More than 600 disinterred burials at historic Kawaiahao Church may have to be re-buried after a Friday court ruling that says the church prematurely moved forward on construction of a new multi-purpose center.

In a blow to the church and the state of Hawaii, an Intermediate Court of Appeals panel said that the state violated its own rules in allowing construction of the $17 million project to move forward without requiring the church to do an archaeological inventory survey first.

The court called it a “critical” error. The project has been under development for a decade.

The ruling follows a September injunction that barred the church from removing any more burial remains from the construction site. In 2009, 69 human remains were uncovered, a number of them determined to be Native Hawaiian, according to the court. Earlier this year, it was discovered that about 600 sets of remains had also been unearthed.

The church told Hawaii News Now in August that the remains, many of them in coffins, were being stored on the church property.

The court ruling raises questions about whether those burials will now have to be reinterred in their original burial sites, where the multipurpose center is supposed to be built, while the church completes an archaeological survey.

Dana Naone Hall, who brought the lawsuit and is represented by the Native Hawaiian Legal Corporation and Maui attorney Isaac Hall, said that those details are expected to be determined when the case goes back to the First Circuit Court.

She said that with an AIS, the Oahu Island Burial Council will be an integral part of the preservation review process and have power in making decisions about how to treat burial remains. Up until now, she said, the council had been shut out of the process by the state. The state had granted the church a disinterment permit to remove all the burials it encountered during construction. The Oahu Island Burial Council can make decisions about whether or not burials should be disturbed.

The church’s pastor, Kahu Curt Kekuna, did not respond to an interview request. But William Haole, chair of the church’s Board of Trustees, issued a statement saying that the church was reviewing the decision and conferring with its attorneys to determine its options.

Earlier, church officials had argued that Hawaiian burial law didn’t apply because they were Christian burials.

But the appeals panel said burial law applies regardless of race, religion or cultural origin.

Hall, who has relatives buried at the site, has been fighting for years to protect Native Hawaiian burial rights. She called the case “painful,” and the ruing a “monumental opinion.”

“I’m hoping that the Intermediate Court of Appeals’ opinion is going to help put a stop to the way of doing business here when it comes to historic preservation,” she said. “And I believe that it will have a tremendous impact on righting the process. And I think that by now, I would think that developers would see that it is less time consuming and less costly to follow the legal process.”

The case shows the far-reaching impacts of a Hawaii Supreme Court decision in August for the Honolulu rail project. That ruling concluded the State Historic Preservation Division failed to follow its own rules in allowing an archaeological inventory survey to be completed in four phases — construction was allowed to begin on each rail segment following survey work. That case was also brought by the Native Hawaiian Legal Corporation.

The court based this week’s ruling on the rail case.

“Based on Kaleikini, we conclude that the SHPD should have required Kawaiahao Church to complete an AIS before concurring in the MPC Project and that the SHPD violated its own rules in failing to require an AIS before permitting the project to go forward,” the judges wrote.

Wailliam Aila, chair of the Department of Land and Natural Resources, which oversees SHPD, said that he hadn’t seen the ruling yet, so couldn’t comment at this time.

Hall said developers and the state could avoid future problems if they followed Hawaii’s burial laws.

“Had (the AIS) been done in the beginning, we would not have this terribleness we are in now,” she said. “For 10 years, I have watched the erosion of pre-historic and historic burial sites. And this decision reverses this dangerous trend.”

Follow Civil Beat on Facebook and Twitter. You can also sign up for Civil Beat’s free daily newsletter.

About the Author

Comments