by Ken Conklin

Ancient burial remains are sometimes found when new roads or buildings are under construction in Hawaii. Must the bones be left in place? If so, then multimillion dollar redesign might be necessary to avoid disturbing the bones, or the project might get cancelled because there would be no way to avoid disturbing them. Can the bones be moved out of the way to let the project go forward? Who decides, and on what criteria?

This essay is a philosophical inquiry into some of the historical, legal, and moral issues involved in deciding what to do when respect for ancient burials clashes with current economic desires and social needs.

Here are some conclusions.

Living people have rights, but dead people have only whatever rites are voluntarily given to them by the living. Burials of individuals whose names are remembered and whose accomplishments are known by living people through personal acquaintance or stories handed down, are entitled to far greater deference than unknown burials of people whose names and lives have long been forgotten.

People should respect each others’ wishes, needs, and cultural perspectives; including the wish to leave burials in place and the wish to develop land for commercial or public use. Both kinds of wishes are worthy of a level of respect measured by the intimacy of connection between the wisher and the deceased or the construction project. Disputes over bones should be settled in the same way as any other moral, political, or economic conflict, respecting the equal status of races and cultures.

In both ancient and modern Hawaii different social classes had very different burial customs — there is simply no way to say that any particular procedure was or is standard or universal for any particular racial or cultural group at any particular point in history.

The old Hawaiian religion was abolished by order of the political leadership during the year (1819) before American missionaries arrived (1820), so it seems improper and disrespectful to the ancestors for today’s maka’ainana [commoners] to try to reinstate what their ancestral ali’i [chiefs] voluntarily abolished in pursuance of self-determination. Furthermore, the bones of two extremely high-ranking ancient chiefs were moved repeatedly by various ali’i between 1820 and 1918 whenever it seemed prudent to do so, thereby establishing the precedent that it is not disrespectful to disinter and move ancient Hawaiian bones.

Government’s right of eminent domain to seize private property for public use should apply to ancient Hawaiian bones in the same way as it applies to ancient Roman or modern Euro-American and Asian cemeteries, which have sometimes been moved or paved over to build highways or government offices, or for economic redevelopment.

The present and future must not be held hostage by the past. A dead hand must not be allowed to reach out to strangle living people and their community. Living people have the right to decide what to do with ancient burials and artifacts. The entire population has the right to participate in decision-making, with levels of respect and deference accorded to individual participants based on their degree of closeness to specific bones, artifacts, and development projects.

Depending on whether a developer has performed due diligence with a burial council, the burial council must understand that if it chooses to leave a burial in place, then the burial could be paved over or mangled. On the other hand, developers who fail to perform due diligence before a project is designed or excavated might be forced to do expensive redesign or even to cancel the project. Some specific proposals are offered regarding how burial councils and developers should interact in ways that are both respectful and efficient, and who should have the final authority to make decisions in disputed cases.

All these topics and more are discussed in depth at