Discovery of Native Hawaiian burial sites during condo construction prompts lawsuit

Work has continued on new high-rises in Honolulu despite the discovery of multiple burial sites.

by Candace Cheung, Court House News, February 28, 2023

HONOLULU (CN) — A Native Hawaiian man has sued the state of Hawaii, the city of Honolulu and a real estate developer to stop construction work and halt pending permits until proper assessments and consultations can be done after Native Hawaiian burial sites were uncovered during a redevelopment project in one of Honolulu’s major shopping and residential districts.

Backed by the Native Hawaiian Legal Corporation, plaintiff Edward Ayau says in a lawsuit filed Monday that Ke’eaumoku Develoment and the state have, in violation of statutory and administrative guidelines, refused to adhere to established process for the discovery of Native Hawaiian remains over 50 years old and in doing so, caused unnecessary disruption of the remains, preventing Hawaiians from engaging in mālama iwi, the traditional cultural practice of caring for ancestors.

“Where human skeletal remains are reasonably believed to be Native Hawaiian, [State Historic Preservation Division] shall determine whether to preserve in place or relocate the burials, following consideration and application of the criteria stated in HAR § 13-300-36 and in consultation with appropriate council members, the landowner, and any known lineal or cultural descendants,” Ayau says in his complaint.

Since construction began, 15 separate burial sites have been uncovered, as well as a former ʻauwai (a ditch or canal) and a buried road.

Ayau, a Native Hawaiian and possible descendant of those buried at the Ke’eaumoku site, takes issue with how Native Hawaiians have been left out of the process as all but approximately five sets of remains have been disinterred and relocated.

An archaeological inventory survey approved in 2021 indicated a high probability that there could be historically significant discoveries based on similar burials of iwi kūpuna — literally bones of ancestors — previously uncovered nearby, including over 60 sets of remains relocated for the construction of a Walmart across the street from the condo site.

Despite pushback from the community and local businesses, including the well-known Pagoda Hotel, that originally occupied the area, several acres of land near the state’s largest mall were sold off early last year. Construction of what will be The Park at Ke’eaumoku, a multi-use residential/commercial condominium project, began in summer of 2022 following the demolition of the block of well-loved stores and restaurants.

Ayau claims no archaeological survey or assessments were conducted after demolition and despite the subsequent findings of burials and related sites and features. The state and city have granted several permits for work at the Ke’eaumoku site and construction has continued despite the discoveries.

According to the complaint, the State Historic Preservation Division decided to authorize relocation for all the found remains without input from possible descendants, the Oʻahu Island Burial Council or the Native Hawaiian community at large.

The developer and the state have considered the newfound burial sites as “inadvertent discoveries” to avoid triggering further archaeological or preservation assessments. But Ayau says that “based on the AIS’s disclosure that encountering burials during construction was likely, these additional burials are not 'unanticipated' burials.” He also contends that beyond the survey’s discoveries, the burial sites were known to Native Hawaiians through either oral or written testimony.

Ayau wants a court order barring any further disturbance to the remains, the Ke'eaumoku Development ordered to halt all construction operations, and for the state and city to rescind permits granted to the site.

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PDF: Complaint

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