Circuit Court Judge Kathleen Watanabe predicted no one would be happy with her decision in a case challenging a house being built atop ancient burials at Naue, on Kaua’i’s north shore. She was right.

Kanaka maoli are unhappy because she didn’t stop construction. The state is unhappy because she found it erred in not following its own rules and laws. And the homebuilder is unhappy because his project still isn’t in the clear.

In short, Monday’s ruling in Kaua’i’s 5th Circuit Court underscored the complexities of balancing Western property rights, bureaucracies and indigenous cultural practices in the highly volatile realm of Hawaiian burials.

The controversy over construction prompted a months-long vigil at the oceanfront site where 31 burials have been found as well as two demonstrations, resulting in three men being arrested for trespassing and warrants issued for others. Fifteen kanaka maoli scholars also signed a Sept. 12 letter to “publicly condemn the state-sponsored desecration of a Native Hawaiian burial site.”

Meanwhile, Malama Kaua’i, a nonprofit group, has begun raising money to purchase the 15,667-square-foot lot, and has already secured a $75,000 pledge. In June, landowner Joe Brescia announced he would consider offers for the site, saying he had invested more than $1 million in the project.

“The heart of this case is the failure of the state to follow procedures put in place to protect cultural practitioners, the general public and the rights of landowners,” Watanabe said in ruling that the State Historic Preservation Division (SHPD) must take the matter back to the Kaua’i-Ni’ihau Island Burial Council.

Specifically, Watanabe found that Nancy McMahon, state archaeologist for Kaua’i, failed to consult with the burial council, lineal descendants of the burials, Hawaiian groups and Brescia before approving changes to the final burial treatment plan for the project. The council had ruled on April 3 that the iwi should be preserved in place.

Instead, the final plan authorized by McMahon allowed “concrete jackets” to be placed atop seven burials that will be under the house, and created a “vertical buffer” between the iwi and concrete pilings that comprise the house’s foundation.

“Preserving in place is taking care of them,” said Jeff Chandler, a Wainiha resident who sought a preliminary injunction against the project as a descendant of the iwi. “Capping them [in concrete] is not preservation in any form I’ve been taught.”

Added Chandler’s attorney, Alan Murakami of the Native Hawaiian Legal Corp.: “The problem is the way the SHPD is interpreting the Burial Council laws. That’s 90 percent of it. They’re [the iwi] entitled to full protection, not this minimalist stuff they’ve been doing. The law’s supposed to give power to the Hawaiian-centered burial councils and descendants.”

Although Watanabe allowed construction of the house to proceed, she warned Brescia’s attorney that the council could take action that might affect his building plans, including allowing visitation of the burials, taking off the concrete jackets or removing the iwi now under the house.

“She shoulda stopped construction,” Chandler said. “Because of the decision of the state, they rushed in and were pouring concrete as fast as possible.”

Watanabe said Brescia’s actions were not authorized because the council hadn’t approved the burial treatment plan, raising the specter of whether his building permit can be revoked.

Vince Kanemoto, deputy state attorney general, said he would bring the burial treatment plan back to the council at its early October meeting, but some who have been following the case doubted the necessary consultations could be done so quickly.

Others have questioned whether it’s a conflict of interest for Kanemoto to represent McMahon and the SHPD while he’s also advising the Kaua’i-Ni’ihau Burial Council.

“I think she [Watanabe] sent a clear message to Vince and Nancy that they’re not doing the iwi justice,” Murakami said.

Watanabe also said that state laws “do not do enough to protect those burials. I personally hope there will be remedies sought in another forum, specifically the legislative arena.”

William Aila, a member of Hui Malama I Na Kupuna O Hawaii Nei, previously told the Weekly that he and others have been meeting with state legislators since the end of the last session to discuss amending the law to require developers to do a full archaeological survey to determine the presence of burials before proceeding with any plans or permits.

Murakami said that while the Naue case has received considerable attention, he doesn’t believe it’s an isolated incident. “I’m sure this is the tip of the iceberg.”

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