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The Honolulu Advertiser

Posted on: Tuesday, May 17, 2005

Wal-Mart cleared in lawsuit

By James Gonser
Advertiser Urban Honolulu Writer

A Circuit Court judge yesterday dismissed all claims against Wal-Mart in an ongoing lawsuit alleging mishandling of human remains unearthed during construction of the retail giant's Ke'eaumoku Street store.

The lawsuit will proceed on claims against the other defendants, the state and city governments. Trial is scheduled to begin July 18 on the remaining issues of violating state law and desecration of graves.

Judge Victoria Marks yesterday granted Wal-Mart's motion for summary judgment, saying plaintiffs Hui Malama I Na Kupuna O Hawaii Nei and Paulette Kaleikini could not seek damages for emotional distress stemming from the discovery of iwi kupuna (ancestral bones) at the construction sites in 2003.

"We have a situation where the named plaintiff is not a lineal descendant, there are no property rights," Marks said. "Hui Malama is an entity and cannot recover for emotional distress damages based on existing case law."

Hui Malama is an organization that oversees perpetual care for the remains of Native Hawaiians.

The lawsuit, filed in May 2003 by Native Hawaiian Legal Corporation attorneys Alan Murakami and Moses Haia III, accused defendant Wal-Mart and officials from the state Department of Land and Natural Resources and the city Department of Planning and Permitting 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.

Wal-Mart bought the 10.5-acre property in May 2002 for an estimated $35 million and built a Sam's Club and Wal-Mart on the block bounded by Sheridan, Makaloa, Rycroft and Ke'eaumoku streets. The stores opened last year.

An archaeologist has determined that the remains found during construction may be of people who died in the 1853 smallpox epidemic that struck Honolulu. More than 60 sets of remains have been found at the site.

Attorney Haia argued that plaintiff Kaleikini was at the site on May 21, 2003 and witnessed the iwi sitting in an open trench exposed to sunlight and garbage and even saw a stray cat run off with one of the bones. Haia said as a cultural descendant she suffered emotional distress and a jury should be allowed to decide damages.

"The judge's ruling suggests my client didn't suffer severe emotional distress and you have to be a family member to have pain and be affected by disrespect to your ancestors," Haia said. "That is a huge step."

Haia said the state should require that archaeological surveys be conducted on construction projects before the city issues building permits.

"What we want is to never have this happen again," Haia said. "One of the ways we see of doing that is to try and reach an agreement with the state and the city that in instances like this, even if the state believes the previously disturbed land is not likely to affect historic properties, they remember Wal-Mart and say that is not necessarily so."

Wal-Mart spokeswoman Cynthia Lin said Marks also ruled that because the state — not Wal-Mart — has custody of the iwi, no claims remain against the company.

"We are pleased with the ruling," Lin said. "From the beginning, we've made every effort to follow the state's direction in this matter, and will continue to do so. We are all hopeful that the remains will have a final resting place in the near future."

The remains have been stored at the site pending the completion of a state investigation into possible damage caused during archaeological work. The O'ahu Island Burial Council has ruled that the iwi will then be buried together on a corner of the store's property.

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