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.