For untold generations, our kūpuna (ancestors) carefully secreted away loved ones upon their passing, keeping them safe in sand dunes, burial caves, stone platforms, or other ‘āina that ‘ohana would guard. ʻOhana would kanu, or plant, the remains of loved ones in such places allowing kūpuna (elders) to complete their life cycle. Mana concentrated in iwi kūpuna (ancestral remains) would imbue the ʻāina and spiritually nourish the living community—the natural role of kūpuna in this phase of their life.
Over many decades, iwi kūpuna would literally and spiritually become part of their burial lands. In this way, kānaka ‘ōiwi remain forever connected to kulāiwi (“bone plains” or ancestral lands). Kulāiwi feed our souls and comfort our na‘au. These lands speak to us, they sustain us, they resonate with us because the same mana that flows through them courses through our iwi (bones) and koko (blood).
But following two centuries of foreign impacts, these kulāiwi are often no longer controlled by ‘ohana who once lived on those ‘āina. Disease and depopulation, improper seizure of lands and the illegal overthrow of the sovereign Hawaiian Kingdom created a spiral of negative outcomes – including removal of many ʻohana from their kulāiwi.
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 even in such unlikely places as today’s urban Honolulu.
But lack of Hawaiian ownership of burial sites has not bred lack of concern. In 1988, Hawaiian leaders took a stand at Honokahua, Maui where the Kapalua Land Company’s hired archaeologists unearthed over 1,000 kūpuna to make way for the Ritz-Carlton resort.
In the end, Hawaiian leaders such as Dana Nāone Hall, Edward and Pualani Kanahele, Charles Maxwell, Parley Kanaka‘ole, and Halealoha Ayau—joined by a large following of concerned community members—moved land developers and lawmakers alike to adopt new laws to protect unmarked burials, whether of Native Hawaiians or other ethnic groups.
By 1990, Hawaiian leaders in this arena had played key roles in drafting and seeking the passage of national and state legislation protecting native burials.
The Native American Graves Protection and Repatriation Act (NAGPRA) allows for human remains, burial goods, and sacred objects in federally funded institutions to be repatriated to the cultural groups with which they are associated. NAGPRA also provides a clear process for including native entities in decisions about the treatment of burials encountered in federally funded or permitted projects.
At the state level, the adopted burial laws (HRS Chapter 6E 43, 43.5, and 43.6 and their associated administrative rules) require certain projects to undergo an archaeological inventory survey (AIS) before construction begins. If burials are found in the AIS, Island Burial Councils are given the authority to determine how the burials will be treated. If burials are found during construction, the State Historic Preservation Division (SHPD) renders such determinations.
For these laws to be effective, numerous decision makers must follow the law.
Unfortunately, when development, archaeology, and government interests have been aligned, Native Hawaiian burials have not always been well protected.
In the case of Wal-Mart on Ke‘eaumoku Street, the Honolulu City and County Department of Planning and Permitting issued a permit in 2002 without seeking a review or comment from the SHPD regarding whether an AIS should be done. By 2003, construction at the project unearthed 42 sets of remains.
At Ward Villages, again permitting and construction happening prior to archaeological surveys led to more that 60 burials being discovered late in the process when the developer, General Growth Properties, engaged the initial AIS of the project area.
In the case of Kawaiaha‘o Church’s Multi-Purpose Center, once more, no AIS was conducted when construction began. During the course of construction, over 600 sets of remains were removed. In a suit filed by Dana Hall, whose family is buried in the cemetery there, the State of Hawai‘i Intermediate Court of Appeals determined in 2012 that the “SHPD violated its own rules in failing to require an AIS before permitting the project to go forward.”
The same scenario was repeated in Ka‘anohi Kaleikini’s case against the Honolulu City and County’s Rail Transit project. In this instance, the State Supreme Court determined that the City should have completed an AIS of the entire length of the rail line before it initiated construction.
In each of these cases, numerous voices urged decision makers to follow the law throughout the process. The pleas came from ‘ohana associated with the burials, Hawaiian community organizations (e.g., Hui Mālama I Nā Kūpuna o Hawai‘i Nei) as well as the O‘ahu Island Burial Council—all to no avail until the attorneys from the Native Hawaiian Legal Corporation convinced the courts to force the SHPD, Kawaiaha‘o Church, and the Honolulu City and County to follow the law.
Considering burials late in the stages of project planning is often not only illegal but harmful for everyone.
Kūpuna are desecrated. ‘Ohana must endure the pain of knowing that their kūpuna were encountered merciless by construction equipment. Developers must bear the costs of delaying construction and redesigning their project.
In contrast, when the law is followed, burials are discovered early in the planning process when developers have the greatest leeway in considering solutions to preserve burials in place, which is the usual wish of ‘ohana and organizations involved.
Crucial in such a positive outcome is the dialogue and decision making that occurs in the context of Island Burial Council (IBC) meetings. This is because the IBC has the authority to determine whether a Native Hawaiian burial over 50 years old found during an AIS will be relocated or preserved in place. IBCs render their decisions based on the information and perspectives shared by the developer and various ‘ohana or other Hawaiian organizations involved. In the process of sharing and discussion, solutions agreeable to all are usually found.
To improve the ability of IBCs to hold meetings consistently, the legislature is currently considering a bill drafted by the Office of Hawaiian Affairs (OHA) in coordination with leaders of the IBCs and others closely connected to burial issues. The bill provides clearer definitions of quorum and proper membership composition. By supporting the IBCs ability to hold regular meetings, this bill helps to ensure that the IBCs can fulfill their kuleana (role, responsibility, right) to care for iwi kūpuna in our modern context where ‘ohana are often not empowered to do so.