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.