Report Title:

Burial Sites; Burial Councils; Inadvertent Discovery

Description:

Transfers jurisdiction of inadvertently discovered native Hawaiian burial sites and human remains from the department of land and natural resources (DLNR) to the appropriate island burial council.  Provides 60 days for burial council to make a determination on burial site treatment or removal and if the appropriate council cannot make a determination within that time, then DLNR shall make the determination within 30 days.  Allows DLNR to immediately remove a burial site or human remains in case of imminent harm.  (SD1)

THE SENATE	S.B. NO.	2557
TWENTY-FOURTH LEGISLATURE, 2008		S.D. 1
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-2, Hawaii Revised Statutes, is amended by adding three new definitions to be appropriately inserted and to read as follows:

""Inadvertent discovery" means the unanticipated finding of human skeletal remains and any burial goods resulting from unintentional disturbance, erosion, or other ground disturbing activity.

"Prehistoric" means the period prior to and including the year 1778.

"Previously identified" means burial sites containing human skeletal remains and any burial goods identified during archaeological inventory survey and data recovery of possible burial sites, or known through oral or written testimony."

     SECTION 2.  Section 6E-43, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

     "(b)  All burial sites are significant and shall be preserved in place until compliance with this section is met[, except as provided in section 6E-43.6].  The appropriate island burial council shall determine whether preservation in place or relocation of previously identified or inadvertently discovered native Hawaiian burial sites or human remains is warranted[,] by following established and adopted criteria [which].

The criteria used shall include recognition that burial sites of high preservation value, such as [areas]:

(1) Areas with a concentration of skeletal remains[, or prehistoric];

(2) Prehistoric or historic burials associated with important individuals and events[, or areas];

(3) Areas that are within a context of historic properties[,]; or

(4) Areas that 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 shall be rendered within [forty-five] sixty days of [referral by] the department being notified of the discovery unless otherwise extended by agreement between the landowner and the department.  If the appropriate island burial council is unable to render a determination within sixty days, the matter shall be referred to the department which shall have no longer than thirty days to render a determination based on previous recommendations and preliminary findings by the department.

The department may immediately remove, without the need for a determination by the appropriate island burial council, an inadvertently discovered native or non-native Hawaiian burial site or human remains in the situation where said burial site or human remains  are subject to imminent harm and where failure to remove said burial site or human remains would result in their destruction or loss."

     SECTION 3.  Section 6E-43.5, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsections (b) and (c) to read:

     "(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 representatives.

     (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."

     2.  By amending subsection (f) to read:

     "(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 4.  Section 6E-43.6, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsection (c) to read:

     "(c)  After notification of the discovery of multiple skeletons, the following shall be done within [two] five working days, if on Oahu, and [three] seven 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 appropriate treatment of the remains.  If the site appears to be an inadvertently discovered native Hawaiian burial site, then the site shall be referred to the appropriate island burial council to determine whether preservation in place or relocation of the remains are warranted, pursuant to 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 non-native Hawaiian 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 the department."

     2.  By amending subsection (f) to read:

     "(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 descendants, 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 affected descendants."

     SECTION 5.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 6.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 7.  This Act shall take effect upon its approval.