hsba annual convention 2011moses haia, director, native hawaiian legal

corporation

nā kānāwai oke kanu ana

What do you think would happen to a person who bulldozed or dug out graves

here? Why?

Punchbowl National Cemetery

Why is this any different?• Site of the Ward Village Shops

project on O‘ahu, where countless native Hawaiian burial sites were disturbed.

• What did we do when we uncover these burial sites of our kupuna?

• Tune in and find out…

"If there is anything Native Hawaiians will come to know it's eviction. They evict us

when we're alive, they evict us when we're dead. We are never safe. Our responsibility

is to protect our sense of place." -- PUNAHELE LERMA

Member, Hawaii Island Burial Council

Oral Traditions, Language, Mana, Land, and Sovereignty

Cultural Significance of Iwi

Paintings by Phillip Sabado www.sabadostudios.com

KANU – TO PLANT / TO BURY

THE FIRST BURIAL-HALOANAKA

Painting by Phillip Sabado www.sabadostudios.com

Kapu ka haloa ku ma ka peaKanu ia Haloa ulu hahaloaO ka lau

o Haloa i kea o laPu - ka

Ke Kumulipo

Photo by Ann Cecil

INTERCONNECTEDNESS OF IWI WITH NATURE

IWI – demarcation of stone or ridges signifying land boundaries

INTERCONNECTEDNESS OF IWI WITH NATURE

IWI HONUA – shoal or rock projecting on a coral reef

KULAIWI – Native land; homelandKu‘u home kulaiwi

‘ŌIWI – Native; native sonKanaka ‘Ōiwi

IWI AND NATIVE HAWAIIAN IDENTITY

“Part of sovereignty is controlling our destiny, including our ancestors.”– HAUNANI-KAY TRASK

“E oli la kou, aohe o makou pono Hawaii maoli.”– KEAWE KEOHOKALOLE

“Your ancestors are your foundation. There’s a duty created for the next generation to care for those who

came before you.”– EDWARD HALEALOHA AYAU

Native American Graves Protection and Repatriation Act (NAGPRA)

FEDERAL LAW

• The Act addresses the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to certain Native American or Native Hawaiiano human remains,o funerary objects, o sacred objects, and o objects of cultural patrimony

• Applicability• “Intentional excavation” or “inadvertent discovery” of Native

American cultural items which are excavated or discovered ono Federal Land (i.e. military bases)o Tribal Land

lands belonging to the Dept. of Hawaiian Home Lands (DHHL)

NAGPRA Overview

Mokapu (Moku Kapu), Oahu• Kaneohe Marine Corps Air

Station (MCBH)• Since 1915, nearly 1600 iwi

kūpuna and burial objects were excavated from Mokapu and Heleloa

• Most have yet to be reburied.

NĀ WAI E HŌ‘OLA I NĀ IWI?

KAWAIHAE (Forbes) Cave• Located within DHHL lands• 83 funerary objects on

“loan” to Hui Malama from the Bishop Museum in 2000

• Edward Halealoha Ayau was imprisoned for 21 days when he refused to reveal the location where the objects were reburied

NĀ WAI E HŌ‘OLA I NĀ IWI?

State Burial LawsHawaii Revised Statutes Chapter 6E

Honokahua: “This is the battleground”• •In the late 1980s, over

1,100 iwi kupuna (men, women, children, infants) were excavated during construction of the Ritz-Carlton Hotel in Kapalua, Maui

• •As a result of the outrage and protest, new laws were enacted to protect native Hawaiian burials.

Honokahua changed the history of Hawaii … we will never ever go back to this complacency and complete disregard for the iwi of our kupuna.Honokahua has created the laws. Honokahua IS the law, this stands as the kahili for all burial sites from here on to perpetuity. This is the battleground, this is the piko of these new laws. --–CLIFF NAEOLE

Honokahua, Maui

“The legislature … finds that native Hawaiian traditional prehistoric and unmarked burials are especially vulnerable and often not afforded the protection of law which assures dignity and freedom from unnecessary disturbance.”

ACT 306

This Act provides additional protection for native Hawaiian burial sites of high preservation value such as areas with• A concentration of skeletal remains, or• Prehistoric or historic burials associated with important

individuals or events,• That are within a context of historic properties,• Or have known lineal descendants

ACT 306

HRS Chapter 6E: Hawai`i’s Historic Preservation Program

• In enacting HRS Chapter 6E, the Legislature noted:• The Constitution of the State of Hawaii recognizes the

value of conserving the historic and cultural property within the State for the public good.

• The historic and cultural heritage of the State is among its important assets.

• The rapid social and economic developments of contemporary society threaten to destroy the remaining vestiges of this heritage.

Therefore:• It is in the public interest to engage in a comprehensive program of historic preservation at all levels of government to promote the use and conservation of such property for the education, inspiration, pleasure, and enrichment of its citizens.

• It shall be the public policy of this State to provide leadership in preserving, restoring, and maintaining historic and cultural property, to ensure the administration of such historic and cultural property in a spirit of stewardship and trusteeship for future generations, and to conduct activities, plans, and programs in a manner consistent with the preservation and enhancement of historic and cultural property.

HRS Chapter 6E Definitions:• Historic preservation-the research, protection, restoration,

rehabilitation, and interpretation of buildings, structures, objects, districts, areas, and sites, including underwater sites and burial sites, significant to the history, architecture, archaeology, or culture of this State, its communities, or the nation.

• Historic property-any building, structure, object, district, area, or site, including heiau or underwater site, which is over fifty years old.

• Burial site-any specific unmarked location where prehistoric or historic human skeletal remains and their associated burial goods are interred, and its immediate surrounding archaeological context,…

Review of Projects Involving Privately Owned Historic Property• Before any construction, alteration, disposition or improvement of

any nature, by, for, or permitted by a private landowner may be commenced which will affect an historic property on the Hawaii register of historic places, the landowner shall notify the department…and allow the department opportunity for review of the effect of the proposed construction, alteration, disposition, or improvement of any nature on the historic property. HRS 6E-10(a).

• The proposed construction, alteration, disposition, or improvement of any nature shall not be commenced, or in the event it has already begun, continue, until the department shall have given its concurrence or ninety days have elapsed. Id.

Review of State Projects• Before any agency or officer of the State or its political

subdivisions commences any project which may affect historic property, aviation artifact, or a burial site, the agency of officer shall advise the department and allow the department an opportunity for review of the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, especially those listed on the Hawaii register of historic places. HRS 6E-8(a).

• The proposed project shall not be commenced, or in the event it has already begun, continued, until the department shall have given its written concurrence. Id.

Review of All Other Projects• Before any agency or officer of the State or its political

subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic property, aviation artifacts, or a burial site,

• the agency or officer shall advise the department and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43, including those listed in the Hawaii Register of historic places. HRS 6E-42(a)

HRS Chapter 6E Burial Sites Violations• Knowingly taking, appropriating, excavating, injuring,

destroying, or altering any burial site, or the contents thereof, on private or state owned or controlled lands absent prior State authorization. HRS 6E-11(b).

• Knowingly failing to re-inter human remains within a reasonable time as determined by the department. HRS 6E-11(b).

• Taking, appropriating, excavating, injuring, destroying, or altering a burial site during land development or alteration activities to which section 6E-42 applies, without the required approval. HRS 6E-11(c).

Burial Sites Violations Con’t.• Knowingly violating conditions in an approved

mitigation plan that includes monitoring and preservation plans. HRS 6E-11(b).

• Failing to stop work in the immediate area of an inadvertently discovered burial site and report the discovery... HRS 6E-11(d).

• Knowingly gluing together any human skeletal remains, label any human skeletal remains with any type of marking pen, or conduct any tests that destroy human remains except as permitted by the department. HRS 6E-11(e).

Enforcing HRS Chapter 6E: Civil Penalties

• The Board of Land and Natural Resources shall take appropriate corrective action whenever HRS Chapter 6E has been violated. HRS 6E-10.5

• Corrective action may include requiring the violator to take such measures as may be necessary to correct the violation and imposing civil penalties outlined in HRS 6E-11.5, i.e.; for each separate violation, where each day of each violation constitutes a separate violation, not less than $500 nor more than $10,000. Id.

Enforcing HRS Chapter 6E: Injunctive Relief• The State may commence an action in any court of competent

jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of HRS Chapter 6E. HRS 6E-13(a).

• Any person may “maintain an action in the trial court having jurisdiction where the alleged violation occurred or is likely to occur for restraining orders or injunctive relief against the State, its political subdivisions, or any person upon a showing of irreparable injury, for the protection of an historic property or burial site and the public trust therein from unauthorized or improper demolition, alteration, or transfer of the property or burial site.” HRS 6E-13(b).

HRS Chapter 6E Criminal Offenses• When done knowingly, HRS Chapter 6E violations

become a misdemeanor for which a fine not to exceed $25,000 may be imposed, in addition to any other penalty authorized by law for a misdemeanor. HRS 6E-71, 72, and 73.

• Each day of a continued violation shall constitute a distinct and separate offense. Id.

• These criminal penalties are in addition to, and not in lieu of, any other civil and administrative penalties provided by law. HRS 6E-74.

Kauai/Ni‘ihau IBCO‘ahu IBC

Moloka‘i IBCMaui/Lana‘i IBC

Hawaii IBC

Island Burial Councils: Haw. Rev. Stat. 6E-43.5

• Determine the preservation or relocation of “previously identified” Native Hawaiian burial sites that appear to be over 50 years old

• Assist the DLNR in the inventory and identification of Native Hawaiian burial sites

• Make recommendations regarding the appropriate management, treatment, and protection of native Hawaiian burial sites, and on any other matters relating to native Hawaiian burial sites

Island Burial Councils

“Cultural” descendants – persons with “genealogical connections to Native Hawaiian ancestors who once resided or are buried or both, in the same ahupua‘a or district in which certain Native Hawaiian skeletal remains are located or originated from.”“Lineal” descendants – persons with “direct or collateral genealogical connections to certain Native Hawaiian skeletal remains.”

Haw. Admin. Rules 13-300-35

Recognition of Descendants

• “Previously identified” means burial sites containing human skeletal remains and any burial goods o identified during Archaeological Inventory Survey and Data Recovery of possible

burial sites, oro known through oral or written testimony

• “Inadvertent discovery” means the unanticipated finding of human skeletal remains and any burial goods resulting from o unintentional disturbance, o erosion, o or other ground disturbing activity

“Previously Identified” v. “Inadvertent”

Different KuleanaIsland Burial Councils

• “Previously identified”Native Hawaiian burials

State Historic Preservation Division

• “Inadvertent” Native Hawaiian burials

• Burials of Other Ethnicities

WHY DO THESE LAWS MATTER?

“They're not here to defend themselves, we are. We are here to malama them, respect, honor, take care of them; not because they're deceased and not here we're just going to let it go. We are responsible to malama them.”

-- AUNTY MALIA CRAVER

“I would recommend and plead with all the people now to respect your kupuna. You don't give up your family, don't sell your family short of life. Give them the best even when they die.”

-- PAPA HENRY AUWAE

LEGAL BATTLES

Hokulia Development• •665-unit luxury golf

course development in Kona

• •70+ iwi kupuna disturbed

• •Development proposed near Pu‘u Ohau, the burial site of Kamaekalani, tutu of Kalakaua & Liliuokalani

• •Some issues settled in 2006.

Hokulia Development• •665-unit luxury golf

course development in Kona

• •70+ iwi kupuna disturbed

• •Development proposed near Pu‘u Ohau, the burial site of Kamaekalani, tutu of Kalakaua & Liliuokalani

• •Some issues settled in 2006.

• 60+ sets of iwi kūpuna were disinterred since January 2003

• The Wal-Mart store opened in 2004 but the iwi kūpuna were only recently reburied

• They sat in on-site trailer as “evidence” in a contested case hearing for nearly 7 years.

• Recent updates courtesy of Moses

Wal-Mart Ke‘eaumoku

• Threat of 5 additional hotels • 24 iwi kupuna were previously

disinterred from 19 different locations and reburied further mauka

• There is a “high probability” that additional burials will be encountered

Turtle Bay Resort (Kuilima)

Honolulu Rail Transit Project

• 60+ sets of iwi kupuna have been disturbed since 2006.

• All were reburied as part of partial settlement

• Certain issues currently on appeal

Ward Village Shops/Whole Foods

Laying the Tracks to Further Desecration?

With little if any consultation with OIBC, the City’s plan route

for the Project is planned through Halekauwila Street in Kaka‘ako, an area known to have a high concentration of native Hawaiian burial sites.

Questions?