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Digging Deeper

What happens when bones are found at a construction site?


Judging from the local news, you might think controversy erupts every time Hawaiian burial remains are discovered. Think of the past few cases that actually made the headlines: Hokuli‘a, the luxury development in Kona; the construction of Wal-Mart on Ke‘eaumoku Street; and the expansion of Ward Villages Shops in Kaka‘ako.

illustration: Jason Nobriga

While it seems we only hear about three to four discoveries every year, the state Historic Preservation Division sometimes responds to as many reports in a single day. Bones can be found almost anywhere in the Islands, hidden in soil, sand or stone caves.

“It’s more common than people realize,” says Melanie Chinen, director of the division, part of the Department of Land and Natural Resources. “There are certain areas of town we know Native Hawaiians used for burial grounds. Just because there was previous development there doesn’t mean there are no burials there now. As development gets bigger, we have buildings going up higher, meaning we need to go deeper into the ground. We’re finding burials that were paved over in the past.”

What happens when construction workers accidentally unearth human remains? Under state law, landowners must halt construction within the immediate area and report the finding to police and to the Historic Preservation Division, which then has 24 hours (48 hours on the Neighbor Islands) to decide whether to preserve the bones in place or relocate them.

“The law is written so that development doesn’t come to an absolute standstill,” Chinen says. “The law is very sensitive to the fact that this can’t become very costly to development. We also have the option to ask the landowner to allow us additional time.”

The division’s archaeologist determines if the bones are human and if they’re at least 50 years old, qualifying them as historic. Meanwhile, the division’s cultural historian determines if the bones are Hawaiian, based on a variety of clues: the presence of Hawaiian artifacts, fetal positioning or a rounded jawbone, what’s known as a “rocker” jaw. If the bones are Hawaiian, staffers consult with people known to have ancestors in the area and members of the island’s burial council.

The division’s first priority is to preserve the bones in place, especially if they can be linked to a historic person or event or if there is a cluster of bones in one area. But this isn’t always possible.

“Generally, when we decide to relocate remains, it’s because there is imminent harm to them—an electrical line or a sewer line near the burial that may require maintenance over time, so the likelihood of another disturbance is pretty high,” Chinen says. “On some occasions—and this is where it pains us to make a relocation decision— development may be so far along in the process that there are no options for redesign.”

Sometimes, the division discovers that remains have already been moved from their original burial site—transported in dirt from another part of the island or heaped in what archaeologists call a “trash pit,” in which a previous developer may have dumped remains.

Relocated remains are interred in a cultural preserve, usually on the same property or at least in the same ahupua‘a (district), with a 15- to 20-foot buffer zone where no development can occur.

These days, more developers make the extra effort to avoid an unexpected discovery, discussing the project with the division and burial council, even hiring a state-permitted archaeological firm to conduct a survey of the site—all before breaking ground.

If bones are found during that process, developers must draft a burial treatment plan detailing what they plan to do with the bones. Although the burial council weighs in on whether to move the remains, the Historic Preservation Division has the final say on the plan.

Developers generally agree with the division, Chinen says, noting how one Maui landowner reconfigured his house into a U-shape to accommodate a burial. Sometimes—and these are the rare occasions when burials make the news—the process doesn’t go as smoothly. Burial councils have clashed with developers, turning an effort to preserve Native Hawaiian remains into an anti-development campaign. In cases such as Wal-Mart on Ke‘eaumoku, families have argued over what to do with the bones.

“Ultimately our department has to make the decision,” Chinen says. “Sometimes, people may not be happy with our decisions, but we have to go back to what is the law, what are the rules, and what is our core mission—and that is the protection of cultural sites, including burials.”

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Honolulu Magazine July 2019
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