Hawaii-2010-SB2302-Introduced

SECTION 1. In Hawaiian culture, ancestral bones, or iwi, possess a person's mana, or spiritual essence, and were, thus, considered sacred. For Hawaiians today, the proper and respectful treatment of ancestral bones remains essential to avoid insulting the person's spirit and bringing trauma and harm to living descendants.

While it is the wish of many Hawaiians that ancestral bones be left in place and undisturbed, construction in our Islands has often resulted in the accidental disturbing of ancient burial sites and the disinterring of human remains.

In 1990, the legislature provided for the creation of island burial councils (Act 306, Session Laws of Hawaii 1990), and reaffirmed its belief that these burial sites and culturally affiliated human remains are a sacred trust for the benefit of all the people of Hawaii, and are entitled to proper care and protection. And yet, the legislature finds that conflicts and litigation still arise when ancient burial sites are inadvertently unearthed during construction, as has happened with the Hokulia subdivision in South Kona on the island of Hawaii, the Wal-Mart and Ward Village projects in urban Honolulu, and the Brescia house construction in Wainiha, Kauai.

The legislature believes that the laws regarding ancient burial sites would best be served by placing control over the use and protection of these sites under the purview of the office of Hawaiian affairs.

It is therefore the purpose of this Act 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. The Act also transfers oversight over burial sites in the Kaho`olawe island reserve from the Kaho`olawe island reserve commission to the office of Hawaiian affairs. Finally, this Act expands the protections afforded to ancient Hawaiian burial sites to burials found in caves, lava tubes, and the like.

SECTION 2. Chapter 10, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part

BURIAL SITES AND NATIVE HAWAIIAN REMAINS

§10-A Definitions. As used in this part:

"Burial good" means any item reasonably believed to have been intentionally placed with the human skeletal remains of an individual or individuals at the time of burial.

"Burial site" means any specific marked or unmarked location where prehistoric or historic human skeletal remains that may be of native Hawaiian origin and their associated burial goods are interred, and its immediate surrounding archaeological context.

"Council" or "burial council" means the island burial councils established pursuant to section 10-D. Where the context relates to a specific burial site, the term "appropriate burial council" means the burial council designated for the particular island or island group where the burial site is located.

"Human skeletal remains" or "remains" means the body or any part of the body of a deceased human being.

"Mitigation plan" means a plan, approved by the office, for the care and disposition of burial sites or the contents thereof, that may include monitoring, protection, restoration, and interpretation plans.

"Person" means any individual, firm, corporation, partnership, or association.

§10-B Functions and responsibilities of the office of Hawaiian affairs. The office of Hawaiian affairs shall be responsible for the preservation and protection of native Hawaiian burial sites as well as human skeletal remains and related burial goods of ancient origin.

The office of Hawaiian affairs shall have the power and duty to inspect any site where human skeletal remains or burial goods that may be of Hawaiian origin are discovered or unearthed; to determine and oversee the appropriate disposition of the remains or burial goods; and to take any and all actions necessary to enforce this part.

§10-C Administration and staffing. There is created a division within the office of Hawaiian affairs, headed by a deputy administrator, to carry out the purposes of this part.

The deputy administrator may employ and retain such officers and employees as may be necessary to carry out the functions of this part. The officers and employees may be hired without regard to chapter 76, and shall serve at the pleasure of the administrator.

The board of trustees may delegate to the deputy administrator any powers and duties conferred upon the office of Hawaiian affairs under this part, except the power to adopt and amend rules as may be necessary for the proper administration of this part.

§10-D Island burial councils; creation; appointment; composition. (a) There shall be established island burial councils for the islands of Hawaii; Maui, Lanai, and Molokai; Oahu; and Kauai and Niihau, to implement this part. The councils shall be attached to the office for administrative purposes.

(b) Appointment of members to the councils shall be made by the governor, in accordance with section 26-34, from a list of nominees submitted by the office of Hawaiian affairs.

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) Council members shall serve without compensation, but shall be reimbursed for necessary expenses incurred during the performance of their duties.

§10-E Island burial councils; meetings; records; confidentiality. (a) Island burial councils shall hold meetings and acquire information as they deem necessary and shall communicate their findings and recommendations to the office.

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.

(b) Records of the councils or the office of Hawaiian affairs 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.

§10-F Powers and duties of island burial councils. Island burial councils shall:

(1) Determine the preservation or relocation of previously identified native Hawaiian burial sites;

(2) With the assistance of the historic preservation division of the department of land and natural resources, inventory and identify 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; and

(4) Maintain a list of appropriate Hawaiian organizations, agencies, and offices to be notified regarding the discovery of human skeletal remains.

§10-G Prehistoric and historic burial sites. (a) At any site, other than a known, maintained, and 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 approval of the office.

(b) All burial sites are significant and shall be preserved in place until compliance with this part is met.

(c) Should the burial site appear or be proved to be other than of native Hawaiian origin, the office or the appropriate island burial council shall relinquish control over the site to the department of land and natural resources, which shall proceed pursuant to chapter 6E.

§10-H 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 this part have been met.

(b) The discovery shall be immediately reported to the office, the appropriate medical examiner or coroner, and the appropriate police department.

(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 office's involvement shall end. If the remains are historic or prehistoric burials, then this part shall apply;

(2) The office 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 burial 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 office, the removal shall be overseen by a qualified archaeologist and a mitigation plan shall be prepared.

(d) In cases involving the discovery of a single skeleton, the requirements of subsection (c) shall be fulfilled in one working day if on Oahu, and two working days if in other burial council jurisdictions.

§10-I Preservation in place or removal of remains; criteria. (a) The appropriate island burial council shall determine whether preservation in place or relocation of native Hawaiian remains or burial sites are warranted based upon criteria developed by the office through rules adopted pursuant to chapter 91.

(b) The criteria shall recognize that:

(1) Burial sites of high preservation value, such as areas with a concentration of skeletal remains;

(2) Prehistoric or historic burials associated with important individuals and events;

(3) Areas that are within a context of historic properties; and

(4) Burials that have known lineal descendants,

shall receive greater consideration for preservation in place.

(c) A burial council's determination shall be rendered within forty-five days of referral unless otherwise extended by agreement between the landowner and the office.

(d) Burial council determinations may be administratively appealed to a panel composed of three council chairpersons and three members appointed by the office of Hawaiian affairs as a contested case pursuant to chapter 91.

§10-J Removal of remains; mitigation plans. (a) After a final determination that human skeletal remains and related burial goods shall be removed and relocated, a mitigation plan shall be developed and 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 the remains. Justifiable delays resulting from the discovery of burials shall not count against any contractor's completion date agreement;

(2) Project activities may resume once necessary archaeological excavations provided in the mitigation plan have been completed;

(3) In the context of a discovery other than through construction or other project activities, the office of Hawaiian affairs shall be responsible for the execution of the mitigation plan and the relocation of the remains; and

(4) The office shall verify the successful execution of the mitigation plan.

(b) In cases where human skeletal remains and related burial goods are archaeologically removed, the office of Hawaiian affairs shall determine the place of relocation, after consultation with the appropriate burial council, affected property owners, representatives of the interested groups, 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 burial council or representatives of the relevant interest group that the office deems appropriate. Specific or special re-interment requests from lineal or cultural descendants may be accommodated provided that any additional expenses incurred are paid by the requesting party.

§10-K Burial discovered in cave, lava tube, and the like. Any person traversing a cave, lava tube, or the like, and who discovers a burial site, shall immediately cease any activity and leave the area. The discovery shall be reported immediately to the office or to a law enforcement officer who shall transmit the information to the office.

The office shall investigate the report and, if it appears that the burial site is of native Hawaiian origin, shall proceed pursuant to this part. If the burial appears to be of other than native Hawaiian origin, the office shall inform the department of land and natural resources who shall proceed with the site pursuant to chapter 6E.

§10-L Kaho`olawe island reserve. Within the Kaho`olawe island reserve as defined in section 6K-2, the office of Hawaiian affairs and the island burial council for the islands of Maui, Lanai, and Molokai, shall carry out the powers and duties conferred by this part with regard to proper treatment of burial sites and human skeletal remains found in the island reserve.

§10-M Civil and administrative violations. (a) 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 office, to knowingly fail to re-inter human remains discovered on the lands in a reasonable period of time as determined by the office, or to knowingly violate the conditions set forth in an approved mitigation plan that includes monitoring and preservation plans.

(d) It shall be a civil and administrative violation for any person who inadvertently discovers a burial site to fail to stop work in the immediate area and report the discovery, as required by this part.

(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, except as permitted by the office.

(f) Any person who violates this section shall be fined not more than $10,000 for each separate violation. If the violator directly or indirectly has caused the loss of, or damage to, any burial site, the violator shall be fined an additional amount to be equivalent to the value of the lost or damaged burial site. Each day of continued violation of this section shall constitute a distinct and separate violation for which the violator may be punished.

(g) Equipment used by a violator for the taking, appropriation, excavation, injury, destruction, or alteration of any burial site, or for the transportation of the violator to or from the burial site, shall be subject to seizure and disposition by the State without compensation to its owner or owners.

§10-N Reproductions, forgeries, and illegal sales. (a) It shall be unlawful to reproduce, retouch, rework, or forge any human remains or burial goods associated with the native Hawaiian people or purported to be of native Hawaiian origin.

(b) It shall be unlawful for any person to offer for sale or exchange, or to purchase or acquire, any exhumed prehistoric or historic human remains or associated burial goods with the knowledge that it has been collected or excavated in violation of any of the terms of this part.

(c) It shall be unlawful for any person to remove those goods or remains, except those remains fabricated into artifacts prehistorically, from the jurisdiction of the State without obtaining a permit from the office.

(d) Any person violating this section shall be fined no more than $10,000. Each object or part of a prehistoric or historic human skeleton or associated burial good offered for sale or trade or removed from the jurisdiction in violation of this section shall constitute a distinct and separate offense.

§10-O Taking, appropriation, excavation, injury, destruction, or alteration of a burial site; penalty. (a) A person commits the offense of taking, appropriation, excavation, injury, destruction, or alteration of a burial site if the person knowingly 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 office.

(b) Taking, appropriation, excavation, injury, destruction, or alteration of a burial site is a misdemeanor for which a fine not to exceed $25,000 may be imposed, in addition to any other penalty authorized by chapter 706 for a misdemeanor.

§10-P Failure to stop work upon discovery of a burial site; penalty. (a) A person commits the offense of failure to stop work upon discovery of a burial site if the person discovers a burial site and knowingly fails to stop work in the immediate area and report the discovery as required by this part.

(b) It is not a defense to the prosecution for a violation of this section that the discovery of the burial site was inadvertent.

(c) Failure to stop work upon discovery of a burial site is a misdemeanor for which a fine not to exceed $25,000 may be imposed in addition to any other penalty authorized by chapter 706 for a misdemeanor.

(d) Each day of a continued violation of this section shall constitute a distinct and separate offense.

§10-Q Criminal penalties not in lieu of civil or administrative penalties. The criminal penalties imposed by this part are in addition to, and not in lieu of, any civil or administrative penalties provided by law.

§10-R Part not applicable to family burial plots. Nothing in this part shall apply to land altering activities related to family burial plots under section 441-5.5.

§10-S Burial sites special fund. (a) There is established the burial sites special fund, into which shall be deposited:

(1) Revenues from the conveyance tax as provided in section 247-7;

(2) Fees and penalties relating to burial sites as provided in this part;

(3) Appropriations by the legislature to the special fund;

(4) Gifts, grants, and other funds accepted by the office for the purposes of this part; and

(5) All interest and other revenues or receipts derived by the office pursuant to this part.

(b) Moneys in the burial sites special fund may be:

(1) Placed in interest-bearing accounts; provided that the depository in which the money is deposited furnishes security as provided in section 38-3; or

(2) Otherwise invested by the office until such time as the moneys may be needed; provided that the office shall limit its investments to those listed in section 36-21.

§10-T Rules. The office of Hawaiian affairs may adopt rules pursuant to chapter 91 to effectuate the purposes of this part, and to carry out its duties to protect and preserve native Hawaiian burials, burial sites, and burial goods."

SECTION 3. 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. The department shall follow the procedures described in section 6E-43.6.~~] office of Hawaiian affairs."

SECTION 4. Section 6E-2, Hawaii Revised Statutes, is amended by amending the definitions of "burial site" and "historic property" to read as follows:

""Burial site" means any specific unmarked location where [~~prehistoric or historic~~] human skeletal remains and their associated burial goods are interred, and its immediate surrounding archaeological context, deemed a unique class of historic property and not otherwise included in section 6E-41. The term "burial site" as used in this chapter shall not include prehistoric or historical burial sites associated with the native Hawaiian people.

"Historic property" means any building, structure, object, district, area, or site, including heiau and underwater site, which is over fifty years old[.]; provided that "historic property" shall not include a prehistoric or historic burial site associated with the native Hawaiian people for the purposes of this chapter."

SECTION 5. Section 6E-7, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read as follows:

"(a) All historic property located on lands or under waters owned or controlled by the State shall be the property of the State. [~~The~~] Except for prehistoric and historic burial sites associated with the native Hawaiian people, control and management of the historic property shall be vested in the department."

2. By amending subsection (d) to read as follows:

"(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 appropriate island burial council~~]."

SECTION 6. Section 6E-8, Hawaii Revised Statutes, is amended to read as follows:

"§6E-8 Review of effect of proposed state projects. (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. The proposed project shall not be commenced, or in the event it has already begun, continued, until the department shall have given its written concurrence.

The department is to 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 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.

(b) The department of Hawaiian home lands, prior to any proposed project relating to lands under its jurisdiction, shall consult with the department regarding the effect of the project upon historic property or a burial site.

(c) The State, its political subdivisions, agencies, and officers shall report to the department the finding of any historic property during any project and shall cooperate with the department in the investigation, recording, preservation, and salvage of the property.

(d) Where the project may affect or impact a prehistoric or historic burial site that may be associated with the native Hawaiian people, or where a burial site is discovered during any phase of the development, the State, political subdivision, agency, or officer shall report promptly to the office of Hawaiian affairs the finding of the burial site, and shall proceed with the development only pursuant to the procedures of part _____ of chapter 10."

SECTION 7. Section 6E-11, Hawaii Revised Statutes, is amended by amending subsection (d) to read as follows:

"(d) It shall be a civil and administrative violation for any person who inadvertently discovers a burial site to fail to stop work in the immediate area and report the discovery[~~, as required by section 6E-43.6.~~] to the department and to the office of Hawaiian affairs."

SECTION 8. Section 6E-12, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (b) to read:

"(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."

2. By amending subsection (d) to read:

"(d) Any person violating this section shall be fined no more than $10,000. Each object or part of a [~~prehistoric or historic~~] human skeleton or associated burial good offered for sale or trade or removed from the jurisdiction in violation of this section shall constitute a distinct and separate offense for which the offender may be punished."

SECTION 9. Section 6E-41, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) [~~Any~~] Except for a prehistoric or historic burial site that may be associated with the native Hawaiian people, 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."

SECTION 10. Section 6E-43, Hawaii Revised Statutes, is amended to read as follows:

"§6E-43 [~~Prehistoric and historic burial~~] 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 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 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 shall be rendered within forty-five days of referral by the department unless otherwise 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, 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]. Burial sites that may be of native Hawaiian origin shall immediately be reported to the office of Hawaiian affairs.

[~~(e)~~] (c) 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 11. Section 6E-73, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) A person commits the offense of failure to stop work upon discovery of a burial site if the person discovers a burial site and knowingly fails to stop work in the immediate area and report the discovery as required by [~~section 6E-43.6.~~] this chapter and part of chapter 10."

SECTION 12. 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 with regard to proper treatment of burial sites and human skeletal remains found in the island reserve;

~~(9)~~] (8) 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)~~] (9) 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)~~] (10) 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 13. 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 as provided in part ; and

[~~(9)~~] (10) Adopt and use a common seal by which all official acts shall be authenticated."

SECTION 14. Section 247-7, Hawaii Revised Statutes, is amended to read as follows:

"§247-7 Disposition of taxes. All taxes collected under this chapter shall be paid into the state treasury to the credit of the general fund of the State, to be used and expended for the purposes for which the general fund was created and exists by law; provided that of the taxes collected each fiscal year:

(1) Ten per cent shall be paid into the land conservation fund established pursuant to section 173A-5;

(2) Twenty-five per cent from July 1, 2009, until June 30, 2012, and thirty per cent in each fiscal year thereafter shall be paid into the rental housing trust fund established by section 201H-202; [~~and~~]

(3) Twenty per cent from July 1, 2009, until June 30, 2012, and twenty-five per cent in each fiscal year thereafter shall be paid into the natural area reserve fund established by section 195-9; provided that the funds paid into the natural area reserve fund shall be annually disbursed by the department of land and natural resources in the following priority:

(A) To natural area partnership and forest stewardship programs after joint consultation with the forest stewardship committee and the natural area reserves system commission;

(B) Projects undertaken in accordance with watershed management plans pursuant to section 171-58 or watershed management plans negotiated with private landowners, and management of the natural area reserves system pursuant to section 195-3; and

(4) Ten per cent shall be paid into the burial sites special fund established pursuant to section 10-S."

SECTION 15. Section 338-25.5, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:

"(b) Notwithstanding the provisions of subsection (a), the department of land and natural resources pursuant to [~~sections~~] section 6E-43 and [~~6E-43.6~~] the office of Hawaiian affairs pursuant to part of chapter 10, may authorize exposure, removal, disinterment, or any other act without obtaining a permit from the department of health."

SECTION 16. Section 6E-43.5, Hawaii Revised Statutes, is repealed.

["~~§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 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.

(d) The councils shall hold meetings and acquire information as they deem necessary and shall communicate their 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 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 17. Section 6E-43.6, Hawaii Revised Statutes, is repealed.

["~~§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 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 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, 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.

(d) In cases involving the discovery of a single skeleton, the requirements of subsection (c) shall be fulfilled in one working day if on Oahu, and two 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 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.

(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 18. All rights, powers, functions, and duties of the department of land and natural resources, the historic preservation division, and the Kaho`olawe island reserve commission 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 19. 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, the historic preservation division, and the Kaho`olawe island reserve commission relating to the functions transferred to the office of Hawaiian affairs shall be transferred with the functions to which they relate.

SECTION 20. All rules, policies, procedures, guidelines, and other material adopted or developed by the department of land and natural resources, the historic preservation division, and the Kaho`olawe island reserve commission 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, the historic preservation division, or the Kaho`olawe island reserve commission in those rules, policies, procedures, guidelines, and other material is amended to refer to the office of Hawaiian affairs or the chair of the board of trustees as appropriate.

SECTION 21. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 22. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 23. This Act shall take effect on July 1, 2010.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2302
TWENTY-FIFTH LEGISLATURE, 2010
STATE OF HAWAII