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The Honolulu Advertiser

Posted on: Monday, April 4, 2005

Tougher laws sought on iwi

By Derrick DePledge
Advertiser Capitol Bureau

Troubled that a Hawai'i law protecting historic burial sites may be inadequate, state lawmakers are working on new criminal penalties for disturbing or destroying human remains or artifacts.

The targets are not people who inadvertently come across remains while clearing land or doing construction, but people who knowingly damage burial sites or who discover remains and then fail to stop work and report their findings.

State lawmakers hope that stronger penalties might deter what has become a sensitive cultural issue. "This law may keep people more aware of preservation and act as a deterrent," said state Sen. Clayton Hee, D-23rd (Kane'ohe, Kahuku).

The discovery of 61 sets of iwi, or bones, during construction of a new Wal-Mart on Ke'eaumoku Street has caused more than two years of acrimony between the contractors and the state and Hawaiian families with ancestral ties to the remains.

The state has postponed the reburial while the attorney general's office investigates possible damage caused during archaeological work. A Hawaiian cultural group has also filed a lawsuit against Wal-Mart, the state, the city and contractors over the dispute.

Edward Halealoha Ayau

Edward Halealoha Ayau, the po'o of Hui Malama I Na Kupuna O Hawai'i Nei, the cultural group that brought the suit, said new penalties could help make people more aware.

"We want to make it clear when a person has crossed over from inadvertent to intentional disturbance," Ayau said.

While lawmakers agree that many of the disturbances are accidental, they say that giving the law more bite would put people on notice that careless behavior will not be tolerated. "I've seen some atrocious things happen," said state Sen. J. Kalani English, D-6th (E. Maui, Moloka'i, Lana'i).

People would risk a $25,000 fine and a year in jail and could also have to pay $10,000 in separate civil and administrative penalties. The fines would be for each offense and for each day of violation, so the punishment could quickly multiply.

The state House has passed a bill that would change the law and it is now being considered by the state Senate.

In reaction to potential claims in the Wal-Mart case, senators on Friday added new civil penalties against gluing together or using a marking pen to label remains or conducting tests that damage remains without state approval.

The state Department of Land and Natural Resources already has the power to pursue $10,000 civil fines for each offense. But state prosecutors have to go to a different section of law that covers grave desecration to get criminal penalties: a $2,000 fine and one year in jail. The department believes that process is subjective and lacks deterrence value.

Peter Young, the director of the department, said the proposed changes would place both the criminal and civil penalties in the historic preservation law. "That closer link makes it easier for us to deal with prosecution," he said.

The state Office of Hawaiian Affairs, in testimony to the Senate, predicted that adding criminal penalties would deter people who may factor in civil fines as part of the overall costs of a project.

The public defender's office opposes the new penalties, in part because of the chance that a construction worker who disturbs or removes an artifact may be held responsible instead of the contractor or developer that controls the property.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com or 525-8070.