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HOUSE OF REPRESENTATIVES |
H.C.R. NO. |
193 |
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THIRTY-THIRD LEGISLATURE, 2025 |
H.D. 1 |
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STATE OF HAWAII |
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HOUSE CONCURRENT
RESOLUTION
WHEREAS, the Legislature recognizes that it is the State's duty to protect the Native Hawaiian cultural and religious practice of caring for iwi kūpuna pursuant to article XII, section 7, of the Hawaii State Constitution; and
WHEREAS, in enacting Act 104, Session Laws of Hawaii 1976, which established chapter 6E, Hawaii Revised Statutes, to codify the State's Historic Preservation program, the Legislature recognized and declared that historic properties and burial sites are included in the State's public trust, stating that "it shall be the public policy of this State to provide leadership in preserving, restoring, and maintaining historic and cultural property, to ensure the administration of such historic and cultural property in a spirit of stewardship and trusteeship for future generations, and to conduct activities, plans, and programs in a manner consistent with the preservation and enhancement of historic and cultural property"; and
WHEREAS, in 1990, the Legislature amended section 6E-43, Hawaii Revised Statutes, to include language stating that "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"; and
WHEREAS, the amendments made to section 6E-43, Hawaii Revised Statutes, also included language stating that "all burial sites are significant and shall be preserved in place until compliance with this section is met"; and
WHEREAS, chapter 10H, Hawaii Revised Statutes, formally recognizes Native Hawaiians as the "only indigenous, aboriginal, maoli people of Hawaii" and facilitates and furthers Native Hawaiian self-governance; and
WHEREAS, the United Nations Declaration on the Rights of Indigenous Peoples states that "[i]ndigenous peoples have the right to self-determination", the "right to maintain, protect, and have access...to their religious and cultural sites", and "repatriation of their human remains"; and
WHEREAS, the State and this body recognize that the Office of Hawaiian Affairs was constitutionally established as a trust vehicle to act on behalf of Native Hawaiians until a Native Hawaiian governing entity could be reestablished; and
WHEREAS, the State Historic Preservation Division of the Department of Land and Natural Resources was established to administer a comprehensive historic preservation program pursuant to chapter 6E, Hawaii Revised Statutes; and
WHEREAS, the State Historic Preservation Division is tasked with the identification and protection of historic burial sites, and, with respect to Native Hawaiian burial sites, is tasked with sharing decision-making over relocation or preservation in place, transfer, or other disposition of previously identified Native Hawaiian burial sites, with the State's island burial councils that were established pursuant to section 6E-43.5, Hawaii Revised Statutes; and
WHEREAS, pursuant to H.R. No. 113, H.D. 1 (2021), and S.R. No. 171, S.D. 1 (2021), the Office of Hawaiian Affairs convened a Burial Sites Working Group in 2022 to investigate the matter of burial site treatment and to offer recommendations for improvements; and
WHEREAS, the Burial Site Working Group took extensive community testimony as part of its fact-finding mandate and in its final report dated February 2023, made three key findings:
(1) The State had failed to adequately manage its burial law responsibilities, including a failure to provide, or advocate for the provision of, adequate resources to administer burial laws and a failure to adequately administer laws intended to protect Native Hawaiian burial sites;
(2) The State has demonstrated a lack of will to fulfill its burial law responsibilities; and
(3) There are fundamental inadequacies in the laws affecting burial sites; and
WHEREAS, an opinion editorial entitled "Place the Kuleana with OHA", authored by Dr. Kēhaulani Abad and Edward Halealoha Ayau, a burial site expert and one of three authors of the 1990 amendments made to chapter 6E, Hawaii Revised Statutes, that established the island burial councils, was published in the June 1 issue of Ka Wai Ola and opined that the most effective manner by which to improve the care and protection of unmarked burial sites over fifty years old and the Hawaiian human remains inadvertently discovered is to transfer the burial site program from the State Historic Preservation Division to the Office of Hawaiian Affairs; and
WHEREAS, section 10-3(3), Hawaii Revised Statutes, requires that the Office of Hawaiian Affairs serve as "the principal public agency in this State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians"; and
WHEREAS, section 10-3(4), Hawaii Revised Statutes, requires that the Office of Hawaiian Affairs advance the betterment of Native Hawaiians by assessing the effects of policies and practices of other state agencies on Native Hawaiians; and
WHEREAS, the State Historic Preservation Division and Office of Hawaiian Affairs have identified several reoccurring challenges regarding both the Burial Sites Program and the Island Burial Councils; and
WHEREAS, occasionally, the State Historic Preservation Division faces potential conflicts of interest, or the appearance of conflicts of interest, resulting from historic preservation reviews, inadvertent discoveries, descendancy claims, and making recommendations to the Island Burial Councils; and
WHEREAS, these potential conflicts of interest may be resolved by transferring parts of the Burial Sites Program to another agency; now, therefore,
BE IT RESOLVED by the House of Representatives of the Thirty-third Legislature of the State of Hawaii, Regular Session of 2025, the Senate concurring, that the Office of Hawaiian Affairs is requested to convene a working group to examine and consider the transfer of Native Hawaiian burial site management under chapter 6E, Hawaii Revised Statutes, from the State Historic Preservation Division to the Office of Hawaiian Affairs; and
BE IT FURTHER RESOLVED that the working group is requested to:
(1) Identify and determine which duties and responsibilities of the State Historic Preservation Division regarding the protection of Native Hawaiian burial sites and administration of the Island Burial Councils under chapter 6E, Hawaii Revised Statutes, may be shared with or assumed by the Office of Hawaiian Affairs;
(2) Consider the staff and financial resources of the Office of Hawaiian Affairs, legal requirements, technological needs, and other relevant factors in determining the feasibility of the Office of Hawaiian Affairs assuming these duties and responsibilities;
(3) Develop and recommend an implementation plan and associated timeline for the transfer of any duties, including any necessary statutory and administrative amendments to effectuate the transfer;
(4) Consider in its discussions whether implementing the recommendations made in the final report of the Burial Sites Working Group may improve the operation of the burial sites program and protection of Native Hawaiian burial sites;
(5) Identify and consider issues to improve legislation and develop recommendations for improving the process of protecting Native Hawaiian burial sites and the effectiveness of the current burial sites program under the State Historic Preservation Division; and
(6) Submit a report of its findings and recommendations, including any proposed legislation, to the Legislature no later than twenty days prior to the convening of the Regular Session of 2027; and
BE IT FURTHER RESOLVED that the working group is requested to consist of the following members:
(1) Two members representing the State Historic Preservation Division;
(2) Two members representing the Office of Hawaiian Affairs;
(3) One member from each Island Burial Council, to be selected by a majority vote of its respective members; and
(4) Five members from the community that self-identify and represent unique Native Hawaiian organizations with expertise and experience in protecting Native Hawaiian burial sites, to be selected randomly by the working group from a list of submitted names; and
BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, Attorney General, Chief Executive Officer of the Office of Hawaiian Affairs, Branch Chief of the History and Culture Branch of the State Historic Preservation Division, and Chairperson of each Island Burial Council.