In the recent circumstances involving Joseph and Jodie Brescia’s property in Wainiha, I made the decision to warn the contractor of Hawaii Revised Statute 711-1107 entitled Desecration that carries criminal penalties as contrasted with Hawaii Administrative Rules Title 13 that is civil in nature and falls under the umbrella of the Historic Preservation Division, Department of Land and Nature Resources (DLNR).
Basically, the wording of Penal Code HRS 711-1107 does not clearly make the connection to Hawaii Administrative Rules 13 (HAR). From a strict law enforcement perspective it is obvious that damaging or otherwise mistreating a place of worship or burial site in a manner that outrage the sensibilities of a person of reasonable caution constitutes a violation. And exactly who is a person of reasonable caution? A person of reasonable caution is the member of our community, like you and I.
Therefore prior to allowing construction, I had to clarify (not interpret) how far-reaching HAR 13 could be applied. The basic questions were:
- 1. Does the permitting approval by DLNR based on recommendations of the Niihau/Kauai Island Burial Council nullify the elements HRS 711-1107?
- 2. Does the Niihau/Kauai Island Burial Council have the authority to define what constitutes “damaging, mistreatment, and outrage of sensibilities?”
To both questions the answer is a resounding “Yes,” according to our County Attorney and State of Hawaii Attorney General; that the Brescia’s had met all of the criteria set in HAR 13, therefore, they should be allowed to build. However, there was a caveat to question #1 according to AG Bennett, whereby the contractor would still be in violation of HRS 711-1107 should intentional damages occur to the burial graves.
We now must ask question 2: Who defines the meaning of desecration? We need not look far because Mr. Brescia stated it matter-of-factly, “The law was obviously designed to punish those persons who desecrate burials without authorization.”
The optimal word in his sentence states it perfectly: “authorization.” The owner did follow all proper protocols and now has authorization to build a home on top of burial sites that many would consider a cemetery. Does putting a cement slab on burial sites constitute desecration? No, not according to the DLNR on the recommendation of the burial council.
So, what happens now? Certainly there will be protestors, and the county, mainly the Kauai Police Department (KPD) will once again have to deal with issues that were created by State entities. Nevertheless, KPD will continue to demonstrate, compassion, sensitivity, and extraordinary patience and restraint in enforcing the law.
Without a doubt our kupunas and those who have come before us are an important part of who we are as individuals and who we are as a culture because they are the foundation of our existence.
This respect does not only hold true in Hawaii but also in every culture throughout the world—they are our guiding light. And I have yet to speak to one kupuna who believes that it is “pono” to build this house over the graves of our Hawaiian ancestors, even if it is “authorized.”
I hope that somewhere down the line, a leader of great vision will take up this cause and correct the unconscionable decisions by some of our appointed public officials who authorized/permitted the building of this home, and future homes under similar circumstances.
Darryl D. Perry is the Chief of Police for the Kauai Police Department
