Bordered by large houses, a pot-holed dirt road and a naupaka hedge fronting a white-sand beach, the narrow lot that Joseph Brescia owns at Naue, on Kaua'i's North Shore, isn't especially remarkable—at least on the surface.
But some 30 burials discovered beneath the sandy soil where Brescia is building a home have sparked a controversy that promises to set a precedent for how iwi kupuna (ancestral bones) are handled on private property. The case is raising questions about the access rights of descendents, what constitutes preservation and just how much power the state-created Burial Councils really have.
The matter is now before the Kaua'i-Ni'ihau Island Burial Council (KNIBC), which decided last Thursday to defer a decision until its Nov. 6 meeting. The Council could take any number of actions, ranging from allowing burials capped in concrete to remain beneath Brescia's house to seeking a revocation of his building permit.
Whichever course it takes, attorneys and cultural practitioners say the Council's decision will influence how future burial discoveries are treated in Hawai'i.
"What you do here today will reverberate throughout the future and it will cast a long shadow over the [state's] burial protection program," said Alan Murakami, an attorney with the Native Hawaiian Legal Corporation who spoke to the Council at last Thursday's meeting. "All future builders and developers will look at that."
Jim Medeiros, a Big Island resident and Kanaka Council member attending the KNIBC meeting, issued a similar warning: "Once you start building on the graveyards, it will become a practice for the state. Do not let it start with this home."
Brescia's plans to build a house on the 15,667-square-foot lot, which he purchased from actor Sylvester Stallone in 2001, got off to a rocky start when he sought to build 31 feet from the shoreline, instead of the required 40. When Kaua'i County planning commissioners denied his request, he appealed, and they denied it again. Brescia then appealed to the 5th Circuit Court, where he prevailed in 2005. But North Shore residents appealed to the state Supreme Court, which overturned the lower court in a landmark 2007 decision that reconfirmed that the public beach extends to the highest wash of the waves.
The planning commission, meanwhile, had already issued Brescia a building permit. Excavation began, but was soon halted when iwi were uncovered. It wasn't the first time burials had been found along that sandy stretch of coastline, which lies between Wainiha and Haena. Brescia himself had encountered one on a lot further west, when he was constructing another home, which he recently sold for $5 million.
A process in question
The state was aware that burials were likely to be found in that oceanfront subdivision. The State Historic Preservation Division (SHPD) urged the Kaua'i County planning department to have landowners conduct archaeological surveys prior to construction, according to a 1991 letter that was attached to county maps of the subdivision.
Brescia's lot was not surveyed, however, until the first iwi were discovered during excavation for the foundation. At that point, Mike Dega of SCS Archaeology came in and documented 30 burials; some dating back to the 13th Century. He and Kaua'i's state archaeologist, Nancy McMahon, determined that the burials appeared to be unrelated, and so did not constitute a cemetery or concentration of burials, which merit a higher degree of preservation under state law.
Meanwhile, Brescia's house plans were redesigned to comply with the Supreme Court's shoreline setback decision, and planning commissioners approved the project last December. In January, citizens asked the panel to reconsider, with attorney Harold Bronstein arguing that it should wait until the Burial Council decided what to do about the iwi. Brescia's attorney, Walton Hong, countered by saying opponents were merely trying to stall the project and further delays would be "unconscionable."
In February the project went before the seven-member Burial Council. After three hours of public testimony, the panel deferred the matter and took it up again in April, where it voted, 5-2, to preserve the burials in place.
"There's been such a miscommunication," Kapa'a resident Rayne Regush told the KNIBC at its meeting last week. "Everyone assumed [the preservation] in place would not result in a house being built atop iwi."
Construction, activism begins
Ka'iulani Huff, who says she is a descendant of the burials, began a 16-week campout at the beach adjacent to Brescia's lot to "keep an eye on the iwi" the day after the Council's decision.
Others joined Huff's vigil, and on June 3 they staged a protest when Brescia's contractor, Ted Burkhardt, attempted to have a Christian minister bless the site so construction could begin. The confrontation ended when the minister agreed not to conduct the blessing.
A second protest was held on June 24 when work on the foundation was again set to start, but this time Kaua'i Police Chief Darryl Perry stopped the project. He said construction could violate a law prohibiting desecration of burial sites. The county attorney and state Attorney General's office later overruled Perry's decision, which allowed construction to continue.
In response, Brescia filed a civil suit against Huff and other North Shore residents who had opposed the project, including Puanani Rogers, charging them with obstruction, slander of title and other offenses. That suit is still pending.
"We were there to do the job SHPD should be doing, yet we are the ones being prosecuted by Mr. Brescia," Rogers told the KNIBC at its meeting last week. Rogers also testified that she and others tended the burials, which were marked by wooden stakes, and put out tiki torches to light each one. "We all had our favorites, certain ones we would go to and pule (pray). There is a spiritual presence there at Naue."
In late July, the Native Hawaiian Legal Corp. (NHLC) sought a temporary restraining order to stop work on the house. But Circuit Court Judge Kathleen Watanabe denied the motion, finding that damage to the burials was unlikely because the concrete pilings that comprise the foundation had already been poured.
A third protest was held at the site on Aug. 7. Among those present was O'ahu resident Andre Perez, who said he and others had come from all around the state to make a strong stand against the desecration of burials.
"Who else in Hawai'i has to crawl under someone's house to visit their kupuna?" Perez asked. "This is not just about Kaua'i. We're serious about protecting our iwi kupuna, our 'aina and our lahui."
During the protest, seven men linked themselves together with pieces of PVC pipe in an attempt to make police forcibly remove them. Officers declined to make arrests, choosing instead to photograph those at the scene. Three men were later arrested on misdemeanor trespassing charges, and warrants issued for others.
Following a three-day trial in August and September, Judge Watanabe again refused to grant NHLC's request for an injunction to halt the house's construction. She issued her final ruling on Sept. 15, finding that state archeologist McMahon had acted improperly by approving a final burial treatment plan (BTP) for the project without first consulting the KNIBC, lineal descendants and other interested parties.
Watanabe also said it became clear during the trial that some Burial Council members did not realize, when they voted to preserve in place, that Brescia's house would be built on top of iwi. The plan that McMahon approved called for capping seven of the 30 burials in concrete, and creating buffers between the capped iwi and the foundation pilings.
The judge further noted that although Brescia had complied with all the required state and county rules, he wasn't authorized to start pouring his foundation because the final BTP had been improperly approved.
"While the burials were preserved, they were not authorized according to law and it could be argued that construction of [concrete] jackets constitutes alteration," Watanabe said from the bench. "Although construction is under way, that does not hold relief is impossible."
Watanabe ordered the state to conduct the proper consultations in drafting a new BTP and then take the plan back to the Council for its approval. She said the panel could take any number of steps, including removing the concrete caps, moving the burials out from under the house and granting descendants access rights to visit the iwi.
But none of those options were included in the new version of the final BPT that McMahon presented to the Council last Thursday. Instead, the plan outlined all the steps that have already been taken with the burials, including capping five that are under the house with cement.
Among those at the meeting voicing objections to both the plan and the process was Jeff Chandler, a Wainiha fisherman who says he is a lineal descendant of the burials. Chandler was one of the defendants named in Brescia's civil suit, and also the plaintiff in the NHLC lawsuit against Brescia and the SHPD.
"You ready for make a decision that's already been made for you?" Chandler asked the Council, waving a copy of the BTP. "You're being misled again. You're being asked to make a decision about the future when this is already the past. It's not about what we want. It's what they [SHPD and Brescia] want, and not only what they want, what they already did."
His testimony prompted Councilmember John Kruse to note: "We all agree the kupuna shouldn't be disturbed. What disturbs me is we're always at the end of the process. We should be at the beginning of the process."
Murakami, the NHLC attorney, urged the Council to exercise the full extent of its authority, saying the law contains a "catch-all provision that gives you as much power as you need to do what needs to be done."
He reminded the Council that the planning commission's approval included a condition that no building permit would be issued until the requirements of the Burial Council were put into place.
Since that wasn't done, Murakami said, the permit "should never have been issued and should probably be revoked." He told the Council that if it rejected the BTP, the planning commission "should have no choice but to interpret that to mean conditions have not been met. There's nothing wrong with the law. It's clear, but the process wasn't followed."
Hong, Brescia's attorney, attended the meeting, but declined to comment.
Others also stepped forward to encourage the Council to take bold action, including Keone Kealoha, executive director of Malama Kaua'i, a nonprofit group that has banded with the Kaua'i Public Land Trust in a bid to purchase the million-dollar Brescia property.
"To me, that's like plan Z," he said of the acquisition attempt. "It doesn't have to go to Z. It can end with A. If there's liability, then there's a problem with the system. If there is a problem, then let it get cleaned up by the folks who make the rules and the regulations. I hope you can clearly communicate that this is the case that dictates how we're going to move into the future on these issues."
Palikapu Dedman, a Big Island resident and Kanaka Council member, offered testimony in which he reminded the KNIBC that the burial protection laws stemmed from a movement of the people, not the state.
"The Burial Councils are supposed to be protecting iwi, not building on 'em, or digging 'em up," he said. "Don't get weak."
Joan Conrow lives on Kauai and has reported on issues throughout Hawaii for the Honolulu Advertiser, the Honolulu-Star Bulletin and Reuters. For the past decade she's worked solely as a freelance journalist, contributing articles to Audubon, National Wildlife, Sierra, Honolulu magazine, Spirit of Aloha and many other national and regional publications. Her work appears regularly in the Honolulu Weekly and Kauai People, and she's also co-authored several travel guides. While she's particularly drawn to stories about Hawaii's natural world and indigenous culture, her varied interests are reflected in her blog, kauaieclectic.blogspot.com.