Details of Naue Burials Lawsuit

As I reported yesterday evening, the Native Hawaiian Legal Corp. was unable to secure a temporary restraining order to halt construction of Joe Brescia’s house atop some 30 burials at Naue.

However, the NHLC also has filed a motion for a preliminary injunction on behalf of Jeff Chandler, a fisherman whose family goes way back in the Wainiha-Haena area. That hearing is set for Aug. 12 in Kauai's Fifth Circuit Court.

The memorandum in support of that motion states:

Initially, Brescia’s contracted archaeologists produced an incomplete and misleading description of the affected burial site, leaving the Kaua`i/Ni`ihau Island Burial Council (KNIBC) with an incomplete picture of the extent of burials his luxury home construction would impact. In addition, following the KNIBC’s determination to preserve the thirty individual burials comprising the burial site located on the Brescia parcel in place, the State defendants failed to uphold their obligations pursuant to the State Constitution, Hawai`i Revised Statutes and the public trust doctrine to preserve the burial site. Instead, they improperly assented to county permitting and unilaterally usurped the Burial Council’s role, by approving a revised burial mitigation plan that allowed construction of yet another of a string of Brescia’s luxury residential investment property developments to commence.

In arguing that irreparable harm will be done if construction is allowed, NHLC cites OHA’s Kai Markell and Dr. Kēhaunani Cachola-Abad as saying construction of a home or any other substantive structure on the cemetery at the Brescia parcel is “'an extreme cultural affront' and a profound desecration of a sacred place, a wahi kapu, of the Hawaiian people…”

The document further states:

Chandler is irreparably harmed thereby because he will be unable follow ancient traditions to protect the `iwi. One of his most deeply cherished traditional and customary native Hawaiian religious, spiritual and cultural beliefs and practices obligates him to ensure that the `iwi of his ancestors are not disturbed or desecrated. No mitigation can repair the damage that is done. In addition, even though construction has started, the damage is not complete. The existence of the home on the site will cause ongoing irreparable damage to Chandler and other Native Hawaiians.

The document also addresses the issue of traditional practices regarding burials:

One of the critical tenets of Native Hawaiian traditional and customary practices related to burials is the kuleana (obligation) to ensure that `iwi (“Native Hawaiian skeletal remains”) remain undisturbed; and that they receive proper care and respect. This kuleana is a traditional and customary practice of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778. As a native Hawaiian, Chandler engages in this traditional and customary practice which is aligned squarely with the intent of Act 306.

The document states that Brescia bought the land from Sylvester Stallone on Feb. 11, 2000, and provides the following history:

In March 2007, Brescia began archaeological digging on the property and discovered a burial site, which is clearly “an ancestral native Hawaiian graveyard and cemetery” containing 30 individual human burials, seven of which would be directly affected by his proposed foundations. However, On December 11, 2007, Brescia prematurely received approval from the Planning Commission to construct his residence, subject to the condition that he comply with the requirements of the burial council and the SHPD [State Historic Preservation Division]. The Planning Commission also required Brescia to apply for the necessary building permits within four months after approval by the burial council, and the DLNR. On February 7, 2008, Brescia sought authorization from the KNIBC to relocate six of the thirty human burials identified through the AIS [Archaeological Inventory Survey] on the Brescia parcel. The KNIBC deferred its determination at that time. On April 3, 2008, the KNIBC announced that a revised burial treatment plan was submitted on behalf of Brescia that proposed the relocation of one additional burial, bringing the total to seven. However, the description of these burials failed to properly identify the extent of the burial site.

In placing the blame squarely on SHPD, specifically Kauai’s state archeologist, it further states:

In a letter dated April 24, 2008, then-acting State Historic Preservation Division administrator Nancy McMahon improperly approved the preservation component of Plaintiff’s burial treatment plan submitted by Brescia (revised BTP) without consulting the KNIBC or any appropriate native Hawaiian organization as to the proper treatment of the burial site, nor assuring consistency with its preservation determination. The revised BTP contemplated the construction of a portion of the planned Brescia residential development directly upon 7 individual burials within the burial site. The KNIBC was denied the opportunity to review the proposed treatment of the burial site and the seven individual burials located beneath the residence’s foundation.

Ultimately, it seems NHLC's argument is based on the assertion that Brescia submitted a burial treatment plan with maps that indicated the location of individual burials, but these maps failed to define the boundaries of the burial site. There is a difference, under state law, between individual burials and a burial site, which is identified as “any specific unmarked location where prehistoric or historic human skeletal remains and their associated burial good are interred, and its immediate surrounding archaeological context, including any associated surface and subsurface features.”

At Naue, burials as well as “a variety of traditional artifacts” were discovered, and NHLC is arguing that “contrary to what Brescia described in his BTP, the 30 burials constitute a single burial site” and “constitute ‘an ancestral native Hawaiian graveyard and cemetery.’” It also notes that under state law, “burial sites in areas with a concentration of skeletal remains are of ‘high preservation value.’”

The document further states:

In addition, the evidence points to two to three times the amount of unmarked burials on the Brescia parcel. Dr. Abad agrees there are “further burials in and amongst the 30 burials” on the undisturbed areas of the Brescia property, relying in part on Brescia’s own archaeologist, who conceded that “it is likely that more human burials remain unidentified and in situ in the land surrounding the project area.”

Of particular interest in the memorandum is this assertion:

At the April 3, 2008 meeting, due to erroneous legal advice it received from its appointed counsel, the KNIBC members announced that it was their understanding that they could not prevent the developer from building even if the Council voted to preserve in place. Nevertheless, the council voted to preserve all thirty burials in place, not only the seven which Brescia proposed to relocate, and voted to recommend that any future `iwi found during the construction process, also be preserved in place. Thus, the council effectively voted to preserve the entire burial site in place, but failed, due to erroneous advice, to identify the outer boundary of the site.

Well, I guess that kind of lays to rest claims that have been made in the comments section of this blog that Hawaiians don’t care about burials and none of them are up in arms about this and it’s not really a cemetery and it's no big deal and other such nonsense.

It also raises troubling questions about how well SHPD is carrying out its responsibilities of protecting burials and other ancient cultural sites. And that, it seems, is really at the crux of this issue.