Kūkākūkā: Apply the law to
protect Naue iwi kūpuna

By Charles Kauluwehi Maxwell / Native Hawaiian Legal Corp. Guest Writer

In April 2008, the Kaua'i Ni'ihau Island Burial Council (KNIBC) determined that 30 previously identified iwi kūpuna on a house lot owned by contractor Joseph Brescia at Naue on the island of Kaua'i were to be preserved in place. There is no room for compromising that determination. Yet, three weeks later, State of Hawai'i Historic Preservation (SHPD) Officer Nancy McMahon approved a burial treatment plan which allowed Brescia to build a home over 7 of these iwi kūpuna as a preservation measure.

Charles Kauluwehi Maxwell

In effect, McMahon tried to reverse the burial council's determination without consultation. This attempt to subvert the Burial Council is wrong, illegal, and must be rejected if tried again. It is also both insulting and very dangerous. The legacy of Honokohua, Maui, where over 800 remains were disinterred and which gave rise to existing burial protection laws, as well as the legacies of all the Hawaiian activists who demanded better treatment for iwi kūpuna, compels and mandates upholding the law and its processes.

In September 2008, Judge Kathleen Watanabe ordered the SHPD to properly consult with the burial council and other "appropriate Hawaiian organizations" as the law requires. The court properly recognized that this consultation is crucial and must be respected. Although she refused to stop the construction, she warned Brescia not to do anything to foreclose any preservation options that consultation might yield. Nearly nine months and 10 revisions later, that consultation is still incomplete. However, Brescia has unilaterally restarted the construction of his home.

The burial council determination in this instance controls and is binding, especially when Brescia failed to appeal it. No bureaucrat, not even a state or private archaeologist, has the power to override a Council determination. That is why this consultation is so critical; it is supposed to guide the SHPD to implement what the burial councils decide. It was established by the blood, sweat and tears of hundreds of outraged Hawaiians who stepped forward to decry the horrific treatment of their kūpuna.

Brescia's archaeologist Mike Dega now proposes his tenth Draft Burial Treatment Plan, which still proposes to build the same house in the same location. Dega cites alleged precedents on Maui which are inapplicable to Naue. All involved dealing with such inadvertently discovered iwi kūpuna in the path of ongoing construction which had already been previously approved. However, with previously identified burials, redesign of any project is ALWAYS an option. Once a preservation-in-place determination is made, iwi kūpuna must be protected by leaving them undisturbed without building on top of them.

Allowing Brescia to continue to build his home over the 30 burials, in direct contradiction to the burial council's determination to preserve in place, is like allowing someone to build a home over the graves in Arlington Cemetery. I don't care whether Dega comes up with a 20th draft Burial Treatment Plan; he, Nancy McMahon, or anyone else at SHPD cannot justify defying the burial council determination. That would defy the law.

Please, somebody, explain to me – as a kupuna who has been taught to respect the dead – how can this haole come from the mainland and do this to our dead ancestors. It is hewa, hewa, hewa.

Charles Kauluwehi Maxwell is a storyteller, activist, and respected kupuna from Maui. He was involved in the fight to protect iwi kūpuna at Honokahua, where over 1,000 sets of remains were located on the proposed site of a hotel before many of today's laws protecting iwi were written.