekly, but the reports typically state only when and how many burials were removed.

For instance, the full extent of the report by church contractor Cultural Surveys Hawaii for Sept. 3 was, "Burials recovered included #s 601 and 602. No burials were taken to the church. No isolated iwi (disarticulated human bones and/or bone fragments in a previously disturbed context) were encountered."

DLNR did not respond to a request to comment on OHA's letter Friday.

William Haole, chairman of Kawaiaha'o Church's board of trustees, said in a written statement that the church would like to first hear from, and respond to, DLNR before responding to other parties.

"Kawaiaha'o Church, through its certified archaeological contractor, is following the terms of the disinterment permit for the project by providing detailed reports of the archaeological findings from the excavation process to the State Historic Preservation Division," he said. "Kawaiaha'o Church is a Christian cemetery and any discoveries to date have been consistent with that designation."

The church, through a spokes man, said that if archaeologists discovered anything that showed a burial predates the church, then that information would be included in the archeological reports. To date, none of the reports have indicated such.

The church plans to reinter remains elsewhere on its grounds, and said remains are being cared for respectfully.

Traditional Hawaiian cultural beliefs hold that ancestors' remains are to be protected from disturbance. Under state burial law, county burial councils give lineal and cultural descendents of historic iwi a say in whether burials should be relocated or left undisturbed.

If some burials at Kawaiaha'o were deemed subject to such protection, the Oahu Island Burial Council would help make that decision. Presently, an opinion from the state Office of the Attorney General says OIBC may play no role in the issue at Kawaiaha'o.

Last year, OIBC members expressed frustration at a March meeting over being cut out of decision-making for Kawaiaha'o burials. The council remains a forum to discuss Kawaiaha'o issues, but the church typically doesn't attend council meetings to answer questions or share information.

Kawaiaha'o officials decline to publicly disclose even the number of burials removed. DLNR inhibits public access to the weekly Cultural Surveys reports by insisting that a Uniform Information Practices Act request be filed for such reports. DLNR also doesn't always provide the reports in a timely manner after such requests are made.

Earlier this year, OHA informed OIBC that based on historical accounts of burial caves, there is a "high probability" that an ancient underground burial cave may extend under Kawaiaha'o grounds and the area of the multipurpose center.

OHA suggested in its letter to DLNR that the church and Cultural Surveys could provide a detailed briefing to OIBC.

John Likeke Scheuer, OIBC vice chairman and an OHA director from 2004 to 2010, said he supports OHA's request. "The lack of information-sharing drives further distrust," he said. "Either the burials are ancient and not part of the cemetery, or they are (part of the cemetery). If they're ancient, according to the law, the jurisdiction should come under the Oahu Island Burial Council."

OHA declined to comment on its position beyond what it said in the letter signed by its CEO, Kama­na'o pono Crabbe.

In the letter, OHA said it was acting on behalf of beneficiaries and cultural descendants.

"Understandably, OHA beneficiaries are interested in gaining access to the necessary facts to evaluate whether any of the excavated individuals predate the establishment of the Kawaiaha'o Church cemetery," the letter said.

OHA has had a continuing and at times contentious role in the church's construction project.

Initially, OHA was supportive of the project and donated $1 million in 2007 to help build the multipurpose center. After burials were discovered, OHA played a role trying to resolve conflict between the church and opponents of disinterment.

But earlier this year, OHA sent the church a letter expressing "despair and disappointment" over Kawaiaha'o's decision to proceed with disinterment. OHA also raised questions as to whether the church properly spent its grant, and disagrees with the court ruling and state decisions exempting the church from state burial law protections.

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http://www.kitv.com/news/hawaii/Court-bars-Kawaiaha-o-from-iwi-disinterment/-/8905354/16784720/-/qmx218z/-/index.html?absolute=true
KITV September 28, 2012

Court bars Kawaiaha'o from iwi disinterment

HONOLULU -- The Intermediate Court of Appeals panel unanimously issued an order Friday morning barring Kawaiaha'o Church from the disinterment of iwi from Kawaiaha'o Church grounds that are related to the church's multipurpose center project and from all construction activities related to its project that could result in the disinterment of iwi, according to the Native Hawaiian Legal Corporation.

The church started construction on a multipurpose center on church grounds in January 2009.

The church immediately encountered burials. By the summer of 2009, the church had discovered sixty-nine burials.

Dana Naone Hall sued to stop Kawaiaha'o Church from digging up more burials in August 2009.

Hall's family members were buried on church grounds. During the course of her lawsuit, hundreds more burials have been unearthed.

The Intermediate Court of Appeals determined that there is a substantial likelihood that we will conclude that the State Historic Preservation Division should have required Kawaiaha'o Church to complete an archaeological inventory survey before state approval of the project.

The court also said that the State Historic Preservation Division violated its own rules in failing to require an AIS before permitting the project to go forward.

"This case spans the end of the Lingle Administration and the first years of the Abercrombie Administration, during which time the SHPD has routinely failed to follow its own rules to the detriment of historic properties and burial sites. I am very grateful to the Intermediate Court of Appeals for reaffirming that there is a vital public interest in protecting human skeletal remains and burial sites 'regardless of race, religion, or cultural origin,'" said Hall. "Although approximately 700 individuals have been disturbed at Kawaiaha'o, there are many hundreds more who can continue to rest in peace."

Kawaiaha'o Church Senior Pastor Kahu Curt Kekuna said the church will continue to follow the direction of the courts and the agencies exercising oversight on the project. The church is reviewing the ruling and considering our options.

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http://www.staradvertiser.com/news/breaking/171846211.html?id=171846211
Honolulu Star-Advertiser, September 28, 2012, Breaking News

Court stops Kawaiahao work citing ruling on rail burials

By Ken Kobayashi

The state appeals court ordered a halt this morning to Kawaiaha'o Church's construction of its multipurpose center that could result in the disinterment of burials.

A three-member panel of the Intermediate Court of Appeals granted an injunction halting the work.

Hawaiian cultural specialist Dana Naone Hall requesed the court to halt the construction pending an appeal of a circuit judge's ruling dismissing her lawsuit against the $17.5 million project.

The panel unanimously issued the injunction in view of the Hawaii Supreme Court ruling last month that held the State Historic Preservation Division should have required an archaeological survey for remains for the entire 20-mile rail route before construction began.

Hall said in a statement: "It has taken three long years. This case spans the end of the Lingle Administration and the first years of the Abercrombie Administration, during which time the SHPD has routinely failed to follow its own rules to the detriment of historic properties and burial sites. I am very grateful to the Intermediate Court of Appeals for reaffirming that there is a vital public interest in protecting human skeletal remains and burial sites 'regardless of race, religion, or cultural origin.' Although approximately 700 individuals have been disturbed at Kawaiaha`o, there are many hundreds more who can continue to rest in peace."

The appeals court had denied an earlier request for an injunction, but Hall said there were three "significant developments" since then, including the high court's ruling, the circuit court's denial of an injunction, and the number of burials unearthed had "mushroomed to nearly 600."

Hall had acknowledged that it might be "prudent" for the appeals court to wait for the resolution of the city's request asking the high court to reconsider its rail decision.

The high court denied the reconsideration request Thursday.

The appeals court ruled that until the appeal is decided, "Kawaiaha'o Church is enjoined from the disinterment of human skeletal remains or iwi from Kawaiaha'o Church grounds that are related to the (multipurpose center) project."

It also ordered that "Kawaiaha'o Church is enjoined from all construction activities related to the (multipurpose center) project that could result in the disinterment of human skeletal remains or iwi."

Order granting plaintiff's motion for preliminary injuction
http://www.scribd.com/doc/107841531/Order-granting-plaintiff-s-motion-for-preliminary-injuction

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http://www.staradvertiser.com/newspremium/20120929_Court_orders_Kawaiahao__to_stop_excavation_of_burials_.html?id=171903421
Honolulu Star-Advertiser, September 29, 2012

Court orders Kawaiaha'o to stop excavation of burials
The judges agree with a lawsuit arguing a state agency should have required an archaeological survey

By Andrew Gomes

Close to 20 months of work removing more than 600 burials from unmarked graves at Kawaiaha'o Church came to a halt Friday after an appellate court ordered a stop to excavation work for a multipurpose building that has upset many Native Hawaiians and even some members of Hawaii's oldest church.

A three-member panel of Hawaii's Intermediate Court of Appeals granted an injunction sought by Hawaiian cultural specialist Dana Naone Hall, barring any work at the Hono lulu church that could result in disinterment of more human remains.

It is the second time that construction has been frozen on the $17.5 million project, which began in January 2009.

The panel issued its injunction in view of last month's Hawaii Supreme Court ruling that held the State Historic Preservation Division should have required an archaeological survey for remains all along the city's planned 20-mile rail route before construction began.

Hall argued in her lawsuit that Kawaiaha'o Church should have conducted an archaeological survey.

The three judges indicated that they likely agree. "We conclude that Hall has shown a substantial likelihood of success on the merits," the injunction order said.

The judges also wrote that there is a substantial likelihood they will conclude that SHPD violated its rules by approving the multipurpose center project without requiring an archaeological survey.

It is unknown how many burials remain on the project site.

Church contractor Cultural Surveys Hawai'i has removed 605 burials and thousands of individual bones as of Sept. 9, based on the latest available report it submitted to SHPD.

Hall, in a written statement, expressed sorrow over how many burials have been disturbed and that it took three "grueling" years for the legal system to side with her view that SHPD sidestepped the normal process for handling construction projects that encounter historic burials.

"It has taken three long years," she said. "This case spans the end of the Lingle Administration and the first years of the Abercrombie Administration, during which time the SHPD has routinely failed to follow its own rules to the detriment of historic properties and burial sites."

A spokeswoman for the Department of Land and Natural Resources, which oversees SHPD, declined to comment on the ruling until the department has a chance to read it.

Hall filed a lawsuit in 2009 contending that SHPD wasn't following state law protecting historic burials. But Circuit Judge Karl Saka moto ruled last year that the burial law didn't apply because the remains are within a Christian cemetery. The church obtained an exemption for "known, maintained, actively used" cemeteries to get a state Department of Health permit to remove burials.

That ruling is now in question. A decision by the appellate court on the issue is expected to determine what the future holds for the multipurpose center project.

Kahu Curt Kekuna, Kawaiaha'o's senior pastor, said in a written statement that the church is reviewing the injunction order and considering its options.

"Kawaiaha'o Church will continue to follow the direction of the courts and the agencies exercising oversight on the project," he said.

David Kimo Frankel, a Native Hawaiian Legal Corp. attorney representing Hall and a separate plaintiff in the rail case, said he intends to ask the court that human remains, or iwi, be returned to their prior resting place and that nothing be built on top of them.

Frankel also criticized SHPD, saying it appears the agency has "bent over backwards" to accommodate development at the expense of iwi it is charged with protecting.

Hall filed her appeal with the intermediate court in February asking for an injunction that stops construction. But the court at that time denied her request. Hall renewed her injunction request Sept. 5, noting the relevance of the rail ruling and the "continuing desecration of hundreds of burials."

Hall had acknowledged that it might be prudent for the appeals court to wait for the resolution of a city request asking the Hawaii Supreme Court to reconsider its rail decision. The high court denied the reconsideration request Thursday.

Until the appellate court rules on the merits of Hall's appeal, it said Kawaiaha'o Church is enjoined from the disinterment of human skeletal remains related to the multipurpose center project. The court also barred all construction activity related to the project that could result in the disinterment of iwi.

Construction was previously halted in March 2009 after 69 burials were unearthed by trenching work for utilities. That stoppage lasted two years while the church arranged to get the Health Department disinterment permit with SHPD's blessing.

The two-story multipurpose building is designed to have 30,000 square feet of space for classrooms, conference rooms, a kitchen, library, bookstore, church archives and a small museum of church antiquities.

The site of the project was formerly occupied by Likeke Hall, a church office building and a small parking lot. Likeke Hall, which was torn down two years ago, was built in 1940 on a site previously used for burials.

Order granting plaintiff's motion for preliminary injuction
http://www.scribd.com/doc/107841531/Order-granting-plaintiff-s-motion-for-preliminary-injuction

------------------

http://www.staradvertiser.com/editorialspremium/saeditorialspremium/20121005_Laws_protecting_iwi_need_review.html?id=172778431
Honolulu Star-Advertiser, October 5, 2012

EDITORIAL

Laws protecting iwi need review

Two recent court actions related to the disinterment of Native Hawaiian remains illuminate the complexity of Hawaii burial laws, and suggest that a review of the statutes should be considered in the coming legislative session.

One is the Aug. 24 state Supreme Court ruling that the city must complete an archaeological survey principally aimed at identifying burials — "iwi kupuna"— likely to be along the route of its 20-mile rail project. The second came a week ago, when a panel of three judges from the Intermediate Court of Appeals granted an injunction that halted excavation of burials — the tally has now passed 600 sets of remains unearthed — on the site of a multipurpose center at Kawaiaha'o Church.

In its ruling, the panel agreed with Dana Naone Hall, a Hawaiian cultural specialist and the plaintiff in the Kawaiaha'o case. Hall argued that the way the state high court construed the state's historic preservation review process should put an immediate halt to work on the project, and the court indicated it was likely to decide in her favor in its final ruling.

The rail case is clearly in the jurisdiction of the State Historic Preservation Division, the part of the Department of Land and Natural Resources that regulates how projects are allowed to affect Native Hawaiian burials more than 50 years old, as well as other historic artifacts.

What distinguishes the Kawaiaha'o issue is that separate sections of law are involved: The state Department of Health ordinarily is the office that issues permits to disinter burials in an active cemetery.

The problem is one of overlap. Before the appellate court ruling, the state Office of Hawaiian Affairs wrote to DLNR seeking an accounting of the iwi to determine if they include the more historical burials not covered by the health department permit.

The entire area was heavily populated for centuries, and ancient tradition is to bury loved ones near homes or in other unsegregated locations. Given that, it seems likely that some of the burials may have predated the church, OHA officials wrote.

The OHA board of trustees was responding to prepared testimony Hall delivered at its August meeting. Hall said archaeological consultants reported finding "disturbed human skeletal remains not associated with coffin burials," as well as "concentrations of artifacts and numeral faunal remains, including pig, dog and fish bones — a potential indication of traditional burials and burial practices."

Although few other cemeteries are located in as sensitive a zone as Kakaako, surely there are other locations where there could be similar conflicts in jurisdiction.

Fingers have been pointed in various directions during the 20 months of turmoil over the Kawaiaha'o project. Without attempting to play the blame game here, what is indisputable is that Hawaii's laws are not equal to the task of providing the best possible guidance in these difficult situations. And clear guidance is what's needed if future developments aren't doomed to similarly chaotic outcomes and delays that should be at least more predictable.

Perhaps cemeteries, active or otherwise, can't always be considered under separate laws. However the law is clarified, legal and cultural experts should confer with legislators to find a more workable solution.

It's hard to imagine a recurrence of anything as disturbing as the unearthing of 600 burials in a churchyard. But it's best that Hawaii not tempt the fates.

----------------------

http://westhawaiitoday.com/sections/opinion/letters/letters-10-13-2012.html
West Hawaii Today (Kona), October 13, 2012

Property rights
Clarification sought

Does not the Constitution state that if one pays to own property, in the U.S., that it is theirs to do as he wishes to — within reason and the law?

For example: as written in the 5th Amendment "nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." And then the 14th Amendment states "nor shall any state deprive any person of life, liberty, or property, without due process of law."

I raise this question in accordance to burial sites found located on one's private property. I can find no place where it says one who owns property can be coerced into erecting a shrine, or for that matter setting aside land on one's private property for or to designate a burial site of bygone years.

Should that have been the case, our highways, per se, would not be highways, as in Webster's "a direct route to some objective" but simply crooked paths to wherever.

If no family cares for a century-old grave, would that not be cause for abandonment, as in "dust to dust" and not to be sanctioned as a shrine?

However, if a family comes forward to lay claim that a certain grave on someone's private property (that at sometime had been sold by a family member) is of their ancestral linage, then, of course, they should have the right of removing what remains there be to wherever that family finds suitable to its wanting.

For such cases, would not it be appropriate for the state to set aside graveyards, similar to a veteran's graveyard, for the specific purpose of re-interment of burial remains found on someone's private property?

As afore mentioned, where does one find, in our Constitution, the right to dictate how a private property owner must erect (walling in of such sites) a shrine on his private property, which more than likely will affect the use and value of said private property. Someone, something is at fault here and I would think the situation warrants study and clarification.

One should remember throughout history cities such as Hiroshima, Pompeii and others in early centuries that had been completely destroyed, becoming graveyards, only to be rebuilt, one on top of the other. Civilization throughout the world has been built on graveyards.

Of course, if a burial site of royal significance was to be found, it would fall into another category. (I, an American of Hawaiian ancestry, would prefer that such royal remains would be entombed in the mausoleum on Oahu.

Hugo von Platen Luder
Holualoa

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http://www.staradvertiser.com/newspremium/20121215_Kawaiahao_Church_project_requires_land_survey_appellate_court_rules.html?id=183612531
Honolulu Star-Advertiser, December 15, 2012

Kawaiaha'o Church project requires land survey, appellate court rules
Construction of a multipurpose center had unearthed hundreds of historic burials

By Ken Kobayashi

The state appellate court delivered a stinging blow to Kawaiaha‘o Church's plans to build a multipurpose building in ruling Friday that an archeological survey should have been conducted before construction of the $17.5 million project began.

The appellate court had ordered a halt to excavation work in September by ruling that Native Hawaiian cultural advocate Dana Naone Hall would likely prevail on her claims that the construction threatened human remains in unmarked burials.

In a 37-page unanimous opinion by Chief Appeals Judge Craig Nakamura, a three-judge appellate panel ruled Friday in favor of Hall and held that the State Historic Preservation Division should have required the survey before the construction.

The court cited the Hawaii Supreme Court ruling in August that mandated the halt to construction of the city's rail project until an archeological survey was done for the entire 20-mile route.

"I'm elated because of the past 10 years there's been an erosion of the protections afforded to prehistoric and historic sites," Hall said.

She said the failure to prepare the survey led to the "tragic and unnecessary desecration" of more than 600 burials.

"The (court's) opinion opens up the path for a proper reburial of the iwi kupuna in their original resting place," she said.

The church issued a brief statement.

"The church is reviewing the decision by the court and conferring with our attorneys to determine what our options are," said William Haole, chairman of the Kawaiaha‘o Church board of trustees.

The Native Hawaiian Legal Corp., which represented Hall, said the appellate court ruled that the efforts by the church and state to "circumvent" the State Historic Preservation law were illegal.

In its ruling the appellate court said the high court's rail ruling in August was controlling.

The appellate judges concluded "that the SHPD should have required Kawaiaha‘o Church to complete an AIS (archeological inventory survey) before concurring in the (multipurpose center) project and that the SHPD violated its own rules in failing to require an AIS before permitting the project to go forward."

The state and the church argued that Native Hawaiian burials uncovered during the project were "Christian burials" that aren't protected by the law, the appellate court noted.

But the appellate court said it disagreed and said the law's protections of "burial sites do not turn on religious distinctions."

The removal of more than 600 burials from unmarked graves had upset many Native Hawaiians and some members of Hawaii's oldest church.

As of Sept. 9 church contractor Cultural Surveys Hawaii had removed 605 burials and thousands of individual bones, according to a report it submitted to SHPD.

Hall filed her lawsuit in 2009 maintaining that SHPD wasn't following state law protecting historic burials.

The church asked the Hawaii Supreme Court to review the appellate court's September decision issuing an injunction halting excavation work. The high court denied the request Tuesday.

Appellate Judges Katherine Leonard and Lawrence Rei furth joined in Nakamura's opinion.

The state said it could not comment until it reviewed the ruling, Deputy Attorney General James Walther said.

The two-story multipurpose center on church grounds is planned to have 30,000 square feet of space for classrooms, conference rooms, a kitchen, a library, a bookstore and a small museum.

** Ken Conklin's note: The full text of the decision can be found at
http://www.scribd.com/doc/116868095/Hall-v-Dep-t-of-Land-and-Nat-Resources-No-CAAP-12-0000061-Haw-App-Dec-14-2012


==============

(2) The Honolulu rail project is likely to encounter ancient Hawaiian burials during construction. The construction and associated archeological surveys will be done in phases, starting in the west, but likely burials would be in the final phase, in the east. Should all archeological surveys be done before any construction, to ensure the route could be changed if necessary to avoid burials? And if burials are found, should they be moved or should they stay in place and the route be changed? This was topic #6 in the NAGPRA compilation for year 2010, and #1 for 2011 because the first NAGPRA-related topic raised in 2011 was this one. During 2011 small trenches were dug in places along the rail path to discover whether there were burials that might warrant project redesign. More news during 2012. In August 2012 the Hawaii Supreme Court ruled that the circuit court made an error when it had ruled that construction could begin on early segments of the rail project without yet having completed archeological surveys for the entire project. Case remanded to circuit court for further proceedings. In mid-September 2012 a bone was found on the rail path in Kaka'ako, and construction on the entire project was halted.

http://www.staradvertiser.com/editorialspremium/saeditorialspremium/20120115_Beneath_the_surface.html?id=137341423
Honolulu Star-Advertiser, January 15, 2012

Beneath the surface
Archaeological work along the rail transit route moves apace, with surveys starting in the downtown segment

By Vicki Viotti

Hinaleimoana Wong Kalu believes it's her duty, and that of many other Hawaiians, to speak for the dignity of those who have been long silent.

Kalu chairs the Oahu Island Burial Council, one of the panels assembled for each island in the chain. They were created under the state's Native Hawaiian burial-protection law for the purpose of gathering the voices of family members who may be descended from people buried in the thousands of unmarked graves encountered in development projects, large and small. Treatment of these ancestral remains ("Iwi kupuna") is covered in that law, Hawaii Revised Statutes Chapter 6E.

This development, the city's rail transit line, is the largest one yet, roughly 20 miles long, an alignment that's been divided for design purposes into four segments.

And its developer, the Honolulu Authority for Rapid Transportation, has released its protocol for dealing with any burials it finds.

"They've assured us they will be conscientious about especially corridors 3 and 4," Kalu said. "There is a far greater potential for iwi kupuna finds there."

The third segment includes the airport but it's really No. 4, the part stretching from Middle Street and Dillingham Boulevard to the terminus at Ala Moana Center, that's going to be the most potentially contentious.

That's because state records and anecdotal information indicates many burials occurring in this zone, particularly the sandy soil in the Kakaako area, along Halekauwila and Queen streets. Traditionally Hawaiians were buried not in Western-style sequestered, fenced burial grounds but in private, often nearshore locations.

They are unmarked but solemnly cherished in the native culture, Kalu said, and the council will advocate that this approach be maintained as much as possible.

"I can only hope that with all the thoroughness they can muster, and if they're able to complete this, this would be something that would bring honor and respect not only to the living community but to the community that passed on," she added. "They still do deserve our utmost respect; anything the burial council does is always with that in mind."

It's in this context that nearby projects such as Walmart on Keeaumoku Street and the newest phase of the Ward Centres complex ran into controversy and extended delays when dozens of burials were found.

The effort here is to get a head start by drawing up the burials protocol well in advance. The protocol was a requirement set in the programmatic agreement signed to settle various concerns over historic preservation, aviation and other issues, and to gain federal approval of the project's environmental impact statement.

With the protocol in place, project crews have begun the archaeological inventory survey mandated by law before construction starts. Because many burials are known to be in the Kakaako area, completion of the survey must be done even before final design of that segment starts, so that plans can be drawn with the aim of avoiding burial disturbance in mind, said Jeanne Mariani-Belding, a spokesperson for the project.

"This is a collaborative effort based on a lot of coordination," said Faith Miyamoto, chief planner on the project. "We can't do anything contrary to what the law says. If we find iwi kupuna in the course of our archaeological survey, then they are deemed to be 'previously identified.'" This is a designation that mandates a more lengthy process of review and consultation among people who can show they are descendants of Native Hawaiians living to the area.

HART has compiled a growing list of such "cultural descendants," along with Native Hawaiian organizations and others the law says should be consulted -- 300 names in all, and the list is still growing, officials said.

The survey work is already complete in the two westernmost segments of the rail alignment, between Kapolei and Aloha Stadium. No remains were encountered in the trenches dug as part of those surveys -- about 35 in the first segment and 40 in the second, Miyamoto said, although there were two findings of sediments, the remains of taro farming, and archaeological records were compiled on these.

Survey work started in November on the easternmost phase, the initial trenching done along isolated stretches of Dillingham and Halekauwila, near Mother Waldron Park. So far there's been nothing, but, with the work slated to resume in about a week, there's such a long way to go, said Barbara Gilliland, planning director for Parsons Brinckerhoff, the consulting firm hired for the project. The City Center corridor, as the final segment is called, will be trenched 232 times, she said.

THE basic approach is the same for all segments: Digging will take place at locations where there will be significant digs during construction -- around support posts, at roadway widenings, where utilities likely will be moved. Gilliland said crews want to avoid extraneous trenching so iwi won't be unnecessarily disturbed.

The difference in Segment 4, and the reason so many trenches are being dug, is that the crews are surveying about 80 percent of all the areas pegged for intensive ground disturbance, Gilliland said.

Any burial sites found in the course of archaeological surveys will involve consultation, with the burial council having jurisdiction over whether the burials are relocated during construction or preserved in place. The law asserts that in these cases, the council can press for the relocation or redesign of the post or whatever obstacle has exposed the burial. How far to press this issue can potentially be a cause for legal challenge, but HART officials are hoping as much as possible that early planning will allow the time for redesigns and, where that's not possible, for a negotiated agreement on how to handle the problem.

If a burial is found during actual construction, it will be categorized as an "inadvertent discovery," and its treatment -- relocation or preservation -- will be decided by the State Historic Preservation Division (SHPD), an agency within the state Department of Land and Natural Resources that has had a long history of staffing shortages. The project includes a provision for a project manager to assist all of the consulting parties, Miyamoto said.

Gilliland said that the rail planners have offered to provide extra staff to help with the processing of any cases that come up, but were told it wouldn't be necessary.

"We've never had an agency do that," she added.

Officials for SHPD declined comment.

THE protocol also carves out another category, that of remains "not situated in a burial context," which includes isolated bone fragments that may have been scattered as the result of previous disturbance of the soil in construction decades or even more than a century ago. Because Kakaako has been so long developed, Mariani-Belding said, this may be the case more often than not.

The treatment of bone fragments not classified as "burial sites" will be decided by SHPD on a case-by-case basis, Miyamoto said, but a less prescribed process of review may be involved.

It's that distinction that raised some eyebrows among Office of Hawaiian Affairs officials, who wrote a letter taking issue with the definition of burial sites.

OHA interprets the legal definitions "as clearly requiring that any human skeletal remains, regardless of context that are encountered during undertaking of construction activities be classified as an inadvertent discovery," wrote Clyde Namuo, then OHA administrator.

And projections -- or hopes -- that previously developed areas are free of intact burials have been spectacularly wrong before, as the dozens of burial sites unearthed at Walmart and Ward project sites demonstrated.

For all the preparatory work being done, the actual construction process still may be contentious. Kalu underscored, though, that burial-protection advocates have been wrongly characterized as anti-development. The burial council's quest is largely to find a middle path between needed growth and cultural sensitivities.

"We're not opposed to stimulating the economy, we're not opposed to having our people benefit from jobs and transportation," she said. "It's a matter of checks and balances. We are a part of that system of checks and balances."

-------------------

http://freehawaii.blogspot.com/2012/04/honolulu-light-rail-project-headed-for.html
Free Hawaii (blog), April 19, 2012
and also posted on
http://www.hawaiireporter.com/?p=48909
Hawaii Reporter, April 19, 2012
but then deleted from Hawaii Reporter, presumably because author decided she didn't want it published there.

Despite Warnings and Pleas, Honolulu Rail Headed for 'Burials Central'

By Kēhaunani Abad, PhD

As early as 2005, the Oʻahu Island Burial Council (OIBC) raised red flags. The rail project would undoubtedly impact Hawaiian burials.

Three years later, when the OIBC had not received promised communications from the City and County of Honolulu, the council asked for an update. At that time, and at many meetings thereafter, the OIBC called into question the planned rail alignment, which would directly collide with concentrations of burials.

Joining the council's strong objections were the National Trust for Historic Preservation, the Office of Hawaiian Affairs, Hui Mālama i Nā Kūpuna O Hawaiʻi Nei, the Native Hawaiian Legal Corporation and Hawaiian families.

But City planners did not listen or did not care.

A growing chorus implored transit officials to shift the project route, thereby avoiding known burial areas. Still the City ignored efforts to avoid conflict and prevent costly litigation, delays and project modifications that would ensue once burials were encountered.

Despite these warnings and pleas, the railway is headed straight for an area that could be called "Burials Central."

Since the State implemented burial laws in 1990, more than 400 burials have been encountered in the core of the Honolulu urban corridor – an area bordered by River, King and Keʻeaumoku streets and Ala Moana Boulevard. Adding documented historic cemeteries and epidemic burials to the 400 would more than double that figure.

Before Western contact and well into the 19th century, rolling sand dunes in this area were burial grounds for generations of Honolulu ʻohana. They would kanu, or plant, the remains of loved ones in the dunes.

Mana concentrated in iwi kūpuna (ancestral remains) would imbue the ʻāina and spiritually nourish the living community. Under the protection of their ʻohana, iwi kūpuna and ʻāina would become one, perpetually connecting kūpuna, ʻāina and 'ohana.

But following two centuries of foreign impacts, these traditional burial areas were no longer controlled by families of the deceased. Disease and depopulation, the improper seizure of lands and illegal overthrow of the sovereign Hawaiian government created a spiral of negative outcomes – including removal of many ʻohana from ancestral lands.

Burial areas came to be "owned" by landlords and governed by new laws that afforded no protection to unmarked burials. Many burials were dug up and destroyed. Hundreds of others were built upon, leaving iwi kūpuna to continue their repose in Honolulu burial sands.

But lack of Hawaiian ownership of burial sites has not bred lack of concern. Hard-fought laws were enacted to safeguard burials as significant historic sites.

Prior to the rail project gaining approval, state and federal laws require completion of an Archaeological Inventory Survey (AIS) to identify significant historic properties, such as burials, and facilitate plans to avoid them. To shortcut this vital planning process – and despite vehement objections of the OIBC – federal officials, the State Department of Transportation (DOT), Honolulu transit officials and others signed a rail Programmatic Agreement in 2011.

Unfortunately, this agreement enables the project to start construction along a committed route without first completing an AIS.

This misguided approach places Native Hawaiian burials in peril and gambles with taxpayer dollars. As attorneys for the National Trust for Historic Preservation warned, "the City's decision renders the project legally vulnerable under Section 4(f) of the Department of Transportation Act." This Act dictates that the federal DOT "cannot approve the use of land [involving]…historic sites [including burials] unless…there is no feasible and prudent alternative" and only if "the action includes all possible planning to minimize harm to the property resulting from use."

But planning for burials has been minimal. The City has not completed its AIS for the project area involving "Burials Central" and has not seriously considered an alternate course, such as a King Street route, which would avoid burials.

If burials are found via the AIS or later during construction (since an AIS investigates only a sample of the project area), two laws are triggered. First, Section 4(f) of the DOT Act would force transit officials to seek a "feasible and prudent alternative" that avoids burials.

And second, state law authorizes the OIBC or the Department of Land and Natural Resources to preserve the burials in place, as was done at Ward Villages where fundamental project changes were required.

If burials remain in place, rail alterations would be required.

Turning a blind eye to this reality, rail proponents contend they need only move a rail pillar forward or backward along the route to avoid burials. But that myth assumes burial areas would be limited and overlooks the greater impacts of train station construction and infrastructure relocation.

Four immense rail passenger stations are planned for the Honolulu urban corridor. And massive ground disturbance would occur as electric, phone, cable, water and sewer lines are relocated and roadways reconstructed.

So the question is not whether these disturbances of sandy deposits would encounter burials. The question is how destructive such encounters would be as work proceeds.

Would kūpuna be brutally unearthed by backhoes or pounded into oblivion by pile drivers?

If kūpuna are laid bare by intrusive archaeological hands, would transit officials coerce the OIBC to remove the remains?

If kūpuna are undisturbed, would the rail project require major alteration? At how many junctures might this occur?

How would this affect the project timing and budget?

These are questions that should have been investigated long ago to minimize harm to kūpuna, anguish for the Hawaiian community and expense for Honolulu taxpayers.

Overriding each of these concerns, however, is the City's desperate and shortsighted determination to force the rail project forward – no matter what the cost.

Kēhaunani Abad received her Ph.D. in archaeology at the University of Hawaiʻi at Mānoa. She served on the Oʻahu Island Burial Council for 12 years and has regularly been an expert witness in court cases involving historic preservation matters.

---------------------

http://www.civilbeat.com/articles/2012/05/24/15928-supreme-court-can-rail-avoid-hawaiian-burials/
Honolulu Civil Beat, May 24, 2012

Supreme Court: Can Rail Avoid Hawaiian Burials?

By Michael Levine

The city is already moving down the track on construction of the rail system. But can it swerve to avoid Native Hawaiian burials that might be uncovered along the way?

The Hawaii Supreme Court is wrestling with that question after an hour-long oral argument Thursday morning. The case was brought by Paulette Kaleikini, a cultural descendant who says her ancestors in the Kakaako area will be disturbed by the fourth and final phase of the rail project. Her lawyers with the Native Hawaiian Legal Corporation say the city should have completed an archaeological inventory survey (AIS) of the entire line before starting construction on any part of it.

"An AIS is a key tool used for identification of, consultation about and decision-making on burials," David "Kimo" Frankel told the three justices and two elevated judges Thursday. "Segmenting, piecemeal-ing or phasing an AIS excludes vital information from decision-making, rendering consultation with Native Hawaiians in good faith a meaningless exercise."

The Kaleikini case is one of several legal challenges facing the rail project. In federal court, Honolulutraffic.com, mayoral candidate Ben Cayetano and others are arguing that alternatives were not adequately considered. Also, losing rail car builder Bombardier has sued the city for inappropriately awarding a $1.4 billion contract to Ansaldo.

Frankel said allowing construction to continue without a completed comprehensive AIS could put pressure on the Oahu Island Burial Council to dig up burials found in the rail line because it will be too late and too costly to change the alignment. He said Honolulu has given burials a "short shrift" and has "put the cart before the horse."

"Practically speaking, we have seen other cases where the city or other developers are like, 'Well, we spent so much money, so all we can now do is just dig 'em up.' And that's not the dignity or respect that we seek," Ashley Obrey, another attorney with the Native Hawaiian Legal Corporation, told Civil Beat after the hearing.

The city and state disagree and say the archaeological review is already well under way and will be finished years before construction begins on the downtown segment of the system.

A few members of the panel appeared to have serious concerns with the city's approach, which included a programmatic agreement with the Department of Land and Natural Resources' State Historic Preservation Division to allow the AIS to be completed in four phases.

Justice Sabrina McKenna was the most aggressive with her questions, pressing attorneys for the city and the state for details of its plans to protect burials and posing hypotheticals of segmentation that would create problems. Justice Paula Nakayama and Judge R. Mark Browning, sitting in for the recused Justice Simeon Acoba, also asked pointed questions.

John P. Manaut, a private attorney hired by the city to argue the case, told the court that the alignment in the Kakaako area can be adjusted in the event of a "mass graveyard." If there are three or four areas in a small area, columns can be moved 75 or 100 feet, he said.

"That has not been foreclosed here," he said.

"Truthfully, there is threat to any burial anywhere along this route, the 20 miles, until after we do the AIS process that the plaintiff wants us to do," Manaut said. "The request here is to do an AIS, and we are going to do an AIS."

Obrey, the Native Hawaiian Legal Corporation attorney, said the columns aren't the only piece of the puzzle that might disturb burials. Water lines, sewer lines and other associated buildings will cause a "scraping" of the area, she said. It's not enough to conduct an AIS while construction is already happening, she said. Instead, the NHLC wants construction to stop until an AIS is done.

Much of the argument focused on the language of the state laws that govern burials — Hawaii Revised Statutes Section 6E, in particular — and whether the language in and legislative intent behind that section is clear on the legality of phasing and segmentation or the definition of a "project."

Chief Justice Mark Recktenwald asked the state's attorney, William Wynhoff, "How do we get around the plain language of the rules?"

While it would be difficult to change the alignment because it would require a supplemental environmental review, Wynhoff said the route is not set in stone.

The court took the matter under advisement and is expected to render a written ruling.

Read a preview of the case with links to the parties' briefs at Inverse Condemnation.

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http://www.staradvertiser.com/newspremium/hawaiinewspremium/20120525_rail_suit_seeks_search_for_burials.html?id=154001155
Honolulu Star-Advertiser, May 25, 2012

Rail suit seeks search for burials
A woman faults the city for starting work before studying the complete route

By Gordon Y.K. Pang

A lawyer for a Native Hawaiian whose ancestors are buried in Kakaako asked the Hawaii Supreme Court on Thursday to order the city to stop work on the $5.27 billion Hono lulu rail system until it completes an archaeological survey to determine whether the project will disturb Hawaiian remains.

The court did not immediately rule on the arguments by David Kimo Frankel, a Native Hawaiian Legal Corp. lawyer who is representing Paulette Kaa nohi oka lani Kalei kini in her lawsuit against the city.

The lawsuit also names as defendants the state Historic Preservation Division of the Department of Land and Natural Resources, state Historic Preservation Officer Puaalaokalani Aiu, the Oahu Island Burial Council and Gov. Neil Abercrombie.

The lawsuit alleges the city illegally divided up the 20-mile rail route into segments and launched the rail proj ect before all of those segments were surveyed to determine what effect construction would have on burials, or iwi kupuna.

The rail line will extend from East Kapolei to Ala Moana Center, and the city has been conducting archaeological surveys of individual rail route segments. The survey of the Kapolei end of the rail line has been completed, and construction has begun there.

No Hawaiian burials have been found so far in the path of the rail line, but burials are far more likely to be discovered in the so-called "city center" portion of the proj ect, which includes Kakaako, downtown and the Dillingham Boulevard area. More than 400 burials have been found in that area since 1986, the lawsuit says.

The city has begun the city center archaeological survey, and last week the Hono lulu Authority for Rapid Transportation reported consultants had completed 44 of the 232 survey trenches that will be dug in the city center segment to search for burials or archaeological sites.

Frankel and a lawyer for the city agreed Thursday that state administrative rules don't specifically say whether proj ects can be divided into segments for the purpose of conducting archaeological surveys as was done with the rail proj ect.

The city contends it gave appropriate consideration to the impact of the rail proj ect on all cultural and historic resources, including any burials that might be encountered along the route.

State, city and federal agencies developed a programmatic agreement for the rail proj ect that sets out a plan for investigating and handling historic properties including burials and archaeological sites.

Among other things, that agreement requires that the state Historic Preservation Division approve the archaeological survey for each segment of the rail line before construction can begin on that segment.

However, the lawsuit contends state law requires early preparation of the archaeological survey before the agencies make a decision and commit to a particular plan to protect the sites.

"What they've done is they skipped the (survey) process," Frankel said. "You have to identify the resources before you protect them."

Frankel argued that state law requires a "good faith" consultation with descendents and others on how to treat archeological finds including burials that are discovered in the path of construction proj­ects.

"How is that consultation 'in good faith' if fundamental decisions have already been made?" Frankel asked.

In March 2011, Circuit Court Judge Gary Chang rejected Kaleikini's arguments and dismissed the lawsuit. Kaleikini then appealed to the state Supreme Court.

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http://www.civilbeat.com/articles/2012/08/24/16937-rail-derailed-hawaii-supreme-court-rules-against-honolulu/
Honolulu Civil Beat, August 24, 2012

Rail Derailed? Hawaii Supreme Court Rules Against Honolulu

By Nick Grube

The Hawaii Supreme Court agreed with a Native Hawaiian woman that the city should have completed it's archaeological survey in downtown Honolulu before starting construction on its $5.26 billion rail project.

In its 82-page ruling Friday,
http://www.courts.state.hi.us/docs/opin_ord/sct/2012/aug/SCAP-11-0000611.pdf
the high court sent the case back to the circuit court for further action. What that means exactly is unclear.

Paulette Kaleikini is the plaintiff in the case. She is a descendant of the Native Hawaiians buried in the Kakaako area, and has asked for an injunction to stop construction on the rail project.

In her legal argument, Kaleikini said the city should have accounted for Native Hawaiian burial grounds through comprehensive archaeological surveys prior to any construction.

The city, however, argued it could do the survey work in parts since the construction was broken apart into four phases. As long as the city completed the surveys for a particular phase, city attorneys argued, it could begin construction in that area.

The Supreme Court said the State Historic Preservation Division "failed to comply with (state law) when it concurred in the rail project prior to the completion of the required archeological inventory survey for the entire project."

That division has been plagued by understaffing and a severe permit backlog and is in danger of losing its federal funding and certification. Some people, including lawmakers are also concerned that the division is badly managed. Rail supporters had been concerned that SHPD's troubles could come undermine the rail and other big developments.

The court said the city also failed to follow state law by granting a special permit for the rail project and by starting construction before the historic preservation review process was finished.

Construction is currently underway on the rail project in West Oahu. The court heard oral arguments in the case in May.

This ruling does not relate to another case currently making its way through the federal court system that also challenges the rail project.

Former Hawaii Gov. Ben Cayetano is a plaintiff in that case along with other rail opponents. Cayetano is running for Honolulu mayor on an anti-rail platform. There was a hearing earlier this week on that matter, which also involves questions of Native Hawaiian burial sites.

It's unclear at this point how today's Supreme Court ruling could impact that federal case.

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http://www.hawaiireporter.com/after-supreme-court-victory-native-hawaiian-legal-corporation-orders-city-to-stop-construction-on-rail-by-monday/123
Hawaii Reporter, Friday August 24, 2012

After Supreme Court Victory, Native Hawaiian Legal Corporation Orders City to Stop Construction on Rail Immediately


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http://www.staradvertiser.com/news/breaking/169701276.html?id=169701276
Honolulu Star-Advertiser, September 13, 2012, BREAKING NEWS at 1:18 PM

Hawaiian burial site may have been found in path of rail project

By Kevin Dayton

The first Hawaiian burial to be discovered in the path of the Honolulu rail project may have been unearthed in Kakaako by a crew conducting an archaeological survey for the train project.

Honolulu Authority for Rapid Transportation Executive Director Daniel Grabauskas joined Hallett H. Hammatt of Cultural Surveys Hawaii this morning at the site at Cooke and Halekauwila streets to discuss the find.

Also visiting the site to inspect the survey trench were State Historic Preservation Division Administrator Pua Aiu, Oahu Island Burial Council Chair Hinaleimoana Wong-Kalu and OIBC Vice Chairman Jonathan Likeke Scheuer.

Aiu and other officials declined to discuss the find, and Aiu said she would discuss the discovery with media later in the day. A survey crew at the site stopped work and covered the trench early this afternoon after the inspections.

The city has been surveying the 20-mile rail route in sections, and still has not completed the portions of the route in urban Honolulu where experts agree that burials are most likely to be found.

Last month, the Hawaii Supreme Court ruled SHPD violated its own rules by allowing construction on the $5.26 billion rail project to proceed before an archaeological survey was completed for the entire rail route.

In a unanimous ruling, the court found that rules governing the SHPD do not allow the SHPD to agree to the rail project until the city finishes the survey to determine if there are Native Hawaiian burials or other archaeological resources in the path of the rail line.

The city then stopped construction on the rail project, and has accelerated work on the archaeological survey.

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http://www.staradvertiser.com/editorialspremium/20120923_The_reburial_of_bones.html
Honolulu Star-Advertiser, September 23, 2012

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

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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By Vicki Viotti, vviotti@staradvertiser.com

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http://www.staradvertiser.com/editorialspremium/saeditorialspremium/20121005_Laws_protecting_iwi_need_review.html?id=172778431
Honolulu Star-Advertiser, October 5, 2012

EDITORIAL

Laws protecting iwi need review

Two recent court actions related to the disinterment of Native Hawaiian remains illuminate the complexity of Hawaii burial laws, and suggest that a review of the statutes should be considered in the coming legislative session.

One is the Aug. 24 state Supreme Court ruling that the city must complete an archaeological survey principally aimed at identifying burials — "iwi kupuna"— likely to be along the route of its 20-mile rail project. The second came a week ago, when a panel of three judges from the Intermediate Court of Appeals granted an injunction that halted excavation of burials — the tally has now passed 600 sets of remains unearthed — on the site of a multipurpose center at Kawaiaha'o Church.

In its ruling, the panel agreed with Dana Naone Hall, a Hawaiian cultural specialist and the plaintiff in the Kawaiaha'o case. Hall argued that the way the state high court construed the state's historic preservation review process should put an immediate halt to work on the project, and the court indicated it was likely to decide in her favor in its final ruling.

The rail case is clearly in the jurisdiction of the State Historic Preservation Division, the part of the Department of Land and Natural Resources that regulates how projects are allowed to affect Native Hawaiian burials more than 50 years old, as well as other historic artifacts.

What distinguishes the Kawaiaha'o issue is that separate sections of law are involved: The state Department of Health ordinarily is the office that issues permits to disinter burials in an active cemetery.

The problem is one of overlap. Before the appellate court ruling, the state Office of Hawaiian Affairs wrote to DLNR seeking an accounting of the iwi to determine if they include the more historical burials not covered by the health department permit.

The entire area was heavily populated for centuries, and ancient tradition is to bury loved ones near homes or in other unsegregated locations. Given that, it seems likely that some of the burials may have predated the church, OHA officials wrote.

The OHA board of trustees was responding to prepared testimony Hall delivered at its August meeting. Hall said archaeological consultants reported finding "disturbed human skeletal remains not associated with coffin burials," as well as "concentrations of artifacts and numeral faunal remains, including pig, dog and fish bones — a potential indication of traditional burials and burial practices."

Although few other cemeteries are located in as sensitive a zone as Kakaako, surely there are other locations where there could be similar conflicts in jurisdiction.

Fingers have been pointed in various directions during the 20 months of turmoil over the Kawaiaha'o project. Without attempting to play the blame game here, what is indisputable is that Hawaii's laws are not equal to the task of providing the best possible guidance in these difficult situations. And clear guidance is what's needed if future developments aren't doomed to similarly chaotic outcomes and delays that should be at least more predictable.

Perhaps cemeteries, active or otherwise, can't always be considered under separate laws. However the law is clarified, legal and cultural experts should confer with legislators to find a more workable solution.

It's hard to imagine a recurrence of anything as disturbing as the unearthing of 600 burials in a churchyard. But it's best that Hawaii not tempt the fates.

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http://www.staradvertiser.com/editorialspremium/20121005_Letters_to_the_Editor.html?id=172778441
Honolulu Star-Advertiser, October 5, 2012, LETTER TO EDITOR

Our iwi won't impede future

My family and I and many of our friends are Native Hawaiians.

If in the future our iwi (bones) are discovered in areas that are needed to make Hawaii a more enjoyable place to live, like the rail will do, the appropriate agencies have our permission to relocate our iwi using care and dignity.

We will not impede any improvements to make life better for our children and the future generations of Hawaii.

The joy of helping others even after we have passed is the true Hawaiian and American spirit of giving.

Nick Blevens
Kaimuki

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http://www.hawaiinewsnow.com/story/19790081/cultural-monitors-to-watch-over-rail-archaeological-survey?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+HawaiiNewsNow-News+%28Hawaii+News+Now+-+News%29
Hawaii News Now, October 10, 2012

Cultural monitors to watch over rail archaeological survey

By Tim Sakahara

HONOLULU (HawaiiNewsNow) - The discovery of more human bones in Kakaako along the rail route will mean more delays and more costs to the $5.2 billion dollar project.

"It really isn't a delay. The city started this project too quickly, too early and signed the contracts too early," said Ann Kobayashi, Honolulu City Councilmember.

"You are making a lot of adjustments and any adjustment you make costs a lot of money," said Romy Cachola, Honolulu City Councilmember.

HART CEO Dan Grabauskas maintains the city still has flexibility. It can move the utilities or pillars supporting the elevated rail in order to avoid iwi kupuna or ancestral bones.

"What (engineers) put on the drawing board they don't put in ink, they put in pencil because it will evolve over time," said Grabauskas, to the Honolulu City Council Budget Committee.

After briefing city council members Grabauskas walked over to the Oahu Island Burial Council meeting where he was given an earful.

"How would you feel if this was your grandmother's bones? If it was your child's bones, anyone you loved, this was their iwi, please think about that yeah," said Kamuela Kala'i, Hilo who flew to Oahu for the meeting.

"I do think of it as my relatives. That's some good advice I got early on. How I feel about it is the same way is if someone were to go into a place where my relatives are buried," said Grabauskas, later in the meeting.

"It's okay to acknowledge that there is some mistrust because if you don't acknowledge it than you don't get it," said Grabauskas. "As long as I'm the Executive Director of HART we will respect iwi kupuna and you can help me understand what that means."

Matt McDermott, the project manager for Cultural Surveys Hawaii, the state contractor that found the first tibia bone fragment found last month, addressed the meeting. He thinks it dates back to before 1810. He said it was cut or filed and may have been used as a fishing tool. He says human bones were used in ancient Hawaii.

McDermott recommends moving the bone fragment because it's a "gray area." Yes it's a human bone but not part of a burial context.

However Native Hawaiians took offense to that gray area description.

"Iwi is in the ground, leave it alone. Period," said Kala'i.

The Native Hawaiians want to be part of the process and want cultural monitors present at each trench being dug up. They also want the city to keep an updated list to call burial rights practitioners when remains are found.

"The cultural monitoring that could've, would've, should've been in place but unfortunately it wasn't and I'm sure that was due to their own in house issues they are working to resolve," said Hinaleimoana Wong-Kalu, Oahu Island Burial Council Chair.

"It's just coming to this frustration of this should already be done. We should have people in positions that understand. Right now I don't feel confident that people that are making decisions are the right people," said Kaleo Paik, Burial Rights Practitioner.

Grabauskas said the city can do better and says he will work on understanding the respect and trust involved when dealing with iwi kupuna.

"To be very clear we have a cultural monitoring program. Let's work on it together to see how we can implement it as quickly as possible. Done," said Grabauskas.

Grabauskas says the cultural monitoring could start in days and the Native Hawaiian burial practitioners will paid although an exact amount is yet to be worked out.

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http://www.staradvertiser.com/newspremium/20121011_Hawaiians_press__rail_authority_chief_to_let_remains_lie_.html?id=173652171
Honolulu Star-Advertiser, October 11, 2012

Hawaiians press rail authority chief to let remains lie

By Kevin Dayton

Native Hawaiian cultural practitioners urged the head of the Honolulu rail authority on Wednesday to find a way to leave burials and other human remains in place when they are discovered along the rail route.

The discussion at the Oahu Island Burial Council was supposed to focus on the discovery of a single human bone on Sept. 12 beneath the sidewalk at Cooke and Halekauwila streets, but Hawaiians used the opportunity to air their concerns about the impact the rail project is having on ancient remains in general.

Daniel Grabauskas, executive director of the Hono­lulu Authority for Rapid Transportation, listened to more than a half-dozen Hawaiians discuss their family and emotional connections to kupuna or elders who were buried in Kakaako and surrounding areas.

"I'm going to be very clear about this," Kamuela Kala'i told the burial council. "Iwis in the ground, leave them alone, period."

Crews working on the archaeological survey for the 20-mile rail line have so far discovered remains believed to have come from four people at three sites, including one intact burial discovered under a sidewalk near Keawe and Halekauwila streets.

Kala'i called that disturbance of long-buried remains "very painful," but said she supposes the archaeological survey work is a "necessary evil" that is required for the rail project.

She addressed Grabauskas directly, telling him it does not matter that the names of the people buried there are unknown.

"I know you have kupuna somewhere, so you think about that," she said. "It doesn't matter if you find a fragment or you find 1,000. It's painful beyond words."

Pono Kealoha asked that the city show the same respect for bones buried in Kakaako as would be shown to remains of war veterans buried at National Memorial Cemetery of the Pacific at Punchbowl.

Other speakers urged the city to ensure that cultural practitioners are always present to monitor activities at each of the dozens of survey pits being dug for the rail project, and said those monitors should be paid appropriately for their services.

Grabauskas, who arrived in Hawaii six months ago to assume control of the rail project, said he wants to build respect and trust.

"As long as I am the executive director of HART, we will respect the iwi kupuna, and you can help me to do that," he told the group. He said the design of the rail project can be adjusted to avoid burials, or remains can be moved out of the path of the project if the descendents believe that is more appropriate.

Grabauskas said he is prepared to work under a new cultural protocol that would include cultural monitors at each trench site, and invited members of the audience who want to participate as paid cultural monitors to contact his staff.

The State Historic Preservation Division will decide whether the bone discovered at Cooke and Halekauwila will be moved or left in place. The burial council is expected to consider the other discoveries of human remains in connection with the rail project later, including the intact burial.

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http://www.staradvertiser.com/editorialspremium/letterspremium/20121014_letters_to_the_editor.html?id=174070811
Honolulu Star-Advertiser, October 14, 2012, letter to editor

Presence of iwi should not stop rail

Life is for the living.

As regards the rail line, do not redesign and reroute the planned rail route every time human remains are found on that route.

Instead, the found human remains could be placed back in the ground close to where they were found (as some people want) or placed in a monument (like the one in Waikiki near the zoo).

If the rail line were redirected every time remains are found, the rail route could end up being a crazy, zigzag, inefficient route that would negatively affect its effectiveness and benefits intended.

Stephen Kabei
Salt Lake

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http://www.staradvertiser.com/newspremium/20121115__Survey_uncovers_more_iwi__in_path_of_rail.html?id=179437781
Honolulu Star-Advertiser, November 15, 2012

Survey uncovers more iwi in path of rail

By Kevin Dayton

A human skull fragment turned up in an archaeological survey trench dug into a parking lot near Ward Avenue last weekend, marking the sixth time human remains have been found in the path of the $5.26 billion Honolulu rail project.

The most recent find on Sunday was in a trench in the parking lot of a Ross Dress for Less store, and is believed to be a skull fragment from a young adult, according to Hinalei-moana Wong-Kalu, chairwoman of the Oahu Island Burial Council.

The city so far has discovered the remains of six people at five sites, including one set found in Kakaako in a "flexed" or fetal position that may indicate a pre-contact burial.

The State Historic Preservation Division is responsible for determining how each discovery of remains will be handled. Native Hawaiians who are involved in the burial council have asked the city to leave all remains in place, and to adjust the design of the 20-mile rail line to avoid them.

The survey work emerged as a critical component of the rail project after the Hawaii Supreme Court ruled on Aug. 24 that the city should have completed the archaeological survey along the entire rail route before beginning construction.

That decision stopped all construction, and prompted the city to dramatically step up the pace of the survey work.

The city has estimated that each month of construction delays costs $7 million to $10 million.

The city has excavated more than 350 trenches as part of the survey, and has about 35 more trenches to go to complete the work, according to records provided by the Honolulu Authority for Rapid Transportation.

The trenching should be finished by the end of the year, and the city hopes to restart construction on the rail project early next year.


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(3) In 2010 a new rule was adopted interpreting the NAGPRA law to mean that remains are held by museums or are newly discovered, and those remains are not culturally identifiable as belonging to an existing tribe, then the local tribe currently controlling the area where the remains were found shall be presumed to have a right to take control of those remains. The result is that anthropologists are no longer able to do forensic research. In Hawaii this rule has little impact because all ancient remains in Hawaii are presumed to belong to native Hawaiians. See also NAGPRA 2010, item #5. More news during 2012.

http://abcnews.go.com/US/wireStory/researchers-tribes-clash-native-bones-15365841#.TxPR0q4xWzs
Associated Press, widely republished including the Honolulu Star-Advertiser of January 16, 2011

Researchers, Tribes Clash Over Native Bones

By SUDHIN THANAWALA Associated Press

BERKELEY, Calif. January 15, 2012 (AP)

On a bluff overlooking a sweep of Southern California beach, scientists in 1976 unearthed what were among the oldest skeletal remains ever found in the Western Hemisphere.

Researchers would come to herald the bones — dating back nearly 10,000 years — as a potential treasure trove for understanding the earliest human history of the continental United States. But a local tribal group called the Kumeyaay Nation claimed that the bones, representing at least two people, were their ancestors and demanded them back several years ago.

For decades, fights like this over the provenance and treatment of human bones have played out across the nation. Yet new federal protections could mean that the vast majority of the remains of an estimated 160,000 Native Americans held by universities, museums and federal government agencies, including those sought by the Kumeyaay, may soon be transferred to tribes.

A recent federal regulation addresses what should happen to any remains that cannot be positively traced to the ancestors of modern-day tribes. Museums and agencies are required to notify tribes whose current or ancestral lands harbored the remains, then the tribe is entitled to have them back.

Prestigious institutions from Harvard to the University of California, Berkeley have already begun working through storehouses of remains uncovered by archeologists, highway and building contractors and others since the 19th Century. A few are surrendering bones to Native tribes, and others are evaluating whether to do so.

Tribes have hailed the rule, saying it will help close a long and painful chapter that saw native peoples' bones stolen by grave robbers, boxed up in dusty storerooms and disrespected by researchers.

"Darn it, these are people," said Louis Guassac, a member of the Kumeyaay Cultural Repatriation Committee. "This isn't stuff. You don't do this to people. I don't care how long they've been there. You respect them."

The Native American Graves Protection and Repatriation Act of 1990 provided for the return of remains connected to modern-day tribes. But it was not until 2010 that a rule on the disposition of so-called culturally unidentifiable remains was finalized by the Department of the Interior. Until then, more than 650 universities and other institutions had no clear guidance about how to return those remains, which account for the bones of about 116,000 people in their collections. That rule is still playing out, sometimes fractiously.

Universities find themselves tugged one way by the law's mandates, another by faculty research needs.

Some anthropologists say more remains will become off limits, imperiling study of the diets, health, migrations and other habits of ancient peoples without guaranteeing that the remains will wind up with their true descendants. "There really isn't any balance anymore," said Keith Kintigh, associate director of the School of Human Evolution and Social Change at Arizona State University. "The public and scientific interest in (the remains) no longer have any weight."

In recent months, Harvard's Peabody Museum has received requests for about 500 remains and hired additional staff as they respond to the 2010 rule, said Patricia Capone, the museum's repatriation coordinator.

At the University of Michigan, officials have decided to transfer the bulk of their 1,580 culturally unaffiliated remains to 13 Native American tribes who want them. In the meantime, they have been put off limits to researchers. "The law is very clear that they will be transferred," said school spokesman Rick Fitzgerald.

At UC-Berkeley, more than 6,000 of the roughly 10,000 remains that were deemed culturally unidentifiable are now subject to potential transfer to tribes. And the Phoebe A. Hearst Museum of Archaeology here has added four new staff members to help match remains to tribes if possible and notify tribes whose lands held the remains.

The small, eclectic museum recently celebrated the 100th anniversary of a recording made by Ishi — the last surviving member of the Yahi tribe who emerged from hiding in Northern California in 1911. The museum displays artifacts such as Pomo baskets, an Achumawi rabbit-skin blanket and arrowheads Ishi made out of obsidian and glass— but not the remains of native peoples.

The collection of bones —one of the country's largest — is in storage. Officials declined to show them to The Associated Press during a recent campus visit on grounds that that could be offensive to tribes.

The university currently has four pending requests for remains. And Museum Director Mari Lyn Salvador said the regulation change has caused concern among researchers.

"There are very important opportunities to understand contemporary medicine ... information that could be very useful to these (Native) communities themselves in terms of better understanding diabetes and other illnesses," she said.

The university presents such information to tribes, she said, but lets the tribes decide whether to allow researchers to work with the bones.

Tens of thousands of individual Native American remains have been collected since the mid-19th century. Some grave sites were looted or excavated to support scientific research, including a study of skulls purporting to show that Native Americans were inferior to Caucasians, according to Robert Bieder, an Indiana University professor who has written about the phenomenon.

The bones in dispute at UC San Diego have long since been out of the ground. They were excavated more than three decades ago from land around the university chancellor's house in La Jolla by a professor from another school. But a photo of the original discovery shows the outlines of two skeletons with skulls, buried head to toe.

Since their discovery in 1976, they have been studied at the Smithsonian and carbon dated at the University of Oxford, according to Margaret Schoeninger, a professor in the Department of Anthropology at UCSD and the university's representative on Indian burial issues.

When the Kumeyaay Nation — a dozen native bands with reservations in San Diego County — first demanded the remains, the university rejected its claim that they were the tribe's ancestors.

Researchers have said Kumeyaay remains were cremated early in the tribe's history, not buried. They have also questioned whether the remains are even Native American, given their age, although the university has concluded that they are.

"In terms of what the Kumeyaay have put forward, the only thing I've heard is their belief, their deep tie to the land and folklore," Schoeninger said. "We need empirical evidence."

Tribal representatives say they have an oral history that goes back thousands of years and connects them to the remains.

In light of the recent rule, university officials did a reevaluation, concluding that the skeletons came from the Kumeyaay's ancestral lands while still maintaining they were not the Kumeyaay's direct ancestors.

In a filing in December, the university said it would turn the remains over to the Kumeyaay although it gave other tribal groups until Jan. 4 to come forward and dispute the Kumeyaay's claim.

Kumeyaay repatriation officials say they will accept the remains.

"It's pleasing to know that these are going to finally be returned and properly taken care of," Guassac said. "They are going to be getting the respectful treatment they deserve."

One option, he said, is that the remains will be reburied.


============

(4) NAGPRA-like issues on the U.S. mainland, or in other nations, reported in American media. (a) Authorities in New Zealand on January 23 received 20 ancestral heads of Maori ethnic people once held in several French museums as a cultural curiosity. France long resisted handing over such cultural artifacts, but a law passed in 2010 paved the way for the return of the Maori heads, traditionally kept as trophies from tribal warfare; (b) "Why are the Poarch Creek Indians of Alabama digging up Creek graves at Hickory Ground so they can build a casino? This is an insult to everything we stand for as American Indians, and it affects my people in in its insensitivity and ignorance. It gives our enemies the ammunition they need to discredit all of us and our attempts to preserve and protect our sacred graves."; (c) Archeologists believe they know where the bones of King Richard III [Lionheart] were buried in 1485 below what is now a church parking lot in England, they dug up the bones and will do skeletal analysis and DNA tests; (d) The University of Uppsala (Sweden) is returning 3 skulls it received in 1884 which were taken from Tahiti or Marquesas Islands.

http://www.staradvertiser.com/news/breaking/137884148.html?id=137884148
Honolulu Star-Advertiser, January 23, 2012

France returns 20 Maori heads to New Zealand

By Laurent Cipriani, Associated Press

PARIS >> Preparing the biggest homecoming yet of its kind, authorities in New Zealand on Monday received 20 ancestral heads of Maori ethnic people once held in several French museums as a cultural curiosity.

French Culture Minister Frederic Mitterrand and New Zealand's ambassador presided over a solemn ceremony at Quai Branly museum in Paris, where the heads were encased in a box — the largest single handover of Maori heads to be repatriated, New Zealand's embassy said.

Since 2003, the South Pacific country has embarked on an ambitious program of collecting back Maori heads and skeletal remains from museums around the world. Yet the program has run into significant obstacles.

France long resisted handing over such cultural artifacts, but a law passed in 2010 paved the way for the return of the Maori heads. They were obtained as long ago as the 19th century, and one as recently as 1999.

Some Maori heads, with intricate tattoos, were traditionally kept as trophies from tribal warfare. But once Westerners began offering prized goods in exchange for them, men were in danger of being killed simply for their tattoos, French museum officials have said.

The heads handed over to New Zealand were not available for public viewing on Monday. Over the years, French museums, private collectors and anthropological researchers have preserved and stored the heads.

The idea behind getting back the body parts was that they would be returned to their home tribes throughout New Zealand, where tribal elders could mourn them and, if they chose, give them proper burials.

"They are, after all, human remains, and in the Maori culture they should not be publicly displayed," said Pou Temara, a university professor who chairs New Zealand's repatriation advisory panel.

Bridget Gee, a New Zealand embassy spokeswoman, said the heads remanded on Monday have not been displayed in public for years.

Most of the remains aren't readily identifiable, and only a small percentage have been returned to their home tribes — who are loath to accept any remains that aren't their own. Heads and body parts from over 500 people now sit in storage at the national musuem, Te Papa, in Wellington.

The practice of preserving heads was begun by Maori as a way of remembering dead ancestors. In the decades after Europeans arrived, the heads became a curiosity and sought-after trade item, prompting Maori to ramp up their production levels.

---------------------

http://indiancountrytodaymedianetwork.com/ict_sbc/poarch-creeks-should-reconsider-digging-up-graves-to-build-a-casino
Indian Country Today, August 20, 2012

Poarch Creeks Should Reconsider Digging Up Graves to Build a Casino

By Dan Jones

"YOU'LL MOCK DEATH BUT ONCE!"

I ask the Muscogee Creek Nation of Oklahoma to excuse me for speaking about your relatives. I was asked by Indian Country Today Media Network, and I am moved to do so prayerfully. The act of tampering with the graves of your ancestors affects us as well, and we support you. I am deeply bothered by it, I want to know things and I want to say some things from what I heard and read.

Why are the Poarch Creek Indians of Alabama digging up Creek graves at Hickory Ground so they can build a casino? This is an insult to everything we stand for as American Indians, and it affects my people in in its insensitivity and ignorance. It gives our enemies the ammunition they need to discredit all of us and our attempts to preserve and protect our sacred graves. When the Creek Nation were forced out of Alabama onto their Trail Of Tears, like many tribes, groups of them scattered and were not removed, but had to fend for themselves and hide from the government. To their credit, after many years they held together and fought the government in court and reclaimed federal recognition against all odds in 1982. The toll this takes on a tribe cannot be fully understood by most of us until something like this happens.

When is an Indian no longer an Indian? When he no longer hears his past relatives speaking in his own language, when the music of his people past has been replaced with the noise of another culture, when he has replaced the bones of his own people with a casino! Where are your voices of reason? Have you not noticed there is a huge movement in Indian country now to save sacred sites? How could you not know that the graves of your ancestor go to the heart of your culture? They tell you who you are, they tell your children who they are, and they are the key to your ties to this earth, to the past and the future. They are literally the identity of your nation, those who fought to keep their way of life together and sacred for you. These are not hollow words—these are the very beliefs that make us unique people.

How does your action affect my tribe and culture? Our enemies will only credit one tribe for anything they consider a good deed, mainly if it affects them in a positive light. On the other hand they will condemn all tribes when one tribe does something they consider respectable or normal to them. When one tribe blows it, they blow it for all of us. That's how it works. Now they will use you as the example of what all tribes do. When we tell them our graves are sacred they will turn to us and say, Well why did the Poarch Creek tribe dig up their ancestors and move them to build a casino? Yes, you become the standard they will judge us by. If you have lost the voices of reason in your own tribe to do what is best for your own culture, then it becomes our responsibility to inform you that what you are doing is wrong and unacceptable for the best interest of all of us.

The Muscogee Creek Nation of Oklahoma are telling you to stop moving their relations from their resting grounds. You are making old wounds new again. But now I am here to tell you stop it on behalf of my loved ones as it is also insulting to our culture and counter to the struggles we are now having to preserve the dignity of our loved ones and their graves. You don't live in a vacuum and your actions hurt all of us.

I see a greater problem related to these casinos when it come to preserving our culture and making the all-mighty dollar. Too many are being operated by non-Indians who have no understanding of our cultures. Too many times decisions are being made that should impact Indians but don't because the decisions are being made by non-Indians. But the worst case scenario would be if non-Indians are making decisions that could negatively impact a tribe to other governments. Even to degrade their culture because these decisions were made by non-Indians under the nose of who are supposed to be Indian and the watchdogs of a culture. Where is your cultural conscience and cultural integrity? I believe the Muskogee Creek of Oklahoma have full right, a moral authority and a responsibility to stop you from yourself. Don't you know that even the trees and the grass that grow where we bury the dead are full of the life force of the forefathers? We believe and know that when you walk on ground you carry the ghosts of your past into your homes on the soles of your shoes. Be responsible to them for us and mainly for yourselves for your future lies in the graves you disrespect.

Dan (SaSuWeh) Jones is the former chairman of the Ponca Tribe of Oklahoma. He is a filmmaker and former vice chairman of the Oklahoma Indian Affairs Commission, appointed by former Oklahoma Governor, Brad Henry.

-----------------

http://www.huffingtonpost.com/2012/09/12/king-richard-iii-grave-discovered-uk_n_1877290.html
Huffington Post, September 12, 2012

King Richard III Grave Possibly Discovered In The UK, Bones Match British Royal's Profile

By ROBERT BARR

LONDON -- Archaeologists searching for the grave of King Richard III say they have found bones that are consistent with the 15th century monarch's physical abnormality and of a man who died in battle.

A team from the University of Leicester said Wednesday the bones were beneath the site of the Grey Friars church in Leicester, central England, where contemporary accounts say Richard was buried following his death in the Battle of Bosworth Field in 1485.

Richard Buckley, co-director of the university's Archaeological Services, said the bones are a "prime candidate" to be Richard's. The remains are now being examined and the team hopes that DNA can be recovered to aid identification.

"We are not saying today that we have found King Richard III," Richard Taylor, the university's director of corporate affairs, told a news conference. "(But) this skeleton certainly has characteristics that warrant extensive, further detailed examination." ...

Buckley and his team identified a possible location of the grave through map regression analysis, starting with a current map and analyzing earlier maps to discover what had changed and not changed. Ground penetrating radar was employed to find the best places to start digging.

The Leicester team began excavating in a parking lot last month. Within a week they located thick walls and the remains of tiled floors.

Earlier, the university identified a direct descendant of Richard's elder sister – a 17th great grand-nephew – and obtained a DNA swab for possible matching with any bones found at the site.

-------------------

http://pidp.org/pireport/2012/December/12-25-14.htm
Pacific Islands Report
Pacific Islands Development Program, East-West Center
With Support From Center for Pacific Islands Studies, University of Hawai‘i

University To Return 18th Century French Polynesian Skulls
Uppsala University follows other Western museums’ repatriations

WELLINGTON, New Zealand (Radio New Zealand International, Dec. 24, 2012) – A Swedish university says it wants to return three human skulls that researchers collected in French Polynesia in the 19th century.

The skulls arrived in Sweden in 1884 aboard the royal frigate Vanadis, which had stopped in Tahiti and in the Marquesas Islands in French Polynesia.

Walter Zweifel reports.

"The heads were brought to Sweden by an ethnographer and archaeologist Hjalmar Stolpe and they have been with the University of Uppsala’s Gustavianum Museum. The curator Anne Ingvarsson Sundstrom has told the Upsala Nya Tidning newspaper that the institution wants to make things right. She says the university has been approached by a Polynesian association and it has recommended to the Swedish government that the skulls be returned. In recent years, several Western institutions have returned artifacts to the countries from which they were collected."


================

(5) A new 13-acre Maui Lani Center is under construction across from Baldwin High School along Kaahumanu Avenue. At least 19 burials have been discovered in sandy areas and more are expected. A lawsuit has been filed.

http://www.mauinews.com/page/content.detail/id/562374/Vigil-to-bring-respect-to-remains--incredible-.html?nav=10
The Maui News, June 26, 2012

Vigil to bring respect to remains 'incredible'

By MELISSA TANJI - Staff Writer (mtanji@mauinews.com)

At least 40 people gathered for an overnight vigil Sunday through Monday to honor the kupuna whose skeletal remains have been discovered and/or removed from the construction site of the Maui Lani Center across from Baldwin High School along Kaahumanu Avenue.

Members of Hui Pono Ike Kanawai, a Native Hawaiian law research group, hosted the 12-hour vigil called "Turning the Hearts of the Children to Their Fathers" from 6 p.m. Sunday to 6 a.m. Monday along the dust fences surrounding the center currently under construction. The group said that at least 19 burials have been discovered and more burials and skeletal remains are expected to be found as excavation continues.

"It was to bring recognition and respect to our iwi kupuna (Native Hawaiian ancestral remains) in all the sand dunes there. Especially in this Maui Lani Shopping Center where the bones of the remains are being dug up, (and) moved . . . and we as their descendants need to remember them," explained Clare Apana who stayed overnight and has launched a legal challenge to the development.

"It was an incredible experience. The iwi kupuna seemed very, very pleased that we came to honor them and just to be with them," Apana, a hui member and nearby Sand Hills resident, said of her spiritual experience.

Fellow hui member and officer Joyclynn Costa of Haiku also said the kupuna were with them, because at times a light mist would fall as they did an hourly oli, or chant, and at other times the makani, or winds, kicked up.

When the group did a chant near the construction entrance to the project, heavy rains fell. The group chanted at different spots outside the project during the vigil. The heavy rains also fell as the group ended its vigil Monday morning.

"It wasn't something you say it was coincidence," Costa said.

Construction on the Maui Lani Center project has been ongoing for months. Shopping center developer HRT Ltd. said nearly a year ago that its anchor tenant would be Safeway. While the original project design envisioned a center with a leasable area of 128,000 square feet, those plans were scaled back to a development with 105,000 square feet of retail, restaurant and office space and 550 parking stalls.

Lloyd Sueda, the developer's representative, could not be reached for comment Monday.

On Wednesday, the Maui/ Lanai Islands Burial Council is scheduled to discuss a draft burial component of a data recovery plan for the site as well as a preservation plan.

Apana's lawsuit is tentatively scheduled for trial in August, said her attorney, Lance Collins, on Monday.

Apana maintains that the developers of the 13-acre project have not taken adequate steps to safeguard burials in sand dunes on the property.

Collins has said that Apana is challenging a Maui Planning Commission "finding of no (environmental) significant impact" for the project. He has said that the significance of the burials on the property and other cultural impacts were inadequately addressed, and a full environmental impact statement should have been done.

According to a news release from Hui Pono Ike Kanawai, the area where the shopping center is being built is where the battle of Kakanilua, or the Battle of the Feathered Cloaks, was fought. Nearly 1,600 Hawaii island chiefs, along with women and children, lost their lives as a result.

The group said in its news release that it is a well-documented custom of Native Hawaiians to bury their dead in sand dunes.

The battle took place between the Hawaii forces of Kalaniopu'u and the combined Oahu and Maui forces under the command of Maui King Kahekili.

Costa said that the ancestors buried at the construction site "don't have a voice." Decisions are being made that may not be in their best interest, and they are becoming victims to the "necessity of modern day" life.

"The more that is being moved and graded and displaced, the more of our history is also moved and displaced," she said.

Costa said that there needs to be a "fair playing field" with developers. Groups like theirs may not have the resources to hire lawyers or the expertise to be heard in the process.

"Everything really lays heavily in their (developers') favor," she said.

Costa said that "it's not the shopping center itself" that she has an issue with. It's the process.

"Whatever they (developers) need to do, we need to look at it. . . . We need an even playing field or balance," she said.


====================

(6) On Kaua'i a jury found a Wailua man guilty of stopping a DLNR construction dig for the Kaumuali'i Comfort Station project near kupuna burials at Kaumuali'i Park and Old Smith Landing in Wailua. Before the trial began, Chief Judge Randal Valenciano informed both attorneys that evidence and questioning could not involve the issue of nationalism or sovereignty. He said the court would not decide the legitimacy of citizenship to any group or kingdom, but would view anyone living in the state as being subject to state laws.

http://thegardenisland.com/news/local/jury-finds-wailua-burial-dig-protester-guilty/article_509652bc-cb33-11e1-a23e-0019bb2963f4.html
The Garden Island (Kaua'i), July 11, 2012

Jury finds Wailua burial dig protester guilty

Tom LaVenture - The Garden Island

LIHU'E — A jury found a Wailua man guilty Tuesday of stopping a DLNR construction dig for the Kaumuali'i Comfort Station project near kupuna burials at Kaumuali'i Park and Old Smith Landing in Wailua.

James Lee Alalem, 55, of Wailua, will face sentencing on Sept. 27 for obstruction of government operations of the Department of Land and Natural Resources. It is a misdemeanor offense.

Chief Judge Randal Valenciano presided over the two-day trial in which Alalem represented himself. The court appointed Warren Perry as stand-by counsel to consult with the defendant on proceedings.

Deputy County Prosecuting Attorney John Murphy said the case was about someone making a decision to cross the line and stop a government operation. He told the jury they must base their decision on the law and not on an emotional connection to a cultural issue or pity for the defendant doing what he believed was right.

The prosecution produced two DLNR officers who said Monday that they arrested the defendant after he crossed the construction barrier and stopped operations on April 28, 2011.

Holly McEldowney, acting administrator of the State Historic Preservation Division, testified Tuesday that planning for the comfort station started in 2005 following a federal mandate that required conversion of existing wastewater systems. She said that proper permitting was acquired at all levels and that the county did not require an environmental impact study for this project.

An on-site archaeologist and cultural monitor were present during test digging and spotted burials and artifacts more than 50 years old in the project area in 2005, 2010 and 2011.

McEldowney said when that happens, DLNR stops work immediately, as required, to consult with the Kaua'i-Ni'ihau Island Burial Council. She said that the council recommended to the State Historic Preservation Division that the burials be kept in place.

McEldowney said the council approved the burial treatment, and a redesign in 2006 to avoid above- or below-ground disturbance of burials and cultural deposits. Work was done to determine if there was any known lineage of the burials.

Before the trial began, Valenciano informed both attorneys that evidence and questioning could not involve the issue of nationalism or sovereignty. He said the court would not decide the legitimacy of citizenship to any group or kingdom, but would view anyone living in the state as being subject to state laws.

The judge referred to a May decision of the Hawai'i Supreme Court, in upholding an Appeals Court decision of a 2004 case involving Lloyd Pratt. The Native Hawaiian claimed he is entitled to live as a caretaker of sites without a permit in the Na Pali Coast State Wilderness Park.

Alalem said after the trial that his testimony and questions of witnesses were limited because of the court's tight focus on the incident. He said that it did not allow him to expand on his motivation to protect ancestral graves that led to the charge.

The defense witnesses included Punilei Joseph Manini, who presented claims that the land was deeded to ancestors by King Kamehamea III and should not be considered state lands. His replies were stopped short for relevance with objection from the state.

Another witness, Waldeen Palmeiro, was asked to describe her monitoring activity at the site. She responded that there were discoveries before and after the arrest incident, and that around six burials were unearthed at the site.

Palmeiro's replies were largely stricken as not responsive to questions. The jury also viewed a video of the incident. The video depicted Alalem and Ka'iulani Denelyn Edens, 49, of Kapa'a, crossing into the construction area where activity stopped. The video showed Alalem standing in the bucket of a backhoe until he was arrested by DLNR officers with assistance from the Kaua'i Police Department.

A jury found Edens guilty of obstruction in February. She was sentenced in April to 40 minutes time served and fined $250.

Edens said at her sentencing that she was moved to act but that it was not a sovereignty issue.

Outside the courthouse, Alalem said that if any good comes from this case, it would be to wake up more people to learn about their culture and to honor their ancestors.

"I am not sorry that I stood up for those who cannot stand up for themselves," Alalem said.


==============

(7) A burial plan is being developed by the Office of Mauna Kea Management, with public hearings.

http://hawaiitribune-herald.com/sections/news/local-news/mauna-kea-burial-plan-agenda.html
Hawaii Tribune-Herald (Hilo), September 16, 2012

Mauna Kea burial plan on agenda

By PETER SUR
Tribune-Herald staff writer

The Office of Mauna Kea Management is working on a burial treatment plan and intends to take it into the Hawaiian community for review upon completion.

Director Stephanie Nagata will present an informational briefing of the plan at Tuesday's meeting of the Mauna Kea Management Board in Hilo.

Nagata called the documents "preliminary working drafts" for burial treatment. She declined to make them available for review on the grounds that they were still works in progress, but described the contents on Thursday.

There are a few known and presumed burials on Mauna Kea, Nagata said, most of them in remote locations.

"Of course, we would follow all state (laws) and regulations that apply to burials," Nagata said.

A burial treatment plan is normally done in the context of new development.

Even though such a plan is not required in this case, "We're doing it because we believe it is the right thing to do," she said.

It's also being done to conform with one of the requirements of the Mauna Kea Comprehensive Management Plan's Cultural Resources sub-plan. The CMP sub-plan, approved in 2009, calls for the development of a bural treatment plan for areas managed by the University of Hawaii "in consultation with Kahu Ku Mauna Council, MKMB's Hawaiian Culture Committee, the Hawaii Island Burial Council, recognized lineal or cultural descendants, and SHPD (the state Historical Preservation Division).

The draft plan was presented to the Hawaii Island Burial Council on June 21. The agenda for that day indicates that the council received a draft report about a burial treatment plan for sites in the Mauna Kea Science Reserve and the Mauna Kea Access Road Corridor. SHPD declined to release the minutes from that meeting to the Tribune-Herald, however, because the person who was authorized to do that was out of the office.

Leningrad Elarionoff, a member of the Hawaii Island Burial Council, recalls that the presentation was different from a regular case, in which the council decides what to do for human remains that have been unearthed.

"What they were doing is, if they come across bones, how they're going to deal with it," Elarionoff said. That's in contrast to the normal practice, in which findings of human remains are treated on a case-by-case basis, he said.

"I don't think we made any decision on that," he said.

Most times, the council recommends a burial in place if it doesn't interfere with a development. The Hawaiians of old used to choose where they wanted to be buried, Elarionoff said, and the council respects that.

Mauna Kea Management Board members will also be appraised of working drafts related to the stacking of rocks, in response to two other recommendations from the management plan.

One of the recommendations states that "Kahu Ku Mauna shall take the lead in determining the appropriateness of constructing new Hawaiian cultural features." The other calls for a management policy for the cultural appropriateness of stacking rocks.

"We need to protect the cultural landscape," Nagata said, and suggested a registry in which cultural practitioners could inform the University of Hawaii about the location of their ahu, or stone markers, so the markers could be noted and protected. On the other hand, people have been known to arrange rocks into star or heart shapes at the summit, and those formations will likely be dismantled, Nagata said.

"We want to prevent copycat behavior," Nagata said.

Other items on the agenda include the appointment of a new member of Kahu Ku Mauna — Nagata declined to identify that person — and a request by the Thirty Meter Telescope Observatory Corp. to do a geotechnical study of the site proposed for the observatory.

This study would use ground-penetrating radar, to send microwave signals into the ground and reflect off subsurface lava tubes or voids. Consultants would also use what is known as "multichannel analysis of surface waves," or MASW, to make sure the slope of the mountain provides a stable foundation. The strength of the transmitter is estimated to be 1 percent of the power of a cell phone.

In MASW, a person uses a sledgehammer to strike a steel plate that is placed over a rubber mat on the ground. A portable network of up to 24 seismic recorders, known as geophones, records the movement of the sledgehammer's impact and provides information about the density of the underlying rock.

"TMT will analyze the data for signs of potential burial sites and will notify the Office of Mauna Kea Management of any potential burial sites that are identified during the study," the submittal says.

If approved at Tuesday's meeting, the survey will be done on Mauna Kea's northwest plain, a few hundred feet below the summit cones, over a three-week period.

Nearly a year after the contested case hearing for the Thirty Meter Telescope concluded, hearing officer Paul Aoki has still not released his ruling. Neither the supporters nor the opponents of the telescope are aware of the status of the case.

"As far as the hearing officer report goes,we don't know when it's going to come out and we don't have any information on when it's supposed to come out," said TMT project manager Gary Sanders, when asked about it on Aug. 6. "So we're just waiting like you are and we'll work with the process as long as it takes."

The board meeting will be held in the Institute for Astronomy building at 10 a.m. Tuesday.


==============

(8) Low-key protests being voiced over improper treatment of a skull found in Kahuku Plantation

http://www.staradvertiser.com/newspremium/20120919__Poor_treatment_of_remains_raises_Kahuku_residents_ire.html?id=170303546
Honolulu Star-Advertiser, September 19, 2012

Poor treatment of remains raises Kahuku residents' ire

By Dan Nakaso

Kahuku Plantation residents plan to protest today over what they call the insensitive handling of a human skull that has been kept in a locked, metal storage container on a construction site since its discovery in July.

"It just angers us," said Margaret Pri ma cio, vice president of the Kahuku Plantation Residents Association, which is opposed to construction in the area. "The goal is to take care of the kupuna. Whose grandparents would want to be treated that way?"

Lex Smith, a lawyer representing property owner Continental Pacific LLC, said the company is handling the two partial pieces of human skull in accordance with directions from the State Historic Preservation Division.

But State Sen. Clayton Hee (D, Kahuku-Kaneohe) said ancient remains — or iwi kupuna — need to be particularly treated with sensitivity following August's unanimous ruling by the Hawaii Supreme Court that the SHPD violated its own rules by approving the city's rail project before an archaeological survey was completed.

The case was filed by Paulette Kaanohi oka lani Kalei kini, whose victory sends the issue back to Circuit Court.

"With the recent ruling in the Kalei kini case, it would, in my opinion, send a strong message to government — regardless of whether it's city, state or otherwise — that when the iwi kupuna are discovered, they should take a proactive position and try to reconcile that as soon as possible."

Hee wrote to SHPD about his concerns over the storage of the human skull and said he was "a little disappointed" with the response he received.

"I understand and have been familiar with the (staff) shortages at SHPD," Hee said. "But I would characterize the response as, not a response that they were right on it and would get right to it. I'm a little disappointed and it's a little disappointing that they did not respond in a more proactive way."

As a consequence, Hee said, "it causes the community to be proactive."

Today's planned protest follows previous demonstrations over plans to relocate residents of Kahuku Village 5 (new camp).

"It's been many insults on top of another," Pri ma cio said. "All of the other stuff going on, like evictions, is all part of it. You're desecrating a burial site, you're desecrating the lives of people that have lived there all along."

The area, especially sandy dunes near Turtle Bay, are known to contain ancient remains.

In June, residents were concerned about the discovery of bones that turned out to be pig remains, Smith said.

Officials who responded then recommended that Continential Pacific hire an on-site archaeologist, who discovered the first skull fragment partially buried in a nonconstruction area in what appeared to be sandy material, Smith said. It was near St. Roch Church on Kamehameha Highway.

"In the second half of July, he was out there walking around in an area where no work was being done, and he found like part of a skull and went back and found the rest of the skull," Smith said. "He marked it all appropriately and reported it to SHPD. They went through their process, and eventually they came back and told him, 'Go ahead and dig it up and then store it someplace,' and they eventually agreed to store it in a shipping container."

In a statement, state Department of Land and Natural Resources spokes woman Deborah Ward said the skull was initially discovered on the side of the road during vegetation clearing for the construction of a road.

SHPD staff initially reburied the remains and marked them. Then someone — perhaps intentionally — disturbed the remains "because a barrier was removed," Ward said in an email.

"When SHPD realized that the burial had been disturbed the second time, they determined that relocation would provide better protection for the burial and asked the cultural monitor to remove it and store it in their curation trailer," Ward wrote.

"The preference is to keep finds on site, which may require safekeeping in a storage area or trailer for a period of time while the process to determine a final location is worked out," she wrote.


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(9) Earl Arakaki, lifelong resident of Ewa Beach, O'ahu recalls how dirt, including burials, from an old cemetery in Waipahu was dug up and used for fill in the football field constructed at Campbell High School. He personally saw numerous human bones in the dirt. For many years people joked that the school colors, orange and black, are appropriate for Halloween; and the school's poor record in football is due to bad luck from the desecration of the bones.

http://www.hawaiireporter.com/?p=103338
Hawaii Reporter, October 2, 2012

Disrespectful Treatment of Human Remains In James Campbell High School Football Field A Lesson for Today

BY EARL ARAKAKI -

All of the recent news regarding buried Iwi or ancient Hawaiian bones, and moving of graves for construction of the Honolulu rail project, brings to mind James Campbell High School's football field.

James Campbell High School was built about 1960, at the adjacent to the present day Ilima Intermediate School, which back in the day was the original site of James Campbell High and Intermediate School.

Land in Ewa Beach is all coral rock thus dirt was needed to build the football field. The dirt that was used to build the football field was gotten from an old Waipahu Cemetery on Waikele Road in the vicinity of Waipahu Elementary School.

Story around Ewa Beach was the dirt for the field was from an excavation to prepare a site for a new apartment building on Waikele Road mid-block between Farrington Highway and Waipahu Street (at the time named King Apartments).

The new apartment building was to be built on part of the old cemetery. Families of those buried at the cemetery were contacted to remove their loved one's remains. It was suggested the new Mililani Cemetery be the place for reburial.

Those remains, which were not repatriated, were dug up along with the soil and trucked to the site of the new James Campbell High School football field that was at the time also under construction.

I recall as a teenager seeing the field as it was being constructed.

After the soil was grated level to create the new athletic field, I remember seeing a pile of approximately fifty to seventy grave headstones and wooden cross markers with human bones sticking out bulldozed in a pile of dirt at the far Honolulu side of the new field.

This would be in the area of the present day Honolulu sideline bleachers. Wow! Desecration in the first degree.

And now outrage, no comment from community leaders.

In fact it was the butt of jokes, such as 'Campbell High School colors orange and black, Halloween colors because of dead bodies in their field' and 'that's why their football team don't win because of bad luck 'cause bodies in the field.'

Students from the area were warned by teachers and parents to stay away from the area and not tamper with the human remains as no telling what contagious decease the person whose remains were there had died from. When the school opened student athletes spoke of seeing bones protruding from the ground as the dirt on the new football field settled.

50 YEARS LATER

Laws protecting human remains are always in the news. Back in the day there were no such laws.

Today's laws protect the remains of families who took the time to give their loved one's decent burials, and ancient Native Hawaiian Iwi.

Like those families whose remains are now protected by law, those bones in James Campbell High School football field were just as much a part of families who took the time to give their loved one's decent burials.

Sad, indeed.

Earl Arakaki is a lifelong resident of Ewa Beach


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(10) Kewalo Development LLC, an affiliate of Honolulu-based Alexander & Baldwin Inc. is developing Waihonua, a high-rise condo building in Kewalo basin in Honolulu. Numerous sets of human remains have been discovered on several different occasions, including burials that appear to be ali'i because they had whale-tooth pendants. The developer has been working cooperatively with the Oahu Island Burial Council.

http://www.staradvertiser.com/businesspremium/20121012_Iwi_at_building_site__not_first_for_tower.html?id=173842451
Honolulu Star-Advertiser, October 12, 2012

Iwi at building site not first for tower
A condominium project in Kakaako encounters sets of remains but has dealt with burials before

By Andrew Gomes

Mounting discoveries of historic Native Hawaiian burials have created challenges for Kawaiaha'o Church and the city's planned rail line in Kakaako, and now a third construction project in the area must deal with the sensitive issue.

Contractors excavating a foundation for the 43-story Waihonua at Kewalo condominium near the corner of Waimanu and Piikoi streets recently unearthed 19 sets of human remains, or iwi, that appear to include burials of royalty.

A decision is pending over whether to leave the iwi in place or relocate them to a state-approved burial preserve on another portion of the property.

Kewalo Development LLC, an affiliate of Honolulu-based Alexander & Baldwin Inc. that is developing Waihonua, said it would be premature to speculate on whether the iwi finding will delay or force redesigns of a tower that was previously redesigned to avoid an earlier iwi discovery.

The project broke ground a couple of months ago and had locked in $172 million in sales under binding contracts for units as of Sept. 9. That represents 70 percent of the tower, or 239 of 341 units, which sold for an average of about $700,000.

The state Department of Land and Natural Resources' State Historic Preservation Division is charged with determining what the ultimate treatment of the 19 burials will be after considering views from the Oahu Island Burial Council and cultural descendents of the area.

Lance Parker, a vice president with A&B's land development subsidiary A&B Properties, said Thursday that the company has closely worked with cultural descendents for more than two years, going back to before A&B bought the 1.7-acre site.

"We're trying to be as supportive and cooperative as possible," he said. "We know it's a culturally sensitive area."

A&B knew there was a significant chance that iwi lay beneath the surface of the project site, in part because construction of a neighboring tower, Ko'o­lani, disturbed seven sets of remains in 2003 and 2004.

A prior owner of the Waihonua site conducted an archaeological inventory survey that didn't encounter any iwi, Parker said. However, A&B did its own survey prior to buying the land in 2010 and encountered 27 burials in one area.

A&B committed to preserving those burials where they were discovered and turning the area into a landscaped preserve with a sloping mound bordered by a stone wall and native vegetation.

The plan to preserve the 27 burials in place led A&B to redesign Waihonua. "We moved the building, we shrank the building footprint to come up with a design that was allowed (under permitting rules)," Parker said. "It was substantial."

Then during exploration of a layer of ground to recover any Hawaiian cultural artifacts, six more sets of iwi were discovered, and the Historic Preservation Division determined those iwi should be moved to the preserve area it approved.

After construction began about two months ago on excavating the ground for the building's foundation, a single set of iwi was unearthed. Then, within the past few weeks, 18 sets of iwi were discovered in another area.

Hinaleimoana Wong-Kalu, chairwoman of the Oahu Island Burial Council, said Thursday that A&B took a proactive approach to its project with early consultations. But the fate of the recent iwi discovery is undecided, and could be complicated because two burials were discovered with whale-tooth necklaces, indicating they were royalty, or alii.

Wong-Kalu said that because 18 sets of iwi were concentrated in one area, it suggests they all belong to the same family. "You wouldn't have burials surrounding alii being makaainana," she said. "You didn't bury common folk with alii."

At a burial council meeting Wednesday, some descendents expressed differing views on how the latest iwi should be treated. Their comments, along with views of council members and other stakeholders, will be considered by the Historic Preservation Division, which decides how to treat iwi discovered during construction after an archeological survey has been completed.

Parker said work in the burial area has been halted, but can proceed in other areas, and that so far there has been no major construction delay. Parker also said A&B is excavating a large part of the ground for the building's foundation by hand so as not to damage any iwi that might be present.

A&B's projection for completing construction on Waihonua is 2014 or 2015.

The Waihonua site was once part of a 17-acre parcel known as 404 Piikoi on which an investment trust of the South Pacific republic of Nauru gained state approval in 1984 to build five towers.

The trust, Nauru Phosphate Royalties (Hono lulu) Development Inc., built the luxury Nauru Tower in 1991 and largely satisfied an affordable-housing requirement by completing the moderately priced tower 1133 Wai manu in 1996.

Nauru Phosphate completed a third tower, Hawaiki, in 1999, but encountered financial difficulties and sold the remaining two tower sites in 2003 to Miami-based developer Crescent Heights, which completed a fourth tower, Ko'olani, in 2006.

Crescent Heights advanced plans for the last tower, between Hawaiki and Ko'olani, but abandoned the project amid a waning real estate market and sold the site to a California developer in 2007. A&B bought the property in mid-2010 for $16 million and brought the project to market as the first high-rise condo to break ground in Honolulu since the recession.


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(11) In Kailua (O'ahu) the site formerly occupied by Holiday Mart and then by Don Quijote was slated to be razed and a new Target store built. But ancient burials have been discovered, causing redesign and endless delays.

http://www.staradvertiser.com/businesspremium/20121013_Target_still_mum_on_its_plans_for_Kailua.html?id=173999561
Honolulu Star-Advertiser, October 13, 2012

Target still mum on its plans for Kailua
The project has been revised after the discovery of bones at the old Don Quijote site

By Kristen Consillio

Target Corp.'s scheduled grand opening for July has passed, and the retailer has said little since revising plans for a proposed $40 million, 130,000-square-foot store in Kailua.

The Minneapolis-based retailer said an archaeological study discovered "previously unidentified iwi kupuna," or Native Hawaiian skeletal remains, at the site of the former Don Quijote USA Co. Ltd. at 345 Hahani St., which Target purchased in January 2011 from landowner Kaneohe Ranch. Two sets of human remains were found, according to the state Department of Land and Natural Resources. Target's archaeological survey is ongoing.

The company hasn't disclosed new plans for the store, but acknowledged it has redesigned the project to minimize ground disturbances, which includes leaving the Don Quijote building foundation in place.

Target updated the Oahu Island Burial Council in August on its revised plans but also didn't give details, said council Chairwoman Hina lei mo ana Wong-Kalu.

"I don't believe it's going to be much different from the existing Target," she said. "They're simply elevating it up."

Company spokeswoman Mya Walters said in an email, "The Oahu Island Burial Council through a process defined by the burial laws will determine the final resting place of the discovered iwi kupuna. Out of respect for the cultural descendants and their requests during this intensely private and sensitive matter, Target does not have any additional information to share at this time."

Walters wouldn't say when construction — which takes approximately 10 months to a year — will begin or when a new store is expected to open.


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Send comments or questions to:
Ken_Conklin@yahoo.com

LINKS

The Forbes cave controversy up until the NAGPRA Review Committee hearing in St. Paul, Minnesota, May 9-11, 2003 was originally described and documented at:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html

The conflict among Bishop Museum, Hui Malama, and several competing groups of claimants became so complex and contentious that the controversy was the primary focus of the semiannual national meeting of the NAGPRA Review Committee meeting in St. Paul, Minnesota May 9-11, 2003. A webpage was created to cover that meeting and followup events related to it. But the Forbes Cave controversy became increasingly complex and contentious, leading to public awareness of other related issues. By the end of 2004, the webpage focusing on the NAGPRA Review Committee meeting and its aftermath had become exceedingly large, at more than 250 pages with an index of 22 topics at the top. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

This present webpage covers only the year 2011.

For coverage of events in 2005 (about 250 pages), see:

http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 (about 150 pages), see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

For year 2007, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html

For year 2008, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/big60/nagprahawaii2008.html

For year 2009, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09a/nagprahawaii2009.html

For year 2010, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09a/nagprahawaii2010.html

For year 2011, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09/nagprahawaii2011.html

GO BACK TO: NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawai'i -- Mokapu, Honokahua, Bishop Museum Ka'ai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization

OR

GO BACK TO OTHER TOPICS ON THIS WEBSITE