Musings: To the Heart of the Conflict

The sky was turning pale yellow when Koko and I set out walking, me a little bleary, as I tend to be on Friday mornings, and so I forgot to grab my umbrella. I saw the gray clouds blowing in, but we were too far out to turn back, then I heard the roar of rain — big rain — coming, so Koko I took shelter crouched beneath a thick planting of shell ginger beside the guardrail.

We were pretty snug, looking out at the downpour, when a neighbor drove by, slowed, backed up, and I saw the windows on his pick-up truck go down.

“What are you doing?” he called out. I ran over and saw he was madly trying to clear a passenger seat and floor piled high with papers that I wasn’t about to get wet and muddy.

“Just taking shelter from the rain,” I said. “No worries. We’re fine.”

And we were. It was actually quite enjoyable, and when the rain stopped and we re-emerged onto a street with rivers running down either side, the sky over the mountains — not that they could be seen — was turning soft pink and the sun was resting on a fluffy golden throne.

It’s not so easy to give the burials issue a rest because a lot is at stake right now. As Kai Markell of the Office of Hawaiian Affairs summed it up on my radio show yesterday, the burials dispute goes right to the heart of the conflict over the Western imposition of property rights onto what is essentially a cultural and spiritual matter.

“It’s all about whether you value the green Western paper Akua (god) over anything else,” he said.

And doesn’t that also speak to the heart of so many other conflicts we see playing out right now?

As Hale Mawae, now on Oahu, noted when he called in, what’s happened with the Brescia case is “going to be having a rippling effect on other cases throughout Hawaii,” including the rail project, which is projected to directly impact at least 80 burials.

Someone who identified himself as Roger left a comment on this blog the other day about how Brescia had offered to move the iwi on his lot to a cemetery, and wouldn’t that be preferable to what’s happened there now?

When I read that, I recalled the words of Kehau Kekua, who said the Hawaiians buried their dead with deliberate intent, in terms of a specific cosmological alignment chosen to facilitate their movement into and through other realms.

So it’s no small deal to take them from that resting place, and then where, exactly, do you put them? Somewhere that’s more convenient for others?

And why should the accommodation always come at the expense of the Hawaiians, especially so someone who doesn’t even live in or value this place can, as one caller so aptly phrased it, “make money off a burials ground?”

Former Kauai Burial Council Chair John Kruse called in to remind listeners of what happened when burials were discovered on the Zimmerman property, not far from Brescia’s. The house was already under construction, but a judge issued a cease and desist order so the Burial Council and community could “hash it out. Judge Watanabe should have done the same thing,” John said, so the footprint of the house could be redesigned or the iwi disinterred.

Instead, she let construction proceed, and now we've got something that probably even Brescia doesn't want.

Kai quoted the words of Mary Kawena Pukui, who told the kanaka maoli that the iwi kupuna are the most important thing they have, because it’s what ties them to this speck in this Pacific, it’s what establishes their heritage, their claim to this place.

So if you want to disrupt that claim, what better way than to literally claim the iwi, as Joe Brescia essentially has done in building his atop right atop them and saying, hey, all this is mine, I’ve got title.

And as I noted in a sidebar that didn’t get posted on the Weekly website, he’s trying to make sure that when folks speak against that practice, they pay:

Joe Brescia’s efforts to build a house on a lot he owns at Naue have been fraught with litigation, starting with a lawsuit that forced him to build farther back from the ocean than he wanted.

But Brescia, a California developer, has also been aggressive in his own use of the law. He filed civil suits against more than a dozen Hawaii residents who challenged his project, claiming they had caused him to suffer financial damages due to slander of title, construction delays and the need to hire security.

Brescia has already won default liability judgments against Palikapu Dedman, Kaiulani Edens Huff and Andrew Cabebe. But no dollar amounts have been imposed pending the outcome of the October trial of defendants Hanalei “Hank” Fergerstrom, Jeff Chandler, Puanani Rogers and Louise Sausen.

Alan Murakami of the Native Hawaiian Legal Corp., which is representing three of the defendants, said that Brescia’s attorneys are refusing to talk, so a settlement is unlikely.

“It’s a challenging case,” he said. “It has chilled people’s ability to speak up.”

Brescia’s attorneys did suffer defeat when, as part of their evidence search, they subpoenaed the unpublished interviews and raw video footage of independent filmmaker Keoni Kealoha Alvarez, who had covered the dispute while preparing a documentary about Native Hawaiian burial practices.

The ACLU and Honolulu attorney James J. Bickerton relied on the protections provided by Hawaii’s new media shield law to successfully fend off the subpoena, and in the process the law survived its first legal challenge.

We’re at a crossroads here with the burials issue. Because as NHLC attorney Alan Murakami noted:

When SHPD administrators override Burial Council decisions, minimize consultation and ignore public comments, “they become the arbiters of what is culturally appropriate and what is not. ”

Is that really a power we want to hand over to the state?

Finally, I just wanted to say mahalo to all those who left such thoughtful and kind comments on the post about Poochie. One of the dog owners contacted me to say he was taking steps to make sure his dog never did that again to another animal, and that’s really the best outcome I could hope for from this unfortunate situation.