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Honoring the Dead But Building for the Living

By Royce DuBiner

On Hawaii’s island of O’ahu, a major rail transit project is currently underway to build a 20-mile elevated rail line for the Honolulu metropolitan area. The proposed route will connect downtown Honolulu with the suburb of Kapolei. The line is designed to reduce traffic congestion on roads around the city and provide affordable transportation access and alternatives.

However, the Hawaiian Islands line is on a collision course with hundreds of unexcavated historical sites and burial grounds. Many of these burial sites are protected under Hawaiian state law, which directs that any burial remains over 50 years old may not be moved without approval of the historic preservation department. One of the critical tenets of Native Hawaiian traditional and customary practices is to ensure that remains are undisturbed and that they receive proper care and respect.

To address this issue, the city is undertaking a massive archeological survey and assessment of the purposed transit route.  Using ground-penetrating radar, the rail project hopes to identify all existing sites in order to address how to handle the remains. The survey will move segmentally through the job site instead of undergoing a massive pre-build survey.

In opposition to the segmental discovery methods for remains, Paulet Kalikini, a cultural descendent of the remains at issue, filed suit against the city of Honolulu and the Hawaii Department of Land and Natural Resources seeking to enjoin the construction of the project, which is partially managed by General Growth Properties. Kalekini wanted the city to instead undertake a comprehensive survey to identify all sites containing remains in order to avoid any unnecessary contact with the remains out of respect for many Hawaiians’ spiritual beliefs and traditions.

The Hawaii Supreme Court upheld Kalekini’s right to sue, despite the fact the project had already begun, via a Hawaii statute that allows a plaintiff to bring suit under special issues in the “public interest.” However, despite the many compelling “public interest” reasons Kalekini identified (for example, Hawaiian traditions requiring remains be undisturbed after burial, and Hawaiian state constitutional guarantees to native rights) the Court ultimately found that archeological projects may be broken up into phases in accordance with both state and federal laws. The Court ultimately favored the public interest reasons in favor of continuing the project via the current plans.

The suit and controversy surrounding Honolulu’s rail project highlight the dichotomy between building for a sustainable urban environment and honoring the past. The Hawaiian Islands are dense and compact and contain many historic sites. It is therefore virtually impossible to build on the islands without disturbing a site of cultural and spiritual significance.

Although the project’s phase development is taking account possible historical sites, it does so with limited foresight and in a piecemeal fashion. When the project encounters a burial site, it must stop and then each time decide between building around the site or relocating the remains. Time is of the essence as many Hawaiians would reap enormous benefits from the new rail line. Similar problems to those facing the Hawaiian project are regularly encountered by many other major public works projects.

Such projects must take into account all possible implications of destroying historical or spiritual sites. Addressing a problem only as one comes upon it is a haphazard and ineffective way to preserve and respect sites of historical, spiritual, and cultural significance, often resulting in stressed relationships among all parties involved. It is important for new sustainable development projects to address such issues in the design phase, rather than the construction phase, to ensure the environmental good will is not overshadowed by cultural insensitivity and insult.

To read the case yourself, visit Kaleikini v. Thielen, 237 P.3d 1067 (Haw. 2010).

Royce DuBiner majored in History at Goucher College and is currently pursing his J.D. at the University of Denver Sturm College of Law.  His interests include History, Preservation, and sustainable development.

University Sturm College of Law

Welcome to the University of Denver Sturm College of Law/Rocky Mountain Land Use Institute Blog, a special section of triplepundit.com! Here, University of Denver Sturm College of Law students will report on emerging, novel and contested land use and development issues from a sustainability perspective. We believe the development of the American West, and indeed the entire planet, necessitates a closer and more responsible look at not only how we use natural resources but how we build our communities and economies. We invite you to comment and engage with us over issues of interest to you. And we invite you to suggest topics for us to research and report on from our unique perspective as law students. But most of all, we invite you to take these ideas and share them with your friends and colleagues so we can all be involved in a more informed and forward-thinking discussion about our future.

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