Friday, April 9, 2010

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.

25 comments:

Anonymous said...

didnt they try to even have you arrested for covering the story?

Anonymous said...

Remember that Kai, as head of the SHPD burial program, ordered the installation of a swimming pool on top of burials in Kahala, rather then move them.
Talk about a heavy weight.

Anonymous said...

"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."

As you well know, he sued them first and foremost for trespass. The charges you list are just add ons. They left themselves open by going on the property.

Anonymous said...

On a positive note, the Hawaii Supreme Court ruled that the developers of the Kuilima Resort have to do a supplemental EIS for their expansion project.

Anonymous said...

Murakami said: "When SHPD administrators override Burial Council decisions, minimize consultation and ignore public comments. . ."

According to the LAW, final decision rests with the SHPD, everyone knows that.

This back and forth is tiring. Laws are in place. If they need to be amended, call your leg, it's the only way to change it.

If you don't like drive 35 mph, what you gonna do, show up at DOT every day? No. You would go to the leg and try to change the law.

Offerring a REAL solution here: laws must be amended or changed thru the legislature or perhaps the higher courts. The rest of this is just talking heads stuff.

Anonymous said...

Joan...You commented on my post in this article..however..you deleted it form the comments...why...Roger.

Anonymous said...

Joan...You commented on my post in this article..however..you deleted it form the comments...why...Roger.

you probably hurt her very thin skinned feelings, sorry Charlie, I mean Roger.

Anonymous said...

"Offerring a REAL solution here: laws must be amended or changed thru the legislature or perhaps the higher courts"
This is a election year a time for the protest / bullies are able to leave the playground take the show on the road and confront the power players who are seeking office.
What are Hoosers feelings, the mayors, Abercrombie?

Anonymous said...

Good point, this IS an election year. Make Hoosier, Sagum, et al. weigh in on this. Is cockfighting more important? It's not, but certainly got lots of press.

And, where is OHA? They have a huge arm into the leg, what are they doing vis these issues, besides talking on the radio?

Anonymous said...

"burials dispute goes right to the heart of [kauai tax revenue, which is to say real proprty taxes]"


dwps

Joan Conrow said...

Joan...You commented on my post in this article..however..you deleted it form the comments...why...Roger.

Hi roger, I didn't delete it. It appears you left it on the post Wailing:

http://kauaieclectic.blogspot.com/2010/03/musings-wailing.html

Anonymous said...

Joan..thanks for the reply....my bad....Roger

Dawson said...

you probably hurt her very thin skinned feelings

Looks like this guy made an assumption, from which he assaulted the assembler of the blog with the assignation of "thin-skinned" -- doubtless to assuage his own fragile ego by asserting that the blog writer is wrong to assiduously assess the assorted asinine antics of anonymous assailants.

The question is, now that his assay has been turned bottoms up, can we be assured he will assoil himself... or simply remain an asshole?

Anonymous said...

Make Hoosier, Sagum, et al. weigh in on this. Is cockfighting more important?

--lucky Roland, with no one running against him, I'm sure we all look forward to more of that important work you will contribute for your constituants.

Anonymous said...

Hope you cover the farmworker housing bill. Just watched it on Hoike and the council disgusts me. This bill is not for farmers its for real estate speculators. It will be abused like it is already being abused. We need more people who can see though the "feel good" B.S. When this bill passes Kauai is going to be screwed. Lani is so naïve I don't see how she is going to get reelected. It would be safer for her to keep her mouth shut because whenever she opens it it is pure nonsense. She is dangerous. J.T.

Anonymous said...

Offerring a REAL solution here: laws must be amended or changed thru the legislature or perhaps the higher courts. The rest of this is just talking heads stuff.

The real solution- state and county government that follows existing laws

Anonymous said...

"The real solution- state and county government that follows existing laws"

Uh huh. Show me the law where it says "A private land owner cannot build over a burial"

Anonymous said...

'doh' Homer says...crowdsourcing = collective intelligence.

since ya'll think you're so smart - solve the problems. oh and while your at it, elect true representatives of your island instead of the standard requirement of: related to X or Y, threaten any challengers (to run unopposed), or change the platform to the audiance of the day (hour).

Anonymous said...

"The real solution- state and county government that follows existing laws"

--actually read them and tell us how they deviated. cite your evidence.

THANKS!

Anonymous said...

"A private land owner cannot build over a burial"

she/he is correct the citation is here:

§6E-10 Privately owned historic property. (a) Before any construction, alteration, disposition or improvement of any nature, by, for, or permitted by a private landowner may be commenced which will affect an historic property on the Hawaii register of historic places, the landowner shall notify the department of the construction, alteration, disposition, or improvement of any nature and allow the department opportunity for review of the effect of the proposed construction, alteration, disposition, or improvement of any nature on the historic property. The proposed construction, alteration, disposition, or improvement of any nature shall not be commenced, or in the event it has already begun, continue, until the department shall have given its concurrence or ninety days have elapsed. Within ninety days after notification, the department shall:

(1) Commence condemnation proceedings for the purchase of the historic property if the department and property owner do not agree upon an appropriate course of action;

(2) Permit the owner to proceed with the owner's construction, alteration, or improvement; or

(3) In coordination with the owner, undertake or permit the investigation, recording, preservation, and salvage of any historical information deemed necessary to preserve Hawaiian history, by any qualified agency for this purpose.

(b) Nothing in this section shall be construed to prevent the ordinary maintenance or repair of any feature in or on an historic property that does not involve a change in design, material, or outer appearance or change in those characteristics which qualified the historic property for entry onto the Hawaii register of historic places.

(c) Any person, natural or corporate, who violates the provisions of this section shall be fined not more than $1,000, and each day of continued violation shall constitute a distinct and separate offense under this section for which the offender may be punished.

(d) If funds for the acquisition of needed property are not available, the governor may, upon the recommendation of the department allocate from the contingency fund an amount sufficient to acquire an option on the property or for the immediate acquisition, preservation, restoration, or operation of the property.

(e) The department may enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof. Whenever any member of the department duly authorized to conduct investigations and surveys of an historic or cultural nature determines that entry onto private lands for examination or survey of historic or cultural finding is required, the department shall give written notice of the finding to the owner or occupant of such property at least five days prior to entry. If entry is refused, the member may make a complaint to the district court in the circuit in which such land is located. The district court may thereupon issue a warrant, directed to any police officer of the circuit, commanding the officer to take sufficient aid, and, being accompanied by a member of the department, between the hours of sunrise and sunset, allow the member of the department to examine or survey the historic or cultural property. [L 1976, c 104, pt of §2; gen ch 1985; am L 1992, c 113, §2]

Anonymous said...

"an historic property on the Hawaii register of historic places"

Are you saying that Bresca's property is on the Hawaii register of historic places?

If not, the statute verbiage you quote doesn't apply.

He, therefore, can build on burials.

Anonymous said...

"A private land owner cannot build over a burial"

"she/he is correct"

I think she/he is stating that the statement "A private land owner..." is an accrurate statement based on the citation of law. Proving that a land owner certainly can build on almost any lot of record with no recogized historic blab, blab.

anyway that what I thought that anon. meant.

Anonymous said...

It is NOT an accurate statement based on citation of the law.

It is taken out of context, and context in the statutes is everything.

Like they say...the big print givith, but the fine print taketh away.

Anonymous said...

It was nice that anon cited the laws...but what did Judge Watanabe say? Continue building the place. More importantly for all us home owners on Kauai, she said "follow the existing laws [can build over a burial] or go to the legislature and change the law if you don't like it."

The law has spoken already.

Anonymous said...

wrong whoever said "follow the existing laws [can build over a burial] or go to the legislature and change the law if you don't like it." is highly misinformed

Since the inception of Hawaii's burial councils no one has ever built over burials. Here they built before receiving approval from the burial council, before they should have been allowed to. They constructed a huge structure despite knowing there is an entire burial ground there .Obscene

Before the Naue fiasco, burials were either relocated, or usually most humans relocate the structure to avoid known burials. Here, the 10-13th century burials , women and children, many age 3-12 according to the first draft of the (sic) BTP are now capped, under, around (yeah probably in the house too!!)
He could have, should have made the structure smaller and avoided the burials. But the state and county failed in every possible way.