Bill Text: HI HB2240 | 2010 | Regular Session | Introduced
Bill Title: Office of Hawaiian Affairs; Burial Sites
Spectrum: Partisan Bill (Democrat 8-0)
Status: (Introduced - Dead) 2010-02-03 - (H) The committee(s) recommends that the measure be deferred. [HB2240 Detail]
Download: Hawaii-2010-HB2240-Introduced.html
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HOUSE OF REPRESENTATIVES |
H.B. NO. |
2240 |
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TWENTY-FIFTH LEGISLATURE, 2010 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
RELATING TO THE OFFICE OF HAWAIIAN AFFAIRS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The purpose of this Act is to transfer the functions and responsibilities for the preservation and protection of native Hawaiian burial sites, as well as the island burial councils, from the historic preservation division of the department of land and natural resources to the office of Hawaiian affairs. Oversight of historic cemeteries and burial sites of other cultural groups shall remain in the historic preservation division.
SECTION 2. Section 6D-8, Hawaii Revised Statutes, is amended to read as follows:
"[[]§6D-8[]]
Burial discovery. Anyone traversing a cave who discovers a burial site
shall immediately cease their activity and leave the cave. The discovery shall
be reported as soon as possible to the department[.] and the office
of Hawaiian affairs. The department shall follow the procedures described
in section 6E-43.6."
SECTION 3. Section 6E-3, Hawaii Revised Statutes, is amended to read as follows:
"§6E-3 Historic preservation program. There is established within the department a division to administer a comprehensive historic preservation program, which shall include but not be limited to the following:
(1) Development of an on-going program of historical, architectural, and archaeological research and development, including surveys, excavations, scientific recording, interpretation, and publications on the State's historical and cultural resources;
(2) Acquisition of historic or cultural properties, real or personal, in fee or in any lesser interest, by gift, purchase, condemnation, devise, bequest, land exchange, or other means; preservation, restoration, administration, or transference of the property; and the charging of reasonable admissions to that property;
(3) Development of a statewide survey and inventory to identify and document historic properties, aviation artifacts, and burial sites, including all those owned by the State and the counties;
(4) Preparation of information for the Hawaii register of historic places and listing on the national register of historic places;
(5) Preparation, review, and revisions of a state historic preservation plan, including budget requirements and land use recommendations;
(6) Application for and receipt of gifts, grants, technical assistance, and other funding from public and private sources for the purposes of this chapter;
(7) Provision of technical and financial assistance to the counties and public and private agencies involved in historic preservation activities;
(8) Coordination of activities of the counties in accordance with the state plan for historic preservation;
(9) Stimulation of public interest in historic preservation, including the development and implementation of interpretive programs for historic properties listed on or eligible for the Hawaii register of historic places;
(10) Coordination of the evaluation and management of burial sites as provided in section 6E-43; provided that any burial site of native Hawaiian origin shall be evaluated and managed by the office of Hawaiian affairs;
(11) Acquisition of burial sites in fee or in any lesser interest, by gift, purchase, condemnation, devise, bequest, land exchange, or other means, to be held in trust;
(12) Submittal of an annual report to the governor and legislature detailing the accomplishments of the year, recommendations for changes in the state plan or future programs relating to historic preservation, and an accounting of all income, expenditures, and the fund balance of the Hawaii historic preservation special fund;
(13) Regulation of archaeological activities throughout the State;
(14) Employment of sufficient professional and technical staff for the purposes of this chapter which may be in accordance with chapter 76;
(15) The charging of fees to at least partially defray
the costs of administering [sections 6E-3(13),] paragraph (13) and
sections 6E-8[,] and 6E-42 [of this chapter];
(16) Adoption of rules in accordance with chapter 91, necessary to carry out the purposes of this chapter; and
(17) Development and adoption, in consultation with the office of Hawaiian affairs native Hawaiian historic preservation council, of rules governing permits for access by native Hawaiians and Hawaiians to cultural, historic, and pre-contact sites and monuments."
SECTION 4. Section 6E-7, Hawaii Revised Statutes, is amended by amending subsections (b), (c), and (d) to read as follows:
"(b) The department may dispose of the
historic property subject to chapter 171 and subject further to those
reservations, restrictions, covenants, or conditions [which] that
relate to the preservation of the historic property, such as rights of access,
public visitation, operation, maintenance, restoration, and repair. The
department shall determine the conditions for any research affecting the
historic property and may issue permits for the research[.]; provided
that any burial site of native Hawaiian origin shall be evaluated and managed
by the office of Hawaiian affairs.
(c) The State shall hold known burial sites located on lands or under waters owned or controlled by the State in trust for preservation or proper disposition by the office of Hawaiian affairs and the lineal or cultural descendants.
(d) The State shall not transfer any historic property or aviation artifact under its jurisdiction without the concurrence of the department, and shall not transfer any burial site under its jurisdiction without consulting the office of Hawaiian affairs and the appropriate island burial council."
SECTION 5. Section 6E-8, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Before any agency or officer of the
State or its political subdivisions commences any project which may affect
historic property, aviation artifact, or a burial site, the agency or officer
shall advise the department and allow the department an opportunity for review
of the effect of the proposed project on historic properties, aviation
artifacts, or burial sites, consistent with section 6E-43, especially those
listed on the Hawaii register of historic places[.]; provided that where
the project may affect or impact a prehistoric or historic burial site that may
be associated with the native Hawaiian people, the effect of the proposed
project shall be reviewed by the office of Hawaiian affairs. The proposed
project shall not be commenced, or in the event it has already begun,
continued, until the department or the office of Hawaiian affairs, as
appropriate, shall have given its written concurrence.
The department [is to] or the office
of Hawaiian affairs shall provide written concurrence or non-concurrence within
ninety days after the filing of a request [with the department]. The
agency or officer seeking to proceed with the project, or any person, may
appeal the department's or the office of Hawaiian affairs' concurrence
or non-concurrence to the Hawaii historic places review board. An agency,
officer, or other person who is dissatisfied with the decision of the review
board may apply to the governor, who may request the Hawaii advisory council on
historic preservation to report or who may take action as the governor deems
best in overruling or sustaining the department[.] or the office of
Hawaiian affair."
SECTION 6. Section 6E-11, Hawaii Revised Statutes, is amended as follows:
1. By amending subsection (b) to read as follows:
"(b) It shall be a civil and
administrative violation for any person to knowingly take, appropriate,
excavate, injure, destroy, or alter any burial site, or the contents thereof,
located on private lands or lands owned or controlled by the State or any of
its political subdivisions, except as permitted by the department, to knowingly
fail to re-inter human remains discovered on the lands in a reasonable period
of time as determined by the department, or to knowingly violate the conditions
set forth in an approved mitigation plan that includes monitoring and
preservation plans[.]; provided that, if the burial site, or the
contents thereof, is of native Hawaiian origin the permits, approvals, and
conditions shall be sought from the office of Hawaiian affairs."
2. By amending subsection (e) to read as follows:
"(e) It shall be a civil and
administrative violation for any person to knowingly glue together any human
skeletal remains, label any human skeletal remains with any type of marking
pen, or conduct any tests that destroy human skeletal remains, as defined in
section 6E-2, except as permitted by the department[.] or the office
of Hawaiian affairs, as appropriate."
SECTION 7. Section 6E-12, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) It shall be unlawful for any person to:
(1) Offer for sale or exchange any exhumed prehistoric or historic human skeletal remains or associated burial goods; or
(2) Remove those goods or remains, except those remains fabricated into artifacts prehistorically, from the jurisdiction of the State;
without obtaining a permit from the department[.]
or from the office of Hawaiian affairs if the human skeletal remains or
associated burial goods is of native Hawaiian origin."
SECTION 8. Section 6E-41, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Any person removing or redesignating any cemetery shall comply with the following requirements:
(1) Publish a notice in a newspaper of general circulation in the State, requesting persons having information concerning the cemetery or persons buried in it to report that information to the department;
(2) Photograph the cemetery generally, and take separate photographs of all headstones located in the cemetery;
(3) Turn over to the department all photographs and any other relevant historical records;
(4) Move all headstones to the place of reinterment; and
(5) Obtain the written concurrence of the department
prior to any removal or redesignation if the cemetery has existed for more than
fifty years[.]; provided that if the cemetery is of native Hawaiian
origin, written concurrence of the office of Hawaiian affairs shall be
required."
SECTION 9. Section 6E-42, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) Before any agency or officer of the
State or its political subdivisions approves any project involving a permit,
license, certificate, land use change, subdivision, or other entitlement for
use[, which] that may affect historic property, aviation
artifacts, or a burial site, the agency or office shall advise the department,
or the office of Hawaiian affairs if it is a burial site of native Hawaiian
origin, and prior to any approval allow the department or the office of
Hawaiian affairs an opportunity for review and comment on the effect of the
proposed project on historic properties, aviation artifacts, or burial sites,
consistent with section 6E-43, including those listed in the Hawaii register of
historic places."
SECTION 10. Section 6E-43, Hawaii Revised Statutes, is amended by amending subsections (a) to (d) to read as follows:
"(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[.]; provided that, if the burial site is of native Hawaiian
origin approval shall be required of the office of Hawaiian affairs.
(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
native Hawaiian burial sites is warranted, following criteria [which] that
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] office of Hawaiian affairs
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 days of referral [by the department]
unless otherwise extended by agreement between the landowner and the [department.]
office of Hawaiian affairs.
(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] trustees
of the office of Hawaiian affairs as a contested case pursuant to chapter
91. In addition to the six members, the chairperson of the board of [land
and natural resources] trustees of the office of Hawaiian affairs
shall preside over the contested case and vote only in the event of a tie.
(d) Within ninety days following the final
determination, a preservation or mitigation plan shall be approved by the [department]
office of Hawaiian affairs in consultation with any lineal descendants,
the respective council, other appropriate Hawaiian organizations, and any
affected property owner."
SECTION 11. 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] office
of Hawaiian affairs 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]
office of Hawaiian affairs 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,] office of
Hawaiian affairs, 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]
office of Hawaiian affairs for administrative purposes.
(d) The councils shall hold meetings and
acquire information as they deem necessary and shall communicate their findings
and recommendations to the [department.] office of Hawaiian affairs.
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] 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 native Hawaiian burial sites;
(2) Assist the department and the office of Hawaiian affairs 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 12. 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 working days, if on Oahu, and three 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 or the office of Hawaiian affairs, as appropriate, shall gather sufficient information, including oral tradition, to document the nature of the burial context and determine appropriate treatment of the remains. 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[,] or office of Hawaiian
affairs, as appropriate, 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[.] or the office of Hawaiian affairs, as appropriate."
2. By amending subsections (e) and (f) to read:
"(e) The mitigation plan developed by or with the concurrence of the department or the office of Hawaiian affairs 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 or the office of Hawaiian affairs, as appropriate, shall be responsible for the execution of the mitigation plan and the relocation of remains; and
(4) The department or the office of Hawaiian affairs shall verify the successful execution of the mitigation plan.
(f) In cases where remains are archaeologically removed, the department or the office of Hawaiian affairs, as appropriate, 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 or the office of Hawaiian affairs 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 13. Section 6E-72, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) A person commits the offense of taking, appropriation, excavation, injury, destruction, or alteration of a burial site if the person knowingly:
(1) Takes, appropriates, excavates, injures,
destroys, or alters any burial site or the contents thereof, located on private
land or land owned or controlled by the State or any of its political
subdivisions, except as permitted by the department[;] or the office
of Hawaiian affairs if the burial site is of native Hawaiian origin; or
(2) Takes, appropriates, excavates, injures, destroys, or alters any burial site or the contents thereof during the course of land development or land alteration activities to which section 6E-42 applies, without obtaining the required approval."
SECTION 14. Section 6K-6, Hawaii Revised Statutes, is amended to read as follows:
"§6K-6 Responsibilities and duties of the commission. The general administration of the island reserve shall rest with the commission. In carrying out its duties and responsibilities, the commission:
(1) Shall establish criteria, policies, and controls for permissible uses within the island reserve;
(2) Shall approve all contracts for services and rules pertaining to the island reserve;
(3) Shall provide advice to the governor, the department, and other departments and agencies on any matter relating to the island reserve;
(4) Shall provide advice to the office of planning and the department of the attorney general on any matter relating to the federal conveyance of Kaho'olawe;
(5) May enter into curator or stewardship agreements with appropriate Hawaiian cultural and spiritual community organizations for the perpetuation of native Hawaiian cultural, religious, and subsistence customs, beliefs, and practices for the purposes stated in section 6K-3;
(6) Shall carry out those powers and duties otherwise conferred upon the board of land and natural resources and the land use commission with regard to dispositions and approvals pertaining to the island reserve. All powers and duties of the board of land and natural resources and the land use commission concerning dispositions and approvals pertaining to the island reserve are transferred to the commission;
(7) Shall carry out those powers and duties concerning the island reserve otherwise conferred upon the county of Maui by chapter 205A. The powers and duties of the county of Maui and its agencies concerning coastal zone dispositions and approvals pertaining to the island reserve are transferred to the commission;
(8) Shall carry out those powers and duties
concerning the island reserve otherwise conferred upon the island burial
councils and the [department] office of Hawaiian affairs with
regard to proper treatment of burial sites and human skeletal remains found in
the island reserve;
(9) Shall adopt rules in accordance with chapter 91 that are necessary for the purposes of this chapter and shall maintain a record of its proceedings and actions;
(10) May delegate to the executive director or employees of the commission, by formal commission action, such power and authority vested in the commission by this chapter as the commission deems reasonable and proper for the effective administration of this chapter; and
(11) May solicit and accept grants, donations, and contributions for deposit into the Kaho'olawe rehabilitation trust fund to support the purposes of this chapter."
SECTION 15. Section 10-5, Hawaii Revised Statutes, is amended to read as follows:
"§10-5 Board of trustees; powers and duties. The board shall have the power in accordance with law to:
(1) Manage, invest, and administer the proceeds from the sale or other disposition of lands, natural resources, minerals, and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 10-3;
(2) Exercise control over real and personal property set aside to the office by the State of Hawaii, the United States of America, or any private sources, and transferred to the office for native Hawaiians and Hawaiians;
(3) Collect, receive, deposit, withdraw, and invest money and property on behalf of the office;
(4) Formulate policy relating to the affairs of
native Hawaiians and Hawaiians, provided that such policy shall not diminish or
limit the benefits of native Hawaiians under article XII, section 4, of the
state [Constitution;] constitution;
(5) Otherwise act as a trustee as provided by law;
(6) Delegate to the administrator, its officers and employees such powers and duties as may be proper for the performance of the powers and duties vested in the board;
(7) Provide grants to individuals, and public or private organizations to better the conditions of native Hawaiians and Hawaiians consistent with the standards set forth in section 10-17;
(8) Make available technical and financial assistance
and advisory services to any agency or private organization for native Hawaiian
and Hawaiian programs, and for other functions pertinent to the purposes of the
office of Hawaiian affairs. Financial assistance may be rendered through
contractual arrangements as may be agreed upon by the board and any such agency
or organization; [and]
(9) Provide for the preservation and protection of native Hawaiian burial sites; and
[(9)] (10) Adopt and use a common seal by
which all official acts shall be authenticated."
SECTION 16. All rights, powers, functions, and duties of the department of land and natural resources and the historic preservation division relating to native Hawaiian burials are transferred to the office of Hawaiian affairs.
All officers and employees whose functions are transferred by this Act shall be transferred with their functions and shall continue to perform their regular duties upon their transfer, subject to the state personnel laws and this Act.
No officer or employee of the State having tenure shall suffer any loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefit or privilege as a consequence of this Act, and such officer or employee may be transferred or appointed to a civil service position without the necessity of examination; provided that the officer or employee possesses the minimum qualifications for the position to which transferred or appointed; and provided that subsequent changes in status may be made pursuant to applicable civil service and compensation laws.
An officer or employee of the State who does not have tenure and who may be transferred or appointed to a civil service position as a consequence of this Act shall become a civil service employee without the loss of salary, seniority, prior service credit, vacation, sick leave, or other employee benefits or privileges and without the necessity of examination; provided that such officer or employee possesses the minimum qualifications for the position to which transferred or appointed.
If an office or position held by an officer or employee having tenure is abolished, the officer or employee shall not thereby be separated from public employment, but shall remain in the employment of the State with the same pay and classification and shall be transferred to some other office or position for which the officer or employee is eligible under the personnel laws of the State as determined by the head of the department or the governor.
SECTION 17. All appropriations, records, equipment, machines, files, supplies, contracts, books, papers, documents, maps, and other personal property heretofore made, used, acquired, or held by the department of land and natural resources and the historic preservation division relating to the functions transferred to the office of Hawaiian affairs shall be transferred with the functions to which they relate.
SECTION 18. All rules, policies, procedures, guidelines, and other material adopted or developed by the department of land and natural resources and the historic preservation division to implement provisions of the Hawaii Revised Statutes which are reenacted or made applicable to the office of Hawaiian affairs by this Act, shall remain in full force and effect until amended or repealed by the office of Hawaiian affairs pursuant to chapter 91, Hawaii Revised Statutes. In the interim, every reference to the department of land and natural resources or the historic preservation division in those rules, policies, procedures, guidelines, and other material is amended to refer to the office of Hawaiian affairs.
SECTION 19. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 20. This Act shall take effect on July 1, 2010.
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INTRODUCED BY: |
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Report Title:
Office of Hawaiian Affairs; Burial Sites
Description:
Transfers the functions and duties of the historic preservation division of DLNR relating to Hawaiian burial sites to the Office of Hawaiian Affairs.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
