Saturday, August 21, 2010

 

Hawaii Supreme Court reverses ICA on burials (August 2010)


By Henry Curtis

The Oahu Island Burial Council (2006) approved General Growth Properties proposal to move `iwi so that General Growth Properties could build their Ward Village Shops Project.

Paulette Kaleikini challenged the issue before the Oahu Island Burial Council during their September 13, 2006 meeting:

“Kaleikini asked for the location of where the inadvertent burial was found on the property and the reason why there was no additional testing. She feels that there wasn’t a complete survey done and the survey should’ve been completed before any piles were driven into the ground. ...Kaleikini asked how the other seven burials were found....Kaleikini thanked General Growth for making an attempt to redesign but feels that they could do a better job. She thanked the other families who have come forward and shared her relationship to the land. She said that the council should listen to the mana‘o of the ‘ohana first and not the developer because that was the purpose of why this council was established. She said that the kupuna do not have options other than what is decided here today. ...Kaleikini asked why the project would not be able to proceed if the iwi were left in place.”

The Oahu Island Burial Council then approved a “Motion to relocate the previously identified Native Hawaiian burials located within the Ward Village Shops Project area.” Yes (6), No (3), Abstain (1)

Represented by the Native Hawaiian Legal Corp (David Kimo Frankel and Moses K. N. Haia III), Paulette Kaleikini requested DLNR for a contested case hearing under HRS 6E. The request was denied. She appealed. The Circuit Court dismissed the case ruling "that it lacked subject matter jurisdiction." The Intermediate Court of Appeals (ICA) rejected the appeal stating the case was moot.

The Hawaii Supreme Court ruled that Paulette Kaleikini’s appeal "falls within the public interest exception to the mootness doctrine" and that "the circuit court erred in dismissing Kaleikini 's agency appeal for a lack of subject matter jurisdiction". The case has been remanded back to circuit court.

Chief Justice Moon, joined by Associate Justices Paula Nakayama and James Duffy, wrote the opinion. Associate Justices Mark Recktenwald and Simeon Acoba wrote separate concurring opinions.

Associate Justice Mark Recktenwald wrote in his concurring opinion: “I concur in the result reached by the majority. ...I write separately to emphasize my view that the circuit court erroneously applied Kaniakapupu and therefore erred in dismissing Kaleikini’s petition. ...I believe that it is appropriate to consider this case under the public interest exception to the mootness doctrine in order to clarify the scope of the holding in Kaniakapupu. Accordingly, I concur in the result.”

Joan Conrow writes: “The plan was endorsed by a 6-3 vote of the Oahu Island Burial Council ...Not all Burial Council members are Native Hawaiians or cultural practitioners; some members are appointed to represent development interests. The Court's decision underscores an important point that has been brought up repeatedly by preservationists, and that’s the need for developers to do good archaeological surveys before they design their projects and begin construction.” (www.kauaieclectic.blogspot.com/)

Joan raises a good point. Who is on the Burial Councils? This raises another question. How will this court decision affect other major projects such as Rail?


Chair Mark Kawika McKeague (6/2013) works for Group 70. McKeague voted against the Motion to relocate `iwi as desired by General Growth

Vice Chair Hinaleimoana K.K.W. Falemei (6/2012), is the Director of Culture at Halau Lokahi Public Charter School and former President of Kulia Na Mamo; B.Ed. Education; B.A., Hawaiian Studies, University of Hawaii at Manoa.

Carolyn "Kehau" Kehaunani Cachola Abad, Ph.D. (6/2013) M.A. Anthropology (1992) Ph.D. Anthropology (2000), UH Manoa, Thesis: An Analysis of Hawaiian Oral Traditions: Descriptions and Explanations of the Evolution of Hawaiian Socio-Political Complexity. A spokesperson for Na Kumu o Kamehameha (1997), Director of Kamehameha Publishing (2008), Kamehameha Endowment Legal Division (2010). Abad abstained from the Motion to relocate `iwi as desired by General Growth

Cy M. Bridges, (6/2011). President of the Native Hawaiian Hospitality Association; He began the Polynesian Cultural Center`s hula halau in 1980, continuing today as the Center`s Theater Director.

Angela Lemaile Ehia-Quitevis (6/2012), Member DMZ Hawaii Aloha ‘Aina, her partner Kamoa Quitevis, is a Native Hawaiian, Navy veteran and Hawaiian cultural monitor, said he strongly opposes the Stryker unit and harshly criticized the revised EIS. He said he has seen the damage done to cultural sites because of the military presence in the Islands.

Alice U. Greenwood, (6/2011) is a long time resident of Waianae and is noted for her knowledge and expertise in Native Hawaiian culture and history, especially in the repatriation and reinterment of Native Hawaiian burial sites. Testimony in support of her nomination was submitted by the Office of Hawaiian Affairs, and the Lualualei Ahupua'a Council. Greenwood voted in favor of the Motion to relocate `iwi as desired by General Growth

Andrew Keli`ikoa (6/2011) is currently employed as a Senior Construction Inspector with the Honolulu Board of Water Supply and is also a member of the Royal Order of Kamehameha I. Keliikoa voted in favor of the Motion to relocate `iwi as desired by General Growth.

Shad Kane (6/2012) Retired from the Honolulu Police Department in 2000. He is a member of the Kapolei Hawaiian Civic Club and former chair of the Makakilo/Kapolei/Honokai Hale Neighborhood Board, the Kapolei Outdoor Circle, the Friends of Honouliuli, Ka Papa O Kakuhihewa and the Makakilo-Kapolei Lions Club. He is also the Ewa Representative on the O'ahu Island Burial Council and a Native Hawaiian Representative on the Native American Advisory Group (NAAG) to the Advisory Council of Historic Preservation in Washington DC.

T. Kehaulani Kruse, (6/2010) Worked for Sheraton Hotels (1960-69); Alu Like (-1979); Nature Conservancy of Hawaii (1979-89).Outrigger Hotels & Resort (1989-94). Kruse voted in favor of the Motion to relocate `iwi as desired by General Growth

Aaron D. Mahi (06/2013) former longtime director of the Royal Hawaiian Band, and member of the Prince Kuhio Hawaiian Civic Club. Mahi voted in favor of the Motion to relocate `iwi as desired by General Growth

Jace L. McQuivey (6/2001) is the Vice-President and General Legal Counsel for Hawaii Reserves, Inc., charter board member and officer of the Native Hawaiian Hospitality Association, and member of the Lanihuli Hawaiian Civic Club. McQuivey voted in favor of the Motion to relocate `iwi as desired by General Growth

The Oahu Island Burial Council must sign off on the proposed Rail Project.

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