An opponent of a construction project at Kawaiaha‘o Church is again asking a court to halt work and stop Honolulu’s oldest church from digging up human burials — the total of which has exceeded 230.
Hawaiian cultural specialist Dana Naone Hall, who has relatives buried on Kawaiaha‘o grounds, is asking Hawaii’s Intermediate Court of Appeals to stop further excavation and construction.
Naone Hall is appealing a state Circuit Court decision that recently dismissed a lawsuit she filed in 2009 against the project, a $17.5 million multipurpose building.
In the appeal, filed Feb. 1, Naone Hall contends that Circuit Judge Karl Sakamoto erred in his ruling by saying a state law protecting Native Hawaiian burials didn’t apply because the burials were in a Christian cemetery. She also contends that the state Department of Health and the Department of Land and Natural Resource’s State Historic Preservation Division approved disinterment of graves without following laws that protect Hawaiian burials, or iwi.
"The church should not be able to continue to disinter iwi and build the (multipurpose center) in hopes of mooting out this appeal and making it impractical to return the disinterred remains from their eternal resting place," the appeal said.
Kahu Curt Kekuna, senior pastor of the church referred to as "the Westminster Abbey of Hawaii," said Kawaiaha‘o has followed all applicable laws and expects to prevail in the appeal.
"This appeal by the plaintiff only seeks to revisit arguments that have been heard and rejected, and we are confident that the appellate court will agree with Judge Sakamoto’s well-reasoned decision," he said. "Kawaiaha‘o Church looks forward to continuing with the multipurpose center project as it is key to the church’s ability to fulfill its religious mission and to serve the community."
The appeal is the latest in a series of challenges to the controversial project that began in 2009 and was halted that year after contractors unearthed 69 sets of iwi while using heavy equipment, mostly to dig utility line trenches.
Work resumed last year with the site being excavated by hand to remove iwi after the Historic Preservation Division and the Health Department approved disinterment.
Since mid-November when excavation resumed after a short pause related to a separate court challenge, more than 150 burials have been removed, or 14 per week on average, according to reports submitted to the Historic Preservation Division by Cultural Surveys of Hawaii, an archaeological firm working for the church.
The number of burials removed from the project site through Jan. 21 is 238, which doesn’t include hundreds of individual bones or fragments also collected.
Weekly reports after Jan. 21 were not available from the Historic Preservation Division last week.
The church, through a spokesman, declined to provide any figures on burial removals.
Naone Hall said she believes the total to date is at least 258. "The number of burials that continue to be excavated confirms that this is a live controversy that requires a ruling from the court to protect further desecration," she said.
The issue is important to Naone Hall and other Hawaiians because cultural tradition calls for them to protect their ancestors’ remains from disturbance.
Naone Hall said her great-grandfather lived in a house on Mission Lane adjacent to church grounds, and that members of her family were buried in Kawaiaha‘o’s cemetery, possibly on the project site. The church denies that Naone Hall’s family burial plot is in the construction area.
Naone Hall sued in 2009 to force the church to follow procedures in the state’s burial law that gives descendants a say in whether remains of their ancestors are left in place or relocated under a process involving the Oahu Island Burial Council.
Judge Sakamoto ruled that the law pertains to Native Hawaiian burial sites — not burials in a Christian cemetery.
The appeal contends that Hawaiian and Christian burial practices are compatible, meaning that even if Hawaiians were buried in a Christian cemetery, the treatment of their bones can be subject to Hawaiian traditions that abhor exhumation.
Kekuna disagrees, and said the law makes a "clear distinction" between cemeteries and Native Hawaiian burial sites.
Naone Hall also is using the appeal to challenge the church’s position that there’s an exemption in the burial law for cemeteries. The exemption is specifically for "known, maintained, actively used" cemeteries.
The multipurpose building site was long occupied by Likeke Hall as well as a church office building and a small parking lot. The church disinterred 117 burials when it built Likeke Hall in 1940 on part of the cemetery adjacent to its main church building, which dates to 1842. Likeke was demolished in 2008.
The Department of Health concurred with the exemption and issued a blanket disinterment permit in October 2010.
Naone Hall contends that the department didn’t properly adhere to the burial law.
Department spokeswoman Janice Okubo said the agency will not comment on the case because it is pending.
Naone Hall’s appeal also argues that the Historic Preservation Division failed to follow the burial law by allowing disinterment without following the normal process under the law and requiring an archaeological inventory survey that could have better determined how many burials existed before any decision was made on whether to move them.
Deborah Ward, spokeswoman for DLNR and its Historic Preservation Division, said the department does not comment on pending litigation.
A determination as to whether or when the appeal will be heard has yet to be made.
