HAWAI'I ISLAND BURIAL COUNCIL
DATE: THURSDAY, MAY 19, 2005
TIME: 10:00 AM
PLACE: KONA OUTDOOR CIRCLE
76-6280 Kuakini Highway
Kailua-Kona, HI 96740
Geri Bell (Chair)
Ruby McDonald, Kona (Vice-Chair)
Ron Dela Cruz, Kohala
Ku Kahakalau, Hamakua
Kaleo Kuali'i, Kona
Ulu Sherlock, Hilo
Anna Cariaga, Ka'u
Dutchie Saffrey, Puna
Keola Lindsey, Burial Sites Program
Vince Kanemoto, Deputy Attorney General
Jim Medeiros Sr.
I. OPENING REMARKS
HIBC Chair Geri Bell calls the meeting to order at 1028a.
Ku Kahakalau (Kahakalau) offers a pule.
II. APPROVAL OF APRIL 21, 2005 HIBC MEETING MINUTES
Page 15, second paragraph, second sentence- it should read "there are six breeches".
Page 15, fifth paragraph- Luciana Makuakane-Tripp is spelled with one n.
Page 16, ninth paragraph- two is misspelled.
Page 17, second paragraph, third sentence- over sight is misspelled.
Page 18, first paragraph, second sentence- which is misspelled.
A motion is made to approve the April 21, 2005 HIBC Meeting Minutes with corrections (McDonald/Sherlock)
Vote: All in Favor
A. BURIAL TREATMENT PLAN FOR SITE 6332 FEATURE B AND SITE 23915 KAHULUI 2ND AHUPUA'A, NORTH KONA DISTRICT, HAWAI'I ISLAND
[TMK (3) 7-5-19:01]
Information/Determination/Recommendation: Presentation by Alan Haun and Associates. Council Determination to Preserve in Place or Relocate Previously Identified Burials. Council Recommendations to the Department on short and long term Preservation measures detailed in the Burial Treatment Plan. Recognition of Descendants.
Alan Haun (Haun) gives an overview. This item was on the agenda at the last meeting. The Burial Treatment Plan covers two burials on the subject property. The property is located mauka and north of the existing Kona Sea Ridge Development.
Copies of the Burial Treatment Plan have been distributed to at least four individuals with a cultural connection to Kahului Ahupua'a.
The proposal is to preserve the burials in place, with a 20 foot buffer marked by a low rock wall. There would be a temporary buffer of 50 feet during construction. Long-term security and maintenance of the site will be with the landowner.
At the last meeting, Curtis Tyler made some recommendations regarding the plan, and Haun says they have addressed those comments. There is a replacement page for the plan. An additional 10 foot "no building" setback outside of the 20 foot buffer will be implemented. The stones for the wall will be natural weathered type. There will be a gate in the wall for access. The applicant will implement the permanent buffer as soon as possible.
Ruby McDonald (McDonald) wants to see the wording on page 12 of the plan changed to ensure access will be allowed to the families.
McDonald asks Keola Lindsey (Lindsey) if the Department is keeping a list of descendants?.
Keola Lindsey (Lindsey) says the Department has a list of descendants from previous projects in Kahului Ahupua'a.
Bell asks McDonald how the wording of the plan should be revised to ensure access.
McDonald says the plan should say "will" provide access to recognized descendants instead of "would".
Kahakalau thanks Haun for incorporating the recommendations from last meeting into the plan- it makes it a lot easier.
The plan does say that local stones from the area will be used for the rock walls- that is maika'i.
At the last meeting, the possibility of a large burial cave in this area was discussed. There was some discussion that if this cave is discovered in the future, it will be treated as "previously known".
Leihulu Mamac (Mamac) sees that a lot of revisions have been made to the plan. Mamac would like to see Hawaiian burial sites be treated as a sovereign land base. When there is desecration of burial sites, enforcement is a must.
Curtis Tyler (Tyler) thanks Haun for incorporating his recommendations. One thing Tyler wants to be sure of is that the stones will be from Kahului Ahupua'a.
Tyler has been retained by Greg Moores, who is preparing for the Shoreline Management Area Permit (SMA). Tyler is preparing a cultural assessment- he is not sure if there is a conflict for him here, but thinks it is better to have a cultural descendant do the assessment, than someone with no connection to the land. Tyler has spent quite some time reviewing documents related to this property.
Tyler began with the Francis Ching et. al. report " Archaeology of North Kona from the Ahupua'a of Kahului to Kahalu'u". It is interesting to note how many burials and other sites Ching recorded in this project area.
Tyler has discussed with Haun, and the landowner Curt DeWeese, the possibility of the large burial cave he previously mentioned being located in this area. That information had been given to Tyler by Luciana Tripp and her brother independently. Tyler had declined their offer to see the cave, because it was personal family business.
There is also the possibility of finding sites under the debris in the "disturbed area" noted by Haun in the inventory survey. Tyler has not visited the site, he does not know for sure. There are push piles that were identified by Haun. Tyler has the same question- if these sites are found are they "previously known"?. Tyler's mana'o is that they should be "previously known"- they are already noted.
In researching this, Tyler is concerned about the cemetery in this area. The record indicates a historic cemetery related to the Kahulamu and Komomoa Families. Tyler has not had the opportunity to talk to these families, but they should be consulted. The cemetery is not part of this property.
The other interesting thing about this project, is that it is bisected by the proposed Kahului to Keauhou Parkway. There are burial features in the right of way for that project, that apparently are not the subject of this burial treatment plan. From a Hawaiian perspective, that does not make sense to Tyler- he cannot comment on the legal aspect of that. Tyler wants to bring to the HIBC's attention that there are burials in that right of way. It appears these burials may be the County of Hawai'i's kuleana. Tyler is not sure if these burials were disclosed as burials in the right of way- were they part of the HIBC's previous decision to relocate?- Tyler does not think so. There are some unresolved issues here. Perhaps when the Parkway project is on the HIBC agenda, the families will have the opportunity to comment.
Kahakalau asks Tyler the right of way legally belongs to the County?.
Tyler says it may be under the jurisdiction of the County at some point in the future, he is not sure if that has happened yet. It did not happen when Tyler was on the Hawai'i County Council from 1996-2004.
McDonald asks if the County has done the metes and bounds of the right of way in this area?.
Tyler says he is not sure.
McDonald says it is a County right of way?.
Tyler says in the plan before the HIBC today, that strip of land is called the Ali'i Highway Realignment- that project is now called the Kahului to Keauhou Parkway- it may be called something else in the future. It appears to Tyler that there are more burials in that road corridor than what has been identified to date, and there may be more. Tyler needs to know for certain. There needs to be protective measures in place for sites in the road corridor, while DeWeese is developing his project, because there is a possibility that the road won't be built for years. Tyler has been told that these sites are not the kuleana of Haun and DeWeese because it is not in their "project". Legally, Tyler is not sure, but this is a situation that has the potential to cause pilikia.
McDonald asks if this right of way is still part of this TMK?.
Tyler says yes, unless it has been parceled out by operation of law.
McDonald asks Haun if the right of way was included in his study?.
Haun says no.
McDonald is concerned because it is the same TMK.
Haun says the right of way was not included at the direction of the State Historic Preservation Division (SHPD). The SHPD specifically directed that sites in the right of way would be treated separately.
Tyler says if you consider cultural resources, and thinking of traditional rights, excluding the road corridor does not make sense. Tyler's investigation indicates there are additional burials in that roads corridor. How they are to be treated from a legal perspective is unclear.
Jim Medeiros (Medeiros) says the burial sites in the road corridor must be treated as "previously identified" because they are known already- they cannot be treated as inadvertent.
Medeiros is looking at a draft map from the inventory survey dated May 2004- it shows more features and sites in the corridor, that are not in the final version of the plan before the HIBC today. Either the road corridor has changed, or sites have been eliminated on paper or in reality. This is very concerning. It is irrelevant who owns the corridor- there is a project, and that developer is coming forward. It seems everyone is trying to dance around this issue- the burials are very important.
These sites in the corridor must be considered "previously known", so the families are involved. If the sites are considered inadvertent, the families are bypassed.
There is a January 19, 2005 letter from the Department to Alan Haun talking about these sites in the corridor. Medeiros thinks that the Department agrees that these sites are previously known.
There is another letter from the Department to Chester Koga talking about collapsing the lava tube Site #2079 Medeiros is concerned that the families were not copied this letter. It feels like the families are being left out, and it is up to them to keep an eye on everybody.
End Tape 1 Side A
Begin Side B
Medeiros is asking the HIBC to recognize these burials as known burials, so they can be treated properly.
Kahakalau says that the plan does not really talk about the road right of way. Kahakalau is looking at ten years down the road- what happens if the road project does not go through, and the County gives up- it will be assumed that this burial plan was for the whole TMK parcel. It should be specifically stated that the plan excludes this area (the road right of way). Kahakalau is not sure- maybe the HIBC could incorporate this into a recommendation- any work on the road right of way should require a separate burial treatment plan.
Lindsey says the Department will make it clear to the developer and the County that the sites in the road corridor will need to be addressed- if the road project does happen- it will be the County's responsibility to address the sites- if the road project does not happen, it will be the developers responsibility.
Haun says it is fairly common for inventory surveys to be done on portions of TMK parcels.
Tyler says the 'Auhaukea'e project that recently came before the HIBC is an example of that.
A motion is made to preserve in place Site 6332 Feature B, and Site 23915 (Kahakalau/McDonald)
Vote: All in Favor
A motion is made to treat all burials found within the project area as previously known (Kahakalau/McDonald)
McDonald asks if the TMK should be in there?.
Kaleo Kuali'i (Kuali'i) says the TMK for this property should be included in the motion- not just the project area.
Medeiros says on this whole issue of land ownership, there is a landowner coming in here with a burial treatment plan and saying he is not responsible for a section of land that he still owns- that the County will be responsible some day- we are trying to make a determination here.
Vince Kanemoto (Kanemoto) asks Haun why he feels they are not responsible for those sites.
Haun says when they originally prepared the inventory survey, they included the sites in the road corridor. They were directed by the SHPD to remove the road corridor from the project area, because apparently the landowner is unable to do anything in this corridor- whether they own it or not.
Kanemoto says it sounds like the SHPD gave the directive to remove the road corridor from the project area.
Lindsey the map that was distributed earlier in this meeting dated May 2004, was part of the original inventory survey submitted by Haun to the SHPD office. When the SHPD began to review Haun's survey, concerns were immediate because of the road corridor running through the middle of the project. Because that road corridor is eventually going to be the County's responsibility, the SHPD felt that Haun could not submit a report for a private landowner proposing mitigation for the sites in the road corridor on the County's behalf. During the filed work related to the inventory survey, Haun did some archaeological field work in the road corridor. One additional burial site was confirmed- obviously that has triggered a whole new set of concerns. A second site- a possible burial was also identified.
The SHPD asked the landowner to identify their "project area". That is when the map that appears in the burial treatment plan was generated. That map excludes the road corridor. When you look at the map in the plan without any background, you might think the road corridor does not have any sites, but that is not the case.
There is no doubt that the sites in the corridor are going to be dealt with. The tough thing is the SHPD reviewed the survey and plan that followed after the landowner identified their project area- which excluded the road corridor. The sites in the project area and the road corridor are definitely connected and related to each other culturally, just by their location. It gets confusing when lines on map separate sites from each other, but right now the road corridor is out of the current landowners "project area". If the road project goes down the tubes, the landowner will be responsible for the sites in the road corridor- if the project moves forward, the County will be responsible.
If the road project moves forward, that is when we are going to get into the real issue of previously identified versus inadvertent. The 1987 Memorandum of Agreement for Keauhou to Kahului Parkway (used to be Ali'i Highway) put a process in place- it may contradict the way we do things now.
Kahakalau says some HIBC members are new, and don't know a lot of the history of the Highway project, and Kona in general. It would be good to get the background prior to the meeting. It is concerning when situations like today come up, when there are two maps that seem to contradict each other- it makes people alarmed. Some things could have been eliminated from the beginning. It makes a difference to have the old map showing all of the sites versus the map in the plan that does not show the relationship of all of the sites in the area.
The HIBC should get all the information from the Department, that way the community does not have to do the research.
Kanemoto asks Medeiros if there are any questions for the HIBC that he needs to respond to?.
Medeiros says from the research he has done, it appears the developer's project area originally included the road right of way, but then he found out there were burials in the road right of way, and then dropped it from his project area. Medeiros is concerned that the State allowed the landowner to exclude the road from his project, leaving the families to battle with the County another day. Medeiros questions the legality of the Department allowing negotiations with the landowner to exclude the road corridor. The whole TMK belongs to one man.
Kanemoto says it seems like the road corridor splits the property in half. Right now we are dealing with the part of the property that the Department has jurisdiction over in terms of development. The burial treatment plan that is before the HIBC today deals with that. There are concerns about burial sites that are known about, but are not being dealt with in the current process.
Kanemoto asks if the sites were identified during an inventory survey?.
Haun's response is inaudible.
Kanemoto says under the law, there are two ways burial sites are previously identified- one way is through an inventory survey. The other way is to identify them through the SHPD by a recommendation of the Council that they be treated as previously identified burial sites or remains.
Once a site is designated to be "previously identified", it always carries that designation and that provides some degree of protection.
Medeiros says that is what he wants to be on the record.
Bell says that is where the HIBC is trying to get to.
Medeiros says the sites were identified in an inventory survey.
Kanemoto says if the sites were identified in an archaeological inventory survey, under the law, they will be previously identified.
Tyler says these sites are also in the Francis Ching survey.
Medeiros wants to leave this meeting knowing that these sites are previously identified.
Kahakalau says that any work in the road corridor will require a separate burial treatment plan.
Lindsey says the May 2004 map was originally included in the inventory survey, so the road was in the information submitted. The SHPD rejected that survey because of the proposed road corridor.
Kuali'i says they are on record.
Lindsey says all of the sites are on record. The problem is that there is another inventory survey for the road corridor that identified these sites, so there is overlapping information. In one way or another the sites will be dealt with- the timeframe for that is uncertain, and Lindsey thinks the families are concerned about the inadvertent versus previously known issue. It appears that there is evidence that supports both claims, and it is going to take a while to sort that out.
McDonald asks if these sites were part of the original burial treatment plan for the Ali'i Highway that came before the HIBC?.
Lindsey the two sites we are talking about in the road corridor were not a part of the original burial treatment plan for Ali'i Highway.
Tyler says he does not know what the legal statuses of these sites are. He does not know if the County legally has that road corridor or not. At this point, the developer cannot develop that area (the road corridor) because it is for the road corridor. The reason he brought this up is to make sure any burials found in the disturbed portion of the project area are classified as previously known, and that there are burials and possible burials in the road corridor that are previously known.
Tyler says there is still a motion on the floor.
Mamac says all burials must be preserved in place on this TMK, and we should go with that.
Bell says the HIBC needs to go back to the motion on the floor.
A motion is made to treat all burials found within TMK (3)7-5-19:01 as previously known
Vote: All in Favor
Lindsey says the HIBC needs to get a copy of the 1987 Memorandum of Agreement that really defines the process we are running under. The MOA required an inventory survey which identified hundreds, if not thousands of sites. After the inventory survey there was data recovery- not all of the sites were subject to additional archaeological work. The sites we are talking about were part of the data recovery pool, but never tested- there are probably more sites that fit this same category.
Lindsey says there is conflicting information because technically the sites are subject to the MOA, and therefore not previously identified, but on the other hand, they were identified by Haun's recent inventory survey. It is going to take a while to sort it out.
B. HAWAI'I ISLAND BURIAL COUNCIL RESPONSE TO THE MARCH 1, 2005 LETTER FROM THE UNITED STATES DEPARTMENT OF INTERIOR- HAWAI'I VOLCANOES NATIONAL PARK
Information/Recommendation: The Hawai'i Island Burial Council will consider involvement in the Native American Graves Protection Act (NAGPRA) process relative to items taken from a cave in Kawaihae , Kohala known as the "Forbes Cave", and currently in the possession and control of Hawai'i Volcanoes National Park.
Bell says this issue came up at the last meeting. The HIBC needs to take up the matter again, and outline the reasons why the HIBC should be recognized as a claimant, and why the HIBC should be classified as a Native Hawaiian Organization under NAGPRA.
A motion is made to draft and approve a letter to reaffirm the Hawai'i Island Burial Council's status as a claimant in the Hawai'i Volcanoes National Park Forbes Cave Items.
Vote: All in Favor
Bell says the Vice-Chair will sign the letter, because she (Bell) is the Superintendent of another Park in the National Park Service, and when Bell leaves the HIBC, people may lose the history of this matter and wonder why she (Bell) signed the letter.
McDonald says there was discussion last month that the SHPD Administrator would sign the letter.
Bell says in talking with SHPD staff, they thought it would be better for the HIBC Chair or Vice-Chair to sign the letter, because it is a HIBC matter- not a SHPD matter.
A possible response in draft letter format was included in this month's HIBC packet.
McDonald says she does not have a problem with signing the letter, but wants input from other Council Members.
End Tape 1 Side B
Begin Tape 2 Side A
McDonald says in November 1999 the HIBC unanimously passed a motion to notify Hawai'i Volcanoes National Park that all items removed from Forbes Cave in their possession be classified as associated funerary objects as defined by NAGPRA.
McDonald is not sure if the Department got a response to that.
Bell says a letter was sent by the HIBC, but the response came from the Honolulu Office of the National Park Service. The response letter said the appropriate staff to handle the matter was not in the office, and a more formal response was forthcoming. There was nothing after that.
Bell was contacted earlier this year, and they wanted to know if they should respond to the 1999 letter. Bell thought it would be better to take the matter up again- and that is what this current letter is.
IV. CASE UPDATES
BURIAL TREATMENT PLAN FOR SITES LOCATED IN KAIHOLENA AHUPUA'A, NORTH KOHALA DISTRICT, HAWAI'I ISLAND
[TMK (3) 5-8-001:11]
Information/Recommendation: Discussion of the Department's concurrence with a proposal to preserve in place all burials on the subject property.
Lindsey gives the HIBC copies of correspondence from the Department to the landowner's representative regarding this matter, and a letter from Anthony Ako expressing his concerns for the preservation plan for the property.
The 45 day time period for the HIBC to make a determination on this matter expired before today's meeting. This the first time Lindsey can remember a landowner not agreeing to extend the time period.
In this particular case most of the Council's concerns were addressed, and a revised plan submitted.
This does set a precedent for what may happen in the future when a landowner does not agree to extend the time period. The Department concluded that it was up to the Department to make a determination.
Lindsey says the Ako letter appears to want a site visit with State Archaeologists and the landowner's consultant to address his concerns there.
The meeting is adjourned at 137p
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