Posted on: Thursday, July 9, 2009 Honolulu Advertiser Plan to build Kauai home over native burials raises legal issues About Honokahua By Diana Leone Advertiser Kaua'i Bureau LIHU'E, Kaua'i — A Kaua'i landowner's decision to proceed with building a house on top of ancient Native Hawaiian burials calls into question the authority of the state to assure appropriate handling of such burials. Not since the Honokahua cemetery was unearthed on Maui in 1987 has there been such concern about the legal protection of iwi kupuna, or ancestral bones, Native Hawaiian rights advocates say. More than 1,000 human remains were dug up at the proposed site of the Ritz-Carlton hotel at Honokahua before public protest and government action led to the hotel moving inland and remains being reburied where they had been found. Soon after, the current burial law was enacted. It is that law that Native Hawaiian rights advocates say is being tested by the Kaua'i case, in which California developer Joseph Brescia is building a home on top of six of the 30 identified Native Hawaiian burials on a 15,667-square-foot lot in Naue. At issue is whether a key element of that law — the decisions of island burial councils — has any real power. "I think it is accurate to say that Naue is the first case of an attempt to reverse a burial council determination by interpreting preservation to include building on top of iwi kupuna previously identified," said Alan Murakami, the Native Hawaii Legal Corp. lawyer representing two Kaua'i residents who seek to stop construction. "It is a historic first — a distortion of the intended result and process outlined in the statute and regulations." Brescia, who has built and sold a number of houses on Kaua'i, would not comment for this article, but previously has said that he's done all in his power to comply with county and state law and has a right to build on his land. He also has argued through his archaeological consultants that his treatment plan — covering the affected burials with cement caps and building the house on piers above ground — provides sufficient protection. The Kaua'i situation led to two protests on Brescia's land last summer, followed by Brescia suing the protesters for trespassing, and then some Kaua'i residents countersuing the state for allegedly not following its own burial law. That lawsuit, filed by Native Hawaiians Jeff Chandler and Puanani Rogers, led to Fifth Circuit Judge Kathleen Watanabe ordering Nancy McMahon, chief archaeologist for the state Historic Preservation Division, to consult with Native Hawaiian organizations and descendants of the remains about proper treatment of the burials. Chandler and Rogers say they are not satisfied with that consultation and will ask again that the judge stop construction at a hearing in Watanabe's court on July 21. state's burial law The state burial law crafted in response to the Honokahua incident set up a bifurcated system of dealing with burials. Those that were identified before any construction on the land are termed "previously identified" and island burial councils are given authority to decide — in consultation with the landowner, the state Historic Preservation Division, interested Native Hawaiian organizations, and lineal and cultural descendants — whether the burials are preserved in place or relocated. Rules governing burial sites and human remains are specified in the Hawai'i Administrative Rules (Title 13, Chapter 300). A subsection detailing the responsibilities of burial councils states: "The council shall have jurisdiction over all requests to preserve or relocate previously identified Native Hawaiian burial sites." Burials not known about before construction begins are known as "inadvertent" discoveries. The state Historic Preservation Division (a branch of the Department of Land and Natural Resources) has direct authority to decide what happens in these situations and in the case of non-Hawaiian remains, although it may confer with a burial council member from the geographic area. Recent high-profile cases of inadvertent discovery include the Whole Foods Market and Wal-Mart sites in urban Honolulu, in which dozens of sets of remains were unearthed after construction began. Construction on the grounds of Kawaiaha'o Church was halted in March after workers found 69 burials, most in coffins. The church hadn't conducted an archaeological survey before construction, despite a consultant's recommendation to do so, and the state hadn't required it. The different responses to previously identified and inadvertently discovered burials under the law is significant, said Dana Naone Hall, former chairwoman of the Maui-Lana'i Island Burial Council and active in iwi kupuna protection since Honokahua. Construction has been allowed to continue on top of inadvertently discovered burials in many cases, advocates and state officials agree. But there have been only a handful of cases statewide in which previously identified remains have been built over, advocates say, and those were agreed to in negotiations between the burial council with jurisdiction and the property owner. The state Historic Preservation Division hasn't kept statistics as to how many instances there have been, said administrator Pua Aiu. "The vast majority of cases where burial councils or the state Historic Preservation Division have determined to preserve burials in place have resulted in construction being moved to avoid those burials," Kehaunani Abad, a former O'ahu Burial Council member and doctor of archaeology, wrote in testimony opposing Brescia's construction over burials. "The entire foundation of this law is being turned on its head if a landowner is allowed to build over burials, where the appropriate burial council, Hawaiian families and community organizations deem such an action to be culturally inappropriate," Murakami said. 2007 findings The conflict is unfolding at Naue, a sandy point on Kaua'i's north shore that a number of Native Hawaiians believe to be a leina-a-ke-akua, or "jumping off place" for souls of the dead returning to Po, the realm of the gods. The identified burials are dated between 1150 and 1820. Archaeological studies estimate the area probably was inhabited from the earliest human settlements on Kaua'i. Brescia previously said through attorneys that he has the right to use of his property, which he bought in 2000. Burials were found there in 2007, during an archaeological survey that was required because of the area's history. Before that, Brescia spent several years appealing how close to the shoreline he could build and ultimately moved the house mauka to comply with that outcome. To further reduce the buildable portion of the lot would amount to a constitutional "taking" of Brescia's property, entitling him to compensation, his attorneys have said. In April 2008, the Kaua'i burial council rejected Brescia's original proposal that he move seven burials from underneath his proposed house. The panel voted that Brescia should instead "preserve in place" the burials because so many in so small a space clearly represented a cemetery. Brescia was required to bring the council a plan to show how he would preserve the burials in place and seek the council's approval for his plan. As of its most recent meeting June 4, the Kaua'i burial council still had not approved Brescia's plan. The council will not have a July meeting because Gov. Linda Lingle hasn't appointed two new members to fill vacancies that arose on June 30, a division staffer said. Some members of the burial council have said they never intended for a building to go over the burials. Murakami, the lawyer for the Native Hawaiian group, says he reads the law as empowering a burial council to take action to preserve concentrated or important burials, including state acquisition of the land if needed. He also points to a December 2008 Kaua'i County Planning Commission list of conditions for Brescia to receive a building permit — one of which is approval by the burial council. redo ordered Rather than redesign the house or appeal the burial council decision, Brescia has argued through his archaeological consultants that covering the seven affected burials (six under the house and one under the driveway) with poured-cement caps and building the house on piers about 9 feet above ground provides acceptable "buffers" for the graves. Brescia's proposed protection of the other 23 known burials is to be rock markers and naupaka bush. McMahon, the state archaeologist, accepted Brescia's plan — but without consulting with the burial council or native Hawaiian organizations, as required under the law. It's on that point that judge Watanabe ordered a redo. At the June 4 burial council meeting, McMahon said that court-ordered consultation — as required in the burial law — would be done via testimony at that meeting and from written testimony. McMahon said she had not consulted directly with any Hawaiian organizations and that plaintiffs Chandler and Rogers both rejected Draft 6 of Brescia's burial plan in November 2008. The plan provided to the burial council a week before its meeting and posted on the SHPD Web site a day before the meeting was labeled Draft 11. Naone Hall said she believes a consultation should be a meaningful discussion, not a three-minute time slot at a meeting. All of the submitted oral and written testimony that day asked the council to reject Brescia's plans to build over the bones. The state received 47 written comments by a June 15 deadline, but hasn't provided a breakdown of the opinions expressed. "Hui Malama finds the latest version of the Burial Treatment Plan to be so inappropriate as to border on the offensive," wrote Edward Halealoha Ayau, executive director of Malama I Na Kupuna O Hawai'i Nei, a nonprofit that cares for iwi kupuna, and a co-author of the state burial law. The plan "serves to violate the Hawaiian values of aloha, kuleana, 'ohana and pono." Among those commenting are some long-time advocates for Native Hawaiian burial rights, including Ayau; Kahu Charles Maxwell Sr., chairman of the Maui-Lana'i Island Burial Council; Office of Hawaiian Affairs Administrator Clyde Namu'o; and Naone Hall. They call for construction to stop, more archaeological work to be done and the site to be preserved. Naone Hall also made a detailed critique of Brescia's archaeological inventory survey, which predates the burial treatment plan, saying it contains significant inaccuracies and omissions and should be redone. "It's really quite simple," Naone Hall said. If burials were there first and known about, every effort should be made to work around them, she said. Two Kaua'i organizations, Malama Kaua'i and the Kaua'i Trust for Public Land, have said they would help broker purchases of Brescia's lot for preservation. Brescia's attorneys wouldn't confirm whether any discussions about a purchase have taken place, or what his asking price would be. Brescia had said last year he would be willing to sell the land. "Naue could be the refresher course to remind everybody of what the state laws are and what the rules mean," Naone Hall said. Reach Diana Leone at dleone@honoluluadvertiser.com.

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  • aloha tane,

    sometimes it's not mahaoi to give knowledge to another, it is a blessing to recieve it from others outside from our island kingdoms. thats why and how we will become one in unity. going into anothers house or personal belonging without asking is mahaoi, but to share from with in is a total way of uniting our mana'o with one another.
    but i understand because some of us are raised differently of our island kingdoms and our personal interpertations may vary, so i respect your mana'o of mahaoi and hope that more of us can unite with out feeling that it is a intrusion when
    the other kingdom islands want to get involved and get the needed kokua (help) at its proper moments.
    i like you tane, get involved in letter writing, public speaking and gathering of our Kupuna's but when the outside ohana's show that kokua is needed we are always their to give that extra boost. sometimes they are afraid to ask but we are always there to offer. i am now passing the wonderful knowledge to my immediate ohanas and seek the knowledge from all over the kingdom islands to aid me in the proper protocal of teaching our native hawaiian values to our ohanas in this very generation that has missed the trainning of our kupuna kahiko (ancestors) whom had died in silence...~da princess~
  • To da princess:

    I live on O'ahu and have family that still live in those various places; it's their kuleana to safeguard that area. I can be supportive and do whatever I can. I cannot take the lead in those places and it would be maha'oi for me to do so, even with my connection. They are there and they have been doing an admirable job. Some of them there are just sitting on their okole and should be more active. I did attend a conference on Kaua'i and spoke my mind. I have written e-mail to the various departments; letters to the newspapers on all islands, sent in my testimony to all concerned; and shared my manao of Kaua'i radio station and here on maoliworld and mypage and my e-mail groups. I also write, fax, email the U.S. congress and some newspapers on the U.S. continent. I've signed a few petitions, as well. We discuss the issues at home and our 'opio at home are very well-versed on the subjects. My family are out there visibly active where our kanaka maoli concerns are threatened and give testimony and support to others also being active. There are many like me that do the same thing. Some of us have been active in one way or another for about fifty years or so and still standing up for our people and all Hawaii nationals.

    Many that come to settle in Hawai'i do not come here for Hawai'i's culture, our traditions, our kupuna's and our Kupuna Kahiko's for our mo'opuna (our next 7 generations) to come, they come here because they think this is part of the U.S.A.; a Hollywood sales and marketing allure; and a great place as an introduction to the U.S. WASP society. for non-whites coming from the Asia-Pacific wanting to assimilate with the U.S. American system. Those lucky enough to open themselves to the Hawaiian Polynesian culture and embrace it are the fortunate ones that have a deep respect for it.


    I know my kuleana and have passed it down to the next generation in my 'ohana and anyone that will listen. Like they say, "To know us is to love us."
  • Essentially, Western civilization archealogists are grave-robbers; it's what they do and some profit off of it. I do know a couple of them like he that you mention and that is good; they are there for different reasons. The two used by DLNR and Brecia are not; the are there for expediency and not of our culture.
    • Oh okay. I wasn't sure there was a distinction. IMHO Nancy McMahon, the chief archaeologist, is one of those speak-with-forked-tongue robbers (but the guy who I was referring to... he not like dat.) Malama, Lana
  • i also agree that not all is grave diggers, for the greedy ones will be exposed to us, however we must unite in pule (prayer) that our servants of this illegal system can come to unite with us. we have foreigners from all over the world that come here to unite with us because of our culture, our traditions, our kupuna's and our Kupuna Kahiko's for our mo'opuna (our next 7 generations) to come.
    i have hope in the minds of our selective and/or elective servants of this 'aina that one day justice will prevail itself and to see it in my lifetime, would be a wonderful Blessing................... mahalo Ke Akua.......................~da princess~
  • aloha tane,

    with your knowledge and history i wonder why you are not part of this burial council and have a say to your ancestors
    being dugged up by this illegal state of hawaii and these developers. you are right it is not that long of your ancestors on these kingdom of hawaii islands. i believe there is a burial council on each island.
    i think your knowledge and voice on this matter would be very powerful to be exposed and enlighten to our next generations to come. i only hope that you have shared with us is past on to your next generations and don't give up for your next generation will be the voice force, may this knowledge give wealth to your ohanas and the power of being voiceful and be the glory for all of us. my blessing that your wealth of knowledge don't end in silence.

    until we meet one day
    mahalo Ke Akua
    malama kou kino (take care of your body)................................~da princess~
  • SHPD commission is comprised of cultural and representatives of developers; so it's a mixed commission. Brescia is a developer from California and they are quite aware of Hawai'i's laws and policy; so it wouldn't be a surprise for him. DLNR is underfunded and try to skirt the problems. They try to protect the developers rather than protect the iwi of the Kanaka maoli. The bottomline is money. Brescia has several vacation homes on Kaua'i and this isn't his first property so he knows the routine. It so happens that this particular property has a concentration of burials and to date there have been over 41 discovered burials. They say 30 because it was rounded off and that is what they found prior to the inital contstruction or clearing to build on this site. The other graves are called inadvertant because they are discovered after proceding with the construction. The State failed miserably as they have in the past. The archealogists are just as much to blame which are on both party's payroll and advance their agenda for the developers. They have a spiritual disconect and regard our burials as being "ancient" that have no connection with today and a different society long gone. How smug and arrogant is that?

    They claim that the burials are dated from 1150ad to 1820ad. It belongs to our society and culture and not that of the U.S. settler neo-WASP culture. In about 1762, my GGGGG, Kaianui was born. He married Haoleekaeka who was born about 1766 and gave birth to my GGGG grandfather Poka Kaianui around 1788. Kepaniwaioi'ao (bn-1792) married Poka and her third child Kauiheleole (bn-1818) married Kauikapuakaauwa'apananaole who was born about 1814.. their second child Kamaunu was born around 1842 who married Kaikuaana Kauka (bn 1841) from Puna, Hawai'i and had Kalaukehau in 1866 who was their second child, who in turn married Mahi Pu'ulei (bn-1864).

    The Pu'ulei's are cousins to Mahuiki who was Konohiki of that area which Naue is situated. They all come from that area and nearby area. The Chandlers are my double-barrel cousins who descend from the Ilalaole-Mahuiki line that ties into the Pu'ulei family which my mother is descended from. My Grandfather's cousin Rachel Mahuiki"s daughter, Kapeka, married my Dad's cousin Francis Chandler whose mother, Waokanahele Gooman-Chandler, was my grandmother, Roselani's eldest sister. I am familiar with both sides of my family and many still reside in that area from Ha'ena, Wainiha, Hanalei, Kilauea, all the way around to Kekaha.

    So, 1820 is not ancient or that long ago. I was born in 1943 and as a child, I knew my great-grandmothers. When my grandmother on mom's side passed away, she was 91 years old. So, two hundred years ago is not ancient at all and we still have a connection with them.

    Archeologists are professional grave-robbers and would have us disconnect out history as ancient and modern. Who makes those distinction? The foreigner or the maoli that have a lineage that goes back a thosand years or more? Our histopry doesn't disconnect; it evolves. The U.S. is a recent self-created society of foreigners a little over two hundred-thirty years. They have laws in place especially since they dug up my greatgrandmother's siblings and kupuna at Honokahua, Mau'i adjacent of Napili, Mau'i. What they did there was outrages and they continues to accommodate developers at our expense. On O'ahu, the iwi dug up at where Walmart is located on Keeaumoku St. is still sitting in a metal cargo-container that have not been re-buried. They encroached on burial caves and grounds at Hokulia, Big Island, to accommodate their golf-course and millionaire's homes. When they go down to Puna, Hawai'i, and repeat their actions, then I will feel they are picking on me personally for I have kupuna buried there as well. Enough is enough and the island burial council should have more clout and say so regarding the burials; not the developers! It's overdue that the U.S. should de-occupy our country and let us control our part of the world which is ours and not theirs'.
    • "Archeologists are professional grave-robbers and would have us disconnect out history as ancient and modern"

      Aloha kaua e Tane but there is one oiwi archaeologist who shall remain nameless because but he is well connected to his roots, his mother tongue, seems to know who he is and where he came from, and puts the iwi and/or our kupuna ahead of a lot.

      In fact he put aside his extreme dislike/hatred for me for the sake of the iwi kupuna AND moepu and placed my name on the petition to protect the moepu and iwi kupuna:

      http://www.oha.org/pdf/kwo06/0602/18.pdf

      IMHO he put our kupuna first... which is awesome! And he is an oiwi archaeologist. So I am not sure that all archaelogists are "professional graverobbers." He is not like dat. He placed his name on that petition for all of the people of the aina and beyond to see which may have affected his livelihood. He may be one of few but there are some archaeologists like him who do not rob graves and/or take what does not belong to him.

      Malama, Lana
    • Mahalo Tane for replying as this affects you where it hurts, your 'ohana. I was going to respond but you said it so well as always. I would like to reiterate that Brescia is not an innocent "victim" in any way. He knows the game, he knows how to circumvent the laws pertaining to our burials which are shabby to say the least. The Burial Councils have little power to stop development where in this case, building permits should have never been issued. This man has no conscience, it really is all about greed and money, when it comes to him. He has never been willing to work with the community because he has no real care or connection to the place. His house continues to get built despite an order by Judge Watanabe to come up with a new burial treatment plan and to consult with lineal descendants and native groups regarding it before construction resumes. He has disregarded that. He is a developer with deep pockets and he knows he has enough money to beat the system while he drags defenders of the iwi through that same court system. Hard to feel any empathy for this guy who has done similar things with other properties in Naue. He gets away with it because our State makes it easy for him to do so. County government is no better. In terms of kuleana, state and county government AND Joe Brescia are all complicit.
  • mahalo nui Lana,

    yes we have to unite in our thinking and make it known to the world that we not longer sit
    in silence of ALOHA, but because of our deep rooted knowlegde and Aloha for our sacred 'aina
    and her people, the Kanaka Maoli's, we should speak with truth and loud. For one day Justice will
    prevail in the hands of AKUA and hold this state of hawaii responsible for the over development.
    we are just the speakers tools that is NO MORE SILENCED and may we Lana be that
    very special tool for the our Kupuna's (native hawaiian cultural traditional loyal Elders) who have died
    in silence, our Kupuna Kahiko's (ancestors), and our Mo'opuna's (our next 7 generations to come).
    we need to stand up for our Rights (being PONO) and to state our opinion of our beliefs and hold this
    illegal state of hawaii accountable for the decay and disrespect of our sacred 'aina and her people.

    until we all meet in unity one day
    mahalo Ke Akua, malama kou kino (take care of your body)............................~da princess~
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