When more than 1,000 ancient burials were unearthed in 1989 to make way for the Ritz-Carlton resort at Honokahua, Maui, it caused such a public uproar that the state Legislature passed a bill in its very next session that changed the way Hawaiian burials would be handled.

“I believe that after Honokahua, people certainly believed the law that was put in place would actually prevent the kind of thing that is happening now on Kaua’i, which is essentially building a house on top of a burial ground,” said William Aila, a member of Hui Malama I Na Kupuna ‘O Hawai’i Nei, which formed after the Honokahua incident.

The Kaua’i project has been the focus of ongoing controversy, including a demonstration last Thursday in which seven men temporarily stopped construction by linking themselves together with a PVC pipe.

“We’ve seen the same thing happen with General Growth Properties and Wal-Mart on O’ahu, where numerous burials were found, and still the construction continues,” Aila said. “The hope and belief was that these things would be stopped.”

But the construction hasn’t stopped, those involved in burial issues say, because the law has been very misapplied and misinterpreted, and top administrators have failed to allocate sufficient funding for the State Historic Preservation Division (SHPD) to do its job.

“Obviously, if people don’t want the law to work, it ain’t gonna work,” said Alan Murakami, an attorney with the Native Hawaiian Legal Corp (NHLC), who has represented Hui Malama. “It requires the governor to say, ‘we value this and want to give it priority.’ We’ve asked [Gov. Linda Lingle] to say that and she will not.”

“If you don’t want it to work, you should be honest about it, not cripple it with inadequate funding and staffing and what looks like an attempt to make it collapse from within,” Murakami said.

Efforts also have been made to get the state Legislature to provide oversight of SHPD, which Murakami said is plagued with “systemic and chronic” problems, but that hasn’t been a priority with lawmakers.

“Essentially, the only thing keeping developers from doing what they want are major conflicts and lawsuits,” Murakami said. And that’s exactly what’s happening at Naue, on Kaua’i’s north shore, where several demonstrations have been held. The NHLC is seeking an injunction to stop Joe Brescia, a California developer, from building a house on an oceanfront site where 31 burials have been found. A hearing is set for Thursday, August 14 in Kaua’i’s Fifth Circuit Court.

The key issue of the suit, Murakami said, is that the Kaua’i Island Burial Council determined the burials should be preserved in place, but the SHPD is taking the position that capping them in concrete and building a house on top constitutes preservation.

Murakami said the state attorney general’s office frequently provides island burial councils with poor legal advice and bad interpretations of the law. As a result, the councils often aren’t aware of all their options in dealing with a burial site.

Palikapu Dedman, a longtime Hawaiian activist from the Big Island who was involved with Honakahua, said the burial councils are unduly influenced by the state, so their decisions tend to reflect the state’s perspective, rather than traditional practices.

He said that the burial councils do have authority to make reports to the Legislature on holes in the law so that those problems can be remedied. But the councils have never done this, Dedman explained, because they aren’t advised of the full scope of their powers. “I don’t think they were encouraged to be stronger in that function,” he said.

Both Aila and Murakami said many developers have found ways to circumvent the burial councils, which have authority only over known burials. The problem is that the SHPD determines what should be done with burials that are discovered “inadvertently” during construction.

“Their [developers'] strategy now is to make as many inadvertent burials as possible because then the burial councils don’t have jurisdiction, and they seem to be getting more favorable treatment from the SHPD,” Aila said.

Murakami added: “They’re all trying to avoid finding the burials in advance.”

Aila and others have been meeting with state legislators since the end of the last session to discuss amending the law to require developers to do a full archaeological survey before proceeding with any plans or permits.

“You have to have a thorough knowledge of what you can expect to find so you can design the project accordingly,” he said. “The way business is done in Hawai’i needs to be changed.”

Some lawmakers, including Senators Jill Tokuda, Clayton Hee and Colleen Hanabusa, have been supportive, Aila said, as well as developers who recognize the value of avoiding the bad publicity, litigation, construction delays and “hewa, a heaviness or burden.”

Murakami agrees that “some minor tweaking could be done with the law,” but said that’s not enough in itself to resolve the problems.

“We’ve got some major issues administratively, including the need for more resources,” he said.

There’s also some discussion over whether the Department of Land and Natural Resources should no longer have jurisdiction over the SHPD. Dedman said the counties should assume responsibility for burials. Murakami, in turn, advocates citizen oversight panels with “some power to keep the persons in charge accountable.”

In the end, they all say, the same kind of public outcry that erupted over Honakahua is needed now to stop the ongoing disturbance of burials throughout the islands.

“This has been going on for too long,” Murakami said.

“You can put any kind of twist on it, but it comes down to a moral human respect issue,” Dedman said. “These things can’t be directed by money. They have to be directed by the soul.”

Editor’s Note

Over the past year, many of our readers have enjoyed reading Brian Schatz’s fresh and engaging “Straight Schatz” columns in these pages, as have we. Unfortunately, Schatz’s recent election as Chairman of the Democratic Party of Hawai’i makes his presence as a regular columnist unworkable in the context of our responsibility to report fairly and without the appearance of favoritism on issues facing our community.

“Straight Schatz” will no longer appear in Honolulu Weekly. We are grateful for Brian’s contributions and wish him the best of luck.

–Ragnar Carlson