Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 4, 1 April 1988 — Guidelines for the Consideration of Traditional Native [ARTICLE]

Guidelines for the Consideration of Traditional Native

Editor's Note: The following guidelines were approued by the Office of Hawaiian Affairs Board of Trustees at its Jan. 28 meeting in Honolulu. They were prepared by Linda Kawai'ono Oelanep, Land Officer in the OHA Land and Natural Resources Diuision. It is being presented in its entiretp as a seruice to readers ofKa Wai Ola O OHA.

Background to the Guidelines The Office of Hawaiian Affairs (OHA) Board of Trustees, on 25 July 1987, adopted a formal Policy on Native Hawaiian Sites and established an OHA Inventory of Sites. The adoption of these guidelines continues OHA's commitment to encourage more effective historic preservation efforts by all levels of government and to urge greater sensitivity to Hawaiian cultural values in the protection, planning, and a management of native cultural resources.

These guidelines also provide an explicit basis for the Office to formulate consistent responses to proposed adverse impacts on historic sites; and to forge future memoranda of agreement (MOA) for the mitigation of unavoidable harm to historic properties. It is important to note that these guidelines do not require historic preservation, only that OHA and Hawaiian interests and cultural values be eonsidered and respected in planning and when making such decisions. A balance of interests ean be found — and when truly successful, is mutually beneficial.

Thus, it is the express recommendation and hope of the Office of Hawaiian Affairs that these guidelines and the example of the MOAs whieh have already been concluded will: 1. Lead to a clarification and strengtheningof federal, state, and county laws and procedures to formally recognize and include OHA and Native Hawaiian cultural values in the full range of historic preservation reviews and decisions; 2. Draw attention to the mediating authority offered by the Office of Hawaiian Affairs and the adoption of these guidelines in the resolution of conflicts related to culturallysensitive historic preservation issues; and

3. Encourage wider and more effective participation by Hawaiian communities and individuals — especially by those with a special knowledge and traditional attachments to affected properties — in decisions regarding historic preservation and cultural conservation. Policy Statement. It is the policy of the Office of Hawaiian Affairs to seek full consideration of traditional cultural values in the review of all projects affecting Native Hawaiian historic properties. Procedure. To implement this policy, the OHA Board of Trustees hereby adopts the following "Guidelines for the Consideration of Traditional Native Hawaiian Cultural Values in Historic Preservation Review."

Guidelines • Purpose of Historic Preservation Hawai'i is the homeland of the Native Hawaiian people. All that gives meaning to being Hawaiian — the music, dance, literature, and arts — find their source and continuing life here in the Islands. Also vital to this cultural identity and integrity of the Hawaiian people are the tangible links to the past represented in historic places and properties. Further, as the host culture of the Islands, Native Hawaiian historical experiences and

values — with their continuing reflection in and influence on modern social, eeonomie, and cultural patterns — is a shared past whieh enhances the entire community's sense of history and identity. As described in the proposed National Guidelines for the Consideration of Traditional Cultural Values in Historic Preservation Review: ". . . The National Historic Preservation Act does not encourage the preservation of historic properties simply because 'they are there,' but in order that they ean remain and

become 'living part(s) of our community life and development in order to give a sense of orientation to the American people,' and in order for them to 'fulfill the social, eeonomie, and other requirements of present and future generations.' As a result, the process set forth in the Council's regulations is designed to identify what is valued about the historic qualities of eaeh historic property subject to effect, and to seek ways to preserve or even enhanee such qualities in the context of development. Where preservation and enhancement are not feasible, the process seeks to establish agreement among eoncerned parties on ways to minimize the damage done by development to those qualities that people value in the historic properties affected.

Actions undertaken, assisted, or even permitted by federal agencies ean have profound impacts on places of traditional cultural value. Even where no direct demolition or other disturbance of such a loeahon occurs, indirect effects of a project on traditional uses of the location, and on the fabric of traditional life in whose context the loeahon has meaning, ean be widespread. Where review of a project fails to consider these effects, it may miss the most serious impacts of the project on the values most meaningful to the most affected segments of the public ..." The practical wisdom of including those most affected by historic preservation decisions is not confined to Native Hawaiian participation and the consideration of our cultural values.

For example, if a planned development project threatened a 19th century Chinese cemetery or an early Japanese Buddhist temple, both protection and mitigation decisions would be better served and made more culturally-sensitive by including those with the greatest knowledge about such properties, and with the greatest insight into appropriate mitigation. Like federal statutes, State historic preservation laws are also not predicated on the unquestioning protection of historic properties. Instead — in line with required environmental impact statements — an identification, assessment, and proposed mitigation of harm to archaeological sites is mandated. Unlike national law, however, the State and counties rqake no explicit provision for the inelusion of groups or cultural values most affected, nor have guidelines whieh promote both the incIusion of and sensitivity to the cultural values of affected populations.

Often the resistance to such inclusion is founded on the mistaken assumption that this participation would create an unacceptable burden of time and money or more "red tape" within existing governmental review processes. As with nahonal historic preservation purposes, though, the explicit consideration of traditional cultural values is to more accurately assess and mitigate harm to historic sites by actively including those most affected — not to give any one segment of the eommunity a "veto power" over all proposed development.

• Definitions The definition of terms and description of values used in the guidelines are drawn from existing guidelines utilized by the National Parks Service,a proposal circulated by the National Advisory Council On Historic Preservation in response to parallel efforts by the Nahonal Congress of Ameriean lndians to assure cultural sensitivity and native participation, and standards adopted by the Society for Hawaiian Archaeology. Other definitions will be provided where appropriate. However, the following terms are basic components and are used throughout these guidelines: 1. Cultural Resources: those tangible and intangible aspects of cultural systems, both past and present, that are valued by or representative of a given culture, or that contain information about a culture;

2. Cultural value: means the contribution made by an historic property to an on-going society or cultural system. In a sense, any historic property has cultural value; by inspiring or informing us about the past, by illustrating a form of architecture, or by serving a modern purpose through adaptive reuse, it contributes to our ongoing cultural life. The focus of attention in these guidelines, however, is on those properties whose primary value springs from the role they play in maintaining the cultural identity and integrity of the Native Hawaiian people;

3. Historic property: means any prehistoric or historic district, site, building, structure, or object included or eligible for inclusion on the Nahonal, State, or OHA Register of Historic Sites. This term includes artifacts, records, and remains that are related to and located within such properties; 4. Memorandum of agreement: formal document of conditions and terms reflecting agreedupon mitigation of impact on historic sites; 5. Mitigation: the process by whieh impacts to the cultural resources are avoided and/or minimized. Research activities are central to this process, and may include data from ethnohistory, natural history, and archaeology. Ethnographic data include archival material, oral histories, and traditionally based contemporary practices. Natural history may include information on geology, soils, flora and fauna, and marine resources. Archaeological information is derived from such activities as surface surveys, artifact eollections, and data recovery excavations.

6. Preservation: the activity to sustain the existing form, integrity, and material of the cultural resources. This may include actions whieh facilitate and implement the establishment of (a) an adequate protective zone, (b) stabilization; (e) restoration; (d) interpretation of the cultural resources; and (e) traditional use. 7. Protection: the activity by whieh present and future adverse impacts to cultural resources are avoided. In its broadest sense, protection includes long term efforts to guard against deterioration and loss as well as to deter vandalism, theft, and desecration of the cultural resources. • Kinds of Historic Value It has been more than 20 years since the passage of the National Historic Preservation Act, and its mandate for the creation of State Historic Preservation Offices to coordinate governmental decisions affecting historic properties. Over that time, there has been the acceptance of broad categories of public value whieh may be present in historic properties. Among these values are:

* Architectural value: the importance of a property as an example of an architectural type or period, the work of a particular architect or group, or the application of particular concepts, methods, or technology. * Associative value: the importance of a property as a reminder of an event, a person, a process or trend affecting the history of the world, the nation, or a region, community or group. * Use value: the potential of an historic property for continued productive use as a part of modern society; * Informational value: the potential of an historic property to provide informātion, through recordation or archaeological research, that is useful to the study of important aspects of the past;

* Cultural value: the contribution made by an historic property to an ongoing society or cultural system. It is this sort of value that is the focus of these guidelines. In a general sense, all historic properties have cultural value, since history is itself a cultural phenomenon. As used here, however, cultural value applies to the role played by a property in an ongoing, contemporary cultural system. A cultural system, in turn is a group of people linked together by shared values, beliefs, and historical associations, together with such a group's social institutions and the physical objects necessary to the operation of the institutions. There is no question that Native Hawaiians his-

torically shared a cultural system. What many governmental reviews either implicitly deny or ignore is that Hawaiians continue to constitute a group united by particular spiritual views and beliefs about social organization, relationships with natural forces and resource use, and continuing traditional practices and perspectives linked to particular properties.

Hawaiian Cultural Values in Historic Preservation Review

Thus, a traditional hula form would not be the subject of historic preservation review — unless it was linked to a particular property. For example, decisions affecting Ha'ena State Park, particularly Kaulu o Laka Heiau, would have significant implications for the religious practices, integrity and performance of hula associated with Laka, and the Pele-Hi'iaka-Lohiau cycle of chants and dance. Pre-contact in origin, this heiau continues to be a culturally special plaee with sacred resonance. Not to recognize the cultural signficance and sensitivity of this heiau could diminish the cultural integrity of the Hawaiian people. In addition, if only professional archaeologists were consulted regarding treatment and interpretation of this site, the general community would also be deprived of a deeper understanding of Hawai'i's past and present.

• Religious Considerations One of the most difficult and least understood aspects of Hawaiian cultural values are traditional religious beliefs and practices. Although most Hawaiians are Christians — there is an undeniable depth of "respect" for the old religions whieh would be declared as belief except for the implicit pressures of possible ridicule or reprisal from churches and the larger community. Further, traditional Hawaiian sacred beliefs are so interwoven into daily life and practice that little conscious notice is given to the "religious" aspects of such activities. Wearing a ti leaf, offering gin to Pele, placing a lei at a hula heiau are overt expressions — clearly a form of religious practice. Frequently, though, Hawaiian cultural/religious values cannot be segregated. Unlike Western religions, there is no separation of the "religious" from other aspects of society. Such values are so integrated into life that virtually every cultural institution — the language, the dance, the 'oli — are "religious" to some degree.

Less acknowledged are the religious aspects often connected with activities considered non-re-ligious by the non-Hawaiian community. Virtually every activity continues to have a sacred resonance to the Hawaiian mind, whether while fishing — returning a part of the catch; the gathering of medicinal plants — reciting prayers associated with healing power; or building a house — blessings, and making sure that no two exterior doors are in alignment with eaeh other. Consistent with such an integrated religion, traditional Hawaiian religious practice — as known today — is not always associated with a physical structure like a heiau. Rather, places of worship and veneration are in effect cultural landscapes: valleys, streams, rocks, and other natural features. The difficulty for the non-Hawaiian in recognizing, mueh less assessing, harmful impact on such landscapes is obvious. As summarized in a Congressional report:

. . . Religious sites such as churches, mosques, the Vatican, and the Wailing Wall hold religious significance for Jews, Christians, and Moslems. Because non-Indians are more familiar with these structures, it is easier for them to understand the effect of a law that would forbid access to them or that would allow tourists to eome in at any time during high mass, for example, and take photographs of the ceremony. However, it is more difficult for non-Indians to understand the burden on Native American religions of such laws governing access to Federal lands, for example, even though some lands, rivers, or mountains may hold as mueh religious significance for an American Indian as the church does for the Christian . . ." (CCR 1983:30)

Not widely known in Hawai'i — and less appreciated — is that the federal government aeknowledges more than the Bill of Rights "freedom of religion" doctrine as applied to Native Americans. The American Indian Religious Freedom Act (42 U.S.C. 1996) establishes that:

it shall be the pohcy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the Amenean *lndian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects and the freedom of worship through ceremonials and traditional rites." The impact of this legislation is felt in Hawai'i. The Nahonal Parks Service at Volcano National Park has recognized "traditional gathering and religious freedom" access to Native Hawaiians assured by the waiver of fees. Pu'ukohola Heiau at Kawaihae allows only Native Hawaiians to enter that sacred structure. The State and counties of Hawai'i, however, have made no such provisions for the recognition and protection of traditional Hawaiian religious rights and values. More sensitivity is required. Consultation with traditional Hawaiian leaders and others with religious concerns about historic properties should be a fundamental part of all historic preservation review.

• Non-Religious Cultural Values Although it may be difficult to identify Hawaiian cultural values whieh are not in some way religious, religious values are not the only cultural concerns that should be recognized during historic preservation review. As outlined in national "Section 106" guidelines, such reviewshould also be sensitive to non-religious cultural values. Among the traditional values included are: * A Hawaiian community that has long resided in an historic district may ascribe traditional cultural value to the area as its traditional home and the embodiment of its traditional organization. The Mokauea Fishing Village is an example of this cultural value.

* A community may ascribe cultural value to the landscape in whieh it exists as a physical manifestation of its values and social organization. Kalaupapa Peninsula, and its Hansen's Disease settlement is an example. * A community or other group may ascribe traditional cultural value to a property that plays and has traditionally played an important role in the group's social cohesion and interaction. Kawaiaha'o Church is an example of this value. * A group may ascribe traditional cultural value to a property that is symbolic of the group's identity os history. Nu'uanu Pali holds such value.

• The Role of OHAin Historic Preservation Review Chapter 10, Hawai'i Revised Statutes, charges the Office of Hawaiian Affairs with the responsibility for "assessing the policies and practices of other agencies impacting on native Hawaiians and Hawaiians, and conducting advocacy efforts for native Hawaiians and Hawaiians." This statutory responsibility is further clarified by OHA "Master Plan" goals, Board of Trustees policies and procedures. Two of the three major areas identified in the "Master Plan" directly influence the development of OHA's role in historic preservation review:

* Revive, enhanee, preserve, and perpetuate Hawaiian culture. * Promote full participation of the beneficiary community in the democratic process. As part of this mandate, further, OHA has adopted the following policies and procedures regarding historic preservation of Native Hawaiian cultural resources whieh include: * A commitment to preserve and protect Native Hawaiian historic sites; * Establishment of an "Office of Hawaiian Af-

9 fairs Inventory of Native Hawaiian Sites" whieh currently lists more than 500 known sites whieh are located on private property; and

* Adoption of a Board procedure for the implementation of formal mitigation through Memoranda of Agreement. These policies and procedures describe the interest of the Hawaiian people in historic preservation decisions and define the role of OHAto act on behalf of the Hawailan people. In addition, the Office seeks the recognition of its role as consistent with nahonal "Native Ameriean" status provisions. For example, when OHA sought participation as a "concurring party" in the federally-mandated Memorandum of Agreement required for the H-3 project, the Office cited the parallel interest and status of Nativev Hawaiians to that ascribed to Indian tribes in the regulations of the Advisory Oouneil on Historic Preservation (36 CFR Part 800: "Protection of Historic Properties"):

". . . (iii) Indian tribes. The Agency Official, the State Historic Preservation Officer, and the Council should be sensitive to the special concerns of lndian tribes in historic preservation issues . . . When an undertaking will affect lndian lands, the Agency Official shall invite the governing body of the responsible tribe to be a consulting party and to concur in any agreement . . ." OHA's inclusion in the memoranda concluded for the O'ahu H-3 and the realignment of Ali'i Drive in Kailua-Kona, was sought because of the parallel with the role assigned Indian tribes. However, actual participation was only possible with the eoncurrence of the federal agency, state and county departments, and the Nahonal Advisory Council on Historic Preservation.

Although such participation represents a tacit acknowledgment of Native Hawaiian concerns and OHA's "governing body" role as substantially similar to those of Indians and their tribal councils, explicit federal recognition is still needed. Without changes in federal "Section 106" procedures, OHA participation and concurrence is not required. The Office is empowered by statute and established in a manner condusive to participating in review processes. Funding and staffing levels allow a concentration of resources and time not usually available in a community organization. Further, the Office feels comfortable and competent in assessing and asserting Native Hawaiian concerns related to significance criteria and professional standards affecting archaeological and cultural resource planning and management.

However, the existing parallel role of OHA to Indian tribal councils as representative of a people affected by preservation decisions also infers certain other kinds of mutual responsibility from both government and OHA in the consideration of traditional cultural values when mitigating adverse impacts on historic properties and cultural resources. Simply, no level of government or OHA ean assert "knowing everything" about every historic property and its cultural significance in the State of Hawai'i. Rather, the role of OHA is to protect and serve as advocate for those rights and.cultural values whieh are shared by Hawaiians, and to seek the greatest participation by those Hawaiian eommunities and individuals most knowledgeable and most affected by particular historic preservation decisions.

Thus, it is necessary for OHA, as well as governmental bodies, to formally recognize and actively seek the traditional knowledge and participation of the Hawaiian community. This effort must also be culturally-sensitive and attuned to the nuanee of cultural values. Clearly, OHA offers the best opportunity for both seeking and assuring the incorporation of these viewpoints and values. However, for OHA to succeed in this effort, and to offer a model to other agencies — it is necessary to identify and explicitly express how this process could be implemented.

Guidelines forthe Consideration ofTraditional Native Hawaiian Cultural Values in Historic Preservation Review

• Considering Cultural Values I. ORGANIZATION The Office of Hawaiian Affairs endorses and urges the formal consideration and inclusion of Native Hawaiian cultural values in all historic preservation review. This effort shall include seeking amendments to federal, state, and county laws and ordinances for the recognition of the role OHA has in historic preservation determinations. Further, OHA shall also encourage and foster the participation of Hawaiian cultural authorities and affected communities in decisions related to historic preservation review.

II. !DENTlFICATION OF TRADITIONAL CULTURAL VALUES OHA shall encourage all levels of government and will itself seek to identify properties that have traditional cultural value. As part of this effort, communities, groups, and knowledgeable individuals who may ascribe, or be expert in the ascription of traditional cultural values shall be eonsulted. OHA recognizes that the kupuna are invaluable in such an effort. However, cultural knowledge" and authority is not confined to a single generation or to a single school of learning. Therefore, OHA also recognizes and encourages the special insights whieh may be provided by formally-edu-cated Hawaiians.

III. EVALUATION OF HISTORIC FROPERTIES These guidelines provide a criteria reflecting possible traditional cultural values ascribed to properties included or eligible for inclusion on the OHA Inventory of Native Hawaiian Historic Sites. Future additions to the OHA Inventory will, as appropriate, make every effort to clearly describe the kind of culturcd value being recognized. In addition, OHA will seek similar recognition and assist in the coordination of resources in the determination of eligibility review associated with National and State Registers. While such historic properties may already be eligible for or included on National and State Registers and Inventories under other criteria of review, additional efforts must be made to demonstrate a sensitivity to and recognition of traditional cultural values. IV. CONSIDERING EFFECTS In considering the effects of any governmental action on Native Hawaiian historic properties, the responsible agency and State Historic Preservation Office should consult with OHA. OHA will then assist in the identification of any effects on traditional cultural values because of proposed actions affecting these properties. To achieve this coordination, OHA and the responsible agency will:

1. Consult with the communities and other groups ascribing traditional cultural value to historic properties; 2. Encourage that such consultation be eonducted in a manner consistent with the cultural practices and modes of expression of the group being consulted. Such adjustments could include meeting without the usual constraints of written testimony, time limits on presentation, the use of the Hawaiian language, or other appropriate measures; and 3. Mediate where necessary to clarify issues and seek consensus on effects and alternatives.

V. MITIGATION OF IDENTIFIED IMPACT Existing state law and county ordinances require archaeological impact assessments as a component of overall Environment Impact Statement (EIS) documents. Typically, the archaeologieal assessment will identify and evaluate properties, indicate anticipated impacts, and outline proposed mitigation. Although public comment is solicited before the acceptance of the EIS, nowhere is there explicit provision for the inclusion of OHA and community participation in the assess-

ment of sites or of the mitigation plan. Instead, only adversarial options are available — either suing in court or intervening in the permit process. Such alternatives are both expensive and time consuming — for all the parties involved.

A mediation process — similar to the federal "Section 106 Process" — should be statutorial!y available. Then, those most affected by the impacts of a proposed project could be directly involved, under the constraints of a reasonable time limit and with the understanding that the current procedure and options would continue if agreement could not be reached. Such mitigation efforts will be difficult where there is deep community emohon connected with traditional cultural values. For the affected eommunity, and Hawaiians generally, it may seem virtually impossible to consider any alternate than to eliminate the potentially damaging action altogether.

In weighing impacts against perceived benefits, Native Hawaiians often accurately recognize that the benefits of a project flow away from the affected native community, while the adverse impacts are most absorbed by the same affected group. This perception is only re-enforced when non-adversarial participation is limited and the mitigation alternates do not directly address the harm being experienced.

For example, if a Hawauan community values a property because of the medicinal plants that grow there, data recovery (total excavation) of a site for informational value "misses the point." Replanting or even design adjustments to avoid the area would be more sensitive and sensible. As demonstrated by the MOAs executed by OHA, particularly those also signed by community groups, agreement is not only possible — mitigation is enhanced by such cooperation. And the entire community, including the developer, benefits.

VI . SPECIAL CONCERNS Three esp)ecially sensitive areas of eoneem to OHA and the Hawaiian community involved with historic preservation review decisions are: • the treatment of Hawaiian human remains; • ethical conduct towards native cultural authorities; and • a recognition and incorporation of traditional and customary Native Hawaiian rights. These issues are addressed in separate attachments to these Guidelines. Have Your Say The American Way TOTI: