S.R. NO.










WHEREAS, section 6E-43.5, Hawaii Revised Statutes (HRS), provides that the Department of Land and Natural Resources (DLNR) shall establish an island burial council for Hawai‘i, Maui/Lana‘i, Molokai, O‘ahu and Kaua‘i/Ni‘ihau to carry out all applicable duties established by law to ensure respectful treatment of burials; and

WHEREAS, the island burial councils were established by section 6E-43.5 to advise DLNR on all matters pertaining to unmarked Hawaiian burial sites over fifty years old located on private, state, and county properties; and

WHEREAS, with regard to the treatment of unmarked Hawaiian burial sites over fifty years old defined as "previously identified" in the historic preservation review process, the island burial councils have the legal authority to determine whether to preserve in place or relocate those burial sites; and

WHEREAS, the ability of the island burial councils to effectively carry out their statutory and regulatory duties is dependent upon the appointment of well-qualified individuals to each council; and

WHEREAS, section 13-300-22(b), Hawaii Administrative Rules (HAR), provides criteria which all Hawaiian community representatives on the island burial councils must possess including "an understanding of Hawaiian culture, history, customs, practices, and in particular, beliefs and practices relating to the care and protection of Native Hawaiian burial sites and ancestral remains and burial goods"; and

WHEREAS, section 13-300-22(c), HAR, provides that DLNR "shall request appropriate Hawaiian organizations to submit names of candidates for regional representative to the department for consideration, along with statements demonstrating the candidates' understanding of Native Hawaiian culture"; and

WHEREAS, Section 6E-43.5(b), HRS, provides that the "appointment of members to the councils shall be made by the governor, in accordance with section 26-34, from a list provided by the department, provided that a minimum of twenty per cent of the regional representatives shall be appointed from a list of at least nine candidates provided by the office of Hawaiian affairs" and that "the department shall develop the list in consultation with appropriate Hawaiian organizations, such as Hui Malama I Na Kupuna O Hawai‘i Nei"; and

WHEREAS, if appointments to fill vacancies on the island burial councils are not forwarded in a timely manner to the Legislature for confirmation, the island burial councils will not meet the statutory requirements of section 6E-43.5(b), wherein "the membership of each council shall include at least one representative from each geographic region of the island as well as representatives of development and large property owner interests" and wherein "the councils shall have a minimum of nine and a maximum of fifteen members, and have a ratio of not more than three to one and no less than two to one in favor of regional representatives"; and

WHEREAS, during the 2003 legislative session, DLNR failed to submit to the Governor a list of burial council nominees, despite the fact that 13 of 50 council members' terms were to expire on June 30, 2003; and

WHEREAS, 11 burial council members’ terms will expire on June 30, 2004; and

WHEREAS, in 2003, as part of its responsibility to develop a list of candidates for the island burial councils, DLNR decided not to recommend at least one well-qualified candidate and submitted the name of another well-qualified candidate with a request to the Governor not to select the person, both of whom were included on a list provided by the Office of Hawaiian Affairs; and

WHEREAS, DLNR did not provide any explanation of its decision and did not consult with appropriate Hawaiian organizations as otherwise required by law; and

WHEREAS, these questionable actions by DLNR have undermined the ability of the island burial councils to carry out their statutory and regulatory mandates and responsibilities; and

WHEREAS, these administrative practices by DLNR do not comport with the statutory and regulatory process by which island burial council members are to be recommended, appointed, and confirmed; and

WHEREAS, DLNR must be held accountable for its decisions to include or eliminate qualified candidates' names from the list sent to the Governor for appointment to the island burial councils; now, therefore,

BE IT RESOLVED by the Senate of the Twenty-Second Legislature of the State of Hawaii, Regular Session of 2004, that the DLNR is directed to provide the Governor with a list of recommended nominees for the burial councils in a timely manner; and

BE IT FURTHER RESOLVED that the Legislature requests that DLNR provide a comprehensive explanation as to why it failed to recommend and support at least two well-qualified Native Hawaiian candidates to the Maui/Lanai Islands Burial Council and the Hawai‘i Island Burial Council to the Governor for appointment to those councils; and

BE IT FURTHER RESOLVED that the Auditor is requested to investigate DLNR to determine whether these questionable administrative practices involving island burial council recommendations for appointment amount to significant deviations from chapter 6E, HRS, and chapter 13-300, HAR, that must as a matter of law require that corrective actions be taken; and

BE IT FURTHER RESOLVED that the Auditor is requested to report findings and recommendations to the Legislature no later than twenty days prior to the convening of the Regular Session of 2005; and

BE IT FURTHER RESOLVED that within thirty days of the passage of this measure, DLNR is requested to provide the Governor and simultaneously make available to the general public a list of the candidates that DLNR has recommended for appointment by the Governor to the island burial councils since January 1, 2003 and an accompanying report that shall include:

(1) A list of all individuals recommended to the island burial councils by the Office of Hawaiian Affairs, appropriate Hawaiian organizations, as well as development and large property owner interests;

(2) A description of the consultations that occurred with appropriate Hawaiian organizations, including when the consultations occurred, an identification of the individuals involved in the consultations, the substance of the consultations, and the outcome of the consultations; and

(3) An explanation of DLNR’s decisions to include or eliminate a nominee for each individual recommended by the Office of Hawaiian Affairs, Hawaiian organizations, and others; and

BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the Governor, Chairperson of the Board of Land and Natural Resources, Chair of the Board of Trustees of the Office of Hawaiian Affairs, members of the Island Burial Councils for all of the islands, and President of the Board of Hui Malama I Na Kupuna O Hawai`i Nei.






Report Title:

Island Burial Councils; DLNR failure to provide nominees.