OLA NA IWI: Naue Burials Lawsuit Highlights Systemic Problems at the State Historic Preservation Division

Posted on September 7, 2008

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In Kauai, there is a disconnect between the people and the government, specifically the State Historic Preservation Division.   The SHPD believes that pouring concrete foundation slabs over ancient gravesites constitutes an acceptable way to preserve them.  Hawaiians disagree.

Hawaiians are a spiritual people, and one of their sacred responsibilities is to preserve the remains of their ancestors.  Yet construction is currently underway on a Naue, Kauai beachfront lot with 30 burials dating as far back as the 13th century and a variety of traditional artifacts.  California luxury developer Joseph Brescia is building right over top of them.  And he has government authorization to do so.

The National Hawaiian Legal Corporation (a non-profit, despite the moniker) has taken up the cause and filed a motion for a preliminary injunction on behalf of Jeff Chandler, a local fisherman.  But the motion is filed by way of a countersuit, since Brescia is suing Chandler for his involvement in an August protest at the construction site.

On Thursday, September 4, Fifth Circuit Court Judge Kathleen Watanabe heard the third and final day of testimony on the motion for preliminary injunction.  From her comments at the close of testimony, though, it does not look promising for those attempting to stop the development.

Judge Watanabe cautioned the parties, “This court has a very small amount it can do with the case.”  The judge said she would rule on the motion by September 16.

Chandler had initially requested a TRO, but this motion was denied.

There are, indeed, questions as to whether the SHPD authorization was “pono,” because it implicitly overruled the Kaua’i-Ni’ihau Island Burial Council decision to prevent Brescia from developing the lot.  Brescia had first approached the Burial Council, which voted to “preserve [the remains] in place.”

Two members of the Burial Council testified at the injunction hearing that when they voted to “preserve in place,” they meant to prevent development of the site.  And Chandler’s attorney, Alan Murakami, argues that never has a council decision to “preserve in place” resulted in construction over ancestral remains.

After the council made their decision, Brescia nonetheless proceeded to seek authorization from SHPD, a division of the Department of Land and Natural Resources.  His archaeological consultants presented a burial treatment plan that Murakami has called “incomplete and misleading.”

The plan proposed that the remains be “preserved in place” by pouring “burial caps” over them.  But the burial caps consist of no more than concrete slabs upon which foundation piers can be rested.

On April 24, 2008, then-acting State Historic Preservation Division administrator and archaeologist Nancy McMahon approved the “burial cap” proposal.  She did not consult the burial council or any other native Hawaiian organization before doing so.

Kauai Police Officers halted construction as soon as it commenced on suspicion that it violated the criminal law against desecration.  For two weeks in June and July, the heavy machinery sat quiet, as the State of Hawaii Attorney General and the County Attorney General researched whether the criminal desecration law applied in light of the permit that the SHPD granted Brescia.

In a well-articulated report dated July 11, 2008, Chief Darryl Perry of the Kauai Police Department explained what the attorney generals advised him.  Section 711-1107 of Hawaii law, titled “Desecration,” states, “A person commits the offense of desecration if the person intentionally desecrates… a place of worship or burial[.]”  The statute defines desecration as “defacing, damaging, polluting, or otherwise physically mistreating in a way that the defendant knows will outrage the sensibilities of persons likely to observe or discover the defendant’s action.”

The SHPD authorization for Brescia’s project nullifies the elements of being (1) “damaging,” and (2) an “outrage [to] the sensibilities.” This means that because Brescia followed the procedure outlined in Hawaii Administrative Rule 13, a civil statute regarding development on burial sites, he cannot be charged criminally for desecration.

At the end of his report, Perry made several personal comments indicating his regret over the decision. He stated, “I have yet to speak to one kupuna who believes that it is ‘pono’ to build this house over the graves of our Hawaiian ancestors, even if it is ‘authorized.’”

Perry concluded by saying, “I hope that somewhere down the line, a leader of great vision will take up this cause and correct the unconscionable decisions by some of our appointed public officials who authorized/permitted the building of this home, and future homes under similar circumstances.”

Construction recommenced.  When police action failed, protests began.  On August 7, 2008, over 30 protestors from several islands chained themselves to each other and the Brescia property.  They used activist lock-down devices that they knew it would take police hours to remove.

Protester Andre Perez of Pohaku O Kane explained, “This is not just about Kaua`i. We’re serious about protecting our iwi kupuna, our `aina, and our lahui. ”

The protesters left voluntarily that day, but police have since issued warrants for their arrest.  Those had not been served as of the Thursday.  It is unclear where the order to issue the warrants originated, and whether the delay in serving them is due to sympathetic law enforcement personnel.

Not only do those protesters now face criminal charges, but they also must defend against Brescia’s suit seeking, among other relief, TROs and injunctions to keep them out of the subdivision where Brescia’s development is in progress.

The protesters have interfered with Brescia’s lawful activity, on private property.   He received his SHPD approval and, technically speaking, a thick slab of concrete would “preserve” the cemetery.

But this situation is more than just a small group of men upset over a single building.   This is about development paving over traditionally held cultural values.  At some point, it will happen.  The question is whether it will happen now.

Those opposing the development allege that the SHPD is plagued with systemic and chronic problems due, in part, to lack of funding and understaffing.

They claim that it is a strategy of developers to “inadvertently discover” human remains during construction so that they can go before the SHPD, which is said to amount to little more than a rubber stamp procedure.

Also standing in the way of previously identifying remains is the SHPD’s alleged failure to fulfill their duty to map burial sites. One example cited is a resolution calling for a detailed oversight of historical remains on Oahu that has gone ignored for 18 years.

Several things need to happen in order to restore integrity to the system, according to the Native Hawaiian Legal Corporation.    First, greater emphasis needs to be placed on identifying burials that may be affected by future construction well in advance of design decisions on development projects.

Second, professionalism should be restored to SHPD decisions on burial protection.  If the SHPD’s decisions are consistent with those of the burial commission, then it would not be of benefit to developers to avoid proper archaeological site evaluations prior to construction.

Also, certain members of the staff clearly need to be educated as to what constitutes acceptable preservation practice.

Finally, there are disinterred human remains in SHPD storage facilities.  Not good.  Those should be made available for return to a decent resting place.

Beyond the systemic problems, some also blame legislation.  Judge Watanabe stated at the close of court on Thursday, “The biggest problem is the law does not go far enough to protect these burials… Perhaps the best thing that will come out of this case will be some changes in the law.”

Chief Perry concluded his report on the Brescia matter by saying, “I hope that somewhere down the line, a leader of great vision will take up this cause and correct the unconscionable decisions by some of our appointed public officials who authorized/permitted the building of this home, and future homes under similar circumstances.”

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I have to wonder what kind of man Joseph Brescia is.  What are his goals?  Usually when someone is trying to make money, they actually want the money to serve as a vehicle to something else, perhaps recognition, appreciation, or a feeling of accomplishment.  I wonder who this man is.

Brescia’s own archaeologist concedes, “It is likely that more human burials remain unidentified and in situ in the land surrounding the project area.”  Is this not enough to validate the property as an ancient cemetery?

I am an atheist.  I do not believe in an afterlife.  I do not believe in god.  But I do believe that if a group of people have a spiritual conviction regarding their dead, it is ethical to honor that conviction.

I ask myself what kind of person, even with authorization, can build right over top of a cemetery, while the ancestors of those buried watch in horror?

I spent two years living and working on a small island with systemic governmental problems.  I do not excuse those problems, but understand it is sometimes a long road to fixing them.

I hope that the people of Hawaii will take responsibility where their government has failed.  I hope that for, at least a little while longer, traditional values will take priority over luxury development.

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Up for more reading?  Impressive!  Check this stuff out —

“Seeking the rightful home for bones, burial items” on the Honululu Advertiser.

Judge deciding whether man can build property over Hawaiian burials” on the Honululu Advertiser.

Unearthing burial laws” on Honululu Weekly.

Details of Naue burial lawsuit” on North Shore Kauai.

“Playing games with graves” on the Hawaiian-Environmental Alliance.  Also check out the commentary on the “Unearthing burial laws” article.

Attorney Charley Foster’s blog, Planet Kauai, has some coverage of Brescia case.

Journalist Joan Conrow’s blog, Kauai Eclectic, has coverage and a lively comment string.

Suprise blockade of ancient Kaua’i burial site under way” on Hawaiian Independence Blog.

SaveKauai.org has information about this and other controversies in historic preservation.

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I am currently reading James Cuno’s book, Who Owns Antiquity?  The premise is that cultural heritage is communal, the artifacts belonging to the world in a very broad sense, not to any particular nation or persons.  I will eagerly keep reading to see if he is able to apply his “put it all in a museum, for the good of mankind” framework to burial remains because I, for one, would not be able to.

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“Ola Na Iwi” is Hawaiian for “the bones live.”

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