The Native Hawaiian Legal Corporation (NHLC) and its client, Edward Halealoha Ayau, have reached a settlement in their litigation with the State of Hawaiʻi, the City and County of Honolulu (County), and Keʻeaumoku Development LLC (KDL) regarding Native Hawaiian burials at the Park at Keʻeaumoku project (the Park Project). Pursuant to the settlement, a total of 28 iwi kupuna that have so far been discovered at the site will be reburied, on location, in accordance with and an accepted Burial Treatment Plan and traditional protocols by September 30, 2024.  

The Park Project is a two-tower, mixed-use condo development that will include 1,000 condominiums, eateries, retail, and other commercial spaces. When completed, the towers will be among the tallest in the State. The site is located 150-meters southwest of the Walmart on Keʻeaumoku, where 64 iwi kūpuna burials were discovered during construction that started in 2002. 

In 2022, KDL sought several permits from the County to develop the Park Project. Archaeological assessments required for these permits led to the discovery of one iwi kupuna burial. Permits were issued and development proceeded. By February 2023, 14 additional burials were found. The State Historic Preservation Division (“SHPD”) did not notify all the cultural descendants for the area and decided to allow for the iwi kūpuna to be relocated rather than remain in place.  

Out of great concern for the iwi kūpuna and other historical sites on the property, Edward Halealoha Ayau, a malama iwi kūpuna practitioner and cultural descendant for the ahupuaʻa that the Park Project lies within, worked with NHLC to formally make a legal complaint. NHLC and Mr. Ayau challenged: 

•  the sufficiency of the archeological work done to assess the cultural impact of the project;  

• the treatment of the iwi kupuna as “inadvertent discoveries” which impacts the rules that apply under burial laws;  

• the sufficiency of notice provided to required parties regarding the discovery of the iwi; and  

• the government’s compliance with administrative rules and procedures regarding decision making about whether to preserve the iwi kupuna in place or relocate them.  

After the case began, another 13 iwi kūpuna were found, bringing the total iwi kupuna impacted by the Park Project construction to 28. 

NHLC and Ayau sought a preliminary injunction to protect the discovered burials and any others that may be at the site during the litigation. The First Circuit Court granted that motion in part, finding that the SHPD failed to comply with the rules regarding notice to specific parties and fact finding required of it when making decisions regarding relocation of “inadvertently” discovered burials. The Court ordered that the State remedy these failures and that KDL could not proceed with some of its development activities until SHPD complied. Once SHPD completed that process however, there was a legal pathway for KDL to proceed with development while the litigation continued.  

After the Court issued its order, the parties continued to discuss resolutions that allowed for the expedient reinternment of the iwi kupuna, and protocols for future excavation at parts of the Project Site.  A settlement was reached last month. KDL has agreed to:

• build a burial vault on the Park Project site,
• rebury the 28 iwi kupuna so far discovered by September 30, 2024,
• work with descendants to ensure the reinternment occurs according to cultural protocols and an accepted Burial Treatment Plan for the iwi kūpuna with the cultural descendants.  

“As part of the kuleana to mālama iwi kūpuna, it is crucial that we strive to achieve reburial by ceremonially returning the ancestral remains to the land— back to pō and the sanctity of the moeloa. We have an interdependent relationship with the ancestors and reburial is a significant part of our responsibility to care, protect and heal the ancestors and thereby ourselves. It was also important to get SHPD to comply with the notification procedures following an inadvertent discovery of iwi and to apply the preservation criteria in written decisions regarding treatment each time an inadvertent discovery occurs.” Halealoha Ayau, Malama Iwi Kupuna Practitioner.

 

“It is sad that 27 iwi kūpuna were not discovered as part of the archaeological assessments for the Park project.  That ʻeha is compounded by the fact that these iwi kūpuna were disturbed and then removed for relocation.  In the end, this case became about putting them back to rest as quickly as possible, on site, and in accordance with cultural protocols. It was also about impressing upon the State and the developer the importance of complying with the spirit and letter of our burruial laws out of aloha for our iwi kūpuna and their descendants.”

Kirsha Durante, Litigation Director, Native Hawaiian Legal Corporation.

The legal team at NHLC for this matter included Kirsha Durante, Terina Faʻagau, Ashley Obrey, and prior to their departures from the firm, also David Kauila Kopper and Daylin-Rose Heather.  

Counsel for Keʻeaumoku Development LLC included William Meheula of Meheula Law, LLC.   

Filings related to the Case:  

• First Amended Complaint

• Motion for Preliminary Injunction

• Court’s Minute Order Regarding Motion for Preliminary Injunction