Wednesday, July 22, 2009

Musings: Seeking Solutions

The Native Hawaiian Corp. was back in court yesterday, trying once again to get Judge Kathleen Watanabe to order Joe Brescia to stop building his house above burials at Naue.

And once again, the judge didn’t go along, saying attorney Alan Murakami had presented no evidence that things had substantially changed since the last time he made, and she denied, such a request.

Alan recounted the events that had transpired in the nine months since the judge ordered the State Historic Preservation Division to engage in proper consultation with the Kauai-Niihau Island Burial Council and other groups. As part of her ruling, Judge Watanabe directed Brescia to do nothing to demolish, alter or prevent access to the burials.

And while she didn’t tell Brescia to stop building when she issued her order last October, she cautioned him against taking actions that could foreclose options that the Burial Council might want to exercise, such as removing the concrete caps that Brescia’s archaeology team placed — without state approval — over the burials that lie beneath the house.

Alan argued that “imposing a physical structure” over some of the iwi did constitute alteration, saying it would be “no different than if someone was building a house on a corner of Arlington Cemetery. It doesn’t just include burials in the ground, but the whole column of the burials, so if you’re building atop that, yes, they’re being altered.”

Alan also argued that by pushing ahead with construction — he noted contractor Ted Burkhardt expects to be pau by year’s end — Brescia was foreclosing the Burial Council’s options, as it would be much more difficult for the panel to order the caps removed if it meant dismantling a house to do so.

Alan objected as well to construction workers “lounging around the burials,” which he said are afforded inadequate protection by the orange plastic fenses erected around them.

As for access, Alan said that it was hampered by the house’s construction, while Cal Chipchase, Brescia’s attorney, countered that when and if someone registers as a lineal descendant of the burials — a process that some kanaka consider culturally inappropriate as it requires them to divulge their geneaology in a public record — Brescia will deal with the access issue.

Alan also brought up the issue of the septic tank and leach field, saying “I dread to think what might happen when excavation continues. I fear there will be further desecretion, further alteration of the burials, and no Burial Treatment Plan in place to prevent the release of sewage water over the burials beneath.”

In closing, Alan urged the judge to consider not just the technical details of the law, but what was just. Judge Watanabe, however, said “the authority of this court is not limitless,” and noted she did not have the power to write law.

Pointing out that the burials had already been capped, and the concrete pilings poured, before she issued her order last year, the judge said, “I have not heard any evidence whatsoever to demonstrate there has been anything denoting alteration or denial of access. I see no no evidence of any violation of the court’s order.”

And that was that.

After the court hearing, I got to thinking about an email I received a week ago from Maui Tauotaha, who had found my bloggings via a Google search for Naue and wrote:

I truly believe that if enough people found out what is going on we would have the support to motivate Ms. Lingle to appoint two members to the KINBC who DO NOT think it's cool to build over graves. Seriously, it's a common sense issue and I'm very surprised it's gotten this far.

I've written a letter to this guy Brescia and his wife but I don't think it did too much. I would very much appreciate your knowledge and guidance to help foster a pono resolution to this situation. The way it's going right now, it's not good.


I’ve been pondering that email since I got it, as I and others have been trying since this whole situation started to figure out it might be resolved “in a pono way.” Following yesterday afternoon’s courtroom action, it came to mind again, and was joined by a comment that Uncle Nathan Kalama made when I interviewed him last Sunday. He was telling me about the difficulties he’d faced in trying to live his culture in a Western world, until he received some guidance from the late Aunty Nona Beamer, who told him:

If you have a Hawaiian problem, view it from the Hawaiian perspective. If you have a Western problem, take a Western approach.

It seems to me that the Naue burial situation is both a Western and a Hawaiian problem. Since I’m not Hawaiian, it’s not my place to suggest a Hawaiian approach, although I’m wondering if there are ceremonies or other actions that could be taken that would draw attention to what’s happening, while educating Hawaiians and non-Hawaiians alike about proper protocol.

As far as a Western approach, I have two suggestions. The first is to help Alan gather evidence that can be presented to the judge. Are there any soil or water or concrete engineers out there who could shed light on how placing these pilings atop the burials might affect them, or if they’d be damaged by runoff from ground altering or other activities? Are there any construction workers who can step forward to and speak to burial disturbances? Does anyone else have ideas on evidence that could be presented to sway the court?

And then there’s the other Western solution: the Legislature. What if some of the despair and frustration over this issue was channeled into drafting better burial protection laws, and lobbing lawmakers to adopt them?

As for the Burial Council, could we sponsor some workshops that would bring council members together to help them understand the extent of their powers? Have we asked thoughtful people to apply to serve, and lobbied Lingle to appoint them?

These are just a few ideas. I’m sure other people have more, and I hope they’ll share them. Surely, by working together, we can come up with ways of educating the community at large about the issues at stake with Hawaiian burials and come up with some pono solutions to the stand-off at Naue.

29 comments:

Anonymous said...

I really love all of your good ideas, and the request for more solution based ideas from experts in the field.... but is it a "stand-off" if braddah is moving full speed ahead with construction? such a kook

Anonymous said...

Re: burial council membership.

The Lingle-Aiona administration is to be faulted for not aggressively working on the nominations. They totally dropped the ball. The timing and procedure of burial council nominations is well-understood so they have no excuse for this lapse in the Kaua`i burial commission's meetings. That said, there's more to the process, as you note, then finding & swearing in new members.

If we want good, strong-minded folks to serve on the council or any other public board, we need to be willing to work with them and support them, especially when they make good-faith decisions with which we may not agree entirely.

To my mind, that means behaving oneself at meetings, particularly with regards to the commissioners: no drama, death curses, shouting, personal insults & abuse. The public also needs to understand that things aren't going to work out perfectly for anyone (community, council members, government agency, landowner) in this system.

Having worked for the state in a previous incarnation, I sat through more than my share of "abuse sessions" masquerading as public meetings. I'll never do it again: life is too short, and the stress caused by the abuse -- much of it incredibly poisonous personal invective -- is too high.

Clearly, many people on Kaua`i who might otherwise consider serving on the burial commission took a look at the proceedings before the council in the last year or so and came to the same or similar conclusions.

Larry said...

Up front, I need to say that I don't know how the burial council members are chosen or appointed.

Lingle seems to understand that "personnel is policy" and has used appointments, whether to the Bd of Ed or to any of the other numerous boards and commissions, or as agency heads, to further her policy. The Legislature has countered in some instances by requiring her to make appointments from lists provided to her.

I don't know if that will be applicable or help in this case. The legislation also creates the mechanism for having the positions filled, and can prevent them from remaining empty.

Maybe this is the procedure already, I'm sorry I'm not more familiar with it (and a little too busy to research it at the moment).

Anonymous said...

@Larry

Of course, board & commission appointments are political plums (or spoils). That's the name of the game no matter who won.

That said, though, there are clear standards set out in the burial rules (HAR 13-300) which specify the representation for each council and OHA's fairly sizable role in the nomination process. None of it is a news flash to the governor or lt. governor. When followed previously, this system has produced many fine burial council members, nearly all of whom, in my experience, are hard-working and dedicated individuals. They do their very best in spite of no, little or erratic support from the administration. We are lucky to have them.

Anonymous said...

"Of course, board & commission appointments are political plums (or spoils). That's the name of the game no matter who won."

Serving on the burial council is a plum?

Anonymous said...

"Are there any soil or water or concrete engineers out there who could shed light on how placing these pilings atop the burials might affect them?"

I thought they were concrete caps. Big difference between a cap and a piling.

Anonymous said...

There are no pilings on top of burials there. the whole purpose of the caps is to protect the burials.

Anonymous said...

To late for the "pono way".

Kai showed up on his property installed signs,candles, rocks and herself. She claimed the property, threatened the contractors, disrupted the Burical Council meeting with name calling and generally bad behavior toward members who in good faith were trying to figure it all out.

All to make herself the center of attention. Because it was always about her first and the burials second.

Where was the phone call to Bresica and an invitation to talk to figure out a way to resolve an unfotunate situation.

Where were the calls to Hooser, the mayor, county council members and Morita. She should have been sitting on their doorsteps using the leverage of a pending election to bring in the politicans instead of creating drama on the beach.

Good luck to anyone who can figure out a "pono way" to fix her mess.

Anonymous said...

You mean it wasn't a unifying experience when Kaiulani Huff went around shrieking, "It's MY PROPERTY!" in everyone's face?

Joan said...

I thought they were concrete caps. Big difference between a cap and a piling.

There are no pilings on top of burials there. the whole purpose of the caps is to protect the burials.

There are caps on top of the burials and pilings on top of the caps.

Anonymous said...

Joan said: "There are caps on top of the burials and pilings on top of the caps."

That's certainly not true, according to the Plan I read that the council received. There is nothing over the caps at all except dirt.

Anonymous said...

I drove by this afternoon... seems like there's a house on top of everything

Anonymous said...

Waiting for the "For Sale" sign to go up, or maybe its a "pocket listing" already, certianly he doesn't plan to be part of the neighborhood. Too many skeltons in the closet.

Anonymous said...

"There is nothing over the caps at all except dirt."

And pilings on top of that.

Anonymous said...

Joan is mistaken. There are no pilings on top of caps.

Anonymous said...

"Native Hawaiian Corp."

-- was that the group that tried to do the hapa trail TRO? if so, they suck. amateur hour. im glad they tried tho


"some kanaka consider culturally inappropriate as it requires them to divulge their geneaology in a public record"

-- what you mean they can come into my front yard without such proof? not interested


"You mean it wasn't a unifying experience when Kaiulani Huff went around shrieking, "It's MY PROPERTY!" in everyone's face?"

-- you mean you would not want to be her lawyer? wonder why..


"Joan is mistaken. There are no pilings on top of caps."

-- one (1) or two (2) photos will show what is what, and who knows what the f they are talking about


"Does anyone else have ideas on evidence that could be presented to sway the court?"

-- i bet there are some helpful documents in honolulu records


dwps

Joan said...

Joan is mistaken. There are no pilings on top of caps.

After one of last year's court hearings, Mike Dega, Brescia's archaeologist, told me that some pilings are indeed on top of capped burials, with a vertical "buffer" of soil between the cap and the piling. If nothing but soil was above them, why would they need protective caps? The burials out in the yard aren't capped.

Anonymous said...

try to understand the difference between a column and a piling. Then advance to grade beams and slabs. how these function to secure a building to the ground...

Anonymous said...

Not being in construction, I believe a piling is a cement structure build underground. It's purpose is to reach down to bedrock (in the mainland) or to really firm, undisturbed ground that will allow the structure build upon the pilings to resist sinking, shifting, etc. Pilings go deep.

A column is an above-ground structure build upon a piling (if necessary or desired) or a "pier"...as in "pier and post" house construction, where the "pier" is a cement piece sitting "at grade" (on the surface of the ground) or maybe 1-3 feet underground as well...not as deep as "pilings".

Anonymous said...

Pointing out that the burials had already been capped, and the concrete pilings poured, before she issued her order last year, the judge said, “I have not heard any evidence whatsoever to demonstrate there has been anything denoting alteration or denial of access. I see no no evidence of any violation of the court’s order.

Myself two other teachers and 15 students were denied access to leave particular hoʻokupu at the site and then threatened by the contractor on site to call the police when we attempted to place the hoʻokupu on the site. He then continued insult us by saying that he wouldnʻt tolerate our oli and pule we said from outside the gate saying we were trying to incite them by "calling them names." Then he proceeded to tell me and my students that we were trespassers and that me and my students needed to go through Bresciaʻs lawyers to gain access if not he would call the police and have me arrested in front of my haumana.

Anonymous said...

"Myself two other teachers and 15 students were denied access"

-- pardon, but what was your basis in law allowing you folks to walk into the private property and do that? does it relate to a court order? just curious


dwps

Anonymous said...

All your sorry asses should have been arrested.

Anonymous said...

I know it's private property, but who exactly do the burials belong to?

Anonymous said...

They should go care take the burials on public land.

Anonymous said...

They shouldnʻt build a home on top of sacred ancestors illegally. And they also should learn how to follow the LAWS SET INTO PLACE, which up until this point has not been followed by the biggest lawbreaker of them all, who continues to build his home illegally.

Those Anonymous posters who obviously seem in support of Brescia building his turn-around and sell home. I hope your heinous comments and lack of cultural understanding put you at odds with yourself. Remember who was here first, remember who your host culture is. And if you havenʻt learned respect for your elders maybe some of the kupuna who sit in unrest at Naue will teach you the good ʻol fashioned way.

Those students should have had access to those burials, it is their cultural right to access them. So yes, in my opinion I would say they have good legal standing. Iʻm sick of you haoleʻs, and yes I will use the word haole, especially for evil supporterʻs of Bresciaʻs wicked deeds, who canʻt seem to get their heads out of their auschwitz and who choose embody the soulless, lifeless, disrespectful reproach for their and their fellow haoleʻs actions on Kauaʻi.

And you know who you are. And I mean to use this word in the most spirited form of its hidden meaning to those who quiver and fear its simple disdain for your pitiless lives.

May Ku-waha-ilo haunt you in your dreams and feed upon your naʻau(insides). Ku-waha-ilo, ku of the maggot mouthed. Who eats upon the rotted flesh of a man infested with maggots.

Ku-waha-ilo who is the father of Pele and husband to our great mother Haumea and their many descendants that rest and to those who pay homage to those at Naue. Ku-waha-ilo who is the conductor of souls and of human sacrifice. May his son Kaʻonohiokala guide you to him by your feet and let him breathe into you the breath of sourness that makes you the haole.

May Ku-waha-iloʻs many forms bite at you from all angles. From above. From below. From the zenith, to the horizon. As his human form and as his spirit. From down below as the unihipili, the caterpillar, the centipede, and moʻo that waits in the night.

May he flow as the bloodstream that flows from within you and as the many other terrible forms he may take. May Ku-waha-iloʻs mana fill your veins and work from the inside out, so that you may know your wrongdoings as you have walked here on this Earth against Haumeaʻs children.

To those who read this and are offended. You know the ilo(maggots) that eat you within. To those who read this and know who it is directed to, then keep them in mind.

Anonymous said...

"Remember who was here first, remember who your host culture is."

Who was here first isn't as important as who owns it now. The present trumps the past.

"Host culture" bullshit...non-Hawaiians are not guests here. You are not the host. Anyone owning land fee-simple can do whatever he wants with it as long as it is approved by the governing authorities, as the Bresca project was.

He can sue the pants off the county if this whole thing goes south and they know it...that's why it won't really be stopped.

Maybe next time there will be tighter laws, but this battle is lost.

I hate that "host culture" thing. As if people moving to AZ or NM were beholden to "host cultures" of the local native americans.

Anonymous said...

Those students should have had access to those burials, it is their cultural right to access them. So yes, in my opinion I would say they have good legal standing.
=========

"should have had access"..."their cultural right"...

These feelings do not constitute legal standing.

Please quote for us the specific statute clauses in state/county laws that permit this and validate your contention that "they have good legal standing".

Historical cultural values do not constitute law.

Anonymous said...

I like that Ku-waha-ilo comment, and I think we know where that next guys insides are going which is highly decomposed and rotted out the back of his ass.

"Who was here first isn't as important as who owns it now. The present trumps the past."

Who really owns it now? Almost 2/3 of the land here in Hawaii where ownership is claimed doesnʻt even have clear legal title to truly own the land because it was either stolen or given to illegal owners by the defacto state/territorial/provisional/republic government at the time of those (oh guess what, yes) ILLEGAL government transitions.

Any facts to the history of STOLEN land trumps any of your present claims to saying what many people claim to have "LAND OWNERSHIP."

I think that sums that one up.

Check.

Yup.

"Host culture" bullshit...non-Hawaiians are not guests here. You are not the host. Anyone owning land fee-simple can do whatever he wants with it as long as it is approved by the governing authorities, as the Bresca project was."

I think it goes a bit beyond host culture. How about host stewards of the land. How about host cultivators of aloha. How about being the host to the most knowledgeable people to have arrived here and having taught WHITE WESTERNERʻS how to successfully navigate and traverse throughout the Pacific Ocean since the STUPID WHITE MEN didnʻt really know where they were going and happened upon strange, new, and mysterious lands.

Later having to have a brown skinned kanaka on board whaling ships, trade ships, merchant ships, missionary ships, etc. Pretty much any western foreign vessel have a Hawaiian host navigational canoe, a navigator that new pacific currents and winds, and/or team of kanaka sailors. Much of this is documented in ships logs prior to the late 1700ʻs into the mid to late 1800ʻs. Hows about that for a blast from the past to trump your present bullshit on Hawaiianʻs not being the continuing and utmost host culture here in Hawaii. You wouldnʻt have even had a home to call here had it not been for one of my ancestors getting your sorry asses here.

Your stolen piece of land and California home on my kupuna doesnʻt make you a HOME here. It just makes you an asshole with too much money who stupidly and illegally invested in a piece of property that has a continuation of stolen property. You are no better than a ghetto chop shop in california turning a cherry red BMW into a nice shiny silver new paint job and turning around and selling it to you for a good deal. The CAR is still STOLEN buddy. I hate to break the news to you.

And just because your homey who slung it to you on the street said it was a good deal doesnʻt make it legal either. Since the thug with the guns on the street is in essence what the STATE OF HAWAII government represents making the legal decisions for your stolen piece of land a bunch of "bullshit."

I better your ears are fuming now. Go stick your head in a cold bucket of water and book yourself a one way ticket back to whereever it is you came from. Because you obviously lack the simple respect that is due to the facts of our struggle the last 100 years from thieves that had your same nature. I am sure there are plenty of Hawaiian hosts at Hawaiian airlines who would be glad to toss your baggage around and send your ass packing back to where you came from.

Anonymous said...

"He can sue the pants off the county if this whole thing goes south and they know it...that's why it won't really be stopped.

He should sue the county. Sue the state. Sue the person who sold him this whole mess of a situation. But to hold a grudge against those people who did what was ultimately righteous in standing up for the kupuna to rest eternally in the sands of Naue until they go wherever it is they go. Now thats ass backwards. What those people did and are still doing is RIGHT. They are right! And if there was a lawful Hawaiian Legal system that didnʻt allow people to manipulate and interpret the language to bend the rules and craftily escape due punishment for their desecration, their severed legal heads would be rolling already. There is no legal justice in Hawaii for Hawaiians who stand up to do the RIGHT thing.

My I hope is that those people who have had to take the brunt of Bresciaʻs legal WHINING donʻt lose faith because of mentally retarded judges like Kathleen Watanabe have to listen to dumb fuck lawyers in their fraudulent system that is about to get furloughed. I hope that my words inspire them to continue the fight to teach assholes like you and Brescia a lesson, that will put many many more laws in the face of ignorant dopes like you, so that you get a well deserved foot up your ass. That way when the State and County finally is forced to MAN up to the FACTS behind their ILLEGALITY over the past 150 years (because they are actually the criminal behind all of this and its coming to head) and they are FORCED to finally admit it.

Then I will be the one standing right there when you are evicted from your piece of PROPERTY that you supposedly bought FEE SIMPLE to tell you, "Hey man, I told you so. Maybe next time there will be tighter laws to protect your sorry ass, but this battle is lost. Sorry man. Now get lost."

I have a dream.

I hate that "host culture" thing. As if people moving to AZ or NM were beholden to "host cultures" of the local native americans.

I feel bad for people like you. Cuz if people like you had any sense of culture or morality you might be able to evolve in this world and simultaneously co-exist with the rest of humanity without taking a shit all over it. Like it or not if you live in Hawaiʻi Hawaiians are your host culture. Period. End of story. You wouldnʻt be here if we werenʻt. So donʻt hate. Appreciate.

The natives of Arizona and New Mexico who decided not to play host and had the right idea to scalp the crazy white devils instead of try and befriend them unfortunately lost the fight. Sad, sad story. They also didnʻt have as many guns, but whoʻs keeping score. Whities always cheat. Stop being sore losers. We were here first. It most definitely doesnʻt make White foreignerʻs who invaded this land its host culture in the southwest or anywhere where you erect your cheaply built suburban sprawls with equally poorly constructed strip malls and apartments in the middle of nowhere to litter across a once beautiful landscape. Also a sad, sad story.

If you want to call what Americanʻs have done in the desert and for that matter throughout "America." I hate to break to you but it is a severe lack of any kind of culture, intelligence, and for that matter makes it void of contribution of any kind to humanity as a whole. What kind of garbage culture that you come from can play host to any form of humanity seeking to advance themselves to a better form and being on this planet?

*sighs*

I guess devolved beings have yet to figure this out. I hope that my nature to play your host this evening helps to put you in a better light and find reckoning with ideas you seem to need to come to terms with.

Now be green and go save yourself and the rest of us; jump in the ocean and drown.

*hugs and kisses*

Your host