Ka Wai Ola - Office of Hawaiian Affairs, Volume 29, Number 11, 1 November 2012 — BONES OF THE ANCESTORS 2 COURT CASES BRING IWI TO THE FORE [ARTICLE+ILLUSTRATION]

BONES OF THE

ANCESTORS 2 COURT CASES BRING IWI TO THE FORE

A rendering of Kawaiaha'o Church's proposed $1 7.5 million multipurpose center, whieh appears at right. - Courtesy image

BY

AND R KAMEMOĪO Bj

A t 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 hillion 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, whieh 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 kūpuna, 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 kūpuna and their living 'ohana, said Kai Markell, eomplianee manager for the Office of Hawaiian Affairs and former burials programlead 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 kūpuna, ancestral remains, would imhue the 'āina and spiritually nourish the living community. Under the protection of their 'ohana, iwi kūpuna and 'āina would heeome one. Such connections are why the Hawaiian community most often seeks to keep iwi kūpuna in plaee. "Generally you don't want to move a burial," Markell said. "Even the law recognizes the priority is for preservation in plaee." ASHLEY OBREY, a Native Hawaiian Legal Corp. attorney on the rail case, called the court actions a victory for kūpuna and the Hawaiian people. "The courts' decisions are a direct result of Native Hawaiians living up to their kuleana to mālama 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 hnal phase - whieh runs through iwi-rich Kaka'ako - while construction was ongoing in the iniīial phases on the project's west end.) Hinaleimoana Wong-Kalu, chair of the O'ahu Island Burial Council, whieh has decision-making powers on

whether iwi found during an AIS are preserved in plaee 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 ■ ulH t~ %Jm

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 inhuenee 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 eoneem for anything that could eome under the auspices of a Hawaiian context." Grabauskas said he will continue to work with the state "and other stakeholders to ensure that iwi kūpuna 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/ Lāna'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 herlawsuit. Any work that could disturb iwi must stop, the court said in its unanimous Sept. 28 order, whieh 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 puhlie 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 whieh the church halted work, and 620 more found at the multipurpose center site since work resumed in 201 1. 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 eemetery 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 halanee the needs and wants of several ditīerent constituencies." "Our goal is to preserve, to the extent that we ean, 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 hadprovided a $ 1 million grant for the multipurpose center's construction. KALEIKINI, the rail plaintiff, says Kaka'ako, on 0'ahu's southem shore, onee 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 livina

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 lieh in burials; past projects have indicated as mueh.

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The site of the first discovered iwi, on Cooke Street. - Photos: UsaAsato

O'ahu lsland Burial Council Chair Hinaleimoana Wong-Kalu visited a site on Halekauwila Street to observe archaeological survey work.

TI A pōhaku marks the site of relocated burials dating from an older, unrelated construction project.

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B0NES Continued from page 18 "With rail, it's a very expensive project," Kaleikini said. "Because the public is paying for the rail, they would say move the kūpuna, move that iwi because we need to hnish 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 plaee is always the goal - no matter if it's a single burial or a concentration of them. She'sparticipatedin 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 kule-

ana," she said. "We're going to fight to preserve in plaee, 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 kūpuna 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 plaee 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 "eome out to mihi (to seek forgiveness) . . . before we rebury them." BUT FOR EVERY CASE that receives public scmtiny, 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 'āina," said Nicholas Vanderboom, the corporation's vice president for development. "We are committed to treating all burial sites with respect, recognizing the personal signifieanee they hold for descendants." Such early consultation is often key to having successful outcomes, said Markell, OHA's eomplianee manager. "There are many cases where the landowner working with the descendants or working with . . . the burial eouneil eame to successful resolution of their projects." ■

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