Clarifies Chapter 6E regarding inadvertently discovered native Hawaiian burial sites by amending Sections 6E-43, 6E-43.5, 6E-43.6. Conforms the treatment of inadvertent discovered burial sites with that of previously discovered burial sites with the Burial Councils.
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII
A BILL FOR AN ACT
Relating to BURIAL SITES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Section 6E-43, Hawaii Revised Statutes, is amended to read as follows:
"§6E-43 Prehistoric and historic burial sites. (a) At any site, other than a known, maintained, actively used cemetery where human skeletal remains are discovered or are known to be buried and appear to be over fifty years old, the remains and their associated burial goods shall not be moved without the department's approval.
(b) All burial sites are significant and shall
be preserved in place until compliance with this section is [
provided in section 6E-43.6]met. The appropriate island burial
council shall determine whether preservation in place or relocation of
previously identified and inadvertently discovered native Hawaiian
burial sites is warranted, following criteria which shall include recognition
that burial sites of high preservation value, such as areas with a
concentration of skeletal remains, or prehistoric or historic burials
associated with important individuals and events, or areas that are within a context
of historic properties, or have known lineal descendants, shall receive greater
consideration for preservation in place. The criteria shall be developed by
the department in consultation with the councils, office of Hawaiian affairs,
representatives of development and large property owner interests, and
appropriate Hawaiian organizations[ , such as Hui Malama I Na Kupuna O
Hawai`i Nei,] through rules adopted pursuant to chapter 91. A council's
determination on previously identified native Hawaiian burial sites
shall be rendered within forty-five days of referral by the department [ unless
otherwise] and on inadvertently discovered native Hawaiian burial sites
shall be rendered within ten days. These times may be extended by
agreement between the landowner and the department.
(c) Council determinations may be administratively appealed to a panel composed of three council chairpersons and three members from the board of land and natural resources as a contested case pursuant to chapter 91. In addition to the six members, the chairperson of the board of land and natural resources shall preside over the contested case and vote only in the event of a tie.
(d) Within ninety days following the final determination for previously identified and within thirty days following the final determination for inadvertently discovered, a preservation or mitigation plan shall be approved by the department in consultation with any lineal descendants, the respective council, other appropriate Hawaiian organizations, and any affected property owner.
(e) Should the burial site prove to be other than Hawaiian, the department, within thirty days shall determine whether preservation in place or relocation is warranted, and within an additional ninety days a preservation or mitigation plan shall be approved by the department in consultation with any lineal descendants, appropriate ethnic organizations, and any affected property owner." SECTION 2. Section 6E-43.5, Hawaii Revised Statutes, is amended to read as follows:
"§6E-43.5 Island burial councils; creation; appointment; composition; duties. (a) The department shall establish island burial councils for Hawaii, Maui/Lanai, Molokai, Oahu, and Kauai/Niihau, to implement section 6E-43.
(b) 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. The department shall
develop the list in consultation with appropriate Hawaiian organizations[
such as Hui Malama I Na Kupuna O Hawai`i Nei]. 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. Regional representatives shall be selected from the Hawaiian
community on the basis of their understanding of the culture, history, burial
beliefs, customs, and practices of native Hawaiians. 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
(c) The department, in consultation with the
councils, office of Hawaiian affairs, representatives of development and large
property owner interests, and appropriate Hawaiian organizations[
, such as
Hui Malama I Na Kupuna O Hawai`i Nei,] shall adopt rules pursuant to
chapter 91 necessary to carry out the purposes of this section. The council
members shall serve without compensation, but shall be reimbursed for necessary
expenses incurred during the performance of their duties. The councils shall
be a part of the department for administrative purposes.
(d) The councils shall hold meetings and acquire information as they deem necessary and shall communicate their decisions, findings and recommendations to the department. Notwithstanding section 92-3, whenever the location and description of burial sites are under consideration, the councils may hold closed meetings. Concurrence of a majority of the members present at a meeting shall be necessary to make any action of a council valid.
(e) Department records relating to the location and description of historic sites, including burial sites, if deemed sensitive by a council or the Hawaii historic places review board, shall be confidential.
(f) The councils shall:
(1) Determine the preservation or relocation of previously identified and inadvertently discovered native Hawaiian burial sites;
(2) Assist the department in the inventory and identification of native Hawaiian burial sites;
(3) Make recommendations regarding appropriate management, treatment, and protection of native Hawaiian burial sites, and on any other matters relating to native Hawaiian burial sites;
(4) Elect a chairperson for a four-year term who shall serve for not more than two consecutive terms; and
(5) Maintain a list of appropriate Hawaiian organizations, agencies, and offices to notify regarding the discovery of remains."
SECTION 3. Section 6E-43.6, Hawaii Revised Statutes, is amended to read as follows:
"§6E-43.6 Inadvertent discovery of burial sites. (a) In the event human skeletal remains are inadvertently discovered, any activity in the immediate area that could damage the remains or the potential historic site shall cease until the requirements of subsections (b) to (d) have been met.
(b) The discovery shall be reported as soon as possible to the department, the appropriate medical examiner or coroner, and the appropriate police department. As soon as practicable, the department shall notify the appropriate council and the office of Hawaiian affairs.
(c) After notification of the discovery of
multiple skeletons, the following shall be done within [
working days, if on Oahu, and [ three]four working days, if in
other council jurisdictions:
(1) A representative of the medical examiner or coroner's office and a qualified archaeologist shall examine the remains to determine jurisdiction. If the remains are the responsibility of the medical examiner or coroner, the department's involvement shall end. If the remains are historic or prehistoric burials, then the remainder of this section shall apply;
(2) The department shall gather sufficient
information, including oral tradition, to document the nature of the burial
context and [
determine] assist in the determination of
appropriate treatment of the remains as set forth in section 6E-43.
Members of the appropriate council shall be allowed to oversee the on-site
examination and, if warranted, removal; and
(3) If removal of the remains is warranted,
based on criteria developed by the department, in consultation with the
councils, office of Hawaiian affairs, representatives of development and large
property owner interests, and appropriate Hawaiian organizations, such as Hui
Malama I Na Kupuna O Hawai`i Nei, through rules adopted pursuant to chapter 91,
the removal of the remains shall be overseen by a qualified archaeologist and a
mitigation plan shall be prepared by the department or with the concurrence of
(d) In cases involving the discovery of a
single skeleton, the requirements of subsection (c) shall be fulfilled in [
working [ day] days if on Oahu, and [ two]three
working days if in other council jurisdictions.
(e) The mitigation plan [
developed by or
with the concurrence of the department pursuant to subsection (c)(3)] shall
be carried out in accordance with the following:
(1) In discoveries related to development where land alteration project activities exist, the landowner, permittee, or developer shall be responsible for the execution of the mitigation plan including relocation of remains. Justifiable delays resulting from the discovery of burials shall not count against any contractor's completion date agreement;
(2) Project activities shall resume once necessary archaeological excavations provided in the mitigation plan have been completed;
(3) In nonproject contexts, the department shall be responsible for the execution of the mitigation plan and the relocation of remains; and
(4) The department shall verify the successful execution of the mitigation plan.
(f) In cases where remains are
archaeologically removed, the department shall determine the place of
relocation, after consultation with the appropriate council, affected property
owners, representatives of the relevant ethnic group, and any identified lineal
, as appropriate]. Relocation shall conform with
requirements imposed by the department of health, and may be accompanied by
traditional ceremonies, as determined by the lineal descendants, or, if no
lineal descendants are identified, the appropriate council or representatives
of the relevant ethnic group that the department deems appropriate. Specific
or special reinterment requests from lineal or cultural descendants may be
accommodated provided that the additional expenses incurred are paid by the
(g) If human skeletal remains are discovered in the course of land development or land alteration activities to which section 6E-42 applies, and for which the required approval was not obtained, all activity in the immediate area that could damage the remains or the potential historic site shall cease, and treatment of the remains shall be allowed only in compliance with section 6E-43."
SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 5. This Act shall take effect upon its approval.