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K?naka Maoli scholars against desecration

As K?naka Maoli scholars we write to follow-up on our statement from September 13, 2008 publicly condemning the state-sponsored desecration of a Native Hawaiian burial site at Wainiha, Kaua`i resulting from the construction of a new home at Naue Point by California real estate developer Joseph Brescia. Both the state abuse of power and the desecration continue unabated and must come to a halt.

In the late 1980s, in response to a massive burial site disturbance at Honokahua, Maui, Kanaka Maoli came together to challenge the laws that allowed this type of sacrilege. As a result of this history, five Island Burial Councils were created and are administratively attached to the State Historic Preservation Division (SHPD) of the Department of Land and Natural Resources to address concerns relating to Native Hawaiian burial sites. By Hawai`i state statute, the composition of each island Burial Council must consist of a majority of K?naka Maoli. The preservation criteria established by state law favor the “preservation in place” of burial sites that contain a “concentration of skeletal remains,” or are “pre-contact” or “historic period” burial sites associated with important individuals and events.

At Naue, there are 30 known burial remains within less than half of an acre, with a high likelihood that more remains are present. Naue is a significant historical site that is frequently acknowledged in hula, oli, mele, and other Hawaiian knowledge sources. Accordingly, the Kaua`i-Ni`ihau Island Burial Council appropriately voted to preserve in place the burial site on the property claimed by Brescia.

In complete contradiction to both their own state law, and the April 3, 2008 determination adopted by the island Burial Council to preserve the burials in place, the SHPD improperly approved a “Burial Treatment Plan” for Brescia without the required consultation with the island Burial Council. The Burial Treatment Plan was submitted by Mike Dega, the archaeologist hired by Joseph Brescia as a consultant in support of his building a private home atop of the burial site.

The SHPD’s own rules empower the island Burial Council to determine the disposition of previously known burials. The island Burial Council’s decision on this issue is supposed to be binding. Yet, SHPD deputy administrator Nancy McMahon sanctioned the use of vertical buffers and concrete caps on the burials to make way for installing the footings of Brescia’s house. Her authorization for such an intrusive “preservation” measure is a fundamental repudiation of the power allocated to all of the island Burial Councils.

By ignoring the decision of the island Burial Council, her actions undermine both the very concept of historic preservation and the reason for the founding of the island Burial Councils. Tragically, before a court could intervene, and based on McMahon’s unauthorized agreements, Brescia’s team managed to install massive house foundations on a portion of the cemetery.

The Kaua`i Planning Commission’s approval of Brescia’s house plans included a specific condition issued in a letter dated December 12, 2007 that “No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met.” The requirements of the island Burial Council have not been met; the Council recommended that there be no building upon the cemetery. SHPD covered up the island Burial Council’s decision by trying to pretend that vertical buffers and concrete jackets constitute “preservation”; they do not.

During the consultation required by the preliminary October 2008 court ruling, on November 6, 2008, the island Burial Council recommended that the SHPD reject the revised Burial Treatment Proposal submitted by Dega. Therefore, Brescia still has not met the requirements of the island Burial Council and thus, the building permit should be revoked. Because the Kaua`i Planning Commission’s December 2007 approval was specifically conditioned on Brescia’s meeting the island Burial Council’s requirements, there is no real approval of Brescia’s house plans. The island Burial Council made clear the proposal to build on the burial site was culturally unacceptable to its members, which is why the Council rejected the revised Burial Treatment Plan. The Kaua`i Planning Commission should be held accountable to rescind the conditional approval it gave, since its requirements were not met.

In the midst of this ongoing desecration, last month, on February 4, 2009, the SHPD wrote a letter to Dega acknowledging his sixth proposed Burial Treatment Plan. This is the same Burial Treatment Plan that McMahon circulated to Native Hawaiian Organizations for consultation as part of a court order by Judge Watanabe on October 2, 2008. The outcome of this consultation with Native Hawaiian Organizations was their sweeping rejection of the proposal. Without any regard for this rejection, the SHPD letter to Dega states, “at this time we cannot accept the Burial Treatment Plan without some revisions which are to be addressed below” and then outlines seven concerns for him to deal with such as detailing a landscape plan for burials outside of the house footprint. In other words, the letter basically instructs Dega to revise the Burial Treatment Plan in order for SHPD to approve it. This is unacceptable; if McMahon’s decision is reaffirmed despite the outcome of the consultation with Native Hawaiian Organizations that clearly rejected the proposal, it would set a dangerous precedent and strip the island Burial Councils of any meaningful authority.

To date, 5th Circuit Judge Kathleen Watanabe has denied requests for a temporary restraining order and has even refused to grant a temporary injunction to stop further construction until the full civil suit is adjudicated by the state court. The civil suit— Joseph Brescia v. Ka`iulani Huff, et al. — currently in progress is a travesty. Brescia is suing at least 17 individuals—almost all of whom are K?naka Maoli —implicated in protecting the burial site from his construction work. Beside trespass, Brescia has accused them of five other counts: private nuisance and harassment, tortious interference with contract, civil conspiracy described as “terroristic threatening”, intentional interference, ejectment, and slander of title. We stand in solidarity with the defendants. Brescia has no one else to blame but himself; he knowingly took the chance of building his house over a grave site when the essence of the island Burial Council’s action was to preserve all burials remains in place.

We must remind the state agencies that their own law, Hawai`i revised statute 711-1107 on Desecration, specifically states that no one may commit the offense of desecrating “a place of worship or burial,” and the statute defines “desecrate” as “defacing, damaging, polluting, or otherwise physically mistreating in a way that the defendant knows will outrage the sensibilities of persons likely to observe or discover the defendant’s action.”

We call on all people of conscience to join in our condemnation of the desecration of the ancestral remains by:

• holding the Kaua`i Planning Commission accountable for upholding their own condition by finding Brescia in violation of it by starting to build;

• demanding that the SHPD honor the Kaua`i-Ni`ihau Island Burial Council’s original decision to preserve the burial site without any construction;

• insisting that the SHPD respect the outcome of the court-ordered consultation process and reject the Burial Treatment Plan;

• supporting an end to the illegal construction supported by the state; and

• protesting Brescia’s lawsuit targeted at those who have served to prevent the further degradation of the bones of our k?puna.

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Hokulani Aikau, Ph.D., Assistant Professor,

Political Science, University of Hawai`i at M?noa

Carlos Andrade, Ph.D. Associate Professor,

Kamakak?okalani Center for Hawaiian Studies, University of Hawai`i at M?noa Maile Arvin, M.A. candidate,

Department of Ethnic Studies, University of California San Diego J. Leilani Basham, Ph.D., Assistant Professor,

Hawaiian Studies, University of Hawai`i at West O`ahu Kamanamaikalani Beamer, Ph.D., Mellon-Hawai`i Postdoctoral Fellow,

Kohala Center, Hawai`i Kealani Robinson Cook, Ph.D. Candidate,

Department of History, University of Michigan Lani Cupchoy, Ph.D. Candidate,

History, University of California, Irvine Lisa Kahaleole Hall, Ph.D., Assistant Professor,

Women’s Studies, Wells College Sydney Lehua Iaukea, Ph.D., Mellon-Hawai`i Postdoctoral Fellow,

Kohala Center, Hawai`i K? Kahakalau, Ph.D., founder and director of

Kanu o ka ‘?ina New Century Public Charter School Lilikal? Kame`eleihiwa, Ph.D., Professor,

Kamakak?okalani Center for Hawaiian Studies, University of Hawai`i at M?noa J. K?haulani Kauanui, Ph.D., Associate Professor,

Anthropology and American Studies, Wesleyan University Kanani K. M. Lee, Ph.D., Assistant Professor,

Geology & Geophysics, Yale University Jon Kamakawiwo`ole Osorio, Ph.D., Associate Professor,

Kamakak?okalani Center for Hawaiian Studies, University of Hawai`i at M?noa Lessa Kanani`opua Pelayo, M.L.I.S. Candidate,

B.A., University of California, Los Angeles Kekailoa Perry, J.D. Assistant Professor,

Kamakak?okalani Center for Hawaiian Studies, University of Hawai`i at M?noa Keanu Sai, Ph.D., Lecturer,

Kapiolani Community College Noenoe K. Silva, Ph.D., Associate Professor,

Political Science, University of Hawai`i at M?noa Stephanie Nohelani Teves, Ph.D. Candidate,

Program in American Culture, University of Michigan Ty K?wika Tengan, Ph.D., Associate Professor,

Anthropology and Ethnic Studies, University of Hawai`i at M?noa Haunani-Kay Trask, Ph.D., Professor,

Kamakak?okalani Center for Hawaiian Studies, University of Hawai`i, M?noa Liza Keanuenueokalani Williams, Ph.D. student,

New York University

Erin Kahunawaika`ala Wright, Ph.D. Director of Native Hawaiian Student Services,

Hawai’inui?kea School of Hawaiian Knowledge

For more information, contact: J. Kehaulani Kauanui at (860) 638-1264 or e-mail

Take Action

Write the Kaua`i Planning Commission, State Historic Preservation Division Officials, Governor Linda Lingle, Joseph Brecia, and the Mayor of Kaua`i. See addresses below.

Please cc: all letters and emails to:J. Kehaulani Kauanui, Center for the Americas, Wesleyan University, 255 High Street, Middletown, CT 06459. Email:

Ian Costa

Director of Planning

County of Kaua`i

4444 Rice Street, Suite 473

Lihue, HI 96766

(no email available)

Laura Thielan, Chairperson

State of Hawaii, Department of Land and Natural Resources

State Historic Preservation Division

601 Kamokila Blvd., Room 555

Kapolei, HI 96707

Pua Aiu, Administrator

State Historic Preservation Division

601 Kamokila Blvd., Room 555

Kapolei, HI 96707

Nancy McMahon, Deputy Administrator

State Historic Preservation Division

601 Kamokila Blvd., Room 555

Kapolei, HI 96707

Governor Linda Lingle

State of Hawai`i

Executive Chambers

State Capitol

Honolulu, Hawai`i 96813

Joseph Brescia, President

Architectural Glass & Aluminum

1151 Marina Village Parkway, Suite 101

Alameda, CA 94501

Bernard P. Carvalho, Jr.

Mayor, County of Kauai

4444 Rice St., Suite 235

Lihue, HI 96766