Are Further Protections for Burials Feasible?
Native Hawaiians say that more needs to be done to protect their heritage.
But the Legislature is running into the dilemma of how to balance the values of the host culture and the rhythm of modern American life.
Cultural practitioners complain existing law governing Hawaiian burials has a gaping loophole that discourages archaeological surveys by treating “inadvertently discovered” bones differently than those that are previously known. A bill that would have required Burial Council consultation in all scenarios was deferred indefinitely Monday amid concerns it would cause delays for development projects.
had the support of the Office of Hawaiian Affairs, but was scuttled after the Department of Land and Natural Resources said the measure would slow responses to burial discoveries.
“Jurisdiction of inadvertent discoveries was given to the Department to ensure a timely response, and to provide for a resolution that minimizes exposure of the burial site and adverse impacts, if any, on the activity that resulted in the discovery,” Interim Director William Aila, a longtime Native Hawaiian cultural advocate, said in [pdf].
requires that the department decide within 24 hours (48 hours on the neighbor islands) of an inadvertent discovery if a burial should be removed or preserved in place. If passed, the measure would have instead required a Burial Council decision within 15 days.
“Sadly, inadvertent burial discoveries have become an all too common occurrence in Hawaii, and the current provisions … place a tremendous amount of pressure and nearly impossible requirements on State Historic Preservation (SHPD) staff,” OHA CEO Clyde Namuo wrote in testimony.1 He said the government should make the change and temporarily move burials to protect them from “imminent harm” while a decision is made.
Sierra Club Hawaii Chapter Director Robert Harris said the bill would close a “perverse incentive” built into existing law, under which “developers are tacitly encouraged to avoid finding burial sites before starting construction. It’s easier to find them after construction starts and treat them as ‘inadvertently discovered,’ with lower statutory obligations for preservation and care.”
Still, even advocates admitted the bill isn’t perfect. OHA said it could create some logistical problems for Island Burial Councils (IBCs) and the SHPD.
“OHA does recognize that if passed, this bill will result in additional meetings of IBCs to fulfill the 15-day time frame to render determinations, placing additional requirements on the volunteer members of lBC and the workloads of the SHPD staff that support them,” Namuo wrote.
Logistics have proven to be a major hurdle, even for once-a-month meetings. For example, when the Oahu Island Burial Council tried to meet in January, three members failed to show up due to scheduling conflicts and a fourth announced he was retiring.
The concerns were substantial enough that the Society for Hawaiian Archaeology testified in opposition to the bill. Legislative Chair Sara Collins wrote that the group wondered “whether or not the burial council system, as currently established and supported, can meet the greater expectations promoted by these amendments.”
The measure was introduced by, among others, Hawaiian Affairs Committee Chair Faye Hanohano, a Big Island Democrat. Hanohano’s committee held a joint hearing with the Water, Land and Ocean Committee Monday morning.
She said Tuesday that the bill was deferred so lawmakers could talk with the Hawaii Department of Transportation about the impact of the proposal on the construction of sewage lines and roads. Being deferred, rather than passed, after a hearing can often spell trouble for bills, but Hanohano said she still hopes the bill will be revived this session.
Messages left for Water, Land and Ocean Committee Chair Jerry Chang, another Big Island Democrat, were not immediately returned.
A similar measure was introduced by Senate Judiciary Committee Chairman Clayton Hee. has yet to have a hearing scheduled.
