What is the kuleana of the Island Burial Councils to protect iwi kūpuna?

By Terina Fa‘agau, NHLC Staff Attorney

To promote the “sensitive treatment of Hawaiian burial sites through cooperative and shared decision making with representatives of the Hawaiian community,” the Hawaiʻi State Legislature established the Island Burial Councils, under the Department of Land and Natural Resources (DLNR), to administer Hawaiʻi Revised Statutes (HRS) § 6E.

There are five Island Burial Councils: Hawaiʻi Island; Maui/Lānaʻi; Molokaʻi; Oʻahu; and Kauaʻi/Niʻihau. The governor appoints council members selected from lists recommended by the State Historic Preservation Division (SHPD) and the Office of Hawaiian Affairs (OHA). The Molokaʻi Council has five members, while all the others have nine.

Council members are not paid – they work as volunteers. They include regional representatives from the Hawaiian community who understand the culture, history, burial beliefs, customs, and practices of Kānaka Maoli in their region. The law also allows for diverse stakeholders on the councils, not only descendants of iwi kūpuna and cultural practitioners. Development and large landowners are included and can have up to three representatives on most councils, but just one on the Molokaʻi council.

The council’s primary duty is determining the proper treatment of “previously identified Native Hawaiian burial sites.” SHPD’s administrative rules define “previously identified” as “burial sites containing human skeletal remains and any burial goods identified during archaeology inventory survey and data recovery of possible burial sites or known through oral or written testimony.”

HRS § 6E provides councils with two options for the disposition of previously identified iwi kupuna: preserve in place or relocate.

When iwi are “previously identified,” the relevant council must determine their handling (i.e., preservation vs. relocation) and make recommendations regarding burial treatment. The council has 45 days unless the landowner and DLNR agree to an extension. During that time, the council consults with descendants, allowing them meaningful participation in the historic preservation review process regarding care and protection of the iwi.

Councils assist DLNR in the inventory and identification of Native Hawaiian burial sites, make recommendations regarding appropriate management, treatment, and protection of iwi kūpuna, and maintain a list of appropriate Hawaiian organizations, agencies, and offices to notify regarding the discovery of iwi. And they are required to hold regularly scheduled meetings.

Importantly, councils have the sole authority to recognize lineal and cultural descendants who can be consulting parties when iwi are discovered.

However, if iwi kūpuna are deemed “inadvertently discovered” or not “previously identified” in the context of a land use activity – normally during construction or other ground-disturbing activities – then SHPD has the decision-making authority to determine how the burials will be treated, not the councils.

That process moves quickly, because SHPD has only a two- to three-day window to decide about the treatment of the iwi, which limits consultation with councils and recognized descendants. However, the councils still have a role. They must be notified by SHPD, consulted with, and allowed to oversee the on-site examination and removal of the iwi (if removal occurs). Councils, however, do not have the ultimate authority to determine the treatment plan.

Councils have important kuleana – much of which requires council members to make decisions with a quorum – such as whether previously identified iwi kūpuna must be preserved in place or relocated, or whether individuals will be recognized as descendants for purposes of consultation when making burial treatment decisions.

When a burial council has vacancies and lacks quorum, it cannot fulfill its kuleana and that impacts iwi kūpuna. Currently, there are vacancies on all councils that need to be filled. Those willing to serve can complete an online application at http://boards.hawaii.gov/ or www.oha.org/oha-ibc-nomination-application/.

E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.