HISTORIC PRESERVATION & NATIVE HAWAIIAN RIGHTS
Is Development Desecration? By: Mauna Kea Trask _________________ mtrask@cades.com
In 2007, the skeletal remains of at least 60 Native Hawaiians were found during development of Hawai‘i’s flagship Whole Foods Market in Kaka‘ako. Beginning in 2009, during construction of a multipurpose center, Kawaiha‘o Church discovered what would amount to more than 600 Native Hawaiian burials. The County of Kaua‘i faced numerous accusations that construction of a public coastal pedestrian/bike path would result in desecration of Native Hawaiian burial sites, although studies showed that no burials would be present and no burials were ever found. In the cases of Whole Foods and Kawaiha‘o Church, the landowners had all necessary permits at the time the burials were discovered. However, despite the permits the landowners were attacked in the press, developments were delayed for years, numerous administrative and judicial actions were filed, and millions of dollars were spent defending the development against accusations of “desecration” of Native Hawaiian burial sites. But what is desecration? Is it a legal question, a cultural question, or both? The purpose of this article is not to correct or even comment on the sincerely held beliefs of many 12 KE KUMU | A CADES SCHUTTE PUBLICATION
people in the community regarding desecration of burial sites. This article simply provides the reader with insight into the authentic customs and traditions of Native Hawaiians concerning Native Hawaiian burial sites as described by Native and non-Native Hawaiian scholars, whose credibility and authority on the matter are beyond reproach. *** It is illegal in Hawai‘i to knowingly take, appropriate, excavate, injure, destroy, or alter any burial site or the contents thereof during the course of land development or land alteration activities which may affect a burial site, without obtaining the required governmental approvals. In addition to administrative fines, the criminal penalty for violating this law is up to one year in jail and a fine not to exceed $25,000 for each day such violation continues to occur (HI Rev Stat § 6E-71). I think that such acts would appropriately be called desecration. But what about developing while having all the requisite permits? What if an excavator inadvertently discovers bones during the development process? What if the State Historic Preservation Division
(SHPD) approves the relocation of the remains with the support of the burial council, which is comprised of native Hawaiians and land owners who determine the appropriate treatment of previously discovered burial sites, and the Office of Hawaiian Affairs, as in the Whole Foods case? Put simply, is legal development itself desecration? This is question with cultural and legal aspects. The Hawai‘i State Constitution requires the State, among other things, to protect all rights, customarily and traditionally exercised by Native Hawaiians for cultural and religious purposes, subject to the right of the State to regulate such rights. This is the backdrop for the protection of all Native Hawaiian traditional and customary rights in Hawai‘i. So what are the customary and traditional practices with regard to Native Hawaiian burials and do these customs and traditions consider as “desecration” a development that has obtained requisite governmental approvals and otherwise has complied with the law?
