Kawaiahao Church / Plans to resume construction of a $21 million multipurpose building on the grounds of historic Kawaiahao Church are meeting renewed resistance from those who say the project is circumventing the state burial law.

“We need to stop this now, because if Kawaiahao, a Hawaiian church, the church of the alii, is allowed to get away with it, and condones it, it will set a precedent for every other construction project coming down the line,” says Kamuela Kalai, whose great-great grandfather, a minister ordained at the church, is buried on its grounds.

Drawing the Line

At issue is whether the Oahu Island Burial Council (OIBC) or state agencies have authority to decide what happens to the iwi kupuna–bones of the ancestors–at the project site. Some 69 burials already have been disturbed, and preservationists say it’s highly probable more will be uncovered if construction is allowed to proceed.

The controversy has assumed new urgency since Circuit Judge Karl Sakamoto denied a motion for a preliminary injunction to halt the project pending completion of a full Archaeological Inventory Survey (AIS) of the site. That ruling, coupled with issuance of a mass disinterment permit by the Department of Health (DOH), has cleared the way for work to resume.

Burial Council Chairman Kawika McKeague says the dispute speaks to the fundamental question of whether Hawaiians are able to exercise their cultural and spiritual responsibility to care for their iwi kupuna.

“If we can’t evoke that kuleana it leads to us being culturally obsolete, stagnant and, as a people, irrelevant in our homeland,” he says. “That’s where the true hurt is lying. To me, that is the real hewa.”

Hawaiians or Christians?

Kawaiahao Church Board of Trustees Chairman Frank Pestana, in a written response to questions, noted that “OIBC’s responsibility is for Native Hawaiian burials, and while the motion for a preliminary injunction was denied for a variety of reasons, the judge specifically noted that ‘the burials discovered at Kawaiahao Church were in fact Christian burials within a Christian cemetery, rather than traditional native Hawaiian burials. . . . While the discovered burials contained remains that were ethnically Native Hawaiian, they were nonetheless still Christian burials.’”

However, the state burial law does not distinguish between Christian and traditional Hawaiian burials, and instead speaks only to Native Hawaiian burials older than 50 years.

The project began in September 2007, when Likeke Hall was demolished to make way for the new facility. But when trenching work began in early 2009, iwi were found on the first day, and discoveries continued until church officials halted work in early April 2009. Although 117 iwi were disinterred to build Likeke Hall in 1940, and unmarked pre-Western contact burials are known to be in the area, church officials say they hadn’t expected any substantial discoveries during the new construction.

“At every step of the way, the church worked in consultation with the appropriate agencies to ensure it adhered to proper procedures,” Pestana wrote, and it also made presentations to the OIBC and formed a Na Iwi Committee “composed of members of Kawaiahao congregation and other well-respected cultural resources in the community (including Kai Markell, Nanette Napoleon and Aulii Mitchell) to provide guidance on the culturally appropriate protocols in the event iwi kupuna were discovered during construction.”

The panel is currently inactive because several members have resigned and the church is seeking a new chair.

Warning Signs

McKeague said church officials came to the OIBC prior to trenching and promised to pursue the project “in a pono manner” by forming the advisory Na Iwi Committee. “We knew some of the folks on the committee, and they were staunch supporters of the iwi, so that put our minds at ease. We thought the church was going to proceed in a spirit of lokahi, or harmony.”

Kalai agreed. “I never was that concerned about the project because I thought the church must be doing the right thing. They’re not gonna desecrate graves.”

The State Historic Preservation Division (SHPD) determined the 69 burials found during were “inadvertent discoveries,” which gave the agency authority to decide their fate, in consultation with the OIBC.

The state then went on to designate the entire project site as a historic cemetery–“a decision made without us even being invited to the table,” McKeague says. The determination ensured that any additional burials found during construction could be removed under a disinterment permit, which effectively aced the OIBC out of the process.

The OIBC challenged SHPD’s decision, arguing that the site was known to have been used for traditional burials prior to the church being built, which would make the iwi found there “previously known burials,” and, thus, under the Council’s purview.

In August 2009, the Council asked the state Attorney General’s Office to determine if SHPD had failed to adequately inventory historic properties prior to the start of construction, and if an environmental assessment should have been required because the project involved a historic property in a historic district.

The AG’s office didn’t respond until December 2010, when it advised the OIBC it had no jurisdiction or authority pertaining to the iwi kupuna that have been disinterred. McKeague says the opinion again raised the question of who the Attorney General’s office represents when the OIBC and SHPD have differences of opinion. “It would seem they’re serving two masters at once,” he notes.

Separate Lawsuits

The Burial Council wasn’t alone in challenging the process. Abigail Kawananakoa, heiress to the Campbell Estate and a distant relative of Queen Kapiolani, filed suit in 2009, as did Dana Naone Hall, former chair of the Maui Island Burial Council. The women, both descendents of persons buried on the Kawaiahao grounds, wanted the church to conduct a full archeological inventory survey prior to resuming construction.

They also contended the state had improperly allowed the project to circumvent review by the OIBC by failing to require a survey. Hall further argued the state had erred in unilaterally determining the site was a maintained and actively used cemetery. “But clearly it is not, because these are all unmarked and unidentified burials found under a building and asphalt roads,” Hall said.

The two lawsuits were combined, over Hall’s objections, and Kawananakoa went on to reach a confidential settlement of her claim. Hall continued to press her case, but suffered a setback in early January when Judge Sakamoto issued a verbal ruling from the bench that she had no standing to bring the motion for a preliminary injunction. Hall, who is represented by the Native Hawaiian Legal Corp., filed a motion for reconsideration, which was denied without a hearing.

“The decision is so patently wrong,” says Hall, citing a provision in the state’s burial protection law that specifies “any person may maintain an action in the trial court having jurisdiction where the alleged violation occurred or is likely to occur for restraining orders or injunction relief.”

Hall also was designated a cultural descendant of the Kawaiahao burials by the OIBC.

“I wanted justice for the burials,” Hall says, in explaining why she pursued legal action against the church and state officials who took the project out of the jurisdiction of the OIBC. “I wanted protection for them afforded by hard-won legislation. The whole point of the burial law is to provide an orderly process for dealing with burial issues and to avoid controversies of the kind that have sprung up at Walmart, Ward Village and now Kawaiahao.”

Hall plans to appeal, but says Sakamoto has delayed that action by failing to issue his order in writing. “In the meantime, the church has a blanket disinterment permit, so they can go ahead,” she says.

The Fight Continues

Kalai says she is determined the project will not proceed. “It just kills me to think about it. Any time you dig iwi kupuna out of the ground, it’s wrong. They are the foundation of our lahui, our nation. This is a Hawaiian church, and Hawaiians revere their dead. I don’t see anybody digging up missionary graves. It’s not too late for the church to do the right thing.”

McKeague says that even though the state isn’t requiring it, Kawaiahao officials still could conduct the archaeological survey. “The church leadership also needs to look at the bigger picture and assess, is it worth it? Is this building worth this discord?”

Church Kahu Curt Kekuna, in a written response to questions, said Kawaiahao needs to complete the facility “in order to fulfill its mission and believes it is not only well worth it but essential to do so. If the church does not have the facilities and resources to do the work of Ke Akua, it will no longer be a church, only an historic site, a museum. The completion of the multipurpose center is essential for Kawaiahao Church to survive and grow.”

Kekuna says the church “welcomes inquiries” and has been receiving a number of calls about the project. “I am concerned that most of the callers I have spoken with have incomplete or inaccurate information about the project and the care of the iwi.” He says the church plans to hold another kahea ‘ohana–call out to families–in mid-February where people can air their concerns and ask questions.

Meanwhile, the church has notified the state that it plans to resume construction.