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NAGPRA Issues in Hawaii, 2010


(c) Copyright 2010, Kenneth R. Conklin, Ph.D. All rights reserved

Coverage of NAGPRA-related topics in Hawaii first came to this website in 2003 when the national NAGPRA review committee decided to devote its national meeting to the Forbes Cave controversy. Forbes cave was the most intensively covered topic from 2003 to 2007. But other topics also came to public attention, including Bishop Museum, the Emerson collection repatriated and reburied at Kanupa Cave, the discovery of ancient bones during a major construction project at Ward Center (O'ahu), construction of a house built above burials at the shorefront at Naue, Ha'ena, Kaua'i; etc.

The Forbes cave controversy up until the NAGPRA Review Committee hearing in St. Paul, Minnesota, May 9-11, 2003 was originally described and documented at:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html

The conflict among Bishop Museum, Hui Malama, and several competing groups of claimants became so complex and contentious that the controversy was the primary focus of the semiannual national meeting of the NAGPRA Review Committee meeting in St. Paul, Minnesota May 9-11, 2003. A webpage was created to cover that meeting and followup events related to it. But the Forbes Cave controversy became increasingly complex and contentious, leading to public awareness of other related issues. By the end of 2004, the webpage focusing on the NAGPRA Review Committee meeting and its aftermath had become exceedingly large, at more than 250 pages with an index of 22 topics at the top. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

That large webpage became so difficult to use that it was stopped on December 29, 2004; and a new webpage was created to collect news reports for NAGPRA issues in Hawai'i during year 2005. An index for 2005 appears at the beginning, and readers may then scroll down to find the detailed coverage of each topic. For coverage of NAGPRA issues in Hawai'i in 2005 (about 250 pages), see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 another new webpage was created, following the same general format. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

For year 2007, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html

For year 2008, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/big60/nagprahawaii2008.html

For year 2009, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09a/nagprahawaii2009.html

NOW BEGINS 2010


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LIST OF TOPICS FOR 2010: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfold during 2010.

(1) On Kaua'i, in an area known as Naue near Ha'ena Beach, a property owner has been trying to build a house on his land ever since 2001. His original building permit had to be changed when the county changed its regulations regarding shoreline setback, forcing changes in the design plans for the house. During construction ancient burials were found, forcing lengthy delays for the Kaua'i burial council to consider the problem even while the council held few meetings and its membership was constantly changing. Finally a decision was made that the burials must remain in place. Those who had demanded the burials remain in place expected the landowner to cancel his plans to build a house. But instead, the landowner once again re-designed the architectural plans to protect the burials with cement encasements while building the house above them. The protesters were outraged. The case became a huge Hawaiian sovereignty political football during 2008 and 2009 with onsite protests, arrests, and lawsuits.

(2) Kaua'i mayor must choose whether to build a multi-use path along Wailua Beach or farther inland. OHA previously objected to the inland route on accound of "sacred" and cultural places, but now objects to the coastal route for the same reasons and now recommends the inland route. State Department of Historic Preservation recommends the coastal route and cites numerous specific sacred and cultural places that would be impacted by inland route. Interesting dispute over which place is more "sacred" and who should decide and whether religion should dictate public policy. This topic first arose in year 2009, and the compilation of news reports and commentaries for 2009 can be found as item #11 on that webpage. On January 16, 2010 the Kaua'i newspaper announced that the mayor has chosen a compromise route running along the ocean side of the existing major highway. But on May 18, when construction was supposed to start, there were a handful of protesters and the mayor stopped construction blaming "equipment problems".

(3) Cemeteries being condemned and/or burials moved, on the mainland U.S. or in other nations, for the convenience of public or private development.
(a) In Chicago, a 160-year-old cenetery has been condemned to build an airport runway improvement, and 1200 burials will be moved.
(b) "During construction of a General Services Administration office building in Lower Manhattan, graves were discovered 24 feet below ground ... those remains led to the discovery of hundreds of other bodies in the same area ... these were black New Yorkers interred in what a 1755 map calls the "Negros Burial Ground ... In all 419 bodies were discovered — giving a clue to how many others still lie under the foundations of Lower Manhattan. (Estimates have ranged from 10,000 to 20,000.)"
(c) Orthodox Jews in Israel protest the moving of 1400-year-old burials to make way for construction of a new hospital wing, but the government of Israel goes ahead with the project. The protesters seem to say it would be OK to move the burials if they were Christians or pagans, but not Jews.

(4) In other nations, ancient burials being dug up for DNA analysis, for public display in museums, etc.
(a) Egyptian Pharaoh Akhenaten's mummy DNA analysis confirms family relationship to Tut and others.
(b) Saint Rose of Viterbo (13th Century) has her heart preserved in a reliquary separate from her mummified body, and the heart has now been X-rayed to discover she died of Cantrell's syndrome.
(c) Venezuela President Hugo Chavez ordered the remains of liberator Simon Bolivar (died 1830), a historical and cultural hero, to be exhumed for DNA analysis to see whether he died from arsenic poisoning instead of tuberculosis. Chavez showed Bolivar's skeleton on live television while singing the national anthem.
(d) Paleopathologists dissect human remains in ancient burials to study cancer and other pathologies in ancient times and compare with modern times. "Only on rare occasions can pathologists get their hands on a comparatively recent mummy like Ferrante I of Aragon, king of Naples, who died in 1494."

(5) A new rule proposed for applying the NAGPRA law says that transfer of culturally unidentifiable remains is to be made to a tribe from whose tribal or aboriginal lands the remains were excavated or removed. This greatly worries many museums which until now have been able to keep such remains; but tribes claim that most so-called unidentifiable remains are actually identifiable. Additional controversy comes because the new rule is not clear regarding what happens to associated cultural or funerary artifacts which may or may not be culturally identifiable.

(6) The Honolulu rail project is likely to encounter ancient Hawaiian burials during construction. The construction and associated archeological surveys will be done in phases, starting in the west, but likely burials would be in the final phase, in the east. Should all archeological surveys be done before any construction, to ensure the route could be changed if necessary to avoid burials? And if burials are found, should they be moved or should they stay in place and the route be changed?

(7) A bypass road for Ali'i Parkway in Kona has been designed and redesigned for many years at a cost of many millions of dollars, with no actual construction. Each time a design is completed, concerns are raised about a newly rediscovered or suspected burial that might need to be moved. See item # (4) in the webpage for NAGPRA 2009, which also includes links to coverage from previous years. In 2010 it appears that the county is abandoning hope for the project, as evidenced by the project's low rank on the list of priorities during a time of financial difficulty.

(8) In 2003 and 2004, 42 sets of bones more than 50 years old were found on Kaka'ako land being redeveloped for a new Wal-Mart. The total rose to 64 sets. Hearings were held before the O'ahu burial council and DLNR, and a lawsuit was filed. On May 18, 2010 it was reported that the Hawaii Supreme Court has refused to hear an appeal by Hui Malama from a lower court ruling. Text of the Supreme Court's denial of certiorari has information about the facts of the case and the regulations governing burials.

(9) Is it legally or morally wrong to photograph artifacts that were included with ancient burials, and/or to photograph the skeletons or remains themselves? Does it matter whether the remains and artifacts are photographed while they are in the process of being uncovered in their original place of burial? Should such photos, taken by archeologists, be published in brochures or on the internet? A construction project on Guam raises the issue.

(10) When human remains are discovered during construction at U.S. Army's Schofield Barracks, the Army invites Native Hawaiian cultural practitioners to help decide what should be done.

(11) An individual ethnic Hawaiian filed a lawsuit to block the widening of a highway in Wailua, Kaua'i for fear there might be ancient burials, and she was represented by the Native Hawaiian Legal Corporation. But she fired the NHLC attorney; and her case was dismissed at summary judgment because she had not offered any proof and refused to name two people she said had personal knowledge of burials.

(12) U.S. Department of the Interior's Office of Native Hawaiian Relations held hearings in Hawaii regarding how the NAGPRA law should be updated and improved regarding protocol, notification and final-dispensation for burials and artifacts.

(13) The state government is constructing a fence at Ka'ena Point (O'ahu) to protect endangered species from marauding dogs, but the O'ahu Island Burial Council has raised objections for fear of disturbing burials (it is a sacred place because there is a leina a ka 'uhane -- place where the souls of dead people jump to the next world).


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(1) On Kaua'i, in an area known as Naue near Ha'ena Beach, a property owner has been trying to build a house on his land ever since 2001. His original building permit had to be changed when the county changed its regulations regarding shoreline setback, forcing changes in the design plans for the house. During construction ancient burials were found, forcing lengthy delays for the Kaua'i burial council to consider the problem even while the council held few meetings and its membership was constantly changing. Finally a decision was made that the burials must remain in place. Those who had demanded the burials remain in place expected the landowner to cancel his plans to build a house. But instead, the landowner once again re-designed the architectural plans to protect the burials with cement encasements while building the house above them. The protesters were outraged. The case became a huge Hawaiian sovereignty political football during 2008 and 2009 with onsite protests, arrests, and lawsuits. Here's what's happening in 2010.

http://www.kauaiworld.com/articles/2010/01/13/news/kauai_news/doc4b4d7d400eeb3649465626.txt
The Garden Island (Kaua'i), Wednesday, January 13, 2010

Planning Commission denies Naue burial plea

By Michael Levine

LIHU'E — For the second time in as many months, the Kaua'i Planning Commission on Tuesday rejected a petition arguing North Shore landowner Joseph Brescia has not complied with permits in building his single-family residence on top of multiple known burials at Naue.

The commission voted 5-2 to approve Brescia's motion to dismiss a request by the Native Hawaiian Legal Corporation on behalf of Jeff Chandler and Nani Rogers seeking a declaratory order that would have served as a formal acknowledgment of Brescia's non-compliance.

Such an order could have led the commission to reconsider its Dec. 8 vote to reject a similar request from the same parties asking the commission to revoke Brescia's permits. The commission also denied a request for a reconsideration of that decision.

Calvert Chipchase, one of the attorneys representing Brescia, told the commission that they should dismiss the request for a declaratory order because "the evidence hasn't changed, the arguments haven't changed" since last month.

The requested order, had it been approved, would have made clear that the commission believes Brescia has not complied with Condition No. 5 of the building location, material and design review, approved in December 2007, which states, "No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met."

Commissioner Hartwell Blake, a former county attorney who joined with new Commission Vice Chair Herman Texeira to vote against the dismissal, asked why SHPD is considering the 15th iteration of the burial treatment plan after 14 rejections if its requirements have already been satisfied.

Blake said Brescia cannot possibly have met all of SHPD's requirements because he does not even know what those requirements are because there is no approved burial treatment plan. Responding to his own rhetorical question whether Condition No. 5 has been met, Blake said, "The answer is no."

The previously approved burial treatment plan was thrown into question in September 2008 when 5th Circuit Judge Kathleen Watanabe ruled Deputy State Historic Preservation Officer Nancy McMahon had violated state law by not properly consulting with the Kaua'i-Ni'ihau Island Burial Council before approving a plan that called for cement jackets above known iwi under the footprint of the house.

While Watanabe ordered that the process start from scratch, she also said in her ruling that the permits issued on the strength of that burial treatment plan would not be revoked and that Brescia could continue with construction on the house at his own risk, provided that doing so caused no irreparable damage to the burials and did not prevent access to them.

Deputy County Attorney Mauna Kea Trask, representing the Planning Department and largely aligned with Brescia's legal team Tuesday, said a burial treatment plan could include fencing, landscaping or buffers for burials that are to be preserved in place, as the KNIBC has already determined will be the case for the Naue iwi.

Attorney Alan Murakami of the NHLC said such protective measures would be "incompatible" with a house just feet above the burials, which is now nearly completed, and said Brescia and the county are "playing a guessing game" as to what course SHPD and the KNIBC will take with the iwi.

Trask argued revoking the permits now or even issuing a declaratory order stating the permit conditions have not been followed would fly in the face of Watanabe's "bifurcated" order and would expose the county to a lawsuit by Brescia claiming the action is a "taking."

Attorneys on the other side argued Watanabe's ruling was delivered in a case that does not count the county or its Planning Commission among its parties and said the decision is not binding on the commission.

"The issue is not whether he had a permit. That's undeniable," said Harold Bronstein, an intervenor in the case on behalf of the North Shore 'Ohana and Caren Diamond. "The issue is whether he violated the permit. And that's undeniable."

Camille Kalama of NHLC said the petitioners were simply asking for an acknowledgment that conditions have not been met, telling the commission that "to say anything else is impossible."

New Planning Commission Chair Caven Raco, who was among the five votes in favor of dismissing the petition, declined a request for comment during a brief recess following the agenda item.

Before the meeting got underway, former Commission Chair Jimmy Nishida was installed as Subdivision Committee chair, with Camilla Matsumoto, who was recently confirmed to her second three-year term on the commission, serving as his vice chair and Jan Kimura pegged as the third member of the subcommittee.

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http://thegardenisland.com/news/opinion/mailbag/article_94a1ace8-1200-11df-a5de-001cc4c002e0.html
The Garden Island, Letters for Friday, February 5, 2010

Brescia's 15 failed BTPs [Burial Treatment Plans]

"Preservation," according to HAR 13-300-2, is defined as "the form of mitigation that sets forth appropriate treatment of historic properties, burial sites, or human skeletal remains which are to be preserved in place." In the report from Dega for Brescia it states: "... These are appropriate methods for Preservation, given the ultimate directive supplied to us by the KNIBC: preserve each burial in place in perpetuity."

Has anyone, the judge or other than the developer/archaeologist clarified what "appropriate" means or to whom it is appropriate?

Wouldn't it seem that someone who has submitted 15 final burial treatment plans that have been rejected can't get it right and is in no position to be determining the interpretation of "appropriate"?

It obviously isn't "appropriate" to the other side. Brescia's rep uses examples of when a community deemed it "appropriate" to "relocate" but that is the wrong example. It does not properly address visitation in any way. And then Brescia's report says "Preservation," according to HAR 13-300-2, is defined as "the form of mitigation that sets forth appropriate treatment of historic properties, burial sites, or human skeletal remains which are to be preserved in place."

Under this definition, the current Plan fulfills "preservation" through the stated goal of preserving the burials in place in perpetuity. The main thrust is that all 30 burials lie in their original context, within their original soil matrices, within the original location of their interment hundreds of years ago.

The second main point is that measures have been taken to avoid any disturbance to these burials through current construction work. By approving this plan, protection will be afforded well into the future during uses of the parcel.

I guess it was a one-sided mitigation if there's such a thing. It addresses the physical aspects of a burial and not the spiritual aspect which in reality is the main thrust and kind of the whole argument.

Elaine Dunbar, Lihu'e

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http://thegardenisland.com/news/local/article_02ffd09a-17b8-11df-baf3-001cc4c002e0.html
The Garden Island | Posted: Thursday, February 11, 2010 11:45 pm for the hardcopy edition of Friday.

NAUE HOME GOING UP OVER IWI
Burial plan No. 16 rejected

by Paul Curtis

LIHU'E — After hearing nearly four hours of emotional testimony, the Kaua'i/Ni'ihau Island Burial Council on Thursday unanimously rejected the 16th draft of the burial treatment for Naue landowner Joseph Brescia's controversial single-family home.

Several graves were found on the property where an under-construction house is located, and many Native Hawaiians and others are continuing to call for the home to be torn down.

Under state law, when Native Hawaiian remains are discovered, construction is supposed to cease until a burial treatment plan has been approved by the island burial council.

Meeting in the Council Chambers of the Historic County Building during their first meeting of 2010, the members apparently shared the sentiment of most of the dozens of speakers, saying at the rejection point they still had concerns over cement caps placed over some of the known graves, proposed vertical buffers, portions of the home built over known burial sites, and the planned septic system and its impact on burial sites.

"Oh, man, we won one for a change," Hawaiian cultural practitioner Puanani Rogers said after the unanimous vote.

The unanimous vote came after a lengthy executive session, wherein council members asked the state deputy attorney general about their legal options, said Clisson Kunane Aipoalani, council chair.

The proposed burial treatment plan doesn't address long-range maintenance and access issues adequately enough, council members said. Before the decision, voices of the Kaua'i public — Native Hawaiian and otherwise — were loud, clear and unanimous, as articulated by Nathan Kalama of Wailua Houselots: "You have no choice but to deny."

A Hawaiian problem can only have a Hawaiian solution, Kalama said, recalling something told to him during a ho'oponopono (Hawaiian problem-solving) workshop. "And that answer is 'a'ole,' (Hawaiian for "no")," he said.

Desecration of Hawaiian graves has been going on for 100 years, and there is mana (miraculous power) in Hawaiian bones, which is why so many remains are hidden even from relatives, said Sharon Pomroy. "I do not agree to any compromise," said Pomroy, saying she has been asked to join the burial council on repeated occasions, and has always turned people down "because I won't compromise." "This thing gotta stop," said Pomroy. "You guys no like do 'em, I will. I'll fight. I would bleed to make this thing happen," she said. "We did it to fight this" at Keoneloa on the South Shore, site of the Grand Hyatt Regency Resort and Spa, Po'ipu Bay Golf Course and Embassy Suites at Po'ipu Point. "We need to fight this" at Ha'ena, she said. Pomroy also implored members of the council to continue battling. "Fight. It's all I can tell you guys. Fight. Resist, resist, resist."

John Zapala said he remembers when the U.S. flag on the wall of the council chambers signified "justice for all. As far as I can see, there has been no justice for Native Hawaiians since 1863." Further, he accused governments of perpetrating hate crimes against Native Hawaiians.

Kamo'iokalani Sausen, who lives near the Brescia property in Ha'ena, said the burial council should "bulldoze that house. You represent na iwi kupuna. You represent the Hawaiian people." "Stop the desecration of the burials," Sausen said. "My heart is broken to feel and to see what has happened, is happening" across the street from where she lives. "The bones have mana, and we are spiritually connected to them. They have the right to rest there," she said. "They were there before you and I. Stop this desecration. Reject this burial treatment plan. Remove this hale from this cemetery," and urge the county to revoke the building permit, said Sausen. "This case has helped us a lot as Hawaiians. This case has empowered you," said Louise Sausen. "You have a big job. Government has thrown us under the bus. This is a precedent case," she said. "'Naue' is the buzzword."

"I personally believe that this house should be removed," said Ken Taylor. But he said he is unsure whether or not the burial council has the power to do that. The council does have the power to stop construction on the home until a burial treatment plan is approved, and that could set the stage for the removal of the home, he said. Anything short of that and council members aren't doing their jobs, he said.

"What hurts me" is the lack of a strong voice in the process, said Rupert Rowe. "We have a process, but not a voice." Brescia took a gamble putting up his house when warned by a state judge he was doing it at his own risk, said Rowe. Culturally, the hale should be removed, he said.

Caren Diamond said Brescia reminds her of a cat she once owned that, despite being told not to come into the house, would still find a way into the home. Brescia's home went up with "complicity" of the county and state, even after she and others successfully brought a lawsuit to make Brescia build his home further from the ocean than he originally planned, said Diamond. "I don't think there is any Good Housekeeping seal of approval" that can be given to this house. None of this is OK, she said.

"This is a Hawaiian issue. It needs a Hawaiian solution," said Kehaulani Kekua, advocating what's best for the iwi kupuna, not what's best for government or the land owner. Native Hawaiians have an obligation and responsibility to malama the kupuna, because without them there would be no current generations of Native Hawaiians, she said.

Aikane Alapa, like Kekua and Kalama first-time testifiers before the council, said he is "kanaka o na iwi," or one of the "people of the bones," and won't be satisfied until the house is gone and only the 'aina (land) is left. The desecration "stings," he said. "It's a graveyard. We should have respect for people who died before us," said Justin Turner.

"Please make the house go away. Just leave the bones alone," said another speaker. "Leave them alone already."

"What are we teaching our children when these things happen?" asked Leslie Lang of Wailua Homesteads. "I would like to see the bones rest in peace. It's what's right. It's what's pono," she said. "This is a house built on top of bones. It doesn't belong there. The bones should be left alone, and respected," said Lang.

"You need to correct the wrong. Leave the bones alone," said Jeff Chandler. The members of the burial council include Chair Clisson Kunane Aipoalani, Vice Chair Keith Yap, and members Dee M. Crowell, James W. Fujita, Michael Loo, Debra U. Ruiz, Sandra P. Quinsaat, Leiana P. Robinson and Barbara J. Say. Missing Thursday were Crowell, Quinsaat and Robinson. Aipoalani was sick, but if he had missed the meeting there would not have been a quorum, so he attended and presided.

The 70-plus-page, 16th draft of the Brescia burial treatment plan, is available at

www.state.hi.us/dlnr/hpd.
Click on "BRESCIA BURIAL TREATMENT PLAN."

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http://thegardenisland.com/news/local/article_4b763dfe-2db2-11df-a53c-001cc4c002e0.html
The Garden Island (Kaua'i), March 12, 2010

IN DISPUTE WITH HAWAIIAN ACTIVISTS, LANDOWNER BRESCIA GETS FINAL WORD
Naue burial plan No.16 approved

LIHU'E — The 16th iteration of a burial treatment plan (BTP) that would allow Naue landowner Joseph Brescia to move forward with construction on his single-family home atop 30 known Hawaiian burials was approved this week by the State Historic Preservation Division.

Announced in a Monday letter from SHPD Administrator Pua Aiu to Dr. Mike Dega of Scientific Consultant Services and various interested parties, the decision flies in the face of a unanimous recommendation for rejection from the Kaua'i Ni'ihau Island Burial Council last month, sanctions the controversial house, and closes a significant chapter in the years-long fight between land rights and traditional values.

"SHPD is failing in their obligations and duties of what their jobs are. Totally, totally failing. An F-minus," said Puanani Rogers, a Hawaiian cultural practitioner and long-time school teacher.

"It's outrageous that they are not doing their job. Everybody knows, except them, that they're not supposed to build on a graveyard."

The 16th burial treatment plan is different from its 15 predecessors, Aiu said, in that it "finally" adequately addresses the provisions of Section 13-300 of the Hawai'i Administrative Rules, which require BTPs to attempt to identify lineal descendants and weigh their concerns.

Rogers said some lineal descendants were reluctant to file paperwork claiming their status because the state Department of Land and Natural Resources, under which SHPD falls, does not have a genealogist, a decision she said hampered attempts to stop construction.

Section 13-300 also requires burial plans to put forward short-term and long-term preservation measures if burials are to be preserved in place.

"The burial council has a mission to protect burials, and to look at burials, and that's all they have to do," Aiu said Thursday, noting that landowners, burial councils and Native Hawaiian cultural practitioners each have their own roles to play. "I think we had the difficult position of having to balance very different rights and responsibilities on this land."

Aiu said SHPD eventually decided that BTP No. 16 provided "adequate protection" to the 30 burials, including cement caps over a number of them and special vertical buffers for one burial that sits under the spot that will one day be the home's driveway.

"Both the KNIBC and members of the public stated that they did not believe the placement of concrete caps over the burials was respectful and proper," Aiu wrote in her letter to Dega.

"The SHPD however recognizes that ... there does need to be some physical or visual protective measures put in place to ensure that the burials near construction are protected and not disturbed. The concrete caps do serve this purpose."

Thursday, Aiu said "people are going to disagree or agree with us, but we had to make sure there was adequate protection."

Asked specifically how BTP No. 16 differed from previous versions that were rejected by SHPD, Aiu said that some complaints about unclear writing were addressed, but that there was not one specific significant change that led her division to grant the approval.

"It went through many iterations, and each time it went through, we caught something else," she said. "I think that we've done the best job that we can given the circumstances. I think people think we take this decision lightly, and we don't, but it's part of what we have to do."

Phone messages left Thursday afternoon seeking comment from a pair of attorneys representing Brescia and two attorneys at the Native Hawaiian Legal Corporation were not returned as of press time.

KNIBC Chair Clisson Kunane Aipoalani said he would withhold comment until after he had an opportunity to review Aiu's letter.

The future

With the recent decision by the county Planning Commission to decline to revoke Brescia's permits and the state's final approval of Brescia's home construction, the last potential venues for cultural practitioners to make their case appears to be the state Legislature or a court of law.

"We've got to change the laws. Something's got to be done about that. 'Preserve in place' has to mean that you don't build on top," Rogers said. "They're building on top of a huge graveyard. Don't they have a law that says you can't build on graveyards?"

Ha'ena resident Louise Sausen said Thursday she was "surprised" and "baffled" by the government's disregard for due process, but said she was proud of the Hawaiian community for speaking out on the issue and hopes the Brescia case can serve as a lesson for the future.

"It sets a precedent for future projects that this is not what we want to go through, let's take care of it before it gets to this point," Sausen said. "There's still more battles to fight, but at least we have something to use as an example of where we want to be going, and just take it from there."

Asked if SHPD would change anything about its procedures in light of the Brescia case when working on future applications, Aiu said she was "not sure that a different procedure would make a difference" because an archaeological inventory survey was conducted, located the known burials, leading to the burial council process that offered a choice between preserving in place and disinterring and reinterring the bones.

Because state law, upheld by judicial opinions, does not allow the burial councils to simply stop landowners from construction, any procedure put forth by SHPD would "still run up against the issue of whether a landowner can build a home on a lot like this," Aiu said.

"Do we have the right to make a landowner not have the use of their land?" she asked. "That's the ultimate question, and I think ultimately it will be decided in court. I hope it's settled clearly so we have clear direction."

For more information, visit
ww.state.hi.us/dlnr/hpd
and click "BRESCIA BURIAL TREATMENT PLAN."

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http://honoluluweekly.com/cover/2010/04/cut-to-the-bones/
Honolulu Weekly, April 7, 2010

Cut to the bones
The state's handling of burial sites comes under fire

JOAN CONROW

Standing atop seven ancient Hawaiian burials, on a lot with at least 24 more, the house that Joe Brescia is building at Naue, on Kauai's North Shore, has been the focus of protests and prayers, emotional meetings, a stand-off with police, sacred rituals, a months-long vigil and lawsuits — some of them still ongoing.

The house, now nearing completion, has become a powerful symbol of the bitter battle between development and cultural preservation in Hawaii. It's also exposed serious shortcomings in the State Historic Preservation Division (SHPD) and come to represent what some see as a deliberate attempt by Gov. Linda Lingle and her administration to undermine and circumvent the Island Burial Councils in order to facilitate development.

These issues came to the forefront on March 8, when SHPD Administrator Pua Aiu overruled a unanimous vote of the Kauai-Niihau Island Burial Council and approved a Burial Treatment Plan for the iwi on Brescia's lot.

In making the Feb. 11 motion to reject the plan, Council Vice Chairman Keith Yap said that the concrete caps placed over seven of the burials "are not appropriate, and we're still very much against any kind of building over the graves."

The Council also expressed reservations about the concept of "vertical buffers," which references the amount of space between Brescia's house and the iwi beneath it, and requested details about how his septic system, leachfield and landscaping could impact other burials on the site. Additionally, the Council asked Brescia to disclose his plans for providing access to the iwi by lineal descendants.

When asked why she had approved the Burial Treatment Plan after the Council specifically asked for more information and changes, Aiu replied, "It didn't need any more revisions."

Native Hawaiians and members of the preservation community were outraged.

"What SHPD has done is undercut the authority of the Council to protect the burials when they've made a decision to preserve in place," said Dana Naone Hall, former chairwoman of the Maui-Lanai Island Burial Council.

Aiu's approval marks the first time SHPD has overridden a Burial Council and permitted construction on a previously identified burial site, said Alan Murakami of Native Hawaiian Legal Corp., which is litigating the Brescia case: "They just absolutely caved in response to development pressure. What is the point of having a Burial Council if they can only determine how high or how wide the buffers can be? That's a huge constriction on the power the Burial Councils previously had."

Aiu defended her decision, saying that since SHPD is "not allowed to do a taking" of private property, the agency had "very little wiggle room" in attempting to site the house Brescia wanted on a relatively small lot widely dispersed with numerous iwi.

Murakami disputed that contention, saying the state statute does include provisions for acquiring such properties. "It's an option that nobody wants to explore," he said.

Aiu said Brescia's oceanfront parcel was too pricey. "If the state was to spend $2.2 million on that lot, what do we give up? … Other people talked about purchasing the land and weren't able to find the money."

Aiu says financial constraints during a period of economic downturn will likely continue to affect the way sites like Brescia's are handled.

"I unfortunately think this might be a harbinger of things to come because of more pressure on the land, especially to build along the shoreline," said Aiu. "We will find more burials. There's a strong sense in the Hawaiian community not to move iwi, but if we can't prevent construction, that doesn't leave us with a lot of options."

"Serious deficiencies"

Iwi advocates agree that pressure is mounting. "We've got developers who want the view, the ocean, but they have no respect for the culture and now they even want to disregard the burials," said Charlie Maxwell, chairman of the Maui-Lanai Burial Council.

But what is the purpose of preservation laws, advocates ask, if the state is unwilling or unable to stop construction on lands with high concentrations of iwi, and the governor's appointee can overrule the Burial Councils in favor of developers?

"It's very frustrating to be involved with the burials this long and to have fought for the law and these problems are still continuing," said Maxwell, who lobbied for state burial protection legislation after some 1,000 iwi were unearthed in 1989 to make way for the Ritz-Carlton resort at Honokahua, Maui.

"After Honokahua, people certainly believed the law that was put in place would actually prevent the kind of thing that is happening now on Kauai, which is essentially building a house on top of a burial ground," said William Aila, a member of Hui Malama I Na Kupuna 'O Hawaii Nei, which formed after the Honokahua incident.

Native Hawaiians and members of the historic preservation community say the current troubles are rooted not so much in the law, but in how it's implemented by SHPD.

That assessment was affirmed by a devastating new report from the National Park Service, which assigned SHPD a "high risk" status that could jeopardize the federal aid that provides half of its funding.

"This action is not taken lightly, and comes only after multiple attempts to help the SHPD correct serious deficiencies identified in audits going back as far as 2002," wrote National Park Service Director Jonathan Jarvis in a March 19 letter to Laura Thielen, director of the state Division of Land and Natural Resources, which oversees SHPD.

While the report addressed SHPD's performance under the federal historic preservation law, it also highlighted systemic failings and a number of "major problems" identified during a July 2009 visit to SHPD offices, including inadequate, untimely and inaccurate reviews of development plans that often confused State and federal historic preservation regulations and indicated "a lack of quality control and management oversight."

The report found that SHPD's inventory of surveyed archaeological sites is incomplete, outdated and disorganized, which "could lead to decisions being based on partial information, with detrimental effects to Hawaii's cultural resources."

The report further noted that a project to digitize files in order to improve their organization and accessibility "has not been supported by SHPD management and numerous efforts to train current HI SHPD staff have been postponed."

SHPD also was ordered to develop better procedural standards for conducting surveys of archaeological and historic sites. SHPD critics said this could help stymie agency actions apparently aimed at minimizing the likelihood of finding burials prior to construction, such as directing archaeologists not to dig too deeply and either failing to require archaeological surveys or restricting their scope.

A failure of the state

As a result of taking such a narrow approach, the full extent of burials on a site is often unknown, such as on Brescia's lot, or discovered after construction begins, as was the case with the General Growth/Whole Foods and Kawaiahao Church projects on Oahu. Under state law, when burials are found "inadvertently," Burial Council review is not required. Instead, SHPD determines what to do with the iwi, and the Councils have no power to challenge the decisions.

"Appropriate survey and inventory affects mitigation," Hall said. "Everything is dependent on the backbone of inventory and survey."

The report frequently referenced problems stemming from insufficient and unqualified staff. While it did not identify Aiu–a former analyst with the Office of Hawaiian Affairs and public relations consultant–by name, critics say that both she and her successor, Melanie Chinen, a former policy adviser to Lingle, lack the professional qualifications to lead SHPD.

The report also underscored deficiencies in the areas of public outreach and consultations, agency shortcomings that figured prominently in the Brescia controversy. Following the Burial Council's April 2008 decision to preserve in place all the iwi on Brescia's lot, Nancy McMahon, then the state archaeologist on Kauai, approved a treatment plan that sanctioned the use of concrete jackets on seven burials and house construction atop them. The Native Hawaiian Legal Corp. sued, and in a September 2008, Kauai Circuit Court Judge Kathleen Watanabe found that McMahon had failed to properly consult with the Council and other interested parties prior to approving "preservation measures" for the project.

"The heart of this case is the failure of the state to follow procedures put in place to protect cultural practitioners, the general public and the rights of landowners," Watanabe said in ordering McMahon to conduct the required consultations and return to the Council with a revised Burial Treatment Plan. On Oct. 2 and Nov. 6, 2008, McMahon returned to the Council with essentially the same plan she'd approved earlier. The Council rejected it.

Meanwhile, Brescia's archaeological team, Scientific Consultant Services, had already placed concrete caps on the seven burials, without SHPD's permission, and the house was being built over them. Watanabe refused to stop the project, but warned Brescia that he was proceeding at his own risk because the Council could approve any number of actions that might affect construction, including removing the concrete burial coverings.

Months went by, McMahon made minor revisions, and on June 4, 2009, draft 11 of the Burial Treatment Plan went to the Council, which deadlocked on a vote to reject it. Shortly thereafter, the Burial Council lost its quorum, and many more months elapsed before Gov. Lingle appointed two new members. All the while, work on the house continued.

At each of the Burial Council meetings, numerous members of the public denounced the BTP and complained that McMahon still had not engaged in the proper consultations. The public similarly opposed the 16th draft that the Council most recently rejected.

In her letter approving that plan, Aiu noted that McMahon had conducted the judge's required consultations by meeting with three individuals, listening to testimony at Burial Council hearings and reviewing written public comments on the plan.

Hall disagreed that McMahon had gone far enough.

"When you have every individual and organization writing in against it, how can you turn around and approve it? We all know it was political."

A change in philosophy?

In response to Aiu's approval of the Burial Treatment Plan, Murakami said he plans to amend one of the claims–that SHPD failed to properly carry out the laws–that has been before Judge Watanabe since the start of litigation two years ago. "The approval could be reversed, but without any practical effect on the building of the house," he said. "We need to have a ruling. Otherwise I'm sure a developer will make sure it happens again. They will point to Brescia and say, 'Why can't you do that for me?' That's the danger that I think all the Burial Councils now fear."

Maxwell concurred. "Whatever happens on Kauai affects us throughout the Islands," he said, which is why the Maui-Lanai Burial Council voted unanimously last week to write a letter of protest to the governor stating it had "no confidence" in the ability of SHPD, Aiu and McMahon, who is now Aiu's deputy, "to preserve and protect the cultural heritage of Hawaii, especially the iwi." Other Councils around the state are expected to take similar stances.

Presley Wann, who served two, four-year terms on the Kauai Burial Council, said he emerged from his tenure convinced that state laws need to be radically altered. The Burial Councils, he said, should be consulted at the beginning of the development review process, rather than the end, "when everybody's all frustrated. That's why we took a lot of the heat. We need to be involved way ahead of time. As Hawaiians, we know where our burials are."

Laws governing real estate transactions in the Islands also need to be revamped to include the caveat that "nobody's guaranteeing you the right to build," Wann said. Some places, like Brescia's lot, simply aren't suited to development.

Aiu said SHPD "would like to be more proactive and do [archaeological] inventories up front in the planning process. But that will take money, time and changes in philosophy."

Preservation advocates are hopeful that federal pressure on SHPD, and Lingle's departure from the governor's office, will usher in positive changes. In the meantime, Hall and Maxwell said it's important to remember that progress has been made in the 20 years since the state adopted legislation governing the treatment of Hawaiian burials.

"We were happy with the law because before that, in the '50s, developers would just plow them under, crushing them and take it to the dump," Maxwell said. "It's very painful. I've cried many times at burial sites, especially when the bones are all crushed. If only people would take care."

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http://thegardenisland.com/news/local/crime-and-courts/article_a1ea04cc-dc17-11df-8c91-001cc4c002e0.html
The Garden Island, October 20, 2010

NATIVE HAWAIIAN ACTIVISTS CHARGED WITH TRESPASSING CLAIM VICTORY Brescia-Edens case ends in $1 settlement

by Paul C. Curtis - The Garden IslandDennis Fujimoto/The Garden Island file

* photo caption
Ka'iulani Huff looks over a Hawaiian burial site on North Shore landowner Joseph Brescia's property. She and others were arrested for trespassing and other charges, but the case was settled in court last week for $1.

LIHU'E — A contentious, two-year-old lawsuit between North Shore landowner Joseph Brescia and Native Hawaiian activist Ka'iulani Edens and others recently ended with a $1 settlement.

Fifth Circuit Judge Kathleen Watanabe approved the settlement Oct. 12. "So we won. It's done," said Edens, who celebrated at a Lihu'e bar with friends and some co-defendants in the trespassing, conspiracy and slander-of-title case involving Brescia's Ha'ena property where he built a home over and around the graves of at least 30 Native Hawaiians.

Edens, Andrew Cabebe, Dayne Gonsalves and Hale Mawae were the remaining defendants. Edens said she was not sure if each were on the hook for 25 cents, or $1.

Andrew Salenger of the Honolulu law firm Cades Schutte represented Brescia via telephone at the hearing. He offered no comment Tuesday when asked why he made the settlement offer.

Salenger has until Tuesday to prepare the written settlement order also dismissing nine other defendants, state court records show.

The case may be settled as far as state court is concerned, but Edens said it is not over for her.

"We're going after them in federal court," and in international court, she said, to protect the human remains that are sacred to Native Hawaiians. "It's just the kupuna. It's our ancestors having their way," she said of the state-court results. "And I'm blessed to be as protected as I am by them."

There was a chance that if the case went to trial the defendants could have been found liable for upwards of $350,000 in damages due to construction delays the trespassing caused, according to previous statements from attorneys on both sides of the heated dispute.

The case — Joseph Brescia vs. Ka'iulani Edens-Huff et al — involves Brescia's Ha'ena coastal property near YMCA Camp Naue, where Hawaiian remains, or iwi, were discovered.

Although Brescia redesigned plans for the home to avoid directly disturbing the remains, protesters had camped on the public beach near his property and, in at least one case, were arrested for trespassing on the property where Brescia has been trying to build a home for seven years.

Watanabe last year granted Brescia's motions to name certain Kauaians in the trespassing suit by default, and to order them not to trespass or obstruct construction.

The motions also affirmed that many of those named in the case, including Edens, have no title to Brescia's property, as they had argued.

Earlier motions to set aside the charges by attorneys for Edens, Mawae, Gonsalves and Cabebe were denied, meaning they could have been found liable at trial for some or all of the damages resulting in their roles in hindering construction at the site, said attorney Camille Kalama of the Native Hawaiian Legal Corporation, representing another defendant, Jeff Chandler, after earlier proceedings in the case.

Defendants including Chandler and Puanani Rogers had filed third-party claims against various state agencies, claiming the state entities failed to follow historic burial procedures, Kalama said earlier.

Watanabe also had granted a motion by Brescia's attorneys to make the defendants pay around $1,600 as the cost of Brescia's attorneys' transportation fees to come to Kaua'i from O'ahu for one scheduled court appearance, Kalama said.


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(2) Kaua'i mayor must choose whether to build a multi-use path along Wailua Beach or farther inland. OHA previously objected to the inland route on accound of "sacred" and cultural places, but now objects to the coastal route for the same reasons and now recommends the inland route. State Department of Historic Preservation recommends the coastal route and cites numerous specific sacred and cultural places that would be impacted by inland route. Interesting dispute over which place is more "sacred" and who should decide and whether religion should dictate public policy. This topic first arose in year 2009, and the compilation of news reports and commentaries for 2009 can be found as item #11 on that webpage. On January 16, 2010 the Kaua'i newspaper announced that the mayor has chosen a compromise route running along the ocean side of the existing major highway. But on May 18, when construction was supposed to start, there were a handful of protesters and the mayor stopped construction blaming "equipment problems".

http://www.kauaiworld.com/articles/2010/01/16/news/kauai_news/doc4b516af0bf44d961795100.txt
The Garden Island (Kaua'i), Saturday, January 16, 2010

Mayor shifting path from beach to highway
OHA offers 'conditional support' for new alignment

By Michael Levine - The Garden Island

LIHU'E — Responding to outrage from the Native Hawaiian community over the placement of the county's multi-use path on the "sacred sands" of Wailua Beach, Kaua'i Mayor Bernard Carvalho Jr. on Friday announced that the proposed alignment will be shifted to the right-of-way on the makai side of Kuhio Highway.

"As a result of all of the input we've received, I've decided to move forward on a makai alignment, keeping the path within the Kuhi'o Highway right-of-way," Carvalho told a number of Hawaiian groups Friday, according to a county press release. "We are hopeful that this adjustment addresses many of the concerns raised by the community."

The Office of Hawaiian Affairs sent a letter to the county earlier this month expressing "conditional support" for the new alignment.

"OHA recognizes that conceptually the intent behind the county's latest modification ... is avoidance of grounds sacred to our Native Hawaiian constituents — collectively, the sands makai of and the cache of sites mauka of your relocated alignment," OHA Administrator Clyde Namuo wrote in a Jan. 4 letter to Haigh.

The change will not require a new Environmental Assessment, the mayor said, because the alignment is still within the parameters of the existing EA findings and the completed process related to Section 106 of the National Historic Preservation Act.

According to the release, the EA, which was completed in 2007 and recommended a makai alignment for the path, states that, "through the mid-section of Wailua Beach Park, the path will be as far inland as possible, running parallel to Kuhi'o Highway and on the makai side of a low rock wall."

In the new design, the existing rock wall will be removed and a replacement barrier will be constructed as an integral part of Ke Ala Hele Makalae, the release states.

By aligning the path within the highway right-of-way, the county can construct the path of 18-inch-deep concrete, shallower than that of the adjacent roadway.

"There will be no additional drilling or 'augers' required," Building Division Superintendent Doug Haigh said in the release. He noted that an archaeological site survey will be conducted prior to construction.

The Federal Highways Administration is conducting a re-evaluation of the EA and is seeking more information relative to how this adjustment may impact any historic properties along the route.

Before announcing the change to the public, Carvalho met with representatives of Hui Na Makaiwa o Wailuanuiahoano, Ka'ie'ie Foundation, Halau Kanikapahuolohi'au and Papa Ola Lokahi, along with several Hawaiian cultural practitioners. Representatives of federal, state and county agencies and OHA were also in attendance.

The meeting was a follow-up to a series of meetings that began in June when a number of groups came to the mayor and expressed concerns about the makai alignment of the Lydgate-to-Kapa'a section. Following a four-hour public meeting on Dec. 7, where dozens of residents expressed their feelings on the proposed Wailua Beach alignment, numerous meetings have been held between the governmental agencies and OHA to determine the best way to proceed, the county press release states.

While OHA expressed conditional satisfaction with the change, its optimism was tempered.

"OHA cannot over-estimate the sacredness or significance encompassing this entire Wailua complex for which even Kuhio Highway itself is in some respects a blemish — albeit one of commerce and practicality — dissecting the richly kapu landscape," Namuo's letter states.

Other opponents of the makai route were also not easily assuaged.

"We're glad that the mayor has recognized the concern from the community, it's a really wonderful first step of moving it away, but it's still on the beach," Judy Dalton said Friday evening.

"As long as it's still on the beach, we feel that the alternate route described in the environmental assessment as one of the three alternatives ... on the canal behind Coco Palms would be the least impactful, environmentally and culturally," Dalton said.

She said she had been told by the state Department of Transportation's Highways Division that the path will not be on the concrete shoulder but will still be on the sand dunes.

Attempts to reach a representative of DOT-Highways and Hui Na Makaiwa o Wailuanuiahoano by telephone Friday evening were unsuccessful as of press time.

Comments for the FHWA review may be submitted through Jan. 25 to the county's Department of Parks and Recreation via e-mail at csimao@kauai.gov or by regular mail at 4444 Rice Street, Suite 105, Lihu'e, HI 96766.

For more information on the new alignment, visit the county's Web site, www.kauai.gov.

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http://www.kauaiworld.com/articles/2010/01/17/opinion/letters_to_the_editor/doc4b52b91931d7d443571439.txt
The Garden Island (Kaua'i), Letters for Sunday, January 17, 2010

Mayor's path decision is a worthy compromise

The mayor's decision to stay off the sand but stay on the roadside is a compromise that warrants support.

It may be one of the few times in the short time I've lived on Kaua'i that a government leader has demonstrated any kind of respect to the kupuna leaders and cultural practitioners of the host culture.

Since the 1893 illegal overthrow of Queen Lili'uokalani the kanaka maoli continue to get hosed. It is hard for us outsiders to imagine how difficult it must be to see your lands and your way of life be commandeered by affluent and influential foreigners. Imagine the pain and suffering of living in an occupied homeland where your language, resources and future are dictated by the foreign occupiers.

To experience that kind of injustice and the cultural genocide that has occurred in Hawai'i is something I would wish for no one. Until we have experienced that kind of trauma we have no idea of the kind of offense that Native Hawaiians feel when they are confronted with another example of their culture being desecrated or disrespected.

Some insensitive folks would argue that Wailua Beach is already impacted; that there are volleyball courts, parking lots, and a freaking four-lane highway next to it. Drive by now, with all the bridge work being done, and you may ask, what would a beach path disturb that hasn't been disturbed already? Yet that is the point that these folks miss; if desecration has occurred in the past, why continue with the offense in the present?

The iwi kupuna issue is one that will not go away. When you have actions like the Planning Commission and Planning Department continuing to allow Joe Brescia to build over known iwi kupuna it is easy for me to see why Native Hawaiians and others remain convinced that the injustice of the 1893 overthrow continues to this day.

Mahalo to the mayor for listening to the kupuna and kumu who spoke clearly of the offense and injustice that still occurs today.

James Trujillo, Kapa'a

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http://thegardenisland.com/news/opinion/mailbag/article_a030bd2e-0a44-11df-bfa6-001cc4c002e0.html
The Garden Island (Kaua'i), January 26, 2010

Put the path behind Coco Palms

Regarding the mayor's "response to the outrage by the Native Hawaiian community over the placement of the county's multi-use path over the 'sacred sands of Wailua Beach,'" nothing's significantly changed with his recommendation of a new route alongside the highway.

The mayor suggests the path now be built on the shoulder of the road. Yet, according to the Department of Transportation, the highway-widening project that's underway has already maxed out the available width. Only two more feet can possibly be eked out on the Coco Palms side — nothing close to the probable 15 feet needed for the 12-foot path plus a safety barrier between it and traffic.

The proposed new route, therefore, couldn't be constructed on the paved shoulder of the highway; instead it would be installed, in solid concrete, next to the highway — on the beach. So, with all due respect, the county appears to be saying, we've listened to the community, they're right, the beach is sacred, therefore the path will be moved — to a different part of the sacred beach.

When the Native Hawaiians and others speak of preserving, protecting and respecting the beach, they don't mean part of the beach. When they say, "the sands of sacred Wailua," they don't mean "some of the sands." Kuhio Highway itself is already built on the beach; its shoulders are sandy. The idea of more pavement makai of the highway is disastrous; it is literally paving the beach. That this plan evolved from a decision to honor Native Hawaiians and sacred Wailua is not logical.

We who support the perpetuation of both the Native Hawaiian culture and the natural ecosystems of all beaches solidly maintain — as was restated at the mayor's meeting — that the mauka option, behind Coco Palms, where an existing paved pathway borders the canal, is the only viable location for a multi-use path through Wailua. No drilling is required, it's previously been used as a transit corridor, it is safe and beautiful, it is government land, it links up directly to the other planned mauka segment of the path (coming from behind Foodland), it still only involves one highway crossing (at Kuamo'o Road where there's already a light and crosswalk, instead of at a new light at Kintaro's as currently planned), and it would save money. We urge all decision-makers involved with this project to examine the merits of this option more thoroughly, and for those who haven't visited the site, that would be essential.

The mayor may literally be caught between a rock and a hard place because the State Historic Preservation Department asserts that a mauka path would somehow compromise the Birthing Stone on Kuamo'o Road. This is curious, since the mauka route runs north of Kuamo'o Road and the Birthing Stone is south of the road. At the same time, other officials have indicated support for the Hawaiians, recommending a non-beach route.

If we put the path mauka, behind Coco Palms, we can all move forward! On bikes. The community voice and Hawaiian culture will be respected, we'll save money and time, we'll have an effective pathway for recreation and transportation, we'll all get healthier, and the spirit of Wailua Beach will be elevated and honored for the amazing role it has played throughout the history of Kaua'i.

Wendy Raebeck, Wailua

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http://thegardenisland.com/news/local/article_b2c59358-631b-11df-bba8-001cc4c002e0.html
The Garden Island (Kaua'i), May 19, 2010

COUNTY BLAMES 'EQUIPMENT ISSUES' FOR STALLED START OF CULTURAL SURVEY
Wailua path project delayed amid Hawaiian protest

by Paul C. Curtis

LIHU'E — Work was supposed to have begun Tuesday to check for burials or cultural layers along Wailua Beach where a multi-use path is to be built. Beth Tokioka, administrative aide to Mayor Bernard P. Carvalho Jr., said "equipment issues" — not a protest by a few Native Hawaiians, including Waldeen Palmeira — delayed the planned start.

"It's direct desecration and destruction without the proper proceedings and procedures," Palmeira said. "You don't do archaeological subsurface testing on a known burial ground."

Kaua'i Police Department and state Department of Land and Natural Resources Division of Conservation and Resource Enforcement officers were on hand for Tuesday morning's scheduled start of what Tokioka called "subsurface archaeological inventory work on the portion of the shared-use path between the Wailua River bridge and the former Seashell Restaurant."

Cultural Surveys Hawai'i, the county's archaeological consultant, "is testing to insure that there are no burials or cultural layers existing that might be disturbed by the work," Tokioka said in an e-mail.

"The consultant has all necessary permits for the surveying," she said. Palmeira and others are sure burial sites are present on the beach, which the inventory work will confirm.

A full archaeological inventory survey is necessary, as well as consultation with Native Hawaiian cultural practitioners and lineal descendants of those buried beneath Wailua Beach, before any ground-disturbing work is done, Palmeira said.

"It doesn't start with the bulldozer. It starts with consultation, because these properties are national treasures" that have existed for centuries, she said. Lack of an AIS violates federal law, said Palmeira. Instead, a less-in-depth archaeological assessment was conducted, she said.

"They do not have the proper legal authority to do any ground-disturbing activities," she said. "This is not a pono process."

What would be right is preservation of the important area for future generations, said Palmeira.

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http://thegardenisland.com/news/local/04898a08-64ae-11df-971e-001cc4c03286.html
The Garden Island (Kaua'i), May 21, 2010

CULTURAL PRACTITIONERS CHALLENGE COUNTY
Digging in Wailua still on hold

LIHU'E — Three days after preliminary work was supposed to have begun to determine if cultural layers or Native Hawaiian burials exist along the proposed route of the county's coastal path on Wailua Beach, not a shovel of sand has been turned.

County officials said Tuesday equipment problems prevented the start of the work, and Thursday they said work is being delayed pending the result of a meeting with county, state and federal officials.

Cultural practitioners don't want any work done at all, saying all necessary federal and state safeguards haven't been met, urging the county to divert the path to a route behind the old Coco Palms Resort, or in the alternative not proceed with the beach route until a full-blown archaeological inventory survey (AIS) is completed, and consultation done with lineal descendants and cultural practitioners.

The county's archaeological consultant, Cultural Surveys Hawai'i, was supposed to look for burials between Wailua Bridge and the north end of the beach this week, in the area where the multi-use path is supposed to be constructed parallel to Kuhio Highway makai of the highway.

Waldeen Palmeira of Hui Na Makaiwa o Wailuanuiahoano is demanding the path be re-routed behind the former Coco Palms Resort. "This would not impact the culturally significant properties of Wailua Beach," she said in an e-mail.

Also, the mauka route is preferred because the beach route would be in violation of state and federal laws designed to protect important cultural and historical places, she said.

"Why dig willy-nilly when you've got the guy who knew of the bones in the first place to tell you where they are?" asked cultural practitioner Ka'iulani Huff, who said before a date was even set to start digging the county was supposed to meet with lineal and cultural descendants of the area.

Mayor Bernard P. Carvalho Jr. said in the press release he made a commitment to the community to perform additional testing at Wailua Beach so the county can manage any archaeological findings in the area. In the same press release, the county Department of Parks and Recreation said the testing is not a requirement of the path project, but Carvalho, in response to the "Hawaiian community," felt it was important.

Palmeira said state Department of Land and Natural Resources State Historic Preservation Division officer Nancy McMahon had previously agreed to a request that the survey would not take place prior to consultation with Native Hawaiian practitioners. Palmeira has sent a lengthy and detailed letter to several county, state and federal agencies, explaining in detail her organization's position. In the letter Palmeira said the organization is concerned about adverse effects of an AIS on the burials on Wailua Beach, and on Native Hawaiian traditional cultural and religious practices. "An AIS for the Wailua Beach for this project is inappropriate, immoral and disrespectful," Palmeira said in the letter, adding that it may involve illegal permitting procedures.

In the county press release, the county Department of Parks and Recreation said the county has all the necessary agency approvals to proceed with the subsurface testing at Wailua Beach for the coastal shared-used path. Huff, however, is telling a different story.

"We wanted to see copies of all the permits, and they didn't have them," said Huff, adding that McMahon has denied she had signed off on anything. "As far as I know, no one in the burial council has given them this approval to do the survey," Huff said.

McMahon, on her side, said she did approve the AIS, which was a request by the community. "We are doing what they wanted," McMahon said.

When the Department of Transportation tested the area, with the widening of the road in mind, nothing was found, according to McMahon. McMahon said she has listened in depth to the concerns of the community and is willing to work with them, but so far, Huff has not brought forward the alleged descendants. "In my opinion, she didn't do her part very well," said McMahon, adding she has given Huff enough time to bring the descendants so they could help locate remains.

Despite saying surrounding areas in Wailua have many remains, a geologist assigned to the EIS said the area where the path is supposed to be built is all new sand and has no remains, according to McMahon.

Wailua Beach is exposed to natural disasters, and remains were never found there, including when the now-defunct Sea Shell restaurant was build, McMahon said.

In the past, McMahon has been involved in controversy, when construction workers placed cement caps over burials in a property owned by Joe Brescia, in Naue, at Ha'ena on Kaua'i's North Shore. She said she did not authorize the caps.

Brescia's attorney denied her allegations, saying McMahon authorized Brescia to preserve the burials in place, and the caps served that purpose. As a result of her efforts to save burials in Naue, Huff got hit with a $400,000 judgment, she said. In October she's scheduled to appear in court to face charges of civil conspiracy.

Despite a looming outcome, Huff is seeing some light. "Everywhere we're rising up and saying 'enough,'" Huff said. "Even those who don't have Hawaiian blood but are from here are saying 'enough.'"

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http://thegardenisland.com/news/local/article_2379e2fc-84eb-11df-a2c0-001cc4c03286.html
The Garden Island, July 2, 2010

Hawaiians want bridge work stopped, claim 'obfuscation
Staking for bridge work may have alarmed some

Paul C. Curtis – The Garden Island

WAILUA — State Department of Land and Natural Resources agents suggested Kaua'i residents Waldeen Palmeira, Ka'iulani Edens and Liko Martin call police over concerns about a 20- foot-long, four-foot-deep trench makai of Kuhio Highway near Wailua Beach. So they did, filing a Kaua'i Police Department complaint around 10:45 a.m. Wednesday, claiming desecration and obstruction of due process, part of an ongoing battle to prevent construction of roads and paths over and around Wailua Beach. They said they are lineal descendants who are certain the county coastal path along the beach will yield human remains during the construction process. The trio also said on both sides of Wailua River not enough investigation and consultation has been done into how many remains remain, and where they might be located.

"These areas are important for our cultural survival," Palmeira said. The proposed coastal-path construction area falls smack in the middle of a known Hawaiian burial area so immense that it has its own name, Mahunapu'uone, which means "hidden sand dunes," she said.

"This is where our ali'i foundation is, for Kaua'i and the Hawaiian kingdom," she said, through the end of Queen Lili'uokalani's reign. Palmeira has gone to state district court to argue a lawsuit against the state Department of Transportation and others for allegedly not respecting federal and state laws requiring consultation with Native Hawaiian lineal descendants required whenever such construction projects are planned.

The state DOT prevailed in that court case and continues to stand by earlier statements that all necessary permits are in place and that all pertinent federal, state and county laws are being obeyed (see related story). "It is also important to note that on top of satisfying all federal, state and local requirements and permits — as part of the contract — this project includes archaeological monitors that are on-site whenever excavation takes place," said Tammy Mori, state DOT spokeswoman.

The Federal Highway Administration has failed to identify the historical properties and cultural importance of the area, Palmeira said.

Pat Phung of FHWA said Wednesday that any media requests for comment had to be directed to the Washington, D.C. office. There was no formal FHWA response by press time.

Edens said "obfuscation" is against the law. The confusion is being caused by mixing federal funds for a state project that also has county components and various private contractors involved so that, she said, no one knows who's in charge.

She called for work to be halted "until we find out who's in charge." Crews from Bow Construction Management, Unlimited Construction and Ka'iwa Construction were present at the job site Wednesday morning. Edens said later Wednesday that a meeting has been planned for today, and that pouring of the concrete for the retaining wall could happen as early as Friday.

An archaeologist monitoring the work knows the process for shutting down the job and alerting state authorities should any human remains be discovered.


===============

(3) Cemeteries being condemned and/or burials moved, on the mainland U.S. or in other nations, for the convenience of public or private development.
(a) In Chicago, a 160-year-old cenetery has been condemned to build an airport runway improvement, and 1200 burials will be moved.
(b) "During construction of a General Services Administration office building in Lower Manhattan, graves were discovered 24 feet below ground ... those remains led to the discovery of hundreds of other bodies in the same area ... these were black New Yorkers interred in what a 1755 map calls the "Negros Burial Ground ... In all 419 bodies were discovered — giving a clue to how many others still lie under the foundations of Lower Manhattan. (Estimates have ranged from 10,000 to 20,000.)"
(c) Orthodox Jews in Israel protest the moving of 1400-year-old burials to make way for construction of a new hospital wing, but the government of Israel goes ahead with the project. The protesters seem to say it would be OK to move the burials if they were Christians or pagans, but not Jews.

http://www.chicagotribune.com/news/local/chicago/ct-met-0209-ohare-cemetery-20100208,0,7097406.story

Chicago Tribune, February 8, 2010

Chicago wins cemetery land for new O'Hare runway
Relocation of about 1,200 graves could begin within weeks

** Photo
http://www.chicagotribune.com/media/photo/2009-11/50697159.jpg
** Photo caption
Still at issue are plans to move graves at the 160-year-old St. Johannes Cemetery in Bensenville. Despite the remaining obstacles, officials say the O'Hare runway project could be completed by 2014. (Tribune photo by Chuck Berman / July 2, 2009)

By Art Barnum, Tribune Reporter

The City of Chicago on Monday was awarded possession of a 161-year-old cemetery that lies in the path of a future runway at O'Hare International Airport, and the relocation of about 1,200 graves could begin within weeks.

DuPage County Judge Hollis Webster ordered that the title of the 5.3-acre St. Johannes Cemetery in Addison Township be transferred from St. John's United Church of Christ to the city. She also ordered that Chicago pay the church $630,000 for the land, which stands between two segments of a new runway already under construction.

The acquisition was considered one of the last major impediments to the $15 billion O'Hare Modernization Project.

Webster ruled in December that Chicago had a legal right to use eminent domain proceedings to acquire the site from the church, which has argued against the city's plan. On Monday she approved Chicago's motion to acquire the site under quick-claim proceedings after the city said a delay in the runway project could unnecessarily increase the project's price tag.

City officials said Monday that the current schedule calls for the graves to be moved by spring 2011, allowing for the new runway to be finished and opened by June 2013.

Webster ordered that no graves be moved for at least 20 days to allow church attorneys to file an appeal. The weather also could affect when the graves are moved. The church also will be allowed to argue the $630,000 reimbursement figure at a future date.

The church has maintained for years that the removal of the graves violates the religious beliefs of the church.

According to testimony, the city has hired a company to handle the disinterment. City officials said the city will work with next of kin to have the graves moved to whatever cemeteries they want, within reason, and will pay the relocation costs. About 15 graves already have been relocated by survivors on their own.

The cemetery has existed about half a mile north of Irving Park Road in Addison Township since 1849 but has averaged only about one burial a year over the last 20 years, according to testimony.

---------

http://www.chicagobreakingnews.com/2010/06/appellate-court-hears-arguments-in-ohare-cemetery-case.html
WGN TV, June 22, 2010

Appellate court hears arguments in O'Hare cemetery case

The City of Chicago today defended its right to purchase a five-acre cemetery that stands in the way of a new runway for O'Hare International Airport.

The city's defense came during arguments before the state appellate court in Elgin, which is hearing an appeal by the owner of the 161-year-old St. Johannes Cemetery, located near the airport's southwest corner.

St. John's United Church of Christ is appealing a ruling earlier this year by DuPage County Judge Hollis Webster, who said Chicago had the legal right to buy the cemetery and move more than 1,000 graves as part of the O'Hare Modernization Project.

The church opposes the plan, claiming that it violates its religious principles.

Chicago contends that federal courts have previously ruled that religious principles aren't being violated and that Webster ruled Chicago had a right to acquire the property using the claim that the public benefit was a sufficient reason.

City officials said that after Webster's ruling, 28 graves were moved voluntarily and that about 70 other moves were pending when the appellate court halted further removals until the church's appeal could be heard.

Benna Ruth Solomon, an attorney for the city, argued before a three-member panel of 2nd District Illinois Appellate Court, "that the project is necessary for the public good. The (Federal Aviation Administration) is the expert and they say this is the best place for this runway. No religious practice is being interfered with, just religious beliefs."

Joseph Karaganis, arguing for the church, said that the cemetery issue should be "given a full trial" in DuPage County. "State religious claims are different than federal religious claims.

Religious protections are messy and this is the job of the courts."

An appellate court decision isn't expected for several months.

-- Art Barnum

------------------------

http://www.nytimes.com/2010/02/26/arts/design/26burial.html
New York Times, February 26, 2010

MUSEUM REVIEW | AFRICAN BURIAL GROUND VISITOR CENTER
A Burial Ground and Its Dead Are Given Life

By EDWARD ROTHSTEIN

Cemeteries are at least as much for the living as the dead. They are the locus of tribute and memory; they affirm connections to a place and its past.

So in 1991, when during construction of a General Services Administration office building in Lower Manhattan, graves were discovered 24 feet below ground, and when those remains led to the discovery of hundreds of other bodies in the same area, and when it was determined that these were black New Yorkers interred in what a 1755 map calls the "Negros Burial Ground," the earth seemed to shake from more than just machinery. The evidence created a conceptual quake, transforming how New York history is understood and how black New Yorkers connect to their past.

That is a reason why Saturday's opening of the African Burial Ground Visitor Center, near where these remains were reinterred, is so important. Among the scars left by the heritage of slavery, one of the greatest is an absence: where are the memorials, cemeteries, architectural structures or sturdy sanctuaries that typically provide the ground for a people's memory?

The discovery of this cemetery some two centuries after it was last used provided just such a foundation, disclosing not just a few beads, pins and buttons, but offering the first large-scale traces of black American experience in this region. Here, underneath today's commercial bustle, are tracts of land that for more than a century were relegated to the burial of the city's slaves and free blacks.

In all 419 bodies were discovered — giving a clue to how many others still lie under the foundations of Lower Manhattan. (Estimates have ranged from 10,000 to 20,000.)

The new visitor center, inside the federal building that was ultimately constructed over a portion of the excavation (the other part became a burial site and memorial), is meant to explain the site's significance — not a simple task, because the passions stirred by the discovery were not just historical, but also personal. There was a felt connection to the people, unearthed in their disintegrating coffins, who in the early decades of the city's settlement were often forced into its construction. A sacral regard for the dead was joined with a sense of identification and continuity.

The months after the discovery only amplified those passions. While the city has paved over a multitude of cemeteries in its hectic past, here the government's initial intention to exhume and preserve the remains while proceeding with its nearly $300 million construction project was sadly inadequate. Protests and political interventions led to the suspension of building and the revision of plans.

In 1993 the burial ground was placed on the National Register of Historic Places; in 2006 the memorial site was declared a national monument and placed under the oversight of the National Park Service. In 2007 a memorial sculptured by Rodney Leon was unveiled, and now the site's $4.4 million visitor center means to place it all in context.

To do this the center's exhibition (created by Amaze Design) combines a sense of communal rededication with a sense of historical enterprise that followed the 1991 discovery. A revision in popular understanding has taken place about slavery's history in New York City, evident in several recent books and an impressive series of shows at the New-York Historical Society. In the 18th century slaves may have constituted a quarter of the New York work force, making this city one of the colonies' largest slave-holding urban centers

For seven years scholars at Howard University, led by the anthropologist Michael L. Blakey, also examined every bone fragment and relic found at the site before they were ceremonially reinterred in 2003 at a memorial next to the slightly shrunken footprint of the new building. The scholarly reports, alluded to in some of the displays, show injuries to bones attributed to strenuous physical labor, signs of malnutrition and some physical indications (like filed teeth) of an African heritage.

These various themes do not always accompany one another felicitously in the exhibition; in fact the passion and the detached historical analysis often seem to trip over each other, but the overall impact is considerable. The visitor center also includes an introductory film, a shop and classroom space.

You leave the building to see the memorial itself, where in seven raised mounds containing crypts filled with coffins, all the human remains and artifacts were reinterred. At the memorial's center is the starkly ponderous $5 million monument of black granite designed by Mr. Leon.

The site seems carved out of the area's bleak office surroundings. It makes the past seem like an excision, a resurrection of an alien time and place, a reminder of what lies deep underfoot.

The initial appeal of the show is emotional, immediate. "You are standing where thousands of Africans buried their loved ones during the 1600s and 1700s," it begins. "Slave holders forcibly brought these men, women and children here from the Caribbean and Africa."

Displays are built around a life-size tableau in which a few black slaves gather around two wooden coffins — of a child and a man — about to be interred in the burial ground. We hear outdoor sounds along with the unfamiliar funereal chants of a woman leading the ceremony. The mourning figures, sculptured by Studio EIS, are uncannily affecting.

In keeping with the site's recent history, the personal becomes political. Throughout the exhibition, contemporary black New Yorkers are referred to as "the descendant community," a group with familial connections to the remains. "Reclaiming Our History" is the show's title.

And one part of the exhibition is an account of the struggle to preserve the site, paying tribute to political activism. Five "scrapbooks" outline the political battles and controversies. Racial radicals, serious scholarly arguments, national politics and impassioned community hearings all play roles.

The creation of the burial ground and the visitor center becomes, in the show, a consummation, a posthumous triumph. But there is also a tendency to exaggerate the effect of that activism. It became clear relatively quickly what this site represented and that something more was required than a simple archaeological excavation.

The best parts of the exhibition are about the distant past. We learn, for example, that of the 419 graves examined, nearly half were of children. We see graphs comparing mortality in this gravesite and the Trinity Church graveyard (Trinity had forbidden the burial of blacks there in 1697); there was a significant difference in life expectancy.

Manual labor, as another display points out, also left its mark on bones. One schematic portrait of a man's skeleton points out that the skull is notable for a "thickened ridge where his shoulder and neck muscles connected to the back of his head," caused by heavy lifting.

And because nothing concrete is known about any of the remains — "only 20 percent" were found with any personal items and even those were minor — the exhibition smartly incorporates individual examples of slaves identified because they escaped, were freed or were sold. The displays also give a condensed survey of slavery in New York, its onerous laws, its rebellions and its perversities.

But the passions inspired by the burial ground seem to skew the account. One Howard University report is explicit: The "research agenda" was "designed and implemented" to address topics raised in community meetings. They were to focus on "the cultural and geographical origins" of those buried, "the quality of their lives under captivity," the ways they resisted and how they created new identities.

These are all important matters (though there is no evidence, as the exhibition says, that "determined activists and scientists created a new way to study past people's lives"). But some of the questions also seem to presume certain answers. A partial reading indicates that the reports themselves are impressive and cautious. But we don't really know from the displays what to make of the skeletal evidence of physical strain, or the fact that half the studied remains indicated malnutrition, without comparing those findings to bone samples of free manual workers of the period. This would surely reveal something about slavery in New York, even if limning its brutal nature might seem crude.

The show also asserts that the blacks buried here had close cultural connections with Africa. It would be surprising if there were no such connections, and there is some evidence here. Around the waist of one corpse was a string of beads and shells associated with African customs; the coffin of another is inscribed with a symbol that has been linked to an African "sankofa" sign (and turned into a logo now used for the visitor center and the outdoor monument). But the assertion of the connection, at least in the exhibition, reaches beyond the evidence; some of the tests were also apparently inconclusive.

And one exhibition section is devoted to contemporary African culture without showing any real connection with the burial ground or its artifacts. We see samples of cloth now made in Nigeria and Mali, a picture of a fabric market in Ghana, a pipe from Benin — though no cloth survived in the burial ground, and no pipe is mentioned as a relic.

The point is simply to establish an association. Instead it raises questions about it. A historian outside the Howard group has even challenged the assertion that the "sankofa" sign had the African meaning ascribed to it.

And while no such exhibition can fully pay attention to scholarly details, at times we seem guided here to ignore complications rather than understand them. The show says, for example, that all those buried here were slaves. But even the research panel's reports are less sweeping.

Certainly the vast majority were enslaved, but there is evidence of free blacks in New York, well before this gravesite was closed in the 1790s. Washington Square Park is on land once owned by free blacks whose farmsteads in the mid-17th century spread over 130 acres. And by 1790 a third of the city's blacks were free.

We are talking about small numbers of course, but all the numbers are small. New York's entire black population in the middle of the 18th century was no more than 2,500.

So there is still much more to be understood about the history of slavery and black Americans in New York. But in the meantime the burial ground gives back to both the "descendant community" and to everybody else a sense that we are all arising out of a more complex and painful past than we have often imagined.

---------------------

http://www.journalgazette.net/article/20100516/NEWS04/100519657/-1/NEWS09
Fort Wayne (Indiana) Journal Gazette, May 16, 2010

Ultra-Orthodox Israelis protest grave removal

by TSAFRIR ABAYOV, Associated Press

ASHKELON, Israel – Israeli antiquities authorities operating under heavy police guard began relocating ancient graves today to make way for construction of a hospital emergency room, setting off protests from ultra-Orthodox Jews who say Jewish remains are being disturbed.

Officers forcibly carried off dozens of demonstrators who had staged a sit-in to try to stop the work outside Barzilai Hospital in the southern city of Ashkelon. Police spokesman Micky Rosenfeld said 15 protesters were arrested.

Archaeologists have determined the graves belonged to Christians or pagans from the Byzantine period, about 1,400 years ago. But ultra-Orthodox Jews insist they are Jewish bones that should not be moved, in accordance with religious practice.

A fence surrounding the hospital was topped by barbed wire to keep out demonstrators, and police set up checkpoints at the entrances to the city to ward off any major inflow of protesters.

The operation, which got under way after weeks of political wrangling, took place under the guard of hundreds of police deployed in the area in anticipation of possible violence.

But ultra-Orthodox rabbinical leaders did not call for a major protest, Deputy Health Minister Yaakov Litzman told Israel Radio. Yaakov is an ultra-Orthodox Jew who had opposed the graves transfer.

Police also stepped up patrols in ultra-Orthodox neighborhoods in Jerusalem, where small numbers of protesters were gathering. Demonstrators had set trash bins on fire in the city the night before.

After the graves were discovered, Israel's Cabinet – under pressure from ultra-Orthodox coalition members – voted to relocate the planned facility. But Prime Minister Benjamin Netanyahu reversed that decision and told his Cabinet today that "the general good" trumped the ultra-Orthodox concerns.

Ashkelon is not far from the Gaza Strip, and doctors had warned that if Palestinian militants again fire rockets at the city, the trip between the hospital and a separate emergency room would be dangerous.

The relocation also would have cost millions of dollars.

** Comment from Ken Conklin: It seems the government of the Jewish nation of Israel is refusing to abide by the demands of a group of ultra-orthodox Jews to leave ancient burials in place. It also seems that the protesters are saying that if the dead people in the burials were Jews they should not be moved, but if they were Christians or pagans then no problem, go ahead and move them. This article raises two issues: Is it acceptable for a religious/racial group to say their own bones and burials deserve treatment as sacred but others are junk? Is the alleged sacredness of ancient bones and burials a fringe attitude which governments can ignore because the majority of people of that religion (Jews in Israel; Hawaiians in Hawaii) do not believe in such sacredness?


=============

(4) In other nations, ancient burials being dug up for DNA analysis, for public display in museums, etc.
(a) Egyptian Pharaoh Akhenaten's mummy DNA analysis confirms family relationship to Tut and others.
(b) Saint Rose of Viterbo (13th Century) has her heart preserved in a reliquary separate from her mummified body, and the heart has now been X-rayed to discover she died of Cantrell's syndrome.
(c) Venezuela President Hugo Chavez ordered the remains of liberator Simon Bolivar (died 1830), a historical and cultural hero, to be exhumed for DNA analysis to see whether he died from arsenic poisoning instead of tuberculosis. Chavez showed Bolivar's skeleton on live television while singing the national anthem.
(d) Paleopathologists dissect human remains in ancient burials to study cancer and other pathologies in ancient times and compare with modern times. "Only on rare occasions can pathologists get their hands on a comparatively recent mummy like Ferrante I of Aragon, king of Naples, who died in 1494."

http://www.washingtonexaminer.com/world/discovery-of-monotheist-pharaohs-mummy-provides-clues-about-unique-time-in-ancient-egypt-87355892.html
The Washington Examiner, March 11, 2010

Discovery of monotheist pharaoh's mummy provides clues about unique time in ancient Egypt

By: PAUL SCHEMM
Associated Press

CAIRO — The DNA tests that revealed how the famed boy-king Tutankhamun most likely died solved another of ancient Egypt's enduring mysteries — the fate of controversial Pharaoh Akhenaten's mummy. The discovery could help fill out the picture of a fascinating era more than 3,300 years ago when Akhenaten embarked on history's first attempt at monotheism.

During his 17-year rule, Akhenaten sought to overturn more than a millennium of Egyptian religion and art to establish the worship of a single sun god. In the end, his bold experiment failed and he was eventually succeeded by his son, the young Tutankhamun, who rolled back his reforms and restored the old religion.

No one ever knew what became of the heretic pharaoh, whose tomb in the capital he built at Amarna was unfinished and whose name was stricken from the official list of kings.

Two years of DNA testing and CAT scans on 16 royal mummies conducted by Egypt's Supreme Council of Antiquities, however, gave the firmest evidence to date that an unidentified mummy — known as KV55, after the number of the tomb where it was found in 1907 in Egypt's Valley of the Kings — is Akhenaten's.

The testing, whose results were announced last month, established that KV55 was the father of King Tut and the son of the Pharaoh Amenhotep III, a lineage that matches Akhenaten's, according to inscriptions.

KV55 had long been assumed to be too young to be Akhenaten, who was estimated to be in his 40s at the time of his death — but the testing also established the mummy's correct age, matching the estimates for Akhenaten.

"In the end there was just one solution for this genetic data fitting into the family tree and this showed us this must really be Akhenaten and could not be any other," said Albert Zink, director of the Institute for Mummies and the Iceman at the European Academy in Bolzano, Italy, who worked on the project.

Now experts are planning more tests to uncover further details about Akhenaten's royal family. The new attention could also give a push to a planned new Akhenaten museum that will showcase his mummy near Amarna, his capital midway down the Nile in what is now the province of Minya, 135 miles (220 kilometers) south of Cairo.

In one tantalizing discovery, the testing established that another unidentified mummy was Akhenaten's sister, that he fathered Tutankhamun with her and that she appears to have died from violence with blows to her face and head.

Still elusive is Nefertiti, the chief wife of Akhenaten famed for her beauty. Egypt's antiquities chief, Zahi Hawass, has said one of his goals is to track down her mummy.

"The Amarna period is like an unfinished play," Hawass said at the February press conference announcing the new discoveries. "We know its beginning but have never succeeded in discovering its end."

The discovery of Akhenaten's remains lay to rest longtime speculation over his physical appearance. Royal statues of the time show an effeminate figure with womanly hips, elongated skull and fleshy lips — leading to speculation he suffered from any number of rare diseases that distorted his body.

But the mummy and DNA tests showed a normally shaped man without genetic conditions that might given him both masculine and feminine features.

"It ought to dampen down some of the more dramatic interpretations," said Barry Kemp, who has been working on the Amarna excavations since 1977. "But people do love a good story."

Jerome Rose, of the University of Arkansas, who has been working on the site with Kemp, said the discovery "makes our work at Amarna of greater interest."

What the discovery does not resolve, however, is the mystery of how Akhenaten died. Unlike Tutankhamun's well preserved mummy, which showed he suffered from congenital defects and malaria, Akhenaten's remains are little more than bones with no soft tissues to provide clues to his death.

In fact, the difference in preservation between his skeleton and all the other royal mummies could have been due to his different religious beliefs or animosity by those burying him.

"I think it's another evidence that it really could be Akhenaten; he was treated differently, not in the same way as the other mummies," said Carsten Pusch, of the Institute of Human Genetics in Tubingen, who also worked on the project.

For most of world, King Tut embodies ancient Egypt's glory, because his tomb was packed to the brim with the glittering wealth of the rich 18th Dynasty (1569-1315 B.C.). But Tut was in fact a minor king.

Akhenaten's reign, which began around 1350 B.C., was far more momentous.

He broke with the powerful priests of Amun, Egypt's chief god, repudiated Egypt's many deities and ordered the worship of the sun disk, Aten. He moved his court to his new capital at Amarna, which grew to some 30,000.

Along with the religious revolution, he oversaw a dramatic change in Egyptian art, promoting a naturalist style at odds with the rigid conventions and stiff tomb paintings with which the world is familiar. In one example of the exuberant new style, remnants of a painted gypsum floor from the palace show colorful ducks exploding out of a riot of Nile reeds.

But after his death, he was purged by his successors and remained unknown to the world until the discovery in the 19th century of his royal city at Amarna — one of the only existing ruins of an ancient Egyptian city, rather than just a temple or tomb.

For a Victorian Europe already fascinated by the flood of discoveries in Egypt, news of a monotheist centuries ahead of his time seized the public's imagination. Theories have swirled over Akhenaten's legacy, with some like Sigmund Freud even speculating he may have influenced Judaism, a theory that, while discounted, has been remarkably enduring.

Unlike the animal and man-shaped deities of Egypt, Akhenaten's cult took a step toward worshipping something more abstract.

"He was prepared to believe only in the supernatural source of power that he could see with his own eyes, the disc or orb of the sun," said Kemp.

Akhenaten also set forth a new moral code. "His courtiers praised him for teaching them to distinguish between right and wrong, and I think it likely that he wrote a treatise of moral guidance that has not survived," he added.

The discovery of Akhenaten's body could be a boon to Minya, one of the poorer provinces in Egypt — quintessential "flyover" territory, skipped by tourists heading straight from the Giza pyramids outside Cairo to the temples of Luxor in the south, where the Valley of the Kings is located.

The museum in Minya will house the mummies of Akhenaten, his mother Queen Tiye and his ill-fated sister-consort and "tell the story about Akhenaten," Hawass said.

Amarna's ruins were once a regular stop for cruise boats steaming south from Cairo. But an insurgency by Islamist militants during the 1990s drove the tourists away and few have returned more than a decade after it was crushed.

The city's modest hotels still bear faded 1980s-era tourist posters touting the area as the "cradle of monotheism," with an image of Akhenaten.

Kemp says the occasional tour group does pass through to see the extensive Amarna ruins — most of them New Age-style pilgrims coming from as far away as Croatia and Brazil.

"There is a definite Akhenaten fan club. I am intrigued by the existence of those who make a spiritual pilgrimage to Amarna," said Kemp.

---------------------

http://wtop.com/?nid=106&sid=1977809
WTOP, 103.5 FM radio, Washington D.C.
Article originally published in Lancet (medical journal)

Italian saint likely died of heart defect
June 11, 2010 - 4:11am

By MARIA CHENG
AP Medical Writer

LONDON (AP) - For thousands of Catholics, the 13th-century Italian Saint Rose of Viterbo had miraculous powers that allowed her to raise someone from the dead and survive the flames of a burning pyre.

Scientists examining the saint's mummified body now say she had a congenital heart defect that may have ultimately killed her as a teenager.

Ruggero D'Anastasio of the G. d'Annunzio University in Chieti, Italy, and colleagues analyzed pictures and X-rays of the medieval saint's preserved heart, which looks like a petrified lump of rock.

They suspect Saint Rose died of Cantrell's syndrome, a rare heart disorder, rather than tuberculosis, as previously thought. The research was published Friday in the British medical journal Lancet.

To get the X-rays, D'Anastasio and his team took a portable machine to Santa Rosa monastery in Viterbo, near Rome, where Saint Rose's heart is kept in a reliquary. Her body was mummified separately.

D'Anastasio said he and the monastery's officials were particularly keen to find out what killed the patron saint of people in exile, as she was only about 18 years old when she died. "We found a blockage in her heart that was most probably fatal," he said, adding there was no evidence of tuberculosis.

Frank Ruehli of the University of Zurich and the Swiss Mummy project called the diagnosis "extraordinary." He was not linked to the research.

Ruehli hypothesized the heart syndrome might have given Saint Rose an enlarged organ or made its pumping slightly visible beneath the skin. "People might have been aware of her being special in a medical sense," he said.

Ruehli said it was impossible to know how severe Saint Rose's heart disorder was, but that it might have strengthened her link to followers if they recognized there was something different about her.

Others said it was an interesting footnote but likely would not change much about our understanding of Saint Rose or the heart defect itself.

Howard Markel, director of the Center for the History of Medicine at the University of Michigan, said re-examining mummies should only be done under certain circumstances.

"To avoid this being a macabre parlor game, we have to ask ... does this answer any burning questions in medicine or in history?" he said. "I'm not sure this does."

He said better technologies would allow scientists to investigate how many historical figures died, but that exhumation wasn't always justified.

"We are obliged to offer them the same kind of dignity and respect that we would like," he said. "In 500 years, do you want people digging up your body?"

Online:
http://www.lancet.com

-------------------

http://www.cnn.com/2010/WORLD/americas/07/17/venezuela.bolivar.exhumed/index.html
CNN, July 17, 2010

Skeleton of Venezuelan revolutionary Bolivar exhumed

By Gustavo Valdes, CNN

(CNN) -- Venezuelan state television has showed the skeletal remains of one of Hugo Chavez's heroes as the country's president called for an investigation into his death.

Most historical accounts say tuberculosis killed Simon Bolivar, who died in 1830 at the age of 46. But Chavez ordered investigators to exhume the body of the former military leader and determine whether he was murdered. "Bolivar is alive. Let us not see him as a dead man and let us not see him as a skeleton. He is like lightning, like a sacred fire," Chavez said.

With the national anthem playing in the background, a group of scientists wearing white coats rolled up a black cloth, revealing a skeleton on the table below.

The broadcast then faded to black, showing Chavez singing along to the national anthem.

A DNA test will be performed on the remains as well as the clothing items found inside the tomb, Chavez said.

He said on his Twitter page that he cried when he first saw Bolivar's remains Thursday.

Chavez has credited Bolivar with inspiring him as "the father of the revolution."

In 1819, Bolivar founded Gran Colombia, a federation of what is now Venezuela, Colombia, Panama and Ecuador. He led the armies that liberated Bolivia, Colombia, Ecuador, Panama, Peru and Venezuela from the Spanish crown and is credited with spreading democratic principles in Latin America.

----------------------

http://www.nytimes.com/2010/12/28/health/28cancer.html
New York Times, December 27, 2010
** Excerpts related to NAGPRA

Unearthing Prehistoric Tumors, and Debate

By GEORGE JOHNSON

When they excavated a Scythian burial mound in the Russian region of Tuva about 10 years ago, archaeologists literally struck gold. Crouched on the floor of a dark inner chamber were two skeletons, a man and a woman, surrounded by royal garb from 27 centuries ago: headdresses and capes adorned with gold horses, panthers and other sacred beasts.

But for paleopathologists — scholars of ancient disease — the richest treasure was the abundance of tumors that had riddled almost every bone of the man’s body. The diagnosis: the oldest known case of metastasizing prostate cancer.

The prostate itself had disintegrated long ago. But malignant cells from the gland had migrated according to a familiar pattern and left identifiable scars. Proteins extracted from the bone tested positive for PSA, prostate specific antigen.

A recent report by two Egyptologists in the journal Nature Reviews: Cancer reviewed the literature, concluding that there is “a striking rarity of malignancies” in ancient human remains.

“The rarity of cancer in antiquity suggests that such factors are limited to societies that are affected by modern lifestyle issues such as tobacco use and pollution resulting from industrialization,” wrote the authors ...

For all the efforts of archaeologists, only a fraction of the human bone pile has been picked, with no way to know what lies hidden below.

Anne L. Grauer, president of the Paleopathology Association and an anthropologist at Loyola University of Chicago, estimates that there are roughly 100,000 skeletons in the world’s osteological collections, and a vast majority have not been X-rayed or studied with more modern techniques.

Only on rare occasions can pathologists get their hands on a comparatively recent mummy like Ferrante I of Aragon, king of Naples, who died in 1494. When his body was autopsied five centuries later, adenocarcinoma, which begins in glandular tissues, was found to have spread to the muscles of his small pelvis.

A molecular study revealed a typographical error in a gene that regulates cell division — a G had been flipped to A — which pointed to colorectal cancer. The cause, the authors speculated, might have been gluttonous consumption of red meat.

Over the years hundreds of Egyptian and South American mummies have turned up a few other cases. A rare tumor called a rhabdomyosarcoma was found on the face of a Chilean child who lived sometime between A.D. 300 and 600.

Dr. Zimmerman, co-author of the recent review, discovered a rectal carcinoma in a mummy dated between A.D. 200 and 400, and he confirmed the diagnosis with a microscopic analysis of the tissue — a first, he said, in Egyptian paleopathology.

“The fact remains that there are only a minute number of truly ancient mummies and skeletons that show evidence of cancer,” he said. “We just don’t find anything like the modern incidence of cancer.”

Although average life span was lower in ancient Egypt than it is today, Dr. Zimmerman argues that many individuals, especially the wealthy, lived long enough to get other degenerative diseases. So why not cancer?

Other experts have suggested that most tumors would have been destroyed by the invasive rituals of Egyptian mummification. But in a study published in 1977, Dr. Zimmerman showed it was possible for the evidence to survive.

Andreas G. Nerlich and colleagues in Munich tried out the prediction on 905 skeletons from two ancient Egyptian necropolises. With the help of X-rays and CT scans they diagnosed five cancers — right in line with Dr. Waldron’s expectations. And as his statistics predicted, 13 cancers were found among 2,547 remains buried in an ossuary in southern Germany between A.D. 1400 and 1800.

For both groups, the authors wrote, malignant tumors “were not significantly fewer than expected” when compared with early-20th-century England. They concluded that “the current rise in tumor frequencies in present populations is much more related to the higher life expectancy than primary environmental or genetic factors.”


================

(5) A new rule proposed for applying the NAGPRA law says that transfer of culturally unidentifiable remains is to be made to a tribe from whose tribal or aboriginal lands the remains were excavated or removed. This greatly worries many museums which until now have been able to keep such remains; but tribes claim that most so-called unidentifiable remains are actually identifiable. Additional controversy comes because the new rule is not clear regarding what happens to associated cultural or funerary artifacts which may or may not be culturally identifiable.

http://www.indiancountrytoday.com/home/content/90350684.html
Indian Country Today, April 13, 2010

Scientists ponder NAGPRA lawsuit

By Rob Capriccioso
Indian Country Today

WASHINGTON - Scientists are considering a lawsuit against a new rule that would help repatriate thousands of Native American remains to tribes across the nation.

The rule, published March 15 and open for comment for 60 days, is a clarification from the Interior Department to the 1990 Native American Graves Protection and Repatriation Act. It states that after appropriate tribal consultation, transfer of culturally unidentifiable remains is to be made to a tribe from whose tribal or aboriginal lands the remains were excavated or removed. Civil penalties are proposed for museums and learning institutions that do not follow the law.

The development has been largely celebrated by Native American communities, although tribal advocates say it has shortcomings, like not including sacred culturally unidentifiable funerary objects in its scope. Some tribes are using the open comment period to make that concern known, noting that common law and some state laws require repatriation of such objects.

Some scientists, however, are outraged by the new rule, believing that important human knowledge could be lost if the remains go back to tribes.

"I and many of my colleagues believe the new additions to the law go far beyond the spirit of compromise that defined the original NAGPRA law," said Fred H. Smith, Anthropology Department chair at Illinois State University.

"The new law allows virtually any group to claim unaffiliated remains with essentially no proof that they are closely related. There are a number of problems with this, but not to be lost among them is that it severely limits scientific research on human remains."

Dennis O'Rourke, a population geneticist at the University of Utah, has argued that "the loss to science would be greater than ever before, because new techniques allowing the extraction of DNA from increasingly ancient bones has boosted the scientific value of such specimens," according to a recent report in Nature magazine, titled, "Rule poses threat to museum bones."

O'Rourke and Smith are leaders with the American Association of Physical Anthropologists.

Members of that professional organization, along with some from the Society for American Archaeology are the top contenders to wage a legal opposition to Interior's rule.

John O'Shea, an anthropology professor at the University of Michigan and a museum curator there, believes such litigation would likely be ruled in favor of scientists - and could end up raising questions about the validity of the entire NAGPRA law.

"I think these regulations go far beyond the original intent of the law. I know a lot of people in Indian country are okay with that, but it does raise issues for me as a scientist."

O'Shea has long been a controversial figure to some Native American advocates who believe he has hurt tribal relations with his university as a result of his positions involving NAGPRA. Once a member of the committee that oversees the law, he has offered past perspectives that some see as anti-tribal.

On top of their arguments regarding loss of scientific knowledge, several scientists believe that a 9th Circuit ruling involving skeletal remains of the so-called Kennewick Man will bolster their legal claims.

Smith is not so sure, saying the case, which was decided in favor of scientific interests in 2004, referred to one specimen under a specific set of circumstances.

"Frankly, I think legislatures and even the courts are likely not to support science," Smith said. "It isn't in their political interests, particularly given the anti-science leanings of many (if not most) Americans. I have little hope that the interests of science and knowledge will win out against the emotionalism of the other side. It's a shame, and no one knows the ramifications of this for the future."

Many Native Americans take umbrage with the idea that their arguments involving the new rule amount to "emotionalism."

"We're looking at a system resulting from colonialism, involving lots of privilege and entitlement," said James Riding In, an American Indian studies professor at Arizona State University. "The anthropology and other science fields have a long legacy of opposition to Indian human rights." Riding In noted that several scientists opposed the original law altogether, so he is not surprised some are willing to fight the new rule in the courts.

"When they look to the courts, you have to realize that they are looking to a tool of colonization, built on Eurocentric attitudes."

The legal system builds in a lot of shots at appeal that might allow scientists to get the victory they desire, Riding In said, adding, "We always run the risk of what happened with Kennewick Man."

Veronica Pasfield, a repatriation officer with the Bay Mills Indian Community, said that past actions by scientists show them not to be acting in good faith.

She noted that the NAGPRA program has determined that 80 percent of the human beings archaeologists and museums have declared "unaffiliated" are actually affiliated with tribes.

"The new regs are, in part, a direct consequence of that failure to work in good faith within the spirit - and sometimes letter - of this law.

"I find [the scientists'] outrage to be really ironic. Since 1990, obstructionist curators have stunted important collaborative research that tribes and those who study them could be doing together.

They also cast a very colonial light on their discipline and those trying to work within the ethical standards required by their profession."

In a related development, Sherry Hutt, manager of the national NAGPRA Program, said in a recent radio interview that part of the new rule provides a process for those that are truly unidentifiable, and also makes institutions go back to address the law's 1995 rule to make sure they properly identify remains.

D. Bambi Kraus, president of the National Association of Tribal Historic Preservation Officers, noted that institutions were required to consult with tribes by 1995 on the type of remains they held.

That the new rule is being suggested as only beginning some institutions on a path toward rudimentary information sharing is part of the frustration many Natives feel, Kraus said.


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(6) The Honolulu rail project is likely to encounter ancient Hawaiian burials during construction. The construction and associated archeological surveys will be done in phases, starting in the west, but likely burials would be in the final phase, in the east. Should all archeological surveys be done before any construction, to ensure the route could be changed if necessary to avoid burials? And if burials are found, should they be moved or should they stay in place and the route be changed?

http://www.honoluluadvertiser.com/article/20100505/NEWS01/5050356/Honolulu+rail+project+facing+pressure+to+protect+native+burials
Honolulu Advertiser, Wednesday, May 5, 2010

Honolulu rail project facing pressure to protect native burials
It fears pressure to move iwi if project has already begun

By Sean Hao
Advertiser Staff Writer

Before starting to build its $5.3 billion commuter rail project, the city must survey the train's route through Kaka'ako to make sure it won't interfere with burials or other cultural resources, a panel charged with protecting Native Hawaiian burials said.

The city plans to build the 20-mile elevated train in phases and intends to conduct archaeological surveys before starting work on each segment. The Kaka'ako segment would be the last to be built, and the area has not yet been surveyed.

The O'ahu Island Burial Council says the city must conduct an archaeological survey of the entire route before starting construction. The group opposes plans to run the elevated train down Halekauwila Street in Kaka'ako, saying it is concerned that the buried remains of Native Hawaiians might be there.

The burial council and others have expressed concerns that if the transit project encounters burials after construction starts, there will be pressure to move the human remains rather than alter the train's route.

Last month the burial council voted unanimously to request that Department of Land and Natural Resources Director Laura Thielen, who is also the State Historic Preservation Officer, not sign a pending agreement with the city that would allow studies of archeological impacts to occur in phases rather than all at once.

The city needs the Federal Transit Administration, Hawaii State Historic Preservation Division, National Park Service and the Advisory Council on Historic Preservation to sign that "programmatic agreement" before the rail project's final environmental impact statement can be released and construction of the 20-mile East Kapolei to Ala Moana train can start.

However, several groups — including the Office of Hawaiian Affairs, the Oahu Island Burial Council, the National Trust for Historic Preservation, the Historic Hawaii Foundation and the American Institute of Architects — are pushing for changes to the language of the agreement, which establishes the framework for mitigating the impact of the rail project on Honolulu historical resources.

STATE LAW INVOKED

The burial council is appointed by the governor and works to protect Hawaiian burial sites. The resolution was drafted with help from the Native Hawaiian Legal Corporation.

Both groups contend that state law requires that all archaeological studies be completed before the state can allow the city to proceed with the rail project.

"The city has to complete the historic review process before the project can start and the historic review process requires that all the archaeological reports be done now," said David Frankel, an attorney for the NHLC. "The state can't sign off until the entire review process is completed."

Thielen was unavailable for comment.

"She is still reviewing the OIBC resolution and surrounding issues," said Deborah Ward, a DLNR spokeswoman.

According to a 2006 study by the city, there is a high probability of finding Native Hawaiian burials and other archaeological artifacts once construction starts in urban Honolulu. However, the city does not plan an archaeological survey of the Middle Street-to-Ala Moana Center segment of the rail project until next year. The city is planning to begin construction on the first phase of the rail line in East Kapolei later this year and complete the entire 20-mile line by 2019.

The train's route down Halekauwila Street was chosen by the Honolulu City Council in early 2007, based on a 2006 study of various transit alternatives.

The city has said it would consider moving train guideway footings and altering utility relocation plans to avoid iwi — human remains. However, it's unlikely that discovering human remains in Kaka'ako will cause the city to alter the route, city officials have said.

PROJECT DELAYS

The city doesn't think plans to conduct archaeological studies in phases violate state law, said city Transportation Director Wayne Yoshioka.

"We're just going to have to see," he said. "We don't think it's a problem."

The programmatic agreement is under final review by required signatories, Yoshioka said. The city expected that agreement to be completed late last year, followed by groundbreaking in December.

However, construction has breen delayed by the programmatic agreement and issues concerning the train's impact on airspace safety zones at Honolulu International Airport.

Yoshioka declined to predict when construction would begin.

"Rather than make assumptions about how things are going to go, what we want to do is let the process play out," he said.

------------------

http://honoluluweekly.com/cover/2010/05/grave-matters/
Honolulu Weekly, Vol. 20, No. 21, May 26, 2010
** COVER STORY

Grave Matters
We're about to find out what happens when our forbearers lie in the path of development. Again.

by JOAN CONROW

** Cover artwork showing skeletons lying under road pavement which is, under elevated train track (but of course if the skeletons have already been paved over for decades, then what's the harm of building an elevated train above the pavement?):
http://honoluluweekly.com/wp-content/uploads/2010/05/cover-00526.jpg

Kawika McKeague, chairman of the Oahu Island Burial Council (OIBC), is not a psychic. But he and other preservationists say they can see the future of the city's $5.3 billion elevated rail project, and to them, it looks something like this:

The city will build the line from West Oahu to downtown, where it will start finding large concentrations of Hawaiian burials. The city, citing the billions already invested to get to that point, will then pressure the Burial Council to relocate the iwi kupuna, or allow construction atop the bones. If Council members resist, they'll be vilified as anti-development obstructionists and blamed for delaying — perhaps even derailing — the project and adding greatly to its cost. If they go along, they'll be vilified as cultural sell-outs who set burial protection back to square one. The result, in any case, will be controversy, animosity, great sorrow and angst.

The Burial Council is charged with protecting the bones that, according to Hawaiian religious tradition, are not only remains but are themselves ancestral to Hawaiians living today. Its leaders are so sure of what lies ahead, given the city's plan to start construction before it conducts an archaeological survey for the entire project, that they are taking the unprecedented step of creating a carefully documented institutional memory of their opposition to that approach.

"When the day comes, and we feel certain that day will come when there's an encounter of significance, we want to be able to hold our heads high and say we advised the city and others, we drew the line in the sand now, rather than acquiescing and waiting for that to happen," McKeague said.

It's a scenario preservationists have seen play out before and say is happening with increasing regularity as public and private projects move forward before their impact on ancient burial sites is fully assessed.

"This is like H-3 all over again, where they select the corridor first and then try to see if they can comply with state and federal preservation laws. We don't want to go through that again," said Edward Halealoha Ayau, executive director of Hui Malama I Na Kupuna O Hawaii Nei, which formed out of the cultural trauma of Honokahua, Maui, where some 1,100 iwi kupuna were unearthed during construction of the Ritz Carlton hotel.

"The irony is that when the situation first occurred at Honokahua, and Hawaiians engaged in civil disobedience in order to stop the disturbance of iwi, the state's response was you have to stop behaving this way and work within the system," Ayau recalled. "And now the state and counties are trying to undermine the very rules that were created to protect burials."

Undermining the Council

Preservationists believe the city's plan to conduct the rail archaeological survey in phases, which allows it to put off the thorny issue of downtown burials for several years, is politically motivated. "Mufi's got a timetable and historic preservation completely destroys it," said one in reference to Honolulu Mayor Mufi Hannemann, who could make good hay of launching the jobs-producing rail project as he campaigns for the governor's seat. Preservationists note that Hannemann, if elected, will be in a position to appoint both the director of the State Historic Preservation Division [SHPD] and Burial Council members–allowing him to influence the disposition of burials encountered in the fourth and final phase, when they're most likely to be found.

"By the time they get downtown, the pressure's gonna be there to bring this thing home, power through to the finish," McKeague said. "In that climate, the relocation of burials, homes, utilities becomes easier."

Burial Council members believe that Hannemann already is laying the groundwork to undermine their authority through his stated plan to create a Mayor's Advisory Council on Iwi Kupuna for the rail project. "What we don't want is Hawaiians fighting Hawaiians," McKeague said. The OIBC outlined its concerns in a detailed letter to project manager Faith Miyamoto that included this statement: "It is unclear why the Mayor feels compelled to establish a group to address matters over which the OIBC has been statutorily assigned to act and advise upon, especially considering the long-standing relationship of the City and the OIBC."

In a written response to questions, the city's transportation services director, Wayne Yoshioka, provided this rationale for the decision to segment the AIS: "The advantage of a phased approach is to protect resources undisturbed. The Oahu Island Burial Council (OIBC) has requested and the City has agreed to a thorough and precise archaeological investigation. The City has agreed to pre-explore every column location within the highest-risk portions of the corridor. To have completed this level of investigation at an early stage would have required excavating much larger areas through downtown because the locations of the column foundations requires a level of design that typically takes place after the environmental impact statement and Section 106 of the [federal] National Historic Preservation Act processes conclude."

But OIBC members say the surveys should be conducted up-front to help guide the city in preparing the Environmental Impact Statement and choosing the rail's route and technology. They say an elevated system, which will be built atop columns that go deep into the ground, is more likely to impact burials. Sewer and utility lines also would need to be relocated into deep sediment that previously has not been disturbed, leading to the likelihood of more "inadvertent discoveries"–a burial classification that falls under the sole authority of SHPD. Burial Councils have legal jurisdiction only over iwi identified through an archaeological inventory survey (AIS).

OIBC members also believe the phased approach is illegal, a stance supported both by the National Trust for Historic Preservation–its attorneys expressed their concerns about the city's "legal vulnerability" in an Oct. 22, 2009 letter to Yoshioka and the Federal Transit Administration–and attorney David Kimo Frankel of the Native Hawaiian Legal Corp.

"All historic review processes need to be competed prior to issuing permits or ground breaking," Frankel said. "The issue is the city can't make a decision whatsoever before the AIS is done."

Historic doubts

SHPD Administrator Pua Aiu isn't so sure. She supports the city's plan to do the surveys in phases, since construction of the elevated rail line also will be phased. "It doesn't make sense to be ripping up entire areas now before you do the [construction] work," she said. "And even if you do a survey now, you only sample a percentage of your route. In this case, it will be where the posts are going to go. It doesn't guarantee you'll find where all the burials will be, anyway."

And at any rate, Aiu said, "this is a federal project so we review it under 106," a federal statute that allows a phased approach to archaeological surveys. Frankel maintains that it is also a city project and subject to state rules that forbid a phased AIS.

"The City has consulted with legal counsel throughout project planning," Yoshioka wrote. "Pursuant to HRS Chapter 6E, the state or City permit granting authority will be required to notify SHPD when the project applies for permits (e.g., grading and grubbing) if the AIS shows that the project may impact a burial or other historic site. This would also include coordination with OIBC for pre-discovered burials."

"We don't have the fullest confidence of a good working relationship with the city to do the right thing with this," said McKeague, noting the city has uncharacteristically excluded OIBC from consultations on the rail project. "It's dampened our ability to be a positive contributor to workable solutions."

Preservationists argue that it's obvious the rail project will encounter iwi downtown, given the discoveries at Wal-mart, Ward Properties and Kawaihao Church, so great care should be taken in advance to avoid them. In their October 2009 letter, National Trust attorneys noted, "The City seems to assume that adverse effects to burials can be avoided because alterations — such as relocating guideway columns, using straddle-bent supports, or modifying span lengths — should allow most burials to be preserved in place. However, the OIBC rightly disagrees. The City cannot conclude with certainty that it will avoid burial sites."

Aiu doesn't dispute that burials likely lie along the rail's route, although she downplays the prospect of a Honokahua replay. "I think the number of a thousand is a little high, but I think it's reasonable to be concerned about the Kakaako area," she said. "We have found a lot of burials in that area and I think we will find more. I'm not sure that moving the rail system anywhere in the downtown corridor will alleviate the Burial Council's concerns because they have been found throughout the entire downtown area."

McKeauge said the purpose of the state burial law is to seek to identify iwi in advance, so as to avoid digging them up during construction. "That's just not pono. By that time, it's too late. That interaction, defilement and desecration has already occurred once the burial is disturbed."

A phased approach undermines that objective, preservationists say, by committing the city to a route and technology before it knows what lies at the end of the line.

"It's sort of an end run to force relocation, and that's not what this [burial preservation] law was about," Ayau said. "The law was designed to do a lot of the heavy work at the front end so you don't have problems at the back end, and now they're doing the opposite."

Aiu disagrees. "I'm not entirely sure that was the legislative intent, because if you look at the way the law reads, it's [the survey] always triggered by a permit. When the laws were made there were compromises because you have to balance the various needs. Do you want it to be a policy of the state that when burials are found, they won't be moved? If so, the law needs to be changed."

McKeague, however, said the purpose of the law is stated in its introduction: "The Legislature found Native Hawaiian burials are especially vulnerable and often not afforded adequate dignity and freedom from unnecessary disturbance. That's why we're [the Burial Council] here. Early investigation, coupled with early consultation, can only afford the land developer or owner the best information to figure out a fair use of the land."

Ayau said that when the burial law was adopted in 1990, there was a great deal of discussion over whether the program should be housed within the Department of Land and Natural Resources (DLNR), or the Office of Hawaiian Affairs (OHA), an agency designed to serve Hawaiians, but lacking enforcement authority. It was ultimately placed under DLNR because of its enforcement powers.

"This perceived manipulation of the burials laws has raised that issue again," he said. "We have gotten into situations where the state refused to enforce the law and used its discretion not to enforce. Now we're looking at what would be necessary to give OHA the enforcement authority it needs to be effective."


================

(7) A bypass road for Ali'i Parkway in Kona has been designed and redesigned for many years at a cost of many millions of dollars, with no actual construction. Each time a design is completed, concerns are raised about a newly rediscovered or suspected burial that might need to be moved. See item # (4) in the webpage for NAGPRA 2009, which also includes links to coverage from previous years. In 2010 it appears that the county is abandoning hope for the project, as evidenced by the project's low rank on the list of priorities during a time of financial difficulty.

http://www.westhawaiitoday.com/articles/2010/05/08/local/local01.txt
West Hawaii Today (Kona), Saturday, May 8, 2010

Is project dead?
No funds, more burial sites and little initiative point to yes

by Erin Miller

After spending nearly $7 million on studies over the last 40 years -- without turning so much as a spade of dirt -- has Hawaii County abandoned Alii Parkway?

A county official says no money is available for the road project, and without money, there is no project, and county efforts have been focused on other endeavors. A lineal descendent of the region holds to his position the preponderance of burials makes the road virtually impossible to design. A recent inadvertent burial report to the Hawaii Island Burial Council may decrease the project's chances significantly.

Mayor Billy Kenoi said Friday the parkway has dropped down the list of West Hawaii priorities.

"We are committed and focused on building infrastructure in Kona," Kenoi said, listing a number of projects, including Ane Keohokalole Highway, the state's Queen Kaahumanu Highway second phase project, work on Mamalahoa Highway and the Laaloa and Lako mauka-makai connectors. "Alii Parkway comes after those priorities."

Kenoi called the road project a priority a few months after he took office in late 2008, calling for construction to begin by the end of 2009. In March 2009, he said he was committed to an "aggressive timeline" for the project.

The county continues to talk with lineal descendents of the ahupuaa through which the parkway would run.

He did not give direct answers to questions about whether the county should abandon the project based on concerns lineal descendants and burial reports have raised.

"We're focusing on the projects that will alleviate traffic congestion in a meaningful way," Kenoi said.

A county contractor recently wrapped up more data recovery in the proposed 4.5-mile long corridor, said Bobby Command, Kenoi's executive assistant.

"We need to interpret and see what needs to be adjusted" based on that report, Command said.

Surveying was halted in 2004 when a burial site was discovered. Three years later, the burial council approved a county plan to bridge the site; survey work then resumed, Command said.

What's next for the parkway?

"Where we go is limited by funding," Command said. "There's no money for this. If we can't find the money to build it, it's not going to be built."

That wasn't the county's position as recently as early last year. Then, President Barack Obama offered municipalities millions in federal stimulus funds for projects that were ready to begin and county officials found a $35 million gift horse -- it cleared environmental hurdles, got a project on the state's transportation funding list, started design and engineer work, met federal deadlines and issued a contract. But the road wasn't the long-planned Alii Parkway, it was the relatively newer Ane Keohokalole Highway, running from Palani Road to Kealakehe Parkway.

"While we are still trying to finish up what steps that are necessary (for Alii Parkway), we saw the opportunity to do the Ane Keohokalole Highway," Command said.

For lineal descendent Curtis Tyler, a former councilman who voted to fund the project when county officials promised no burial sites were in the right of way, the matter has always been fairly clear cut.

"If can, can," Tyler said. "If no can, no can."

The longer answer, he said, is that the county has always been aware of burials in the right of way, but ignored them, ordered more surveys and tried realigning the road to avoid the locations.

"The county could have saved a lot of taxpayers' money," Tyler said. "One would think after 40 years and 19 surveys and $10 million, we would have some results."

Some of the earlier surveys, dating back to the early 1970s, show burials in the right of way, he said.

County officials hoped for years to qualify for Federal Highways money to pay for the highway; former Mayor Harry Kim decided a few years ago to lower the speed limits and create a more "people friendly" design, which started the road on a path to lose federal funding eligibility, Tyler said.

"Why spend more money to make something be that can't?" he added. "The county should, as I believe they are, focus on the mauka-makai roads."

The parkway had been touted as a critical component in the region's transportation network, tying traffic into the half-finished South Kona bypass built by Oceanside 1250. The most recent iteration of the Alii Highway would be a limited access road, from Queen Kaahumanu Highway at upper Hualalai Road south along the coast, emerging at the makai entrance to Keauhou Shopping Center. From there, the parkway would connect with the Mamalahoa Highway bypass through the Hokulia luxury subdivision, then rejoin Mamalahoa Highway at Napoopoo Junction.


================

(8) In 2003 and 2004, 42 sets of bones more than 50 years old were found on Kaka'ako land being redeveloped for a new Wal-Mart. The total rose to 64 sets. Hearings were held before the O'ahu burial council and DLNR, and a lawsuit was filed. On May 18, 2010 it was reported that the Hawaii Supreme Court has refused to hear an appeal by Hui Malama from a lower court ruling. Text of the Supreme Court's denial of certiorari has information about the facts of the case and the regulations governing burials.

http://www.starbulletin.com/news/hawaiinews/20100519_Court_ends_Walmart_site_burial_case.html
Honolulu Star-Bulletin, May 19, 2010

Court ends Walmart site burial case
Judges refuse to hear an appeal over the city's OK of permits with no historic review

By Star-Bulletin staff

More than five years after opening for business, the Keeaumoku Street Walmart and Sam's Club have seen the end to a legal challenge to their construction.

The Hawaii Supreme Court has refused to consider an appeal by a designated cultural descendant of the people whose skeletal remains were discovered during the construction. A co-plaintiff was Hui Malama i na Kupuna o Hawaii Nei, a nonprofit organization that specializes in the reburial and repatriation of native Hawaiian remains and artifacts.

Work crews uncovered 42 sets of human remains during construction between January 2003 and January 2004.

The state Historic Preservation Division, with the recommendation of the Oahu Island Burial Council, ordered the remains relocated and reburied on the property.

Before the project was completed, Paulette Kaleikini and Hui Malama sued the city, the state and Walmart to halt construction. They argued that the city should not have granted Walmart permits for the project without first consulting the Historic Preservation Division about possible historic or burial sites on the property.

A state judge refused to stop the project.

The judge said the city was required to consult the agency only if it knew or had reason to suspect that the project might affect known burial or historic sites.

The city said its research turned up no historic or burial sites on what was previously marshland that had been filled in and used by commercial and industrial businesses for at least 50 years.

The Historic Preservation Division had also previously advised the city that there were no historic or burial sites on portions of the property and other properties nearby.

But Kaleikini and Hui Malama lawyer Moses Haia said the court's interpretation of the law allows the city or other permitting agency without any knowledge or expertise in historic preservation to cut out state review.

Gov. Linda Lingle later approved state administrative rules that require permitting agencies to consult the division.

Kaleikini and Hui Malama took their case to the Hawaii Intermediate Court of Appeals, which upheld the lower court's ruling. The appellate court said that even if the city had conducted a more rigorous review of the project site, Kaleikini and Hui Malama did not provide any evidence that such a review would have revealed the burial site's existence.

Walmart and Sam's Club opened their doors to customers in October 2004.

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http://planetkauai.blogspot.com/2010/05/haw-supreme-court-denies-cert-in-case.html
Planet kaua'i legal blog

Haw. Supreme Court denies cert in case involving inadvertent discovery of forty-two burials

by Charley Foster

The case, Hui Malama I Na Kupuna O Nei v. Wal-Mart,

http://www.state.hi.us/jud/opinions/ica/2009/ica28477.htm

involved the interpretation of HRS § 6E-42, which requirs a permitting agency to seek SHPD's review and comment on any project "which may affect historic property...or a burial site."

The plaintiffs had argued essentially that the statute requires permitting agencies to seek SHPD review and comment prior to granting any project approvals.

In December, the ICA held that the plaintiff's interpretation "impermissibly ignores the clear language of the statute" and affirmed the First Circuit Court's holding that the statute requires SHPD's review and comment only when the permitting agency "knows, or has reason to suspect, that the project may impact a burial or other historic site," and that, since there was "no evidence that the City Defendants knew of or should have known" that a burial site existed on the property, the statute was not violated.

The question of when an agency knows or should know that a project "may affect" burial sites is an interesting one because there are locations where, even though there is no living memory of burials, the probability is that some exist there.

However, in this case the property, originally brackish-water marshlands, had been filled and extensively developed and used by commercial and industrial tenants for at least fifty years by the time Wal-Mart purchased it. Multiple environmental, archaeological, and other assessments involving subsurface excavations, borings, and testing had been conducted and documented both for the Wal-Mart project and for other proposed developments on and near the property, and none of the assessments indicated the existence of burial or historic sites. Moreover, SHPD had previously advised that proposed developments for portions of the Property would either have no effect or were unlikely to have an adverse effect on significant historic sites.


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(9) Is it legally or morally wrong to photograph artifacts that were included with ancient burials, and/or to photograph the skeletons or remains themselves? Does it matter whether the remains and artifacts are photographed while they are in the process of being uncovered in their original place of burial? Should such photos, taken by archeologists, be published in brochures or on the internet? A construction project on Guam raises the issue.

http://pidp.eastwestcenter.org/pireport/2010/May/05-24-16.htm

GUAM AGENCY OBJECTS TO ARCHAEOLOGICAL PHOTOS
Historic preservation office says remains deserve respect

By Brett Kelman

HAGÅTÑA, Guam (Pacific Daily News, May 21, 2010) - The Guam Preservation Trust will not remove photos of ancestral remains from its website, despite concerns raised by a Guam State Historic Preservation Office that the photographs are offensive.

The online photos are "respectful" and have generated only positive comments, so the trust will leave them on the website for everyone to see, wrote program officer Rosanna Barcinas in an e-mail response.

The photos in question are those featured in an online archaeological poster titled, "Shell Beads from Naton Beach."

The bead necklaces were found with nearly 370 skeletons that were discovered in 2008 when the Guam Hotel Okura renovated a swimming pool.

Some of the remains and the necklaces had been buried for about 2,500 years, according to the online poster. It includes pictures of remains and necklaces, still half-buried in Tumon.

These images should not be online for just anyone to see, wrote Lynda Aguon, a Guam State Historic Preservation Officer with the Department of Parks and Recreation, in an e-mail yesterday.

Aguon was also concerned that photos of ancestral remains had been "exposed" in magazines, newspaper articles and websites.

In 2008, photos of the remains were published in the Pacific Daily News and the Journal of Island and Coastal Archaeology.

There had been no review by her office beforehand, Aguon wrote.

"This is to inform you that we cannot and will not condone this practice," Aguon wrote in her e-mail. "Ancestral remains are sacred and must be respected."

The preservation trust should publish photos of the adornments, but not the actual remains they were found with, Aguon wrote. "Burial guidelines" will be amended to include a policy on these concerns, Aguon wrote.

When contacted at her office yesterday, Aguon declined to answer questions about her e-mail because she said "statesiders" wouldn't understand her concerns.

Two local archaeologists -- Lynn Leon Guerrero and David DeFant -- wrote responses to Aguon's e-mail.

Neither archaeologist works for the trust, but they both worked with the remains discovered at Naton Beach. Leon Guerrero created the online poster.

The photos of the remains are necessary, she wrote.

"My intention was not meant to offend anyone, but to encourage and inspire others to learn more about our rich cultural heritage," Leon Guerrero wrote. "Photos of 'grave goods', adornments, are nice, but when they are displayed out of context they lose their meaning and become just things to many people."

Leon Guerrero asked how archaeologists can hope to foster respect and interest in the past if findings like this are censored.

Meanwhile, DeFant wrote that Aguon's office doesn't have the authority to demand a review of findings before they are reported or published.

He also wrote that he has never heard of a prohibition on the publication of photos of human skeletal remains. A finding like this one is meant to be shared, DeFant said later.

"In some ways it's a First Amendment issue -- freedom of speech," he said.

Pacific Daily News: www.guampdn.com


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(10) When human remains are discovered during construction at U.S. Army's Schofield Barracks, the Army invites Native Hawaiian cultural practitioners to help decide what should be done.

http://www.honoluluadvertiser.com/article/20100528/BREAKING01/100527034/Army+seeks+Native+Hawaiian+input+on+discovery+of+human+remains
Honolulu Advertiser, BREAKING NEWS/UPDATES Posted at 9:24 p.m., Thursday, May 27, 2010

Army seeks Native Hawaiian input on discovery of human remains

Army officials on Thursday said they invited representatives from the State Historic Preservation Division, Office of Hawaiian Affairs, Oahu Burial Council, Ahu Kukaniloko and Hui Malama I Na Kupuna O Hawaii Nei to visit a Schofield Barracks construction site where human remains were discovered earlier this month.

"Now that the remains have been found, the decision must be made whether the remains should stay where they were found, or whether they should be relocated to a more appropriate site where they would not be disturbed again," said Laurie Lucking, cultural resource manager for U.S. Army Garrison-Hawaii, in a statement. "The remains were found in an Army training area where military vehicles will be operating and performing exercises and we are seeking recommendations from the representatives on this matter."

The Army said it will publish a general notice to allow claimants an opportunity to consult with the Army on the final disposition of the remains once a decision is made on whether to move the remains from its location.

An Army-contracted cultural monitor from Garcia and Associates was on site when a single bone fragment was found on May 14 in a mound of earth that had recently been excavated. All work was immediately halted.

The cultural monitors and an archaeologist determined that there was a possibility that the fragments were human and a forensic anthropologist with the Joint POW/MIA Accounting Command confirmed that suspicion the following day.

The Army said further examination of the surrounding area is being done to determine if there are any more human remains.

The Army said it will continue to work closely with the Native Hawaiian community to ensure compliance with the Native American Graves Protection and Repatriation Act.


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(11) An individual ethnic Hawaiian filed a lawsuit to block the widening of a highway in Wailua, Kaua'i for fear there might be ancient burials, and she was represented by the Native Hawaiian Legal Corporation. But she fired the NHLC attorney; and her case was dismissed at summary judgment because she had not offered any proof and refused to name two people she said had personal knowledge of burials.

http://thegardenisland.com/news/local/govt-and-politics/article_019676ee-739a-11df-8224-001cc4c03286.html
The Garden Island, June 9, 2010

NATIVE HAWAIIAN LEGAL CHALLENGE DISMISSED
Judge: Highway widening project may proceed

by Paul C. Curtis

LIHU'E — Fifth Circuit Judge Kathleen Watanabe on Tuesday dismissed a citizen challenge of the planned widening of Kuhio Highway in Wailua. Waldeen K. Palmeira of Wailua argued state and federal authorities failed to follow their rules regarding consulting Native Hawaiian cultural practitioners before allowing the project to go forward, and that she is sure ancient Hawaiian burials exist along the road-widening route.

Watanabe said that without testimony from witnesses who have knowledge of the suspected burials, she had no choice but to grant the state Department of Transportation's motion for summary judgment, effectively giving the project the green light to proceed and ending the legal matter unless Palmeira appeals the decision.

Palmeira and the Native Hawaiian Legal Corporation had sought a preliminary injunction and summary judgment in October 2009, saying an environmental impact statement is necessary before the project should be allowed to proceed.

The state motions were to dismiss the lawsuit for lack of merit or, in the alternative, to grant summary judgment in favor of the state, either of which would effectively allow the project to proceed.

The $33 million project is planned to widen Kuhio Highway to four lanes from Kuamo'o Road to the Kapa'a bypass road, using federal funds that will lapse if not encumbered by Sept. 30, the end of the federal fiscal year, said William Wynhoff, state deputy attorney general representing DOT.

Palmeira asked for a continuance of the Tuesday hearing, citing her own health issues, but Watanabe denied that last-minute motion, Wynhoff objecting to the motion saying even another one-month delay would likely kill the project.

At the April hearing on the matter Palmeira fired her NHLC attorneys, and on Tuesday struggled to make her case without legal representation. She requested the continuance to find new representation and because of her health issues.

Wynhoff said the narrow area to be used for the road-widening has already been "fully developed," and Palmeira's assertion that the road would be built over a graveyard "is just not so." "If we do find bones they're going to be treated sensitively," he said. "We might encounter some bones." Because the project is adjacent to one of the island's busiest highways, it is not expected to significantly affect any traditional cultural practices or important cultural areas, said Wynhoff.

Palmeira disagreed, saying the area is the richest cultural and political center on the island, has been for 200 years, and is home to the only known named burial site, a place that translates from Hawaiian as "burials in the sand." Palmeira said that site extends from the fishponds at the old Coco Palms Resort to the ocean at Wailua Beach. "The state is breaking the law on this one," she said, adding that the shallow depth of the archaeological excavations conducted for the state by Cultural Surveys Hawai'i failed to discover any human remains, known as "iwi kupuna." "They did not look good enough. I feel the entire process has been wrong," Palmeira said.

Watanabe, who like Wynhoff patiently waited during most of Palmeira's pauses due to her unfamiliarity with the pleadings bearing her name, finally scolded Palmeira for her rudeness for interrupting both Wynhoff and Watanabe repeatedly during the proceedings.

Watanabe said there was a "clear disconnect" between the written filings and Palmeira's oral arguments, and that the state has conducted a thorough investigation across the narrow project corridor that has been a transportation route for vehicles including trains for over a century. Use of ground-penetrating radar and other technologies revealed no bones, and neither did an environmental assessment, Watanabe said.

There are six undisputed facts which led to Watanabe's decisions, she said: — Summary judgment is allowed based on the facts and factors of the case; — The state Department of Land and Natural Resources' State Historic Preservation Division has jurisdiction over inadvertent discoveries of Native Hawaiian human remains; — The Kaua'i Ni'ihau Island Burial Council has jurisdiction over known burial remains; — The state has strict rules where graves are concerned; — There are no known burial sites or remains in the project site, though some may be discovered during construction; — Palmeira lacks any specific knowledge of graves in the project site, but two people Palmeira said have knowledge of graves in the project site were not present in court Tuesday and are not named or referenced in any of Palmeira's pleadings.

If burials are discovered during construction, state laws will be followed for disposition of bones, said Watanabe. "I do sympathize with Ms. Palmeira and what she's trying to do, but the court has to act on matters of law," said Watanabe, adding after making her rulings that Palmeira should work with the state Legislature to toughen burial-discovery laws.

Brennon Morioka, DOT director, has repeatedly said state officials felt the suit was without merit. DOT has met all state statutory requirements for proceeding with the project, he has said, and information contained in the state EA shows all necessary due diligence was done and statutory requirements met.


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(12) U.S. Department of the Interior's Office of Native Hawaiian Relations held hearings in Hawaii regarding how the NAGPRA law should be updated and improved regarding protocol, notification and final-dispensation for burials and artifacts.

http://thegardenisland.com/news/local/article_bd9391ae-dce7-11df-ba11-001cc4c03286.html
The Garden Island, Wednesday, October 20, 2010

Feds seek input on burial plan process

Paul C. Curtis

KAPA'A — A 20-minute PowerPoint presentation evolved into a three-hour talk about a federal law designed to protect and preserve burial sites and other important cultural resources.

Roughly 20 community members gathered Tuesday night at the Kapa'a Neighborhood Center to begin discussions on updating provisions of the Native American Graves Protection and Repatriation Act of 1990, where protocol, notification and final-dispensation are concerned.

Lisa Oshiro, a Native Hawaiian from Maui and policy analyst in the Honolulu office of the U.S. Department of the Interior's Office of Native Hawaiian Relations, helped lead the meeting.

"We want you to tell us how the consultation protocol process should take place. It only starts here," she said, adding that anyone who wants more meetings on the process may request such by e-mailing Lisa_Oshiro@ios.doi.gov or calling 808-792-9555.

She acknowledged from the start that the federal government has not done a good job where consultation matters are concerned, and through effective communications with lineal descendants and Native Hawaiian organizations she is working to change that.

NAGPRA kicks in when important cultural or burial sites are discovered on federal lands, state Department of Hawaiian Home Lands property or any parcels on the island leased by the federal government from other entities, Oshiro said.

Kaua'i resident Nani Larson said NAPGRA is not protecting burials and the problem is access to the land.

"There is no protocol for desecration," Kaua'i resident Elaine Dunbar said. "There's no nice way to do it."

Oshiro thanked the community members for their mana'o (input), saying it is difficult to prove lineal descendancy under NAGPRA because this federal law requires positive lineal affiliation.

That differs from state procedures where oral acknowledgment of ancestry suffices, she said.

The next priority keepers of the iwi (bones, remains) and other important cultural findings are Native Hawaiian organizations with ties to a particular geographic region of the island, she said.

Under NAGPRA, control is given to the Native Hawaiian agency with the closest cultural affiliation, Oshiro said.

Kaua'i resident Sharon Pomroy said she has little faith in federal agencies that should be communicating and working with each other. She said she is certain they don't, after Oshiro said federal agencies are in various phases of developing protocols for handling culturally significant findings.

For example, because the Kuhio Highway widening project at the Wailua River is not on federal property but is funded in part by federal funds, any culturally significant findings fall under two federal laws other than NAGPRA, Oshiro said.

Second meeting today

A major reason for the visit is to get contact information on Native Hawaiian organizations that will be notified in the event of finds in their geographic or familial areas of Hawai'i, she said.

Another meeting is set for 6 p.m. today at Waimea Neighborhood Center. Discussion also turned to U.S. military presence and activities in culturally significant areas like Makua Valley on O'ahu. Oshiro was briefly drawn to tears when she said she wasn't defending or trying to defend U.S. military activities on lands special to Native Hawaiians.

Oshiro said there are many Native Hawaiians working in federal government to ensure Native Hawaiian voices are heard and changes are made based on those voices.

"I'm trying to make progress in this process," she said, and get people and organizations involved.

A consultation report will be prepared with all public comments, including those made at the two Kaua'i meetings, and comments received by her office influenced the draft document that was one of four handouts at the Tuesday meeting.

The draft protocol is "Management of Native Hawaiian Remains and Cultural Items," with several of the 14 pages devoted to consultation and notification requirements.

The draft also delves into determining custody of cultural items when multiple parties claim ownership or kinship, and final disposition of such items. An eight-page survey, evaluation, response and comments form allows specific comments on specific portions of the draft protocol.

A three-page document is for registration of Native Hawaiian organizations for notification purposes, and a 32-page document is the actual NAGPRA regulations.

The documents also outline stiff penalties of up to $1,000 per day for violations identified and not rectified.

Visit doi.gov/ohr/nativehawaiians/list for more information.


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(13) The state government is constructing a fence at Ka'ena Point (O'ahu) to protect endangered species from marauding dogs, but the O'ahu Island Burial Council has raised objections for fear of disturbing burials (it is a sacred place because there is a leina a ka 'uhane -- place where the souls of dead people jump to the next world).

http://www.thehawaiiindependent.com/story/predatory-fence-around-kaena-point/
The Hawaii Independent, December 14, 2010

Oahu Island Burial Council calls for a stop to Kaena Point fence, questions State procedures

WAIANAE—Native Hawaiian practitioners have called for a stop to a State of Hawaii construction project in on Oahu's leeward coast that began last month without the proper precautions to protect against disturbing burial sites. The Oahu Island Burial Council (OIBC) is requesting that the State halt its current construction of the predatory fence around Kaena Point until an Archaeological Inventory Survey (AIS) is completed. The survey would account for human burials and cultural sites in an area that is sacred to Native Hawaiians.

The motion, passed unanimously by OIBC at last Wednesday's monthly meeting, puts council in agreement with Holly McEldowney, a State archaeologist who, in her own preliminary assessment of the site in 2007, recommended an AIS be completed before any construction began. In her report, McEldowney notes that there are "significant historic properties within or near the proposed predator control fence."

OIBC's Leimaile Quitevis researched the history of the fence project and testified that Deputy State Historic Preservation Officer Nancy McMahon chose not to follow through with McEldowney's recommendation, stating that McMahon only suggested archaeological monitors be present during construction. Former Department of Land and Natural Resources (DLNR) Chairwoman Laura Thielen signed off on the project on November 10 without an AIS having been completed, and construction began almost immediately afterward.

In summing up the OIBC discussion, councilmember Carolyn Abad said: "We think that this step may have been missed, and we feel that her [McEldowney] recommendation is solid and should be followed."

The 2,000-foot long and 6½ foot tall fence, funded by the U.S. Fish and Wildlife Service, will enclose 59 acres of land at the tip of Kaena Point peninsula. It's intended to protect two bird species—the Laysan Albatross and the Wedge-tailed Shearwaters—along with several native plants from dog and rat predation.

"All the way through there was no room for accountability, and there was no room for due process."

In addition to supporting the AIS, Quitevis questioned the project's lack of checks and balances. Quitevis said Thielen had green-lit the construction work in November by signing the project's Memorandum of Agreement—a list of working conditions agreed to by DLNR, the U.S. Fish and Wildlife Service, and the Office of Hawaiian Affairs (OHA)—as the State Historic Preservation Officer. Thielen signed without reviewing the State Historic Preservation Division's final recommendation, which, according to Quitevis, was in violation of federal laws because she did not have the necessary credentials to assess the archaeological impacts.

Quitevis also stated that Thielen's dual roles, as both the chair of the DLNR who pushed for the fence and as the State Historic Preservation officer who signed off on the archaeological review, raises serious accountability issues.

"All the way through there was no room for liability, and there was no room for due process," Quitevis said.

Quitevis also said that the Environmental Assessment (EA) for the fence doesn't take into account a culvert that was recently placed just upland of the Leina Kauhane, the hallowed "leaping off" place for Hawaiian spirits, in order to divert flood waters to the ocean.

"That part of the project is also the Kaena complex ... It's a complex because there's iwi kupuna [human remains] there," Quitevis said.

In response to Quitevis' testimony, Emma Yuen of the State's Natural Area Reserve System, which oversees Kaena Point, stated that the fence was placed along an area not likely to contain burials because of the amount of solid rock in the vicinity.

Yuen also said that extensive outreach was done to numerous organizations and communities beginning around 2004 or 2005, one of which entailed ongoing meetings with the Office of Hawaiian Affairs (OHA).

Quitevis said that U.S. Fish and Wildlife notified OHA that if it didn't sign the Memorandum of Agreement, the agency would be removed as a signatory. Yuen said OHA was brought on as a courtesy.

Yuen also noted the OIBC was also consulted in 2007 through a written letter, but the council never responded.

OIBC chairman Mark McKeague said he found no mention of a consultation with the OIBC, and, furthermore, a written letter made out to the chairman as opposed to the moku (district) representative was too inadequate a notice. As a result, the council unanimously agreed that it was, in effect, not consulted on the project.

Others at the OIBC meeting also said that they were not consulted, including Alika Silva, who represented Koa Mana, a cultural practice group, and Summer Nemeth, who is a member of the Kaena Defenders, a faction that opposes the fence's construction.

Thomas Shirai, a lineal descendant of families that have lived in the area for generations, testified that he supported the fence but wanted archaeological monitors on site and for the equipment to be carried out by helicopter.

"Because there was no due process," Quitevis said about the State's handling of the fence, "we don't know what kind of harm our iwi kupuna are in."

Editor's note: In the quote, "All the way through there was no room for liability, and there was no room for due process," the original word "liability" was replaced with "accountability" to clarify the speaker's intent.

** Ken Conklin's note: On the road to Ka'ena Point, on the Dillingham side, not too far from where the road ends and the walking begins, there is a very large, mostly flat rock along the shoreline which is indeed a leina a ka 'uhane -- a jumping off place where the souls of people who died on O'ahu depart for the next world. It is indeed a sacred place, although it doesn't look like one. But it is indeed a rocky area where it's unlikely that ancient Hawaiians would have (or could have) buried people.


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Send comments or questions to:
Ken_Conklin@yahoo.com

LINKS

The Forbes cave controversy up until the NAGPRA Review Committee hearing in St. Paul, Minnesota, May 9-11, 2003 was originally described and documented at:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html

The conflict among Bishop Museum, Hui Malama, and several competing groups of claimants became so complex and contentious that the controversy was the primary focus of the semiannual national meeting of the NAGPRA Review Committee meeting in St. Paul, Minnesota May 9-11, 2003. A webpage was created to cover that meeting and followup events related to it. But the Forbes Cave controversy became increasingly complex and contentious, leading to public awareness of other related issues. By the end of 2004, the webpage focusing on the NAGPRA Review Committee meeting and its aftermath had become exceedingly large, at more than 250 pages with an index of 22 topics at the top. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

This present webpage covers only the year 2010.

For coverage of events in 2005 (about 250 pages), see:

http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 (about 150 pages), see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

For year 2007, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html

For year 2008, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/big60/nagprahawaii2008.html

For year 2009, another new webpage was created, following the same general format. See:
http://www.angelfire.com/big09a/nagprahawaii2009.html

GO BACK TO: NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawai'i -- Mokapu, Honokahua, Bishop Museum Ka'ai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization

OR

GO BACK TO OTHER TOPICS ON THIS WEBSITE