POSTED: 7 SEPTEMBER 2008 - 4:30pm HST

Bound & Gagged!

image above: Scary cemetary animation

A commentary on"The State" of things to come
by Hale Mawae on 5 September 2008

While reading the article from Friday's Garden Island article, "The Fight for the Iwi Continues," I couldn't help but imagine Steven Weinstein and the rest of the planning commission politically bound and gagged by Joe Brescia and his surmounting legal issues surrounding the burial site at Naue.

All of these state officials running around with out a clue as to what to do, screaming "Our hands are tied! Our hands are tied! We can't make any good decisions, only continue to approve bad ones after we've made all of the mistakes."

Imagine an S&M dungeon with an eerie collection of ancient bones and artifacts with a bunch of county officials all bound and tied up in leather and chains willing and ready to fulfill Joe Brescia's every fantasy and desire.

Joe Brescia's every fantasy and desire; a modest five bedroom cottage tucked away on a secluded Kaua'i north shore beach, overlooking freshly grown Naupaka of an extended shoreline property once known as Naue.

" Do you want to fulfill my every fantasy and desire?" He snaps his whip, and Steven Weinstein bends over like a good obedient dog.

" Yes, sir." They reply.

The bones of his house of torment hang above their heads like a skeletal chandelier in a horrifying portrait of endless enduring pain of a people, who wanted nothing but humane treatment fore their beloved ancestors. Yet it has turned into another reminder of a good, hard, insatiable lust that only Joe himself will ever, truly, understand and get off on when he has his housewarming party on the beach and invites Anthony Kiedis over for coffee.

Well Joe, and about a handful of other Joe Blows who have too much money for their own good. Joe Blows, who wouldn't stop to build over their own Grandmother's grave located on a rare endemic bird's nest that only lays eggs once every 5 years with a mountain view that would kill on the real estate market.
A similar issue, which has manifested into a legal court charade that honors revised statutes that were built upon corrupted foundations of lies and propaganda. Which transposed into an unwinding political disaster that leaves most state officials with their pants around their ankles and their mouths propped open, in shock, not knowing the "right" thing to say.

Skeletons shaking from beneath a house out of fear. Decided upon by a community of meek cowards as the spirits of those iwi wander endlessly and aimlessly to avenge those who are chiefly responsibly for disturbing their supposed eternal sleep. An awakening to avenge those who stood by and did nothing while blocks of cement were laid upon their final resting place as a foundation for a Californian's paradise get away.

I can't stop asking myself, where is the humanity in all of these hopeless endeavors of aforementioned grief of a diverse community who has lobbied before councils, politicians, and judges who express similar grief for the parties seeking restitution and in the same breath disagree with the community's outcry for help in making restitution.

Councils, politicians, and judges who agree with one person because he has played "the state's" game in doing what they say is "right." And because he's got a lot of money to throw around at lawyer's and the state to make sure they keep their wild, heathen natives in check.

Hypocrites, I tell you, all of them!

My second question for you all: What actually constitutes a cemetery by law, and who the hell is Nancy McMahon to define what is and isn't a cemetery?
Well, if you were misinformed Nancy, here is the definition from a few different sources. The first being from Bouvier's Law Dictionary:

A place set apart for the burial of the dead.
A place for burying the dead; a graveyard.
A consecrated enclosure for burial of the dead.

I think 30 burials or more "set apart for the burial of the dead" within a consecrated enclosure within the same place clearly defines Naue as such a place. A graveyard. It goes on in Bouvier's Law stating cases concerning cemeteries, which many fall case in point here:

An abandoned cemetery, from which all the bodies had not been removed, cannot be sold; Ritter v. Couch (W. Va.) 76 S. E. 428 42 L.. R. A. (N. S.) 1216.
A cemetery association holds the fee of lands purchased for the purposes of the association(of a cemetery). The persons to whom lots are conveyed for burial purposes take only an easement- the right to use their lots for such purposes; Buffalo City Cemetery v. Buffalo, 46 N. Y. 503; People v. Trustees of St Patrick's Cathedral, 21 Hun (N. Y.) 184;

Here's an interesting tid bit of information for those of you who were wondering "who is really trespassing on the land at Naue?"

Joe Brescia, who holds quiet title and a land guarantee, or the presiding ohana of M. Kekauonohi and friends, who has never ceased to hold clear title by the Land Commission Award given to them at such time, which hold weight no matter what.
Well, here is what Bouvier's Law says in accordance with the law in concerning trespassers on cemetaries and other issues:

A lot owner may maintain an action of trespass against one who wrongfully trespasses upon it Smith v. Thompson, 55 Md. 5, 39 Am. Rep. 409; Gowen v. Bessey, 94 Me. 114, 46 Atl. 792;

It has been held that he may even sue the owner of the fee for such wrongful act; He may enjoin the cemetery association from preventing a member of his family from being buried in the family plot; or from removing the ashes of the dead; or may obtain an order to compel the association to keep the grounds in good order and maintain the whole as a cemetery.

I guess, what Nancy McMahon means by her statement is that kanaka maoli just unconsciously, and with pure, raw, animal instinct buried people in the ground without thought, understanding, or resignation of the importance and respect for our dead. Maybe she thinks each kanaka maoli somehow fell dead and was mysteriously swallowed by the sand dunes of Naue without any trace or cause or purpose thereby excluding it from the definition of what she constitutes as a cemetery.

Is that what she means by that statement?

Or maybe she's saying that kanaka maoli lack basic understanding for what the rest of humanity views as honoring their dead on the basis of what she has defined from her standpoint as "30 ancient burials not constituting a burial ground, cemetery," in essence calling our ancestors and kanaka maoli inhumane and animal in nature.

It's a savvy way to label us as heathens, pagans, or savages, I guess. It all depends on the verbose nature of the exalted insinuator. Nancy McMahon being the insinuator in question, who has become like a pawn in a game of the "state" relocating iwi kupuna in the name of fast tracked development schemes to get projects on the roll.

Either way, her statement is clearly misinformed as defined by the terms of Bouvier's Law.

It's also insulting to have officials sitting with their crazy, ignorant "hat's" on their heads(that they "don't wear") and be allowed to inconspicuously make bad decisions and( I am going to assume) horribly misinformed comments on legal matters that have been stated on public record by their forked tongues.
Forked tongues licking the devil's bloody pitchfork with Joe Brescia's price tags attached to each presumptuous sitting, talking, ignorant head.

" Do you want to fulfill MY every desire?"

I have a question for you to answer Nancy, and maybe the rest of those who have made misinformed comments can answer it with the same insinuating repose that you did with the cemetery question, and yes it is my every desire:

What is humane?
I suggest Nancy McMahon and the burial council, the current Kauai Planning Commission, Joe Brescia, the DLNR, Governor Lingle of "The State," the SHPD, Kathleen Watanabe, Walton Hong, Mark Bennett, and those few others who have yet to come to light on this case.

I want you all take a real good look in the mirror before you go to bed tonight.
So you can really ask yourselves the question "what is humane?"

Then maybe, just maybe, if you look hard enough, you'll see what isn't.


Fight for Iwi Continues
by Nathan Eagle - 29 August 2009 in The Garden Island News

The county Planning Commission on Tuesday entertained a motion that would have sent “a signal” to Wainiha landowner Joseph Brescia regarding the home he has started building on a small coastal lot known to contain at least 30 ancient Hawaiian burials.

Commissioners James Nishida and Herman Texeira backed a motion to have the county Planning Department send a letter to the California businessman asking him to consider giving community members more time to come up with money to purchase his property in exchange for an extension on his building permit.

Although the motion was ultimately defeated in a 5-2 vote, it allowed a group of residents advocating for greater protection of Native Hawaiian rights and “respect for our iwi” to publicly renew their concerns over the project.

“Isn’t there something you can do to condemn that land because it is a cemetery?” Kapa‘a resident Puanani Rogers told the commission. “It is a land use issue ... an issue that is your responsibility.”

Chair Steven Weinstein said the commission’s hands are tied.

“ If they’re following the conditions, that’s all we can ask them to do,” he said, pointing at a recent Planning Department status report confirming that Brescia has met the conditions of his permit approval.

“ It’s not a designated cemetery,” he said, noting the landowner was unaware of any burials on the property when he bought it.

Rogers disputed the claim that the remains are being preserved in place as the Kaua‘i Burial Council directed.

“ It’s not being preserved if you’re building around them and in between them,” she said. “The bones have a spiritual essence. It extends throughout … up, down, sideways. We need people who understand our cultural practices to be making decisions on this.”

The burial council is a seven-member appointed arm of the state Historic Preservation Division whose authority is mostly limited to deciding whether remains should be preserved in place or reinterred.

When Brescia learned the house foundation would affect seven of the 30 marked burials, he asked the burial council to have them be relocated, according to his attorney, Walton Hong.

The council in a split vote in April decided the remains should be left in place.
“ Mr. Brescia did not want to do this,” Hong said, so the burial treatment plan was revised and house redesigned so the footings would not be on top of the burials.

James Huff, a long-time builder, told the commission Aug. 12 that his independent GPS research shows the burials identified in the burial treatment plan fail to align on the ground with the burials marked in the building plans, in some cases falling directly under the footings.

The Planning Department, directed by the commission to investigate the claim, reported its findings on Tuesday.

Planner Dale Cua said the department, under the guidance of a state archaeologist, concluded with its equipment, which has a tolerance level of four to five meters, that the plans were accurate.
“ Understand it’s not an exact science,” he said. “It’s going to be within the general vicinity.”

Brescia has been trying to build a home on his 18,000-square-foot North Shore property for the past seven years, but has been delayed mostly due to legal challenges, including a shoreline setback case environmentalists won in 2005 at the state Supreme Court.

The remains, or iwi, were discovered during excavation work last year.
After the commission approved Brescia’s permits on Dec. 12, there have been protests at the site and a group of residents camped on the beach at Ha‘ena Point adjacent to the property for months.

Brescia in a June 24 news release announced his openness to selling the lot at a fair price, but community members said they needed more time to find the funding. Since then, the footings to the home have been poured and some critics say the damage has already been done.

The Kaua‘i Police Department halted construction in June, but two weeks later Police Chief Darryl Perry said, after seeking clarification from the county attorney and state attorney general, that Brescia had not violated any law.

Fifth Circuit Judge Kathleen Watanabe on Aug. 14 affirmed that construction may continue at the homesite while attorneys for the property owner, state and protesters named in a related lawsuit debate a preliminary injunction.

State archaeologist Nancy McMahon testified then that the 30 burials do not constitute a cemetery.

Hong said construction must continue because permit conditions require it to be built within a certain time frame and because of the amount of money the landowner has already had to absorb.

“ We can’t wait around one, two years hoping this offer is going to come,” he said, referring to the community’s effort to purchase the property.

“I’d like to buy some more time,” Texeira said, adding later that the letter from the Planning Department would “send a signal” to Brescia that the commission is concerned about what is happening at the site.
But a majority of commissioners, while noting their sympathy for the concerned residents, disagreed.

“I think as planning commissioners ... that’s not a hat that we wear,” Commissioner Cavin Raco said. “It’s Mr. Brescia’s legal right to make that decision (on whether to delay construction while the community searches for funding to buy it) ... I’m not here for that.”

Commissioner Kurt Akamine said that although he agreed with the premise, it would be premature.

“It’s really painful to have a house being built on a cemetery,” North Shore resident Caren Diamond said. “I feel very sick and sad.”


see also:
Island Breath: Alert on Naue burial site 7/8/08
Island Breath: Haena Burial Site 6/9/08
Island Breath: Bones of our Ancestors 1/13/08
Island Breath: kauai Shoreline Defined 7/30/06
Island Breath: Save Wainiha Beaches 3/8/04