Wailua Burial Site Conviction

SUBHEAD: The prosecution of Alalem for protecting iwi underscores the misdirected priorities of our state laws.

 By Ray Catania on 19 July 2012 for Island Breath - 

Image above: James Alalem dislplaying typical stone that was used to mark the outline of a body at a burial site. From (http://thegardenisland.com/james-wailua-jpg/image_b144e8c1-94d7-5aa6-8c27-33c3ae2c8a0c.html).

A presentation and discussion will take place at the Kapaa Public Library on August 2nd, 2012 from 6:30 - 9:30pm. Wailua heiau caretaker James Alalem was arrested and found guilty for interfering with the construction the Kuhio Highway over the Wailua River.

At the time he was trying to protect iwi (interred remains of Hawaiians) in a culturally sensitive area of a sacred Hawaiian site. Alalem will make a presentation of the issues surrounding the events in which he and Kaiulani Eddens were arrested and tried.

Alalem contends that the proceedings in Judge Valenciano's state court were unfair and that he was methodically stifled at every turn from presenting his case by the State's Prosecuting Attorney and the judge. Video footage used against James Alalem and Kaiulani Eddens will be shown.  

Presentation, discussion and video showing concerning arrests at Wailua iwi site.  

August 2nd, 2012 from 6:30-9:30pm  

Kapaa Public Library 4-1464 Kuhio Highway, Kapaa (808) 821-4422

Raymond Catania 634-2737 or 635-0835 or email may11nineteen71@gmail.com.

Jury finds Alalem Guilty

A jury found a Wailua man guilty Tuesday of stopping a DLNR construction dig for the Kaumuali‘i Comfort Station project near kupuna burials at Kaumuali‘i Park and Old Smith Landing in Wailua.
James Lee Alalem, 55, of Wailua, will face sentencing on Sept. 27 for obstruction of government operations of the Department of Land and Natural Resources. It is a misdemeanor offense.

Chief Judge Randal Valenciano presided over the two-day trial in which Alalem represented himself. The court appointed Warren Perry as stand-by counsel to consult with the defendant on proceedings.
Deputy County Prosecuting Attorney John Murphy said the case was about someone making a decision to cross the line and stop a government operation. He told the jury they must base their decision on the law and not on an emotional connection to a cultural issue or pity for the defendant doing what he believed was right.

The prosecution produced two DLNR officers who said Monday that they arrested the defendant after he crossed the construction barrier and stopped operations on April 28, 2011.

Holly McEldowney, acting administrator of the State Historic Preservation Division, testified Tuesday that planning for the comfort station started in 2005 following a federal mandate that required conversion of existing wastewater systems. She said that proper permitting was acquired at all levels and that the county did not require an environmental impact study for this project.
An on-site archaeologist and cultural monitor were present during test digging and spotted burials and artifacts more than 50 years old in the project area in 2005, 2010 and 2011.

McEldowney said when that happens, DLNR stops work immediately, as required, to consult with the Kaua‘i-Ni‘ihau Island Burial Council. She said that the council recommended to the State Historic Preservation Division that the burials be kept in place.

McEldowney said the council approved the burial treatment, and a redesign in 2006 to avoid above- or below-ground disturbance of burials and cultural deposits. Work was done to determine if there was any known lineage of the burials.

Before the trial began, Valenciano informed both attorneys that evidence and questioning could not involve the issue of nationalism or sovereignty. He said the court would not decide the legitimacy of citizenship to any group or kingdom, but would view anyone living in the state as being subject to state laws.

The judge referred to a May decision of the Hawai‘i Supreme Court, in upholding an Appeals Court decision of a 2004 case involving Lloyd Pratt. The Native Hawaiian claimed he is entitled to live as a caretaker of sites without a permit in the Na Pali Coast State Wilderness Park.

Alalem said after the trial that his testimony and questions of witnesses were limited because of the court’s tight focus on the incident.

He said that it did not allow him to expand on his motivation to protect ancestral graves that led to the charge.
The defense witnesses included Punilei Joseph Manini, who presented claims that the land was deeded to ancestors by King Kamehamea III and should not be considered state lands. His replies were stopped short for relevance with objection from the state.

Another witness, Waldeen Palmeiro, was asked to describe her monitoring activity at the site. She responded that there were discoveries before and after the arrest incident, and that around six burials were unearthed at the site.

Palmeiro’s replies were largely stricken as not responsive to questions.

The jury also viewed a video of the incident. The video depicted Alalem and Ka‘iulani Denelyn Edens, 49, of Kapa‘a, crossing into the construction area where activity stopped. The video showed Alalem standing in the bucket of a backhoe until he was arrested by DLNR officers with assistance from the Kaua‘i Police Department.

A jury found Edens guilty of obstruction in February. She was sentenced in April to 40 minutes time served and fined $250.

Edens said at her sentencing that she was moved to act but that it was not a sovereignty issue.
Outside the courthouse, Alalem said that if any good comes from this case, it would be to wake up more people to learn about their culture and to honor their ancestors.

“I am not sorry that I stood up for those who cannot stand up for themselves,” Alalem said.

Abberation of Justice  

Commentary by Kip Goodwin on 19 July 2012 in The Garden Island -
The problematic outcome in the trial of James Alalem, prosecuted for his action to protect iwi, underscores the misdirected priorities of state laws that are supposed to protect cultural sites. It also demonstrates a dilemma faced by the judicial branch when administrative failures are laid on its doorstep.

The crime Mr. Alalem was accused of has a narrow focus: “interfering with a government operation.” The overriding issue was, of course, that a backhoe, with the blessing of the county and state, was digging up Hawaiian graves to make way for an outhouse leachfield, and Mr. Alalem objected.
In making the case for the state, County Deputy Prosecuting Attorney John Murphy held to the parameters of the charge, bringing Department of Land and Natural Resources (DLNR) enforcement officers and the administrator of the State Historical Preservation Division (SHPD) to the witness stand to establish prior permitting process and Mr. Alalem’s role in what happened on April 28, 2011.

For his part, Mr. Alalem’s defense was to tell the jury what his motive was that day, through the sworn testimony of himself and his two witnesses. Judge Randal Valenciano was adamant in not allowing this to happen. Mr. Alalem’s presentation over 76 minutes (including a 12-minute recess) was interrupted 42 times, either by an objection from the prosecuting attorney, sustained by the judge, or the judge cutting Mr. Alalem short and calling the attorneys (and Mr. Alalem) to a private conference, or the judge interrupting the witnesses and telling the jury to disregard their testimony as being “not responsive.” Mr. Alalem’s defense was never entered into testimony.

If the judge allows into evidence the motive for Mr. Alalem’s actions, the jury must be allowed to consider that evidence in their deliberation, i.e. the iwi and cultural desecration. That would give the jury cause for acquittal, and if that happened it could lead to open ended legal challenges to rules regarding burial sites of iwi and artifacts. Presumably Judge Valenciano, appointed to the bench by pro-development Gov. Linda Lingle, did not want that outcome emanating from his courtroom.
Certainly judges must have latitude to run their courtroooms as they see fit, because an independent judiciary is a cornerstone of constitutional democracy. And the law addressing interference in government operations is necessary to maintain and improve infrastructure.

So the open question, and the reason Mr. Alalem’s trial was an aberration of justice, is why the court was constrained by the law as written from addressing the overriding problem, which is the injustice of those laws that convey the most precious ground any people anywhere can possess, the gravesites of their ancestors, to private and public developers.

The most dispiriting result of this sorry event is that many on Kaua‘i feel even more disenfranchised. So before it happens again, and Kaua‘i’s much-promoted aloha spirit is demeaned in another confrontation with hypocrisy, those state agencies, the DLNR and SHPD, need to re-invent themselves to reflect the mission for which they were established. And elected officials should respond to the peoples’ concerns about burial site protection. A declaration from Mayor Bernard Carvalho Jr. and Gov. Neil Abercrombie would be a good start.


1 comment :

Anonymous said...

This is really sad and shows the complete lack of morals by our agencies and those entrusted to govern our state. What courage it took for Mr. Alalem and Ms. Edden to stand up for what is pono .

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