The church will resume construction work after two suits are rejected
POSTED: 1:30 a.m. HST, Jan 25, 2011
Construction at Kawaiaha'o Church, which stopped two years ago after disturbing 69 sets of human remains, is set to resume.
Hawaii's oldest church has overcome two legal challenges and a permitting issue to allow work to proceed on a $17.5 million multipurpose building.
The Honolulu church known as "the Westminster Abbey of Hawaii" plans to restart construction in the first week of February and hopes to complete the project by the end of next year.
However, not everyone is supportive, and one lawsuit challenging the treatment of disturbed burials is pending.
Resumption of work largely hinged on state officials making a distinction between unmarked Christian burials of native Hawaiians in a cemetery and traditional native Hawaiian burials, typically in secret locations.
Kawaiaha'o officials contended that its burial discoveries were exempt from the state's native Hawaiian burial law because the remains were Christian burials of native Hawaiians in coffins on the grounds of a church cemetery.
The state Department of Health did not exactly side with the church on that issue, but issued a permit in October allowing the church to dig up and rebury any unidentified remains on its property. The approval reversed an earlier decision by the department and was key to construction moving forward.
Health Department officials did not return calls for comment yesterday.
Two lawsuits also sought to block construction but are no longer an impediment. One was filed in 2009 by Abigail Kawananakoa, a relative of Queen Kapiolani, who alleged that trenching work encroached on the family burial plot. That suit was settled in November.
The other suit was filed in 2009 by Hawaiian cultural specialist Dana Naone Hall, whose relatives are buried at Kawaiaha'o's cemetery.
Hall sought a preliminary injunction against resuming construction, but a judge denied the request earlier this month.
Frank Pestana, chairman of Kawaiaha'o's board of trustees, said the church is pleased to resume building much-needed facilities.
"We are looking forward to moving on and seeing the promise of the (multipurpose center) realized," he said.
The two-story project is designed with 30,000 square feet of space for classrooms, conference rooms, a $1 million kitchen, a library, bookstore, church archives and a small museum of church antiquities.
The new building is replacing Likeke Hall, a church office building and a small parking lot.
Likeke Hall, which was torn down last year, was built on a site previously used for burials.
When Likeke Hall was built in 1940, Kawaiaha'o officials disinterred 117 bodies that were first reburied in Moiliili and then relocated to the southwest corner of Kawaiaha'o's cemetery in 1968.
After trenching work for the new building began in January 2009, workers discovered 69 human burials. Work stopped in March of that year. It is estimated that the remains date back sometime prior to the early 1900s. Kawaiaha'o Church was built in 1842.
Church officials said a majority of members who participated in meetings supported its plan to treat any remains disturbed by construction.
The church also emphasized that it followed a process set forth by state agencies with oversight of burials.
The church initially applied for a disinterment permit from the Health Department. But the department said it needed names, dates of death and other information for all those to be disinterred, according to church officials.
Identities of burials under and around the Likeke Hall site were not in any records, so the church instead filed an archaeological monitoring plan approved by the State Historic Preservation Division of the Department of Land and Natural Resources.
The church did not believe it was subject to the native Hawaiian burial law administered by SHPD because of an exemption provided for cemeteries, but it decided to proceed under SHPD oversight so construction could begin.
"We were sort of caught between a rock and a hard place," said Dawn Chang, a cultural consultant working with the church.
Critics of the church's approach said Kawaiaha'o should be subject to burial law requirements, which would make it more complicated for the church to disinter and relocate remains while making it easier for potential descendants to contest disinterments.
The Rev. Charles Maxwell, chairman of the Maui/Lanai Island Burial Council, previously decried the construction activity as an insult to those buried on the site. He called for Kawaiaha'o to build the multipurpose building elsewhere, given the large number of bones found on the former Likeke site.
Hall, a former chairwoman of the Maui/Lanai burial council, said the exception to the burial law for cemeteries is for known, maintained and actively used cemeteries.
"There's no way (the disturbed remains) are part of an active cemetery," she said. "The church has not been a very good steward of these burials."
A consultant hired by the church told state officials that another 83 bodies might be buried at the construction site based on information from a ground-penetrating radar test.
Under state rules, Kawaiaha'o Church must notify descendants of any disinterred remains. But the identity of the remains is unknown.
Hall objects to the blanket disinterment permit granted to the church, calling it offensive to those who could be related to remains.
But in court, Hall lost a bid to keep construction from resuming.
Circuit Judge Karl Sakamoto indicated that Hall was unlikely to succeed on the merits of her lawsuit, so he denied a preliminary injunction that would have held up construction pending the outcome of the case.
At the hearing, Sakamoto rejected the applicability of the state's native Hawaiian burial law on Christian burials and found the Health Department permit acceptable.
"The court has determined that (the burial law) was intended by the Legislature to protect native Hawaiian burials in accordance with traditional native Hawaiian customs, practices and culture," Sakamoto said, according to a transcript of the hearing. "The entire project site, in fact, was a Christian cemetery rather than a native Hawaiian burial site."
Hall disagreed with the judge's decision and will appeal the case to get the burial law clarified to cover Christian and non-Christian burials as well as those in coffins.
"The judge completely ignored the burial law," she said. "I don't believe the judge gave us an impartial hearing."
The church plans to hold a meeting in mid-February with anyone concerned about unmarked burials on church grounds to discuss treatment of present and future burial discoveries.