As development rises, so does concern over human remains

By James Gonser
Advertiser Urban Honolulu Writer

More human remains were found last week in an area of Kaka'ako that is rife with development, just as the controversy over dozens of similar discoveries nearby had begun to subside.

Two other sets of remains were also found this month, and one was uncovered in December 2003. The most recent finds were in a sandy area about 4 feet from the surface.

The developer, Crescent Heights, said that before construction began, workers dug about 16 sample holes where concrete footings were to be placed to allow archaeologists to determine whether any remains, or iwi, were there. None were found.

It is not yet known whether the remains uncovered at the condominium site are those of ancient Hawaiians, but the finds come amid heightened sensitivity to an issue of cultural importance.

And with even more construction pending in the area from Ward Avenue to Ke'eaumoku Street along and near Kapi'olani Boulevard, new questions are being raised about whether enough is being done to protect burial sites before the areas are developed.

Edward Halealoha Ayau, a member of Hui Malama I Na Kupuna O Hawai'i Nei, an organization that oversees perpetual care of the remains of Native Hawaiians, says state laws should be fully used in areas where other graves are known to exist.

Every development in the area should be required to conduct a full archaeological survey of the site before construction begins, Ayau said.

"In areas where there are previous histories of burials, absolutely," Ayau said. "Is that too much to ask? What do we living today owe to those in the past? Some developers would say nothing because it costs them money."

More than required

Developers say they not only follow laws regarding the inadvertent discovery of human remains, but often do more than the law requires such as conducting an archaeological survey on their own. They say remains are treated with dignity and their disposition is decided by the state's Island Burial Council on each island and by any descendants that can be found.

Nine projects are planned or under way within a half-mile radius along the Kapi'olani corridor, with two of them nearly complete — the new Wal-Mart store at Ke'eaumoku Street, and the Queen Street Extension.

Though 72 sets of human remains have been found at those two sites, none of the projects has been required to do an archaeological survey of property before starting work — the most extensive requirement that can be ordered by the state to protect cultural sites and the only one that would satisfy Hui Malama that no burials are there.

Holly McEldowney, acting administrator for the State Historic Preservation Division of the Department of Land and Natural Resources, said when a construction project is on private property, the state can only recommend what to do and requiring an archaeological survey at every construction site is not appropriate.

Deciding what level of archaeological work is needed for a particular project is a professional judgment call based on available information and evidence, she said.

"There are cases in which an archaeological survey, based on all available evidence, is clearly unwarranted for large and small landowners," McEldowney said via e-mail."Currently, we already require or recommend survey or monitoring for a relatively high percentage of projects we review. Each project is assessed on a case-by-case basis based on what is known about that location."

When necessary

According to the DLNR, 254 projects were reviewed from September 1997 to June 2003. Archaeological surveys were asked for when staff believed cultural deposits, including burials, were present. Of the 254 reviews, archaeological surveys were recommended for 21 sites, archaeological monitoring was recommended in 25, and no action was required on 92 sites because no historic properties would be affected, the state said. The other 116 reviews were of reports or plans or replies to requests for information.

Archaeologists perform a site evaluation when deemed necessary by the state based on historical record, results of an environmental impact statement or other evidence, according to McEldowney. If bones or ancient cultural artifacts are found, specialists in Hawaiian culture are assigned by the state to ensure that proper handling and practices are carried out.

Human bone fragments have also been found at the Hokua condominium project, at Ala Moana and Auahi Street, adjacent to the Ko'olani condominium site.

The Wal-Mart case

The controversy over the treatment of iwi and whether sufficient protection for burial sites was being exercised came to a head during work at the nearby Wal-Mart site, where 42 sets of remains were eventually found after work began in December 2002. Hui Malama held a protest at the site alleging that iwi were being mistreated by being left out in direct sunlight.

But Wal-Mart quickly responded to Hui Malama's concerns, and defends its handling of iwi.

"From the beginning we were committed to treating the remains with the utmost care and respect," said Cynthia Lin, spokeswoman for Wal-Mart. "We followed established protocols and procedures and even went above and beyond so that we could do the right thing."

The number of remains found in the area increased to 72 last year when those of 30 people were discovered by construction crews working on the state's Queen Street Extension project in Kaka'ako. The graves were in the middle of a $5.5 million roadway project to link Queen and Waimanu streets.

If remains are found during construction, developers are required to stop work and call the State Historic Preservation Division and the police department. If the remains are less than 50 years old, police investigate the case. If they are older, the state is responsible for investigating and making a determination on the remains.

"The Wal-Mart and the Queen/Kamake'e Street extension projects expanded our knowledge of what kinds of subsurface deposits can be in this general area and established that the probability of burials is relatively higher where these deposits are present," McEldowney said. "Having learned this, we now ask for inventory surveys with subsurface testing if we believe these subsurface deposits are present for projects in this general area. We have even rescinded some previous recommendations in light of our increased understanding of this general area and its history."

The state had determined that an archaeological survey was not needed at the Wal-Mart site because it has been in urban use for many years.

But after bones were found there, Hui Malama filed a lawsuit accusing Wal-Mart and officials from the state Department of Land and Natural Resources of violating the public trust and unlawfully manipulating and violating sections of state law that deal with protection and preservation of human remains and desecration of graves.

"How can (the state) make a determination of no effect when there is nothing on the surface to indicate there might be a burial or in fact a concentration of burials, as is the case at Wal-Mart," said Moses Haia, attorney for the Native Hawaiian Legal Corporation representing Hui Malama. "We're hoping to require the state and the counties to uphold their public trust duties. Iwi is a part of the public trust and should be afforded constitutional protection and not just short shrift that it appears they are getting now."

The resolution

At Wal-Mart, cultural descendants were found and after many meetings and much discussion, it was decided to remove the remains from where they were found and place them together on an isolated site on the property.

Ashford Kekaula, whose family used to own the Wal-Mart property, said the property was in industrial use for a long time with gas, oil and other pollutants in the soil.

"From our families' standpoint, we did what we needed to do," Kekaula said. "Get them out of the muck and pollutants that were already there. I feel good about it."

Kekaula said with so many burials found in the area, it seems obvious that many more sites could be found.

"I would think the other sites, just to stay out of trouble, would take the precautionary measures," he said. "The new projects, I would think, it would be in their best interests to check it out more thoroughly before they even go into anything so they don't have these repercussions biting them later on."

Allen Leong, project coordinator for the planned twin-tower condominiums Moana Pacific, just a block from Wal-Mart on Kapi'olani, said he has hired Cultural Surveys of Hawai'i to do an archaeological survey of the property even though one is not required.

"We are very concerned because of the close proximity to Wal-Mart," Leong said. "We brought in a backhoe and cut 20-something trenches. We went down to the water line and then went in and did an archaeological survey of the parcel for any evidence or indication of human remains or burial activity and found none."

Leong said that information was forwarded to the state, and the contractor will have an archaeologist on hand during construction to monitor the work, especially when piles are driven into the ground to support the towers.

"If you know what is happening before you go into it, then you can work with it," Leong said. "Once you are actually under construction and find it, the cost to the project is tremendous. You have to stop work and try to move things around and figure it out."

Reach James Gonser at jgonser@honoluluadvertiser.com or 535-2431.

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