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The Law and American Indian Grave Protection

Hawaii Laws

Summaries follow of burial/archaeological laws yielded through a keyword search for "archaeology" and "burial" on 2001 March 30 at the State Historic Preservation Legislation Database found at the NCSL (National Conference of State Legislatures) web site, that database then updated through 1999. These summaries are reprinted under the Fair Use doctrine of international copyright law which may be found at www4.law.cornell.edu/uscode/17/107.html

http://www.ibsgwatch.org is not responsible for any inaccuracies or timeliness of information.


Code Book: Hawaii Revised Statutes
Citation: 6E- 3
Section Title: Historic preservation program

Summary:

Establishes within the Department of Land and Natural Resources a division to administer a comprehensive historic preservation program to undertake duties to include the following: develop an on-going program of historical, architectural and archeological research and development; acquire, preserve, restore and administer historic or cultural properties; develop a statewide survey and inventory to identify and document historic properties, aviation artifacts and burial sites; prepare information for the Hawaii and national registers of historic places; prepare, review and revise the state historic preservation plan; provide technical and financial assistance to the counties and public and private agencies involved in historic preservation activities; coordinate the evaluation and management of burial sites; acquire burial sites to be held in trust; regulate archeological activities throughout the state; develop and adopt, in consultation with the Office of Hawaiian Affairs native historic preservation council, rules governing permits for access by native Hawaiians and Hawaiians to cultural, historic and pre-contact sites and monuments.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues
Primary Topic: State Historic Preservation Entities
    Secondary Topic:
    • State Preservation Agency / Commission / Trust

Code Book: Hawaii Revised Statutes
Citation: 6E- 5.5
Section Title: Historic preservation program: The Hawaii Historic Places Review Board; creation; powers; appointments; composition

Summary:

Creates the ten-member Hawaii Historic Places Review Board in the Department of Land and Natural Resources. Directs that board shall be appointed by the governor and shall include one professionally qualified archeologist, architect, historian and sociologist, as well as one person knowledgeable in traditional Hawaiian society and culture. Directs the board to undertake the following duties: order and enter historic properties into the Hawaii register of historic places; evaluate and, when appropriate, recommend the nomination of historic properties to the National Register of Historic Places; review the state survey of historic properties and the state historic preservation plan; and maintain the Hawaii register of historic places, including all those listed on the National Register, and a program of notification and publication regarding properties on the registers. Allows the department's determinations made regarding the effect of proposed state projects on historic property, aviation artifacts and burial sites, pursuant to 6E-8, to be appealed to the review board.

Primary Topic: State Historic Preservation Entities

    Secondary Topic:
    • State Review Board

Code Book: Hawaii Revised Statutes
Citation: 6E- 7
Section Title: Historic preservation program: state title to historic property

Summary:

Declares that all historic property located on lands or under waters owned or controlled by the state shall be the property of the state with control and management vested in the Department of Lands and Natural Resources. Enables the department to dispose of the historic property and to subject such properties to reservation, restrictions, covenants or conditions relating to rights of access, public visitation, operation, maintenance, restoration and repair. Authorizes the department to determine the condition for any research affecting the historic property and to issue permits for the research. Directs the state to hold known burial sites on lands or under waters owned or controlled by the state in trust for preservation or proper disposition by the lineal or cultural descendants. Prohibits the state from transferring any historic property or aviation artifact under it jurisdiction without the concurrence of the department or from transferring any burial site without consulting the appropriate island burial council.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Permit / Site Investigation Authority
    • Underwater Archeological Activity
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues
Primary Topic: Publicly Owned / Affected Historic Property--state policy
    Secondary Topic:
    • Use / Preservation / Maintenance

Code Book: Hawaii Revised Statutes
Citation: 6E- 8
Section Title: Historic preservation program: review of effect of proposed state projects

Summary:

Directs any agency or officer of the state or its political subdivisions, before commencing any project which may affect historic property, aviation artifacts or a burial site, to notify the Department of Land and Natural Resources 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 6E-43, especially those listed in the Hawaii register of historic places. Requires that the project should not commence or continue until the department shall have given its written concurrence. Enables the agency or officer seeking to proceed with the project to apply to the governor if concurrence has not been obtained from the department within 90 days of a request. Authorizes the governor to request the Hawaii advisory council on historic preservation to report or to take such action as the governor deems best in overruling or sustaining the department. Directs the Department of Hawaiian Home Lands, prior to any proposed project relating to lands under its jurisdiction, to consult with the Department of Lands and Natural Resources regarding the effect of the project on historic property or a burial site. Requires the state, its political subdivisions, agencies and officers to report to the department the finding of any historic property during any project and to cooperate with the department in the investigation, recording, preservation and salvage of the property.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues
Primary Topic: Publicly Owned / Affected Historic Property--state policy
    Secondary Topic:
    • Review and Compliance
Primary Topic: Specific Historic Property Types
    Secondary Topic:
    • Aircraft

Code Book: Hawaii Revised Statutes
Citation: 6E-11
Section Title: Historic preservation program: penalties

Summary:

Declares it to be unlawful for a person to take, appropriate, excavate, injure, destroy or alter any historic property, aviation artifact or burial site located upon private land without the owner's permission, or any historic property or aviation artifact located upon land owned or controlled by the state or its political subdivisions, except as permitted by the Department of Land and Natural Resources. Directs that any violations against burial sites shall also be subject to prosecution under 711-1107. Directs that any person who violates this section shall be fined not more than $10,000 for each separate offense and for each day of continued violation. Authorizes seizure and disposition by the state without compensation to the owner of any equipment used by the violator in commission of the violation or for transportation to or from the site of the violation. Prohibits any person who violates this section regarding a burial site from participating in the construction of any state or county funded project for ten years.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues
Primary Topic: Specific Historic Property Types
    Secondary Topic:
    • Aircraft

Code Book: Hawaii Revised Statutes
Citation: 6E-12
Section Title: Historic preservation program: reproduction, forgeries and illegal sales

Summary:

Prohibits a person from reproducing, retouching, reworking or forging any historic object and offering it for sale or trade as an original and genuine object. or to offer any historic object for sale or exchange with the knowledge that it has been collected or excavated in violation of any terms of this chapter. Prohibits a person from offering for sale or exchange any exhumed prehistoric or historic human skeletal remains or associated burial goods or to remove those goods or remains from the jurisdiction of the state without a permit from the Department of Land and Natural Resources. Prohibits a person from removing from the jurisdiction of the state aviation artifacts derived from state lands or agencies without obtaining a permit from the department. Declares that any person violating this section shall be fined no more than $10,000. Directs that each object or part of a prehistoric or historic human skeleton or associated burial good offered for sale or trade or removed from the state in violation of this section shall constitute a separate offense.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Violation / Penalty / Enforcement
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues

Code Book: Hawaii Revised Statutes
Citation: 6E-13
Section Title: Historic preservation program: enforcement

Summary:

Enables the attorney general to bring an action in the name of the state in any court of competent jurisdiction for restraining orders and injunctive relief to restrain and enjoin violations or threatened violations of this chapter. Enables any person to maintain an action in the trial court having jurisdiction where the alleged violation occurred or is likely to occur for restraining orders or injunctive relief against the state, its political subdivisions or any person upon a showing of irreparable injury, for the protection of a historic property or burial site from unauthorized or improper demolition, alteration or transfer of the property or burial site.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Violation / Penalty / Enforcement
Primary Topic: Demolition of Designated Historic Property--prohibition / delay
    Secondary Topic:
    • [No secondary topics.]
Primary Topic: Ethnic / Racial Historic Preservation Issues
    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues

Code Book: Hawaii Revised Statutes
Citation: 6E-15
Section Title: Historic preservation program: regulations, special conditions or restriction

Summary:

Enables a political subdivision to provide by regulations, special conditions or restriction of the protection, enhancement, preservation and use of historic properties or burial sites, including appropriate and reasonable control of the use or appearance of adjacent or associated private property within the public view, or both, historic easements, preventing deterioration by willful neglect, permitting the modification of local health and building code provisions and transferring development rights.

Primary Topic: Building Standards

    Secondary Topic:
    • Building Code / Fire Code
Primary Topic: Demolition of Designated Historic Property--prohibition / delay
    Secondary Topic:
    • [No secondary topics.]
Primary Topic: Easements / Property Contracts
    Secondary Topic:
    • [No secondary topics.]
Primary Topic: Preservation Ordinance--local
    Secondary Topic:
    • [No secondary topics.]

Code Book: Hawaii Revised Statutes
Citation: 6E-42
Section Title: Monuments and memorials: review of proposed projects

Summary:

Directs an agency or officer of the state or its political subdivisions to advise the Department of Land and Natural Resources before approving any project involving a permit, license, certificate, land use change, subdivision or other entitlement for use that may affect historic property, aviation artifacts or a burial site. Directs that the department shall be given an opportunity to comment on the effect of the proposed project on historic properties, aviation artifacts or burial sites, consistent with 6E-43, including those listed in the Hawaii register of historic places. Directs the department to inform the public of any project proposals submitted to it under this section that otherwise are not subject to the requirement of a public hearing or other public notification.

Primary Topic: Publicly Owned / Affected Historic Property--state policy

    Secondary Topic:
    • Review and Compliance

Code Book: Hawaii Revised Statutes
Citation: 6E-43
Section Title: Monuments and memorials: prehistoric and historic burial sites

Summary:

Requires approval from the Department of Land and Natural Resources for the removal of human skeletal remains and their associated burial goods from any site where such remains are discovered or are known to be buried and appear to be over 50 years old, other than from a known, maintained, actively used cemetery. Declares that all burial sites are significant and shall be preserved in place until compliance with this section is met, except as provided in 6E-43.6. Directs the appropriate island burial council to determine within 45 days whether preservation in place or relocation of previously identified native Hawaiian burial sites is warranted. Directs councils to follow 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. Directs that criteria shall be developed by the Department of Land and Natural Resources in consultation with the councils, Office of Hawaiian Affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations. Allows council determinations to be administratively appealed to a panel composed of three council chairpersons and three members from the Board of Land and Natural Resources, with the chairperson of the board presiding over the contested case and voting only in the event of a tie. Directs that a preservation or mitigation plan shall be approved by the department within 90 days of the final determination in consultation with any lineal descendants, the respective council, other appropriate Hawaiian organizations, and any affected property owner. Directs that for any burial site that proves to be other than Hawaiian the department shall determine within 30 days whether preservation in place or relocation in warranted, and within an additional 90 days a preservation or mitigation plan shall be approved by the department in consultation with any lineal descendants, appropriate ethnic organization, and any affected property owner.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues

Code Book: Hawaii Revised Statutes
Citation: 6E-43.5
Section Title: Monuments and memorials: island burial councils; creation; appointment; composition; duties

Summary:

Directs the Department of Land and Natural Resources to establish island burial councils for Hawaii, Maui/Lanai, Molokai, Oahu and Kauai/Nihau to implement 6E-43. Directs that the governor shall appoint members to the councils from a list provided by the department, provided that at least 20% of the regional representatives shall be appointed from a list of at least nine candidates provided by the Office of Hawaiian Affairs. Directs the department to develop the list in consultation with appropriate Hawaiian organizations. Specifies that each council shall consist of at least nine and no more than fifteen members, and shall include at least one representative from each geographic region of the island and representatives of development and large property owner interests. Directs that 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, are exempted from public disclosure. Directs the councils to undertake duties to include the following: determine the preservation or relocation of previously identified native Hawaiian burial sites; assist the department in the inventory and identification of native Hawaiian burial sites; make recommendations regarding appropriate management, treatment and protection of native Hawaiian burial sites; and maintain a list of appropriate Hawaiian organizations, agencies and offices to notify regarding the discovery of remains.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues
Primary Topic: Restricted / Confidential Information
    Secondary Topic:
    • [No secondary topics.]
Primary Topic: State Historic Preservation Entities
    Secondary Topic:
    • Burial Sites Board / Commission

Code Book: Hawaii Revised Statutes
Citation: 6E-43.6
Section Title: Monuments and memorials: inadvertent discovery of burial sites

Summary:

Directs that if 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 section have been met. Requires that the discovery be reported as soon as possible to the appropriate medical examiner and the Department of Land and Natural Resources, and that the latter shall notify the appropriate island burial council and the Office of Hawaiian Affairs. Directs that following notification of the discovery of multiple skeletons within two days on Oahu, and within three days in other jurisdictions, or of a single skeleton within one day on Oahu or two days elsewhere, the following actions must be taken: a representative of the medical examiner and a qualified archeologist shall examine the remains to determine jurisdiction, and, if the remains are historic or prehistoric, then the remainder of this section shall apply; the department shall gather sufficient information, including oral tradition, to document the nature of the burial context and determine appropriate treatment of the remains, with members of the appropriate council allowed to oversee the on-site examination or removal; and any removal shall be overseen by a qualified archeologist, and a mitigation plan shall be prepared by the department or with the concurrence of the department, based on criteria developed in consultation with the island burial councils, the Office of Hawaiian Affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations. Requires that the landowner, permittee or developer in land alteration projects shall be responsible for the execution of any mitigation plan regarding the discovery of burials, including relocation of remains, but that justifiable delays resulting from such discoveries shall not count against any project completion date agreement. Authorizes project activities to resume once necessary archeological excavations provided in the mitigation plan have been completed. Directs the department to determine the place of relocation in all cases where remains are relocated, after consultation with the appropriate council, affected property owners, representatives of the relevant ethnic group and any identified lineal descendants.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues
Primary Topic: Publicly Owned / Affected Historic Property--state policy
    Secondary Topic:
    • Review and Compliance

Code Book: Hawaii Revised Statutes
Citation: 6K-3
Section Title: Kaho'olawe Island Reserve: reservation of uses

Summary:

Directs that the Kaho'olawe Island Reserve shall be reserved in perpetuity for exclusive use for the following: preservation and practice of all rights customarily and traditionally exercised by native Hawaiians for cultural, spiritual and subsistence purposes; preservation and protection of the reserve's archeological, historical and environmental resources; rehabilitation, revegetation, habitat restoration and preservation; and education.

Primary Topic: Ethnic / Racial Historic Preservation Issues

    Secondary Topic:
    • Native Hawaiian Burial and Other Preservation Issues

Code Book: Hawaii Revised Statutes
Citation: 338-23
Section Title: Disinterment of human bodies

Summary:

Prohibits a corpse, or the remains of any dead human body, exclusive of ashes, from being exposed, disturbed or removed from its place of burial, and prohibits the receptacle, container or coffin holding the remains or corpse from being opened, removed or disturbed, except under the terms of a permit granted by the director of Health. Allows the Department of Land and Natural Resources pursuant 6E-43 and 6E-43.6 to authorize exposure, removal, disinterment or any other act without obtaining a permit from the Department of Health.

Primary Topic: Archeological Activities

    Secondary Topic:
    • Disposition of Human Remains
    • Permit / Site Investigation Authority

Code Book: Hawaii Revised Statutes
Citation: 441-5.5
Section Title: Cemetery and funeral trusts: family burial plots

Summary:

(3) Requires the disinterment of any person interred in a family burial plot on residential or agricultural property to be conducted as though the property were cemetery property under 6E-41.

Primary Topic: Specific Historic Property Types

    Secondary Topic:
    • Cemetery / Gravestone



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