Haw. Code R. § 13-300-40 - Inadvertent discovery of human remains
(a) The department
shall have jurisdiction over any inadvertent discovery of human skeletal
remains and any burial goods over fifty years old, regardless of
ethnicity.
(b) The inadvertent
discovery shall be immediately reported to the following persons:
(1) The state historic preservation division,
unless discovery occurs on Saturday, Sunday, or holiday at which time the
report shall be made to the division of conservation and resource
enforcement;
(2) The medical
examiner or coroner from the county in which the inadvertent discovery
occurred; and
(3) The police
department of the county in which the inadvertent discovery occurred.
(c) Once the report of an
inadvertent discovery has been made, the department shall do the following:
(1) Assure that all activity in the immediate
area of the human skeletal remains ceases and that appropriate action to
protect the integrity and character of the burial site from damage is
undertaken;
(2) Assure that a
representative of the medical examiner or coroner's office and a qualified
archaeologist determines whether the human skeletal remains are over fifty
years old;
(3) Conduct a site
inspection where necessary;
(4)
Gather sufficient information, including oral tradition, by seeking individuals
who may have knowledge about the families possibly connected lineally or
culturally with the inadvertently discovered human skeletal remains, to help
document the nature of the burial context and determine appropriate
treatment;
(5) Complete
departmental inadvertent discovery forms;
(6) Notify the council member who represents
the geographic region where the human skeletal remains were discovered, and the
Office of Hawaiian Affairs;
(7)
Inform the landowner or its agent of the discovery if different from the person
making the report; and
(8)
Determine whether to preserve in place or relocate the human skeletal
remains.
(d) In the
event an inadvertent discovery of multiple human skeletons occurs on O' ahu,
the department shall have two working days to complete the above, and three
workings days on all other islands. In the event the inadvertent discovery
consisting of a single human skeleton occurs on O' ahu, the department shall
have one working day to complete the above, and on all other islands the
department shall have two working days. The statutory time periods may be
extended upon voluntary written consent of the landowner or its authorized
representative.
(e) Where human
skeletal remains are reasonably believed to be Native Hawaiian following an
evaluation pursuant to section 13-300-31, the department shall determine
whether to preserve in place or relocate, following consideration and
application of the criteria stated in section 13-300-36 and in consultation
with appropriate council members, the landowner, and any known lineal or
cultural descendants.
(f) Where the
human skeletal remains are reasonably believed to be non Native Hawaiian
following an evaluation pursuant to section 13-300-31, the department shall
determine whether to preserve in place or relocate following application of the
criteria stated in section 13-300-37, and in consultation with appropriate
ethnic organizations, the landowner, and any known lineal or cultural
descendants.
(g) In the event
ethnicity of the human skeletal remains is not established by reasonable belief
and in the absence of a time extension, the department shall determine whether
to preserve in place or relocate following application of any relevant criteria
stated in sections 13-300-36 and 13-300-37, and in consultation with the
landowner.
(h) Within ninety days
following a determination to preserve in place or relocate, the department
shall approve the burial site component of either a preservation plan or an
archaeological data recovery plan.
(i) Where the department determines to
preserve the human skeletal remains in place, the burial site component of the
preservation plan shall be prepared by the department or with the department's
concurrence.
(1) In preparing the burial site
component of the preservation plan, the department shall consult with the
following:
(A) Council members representing
the geographic region in which the inadvertent discovery occurred, where human
skeletal remains are reasonably believed to be Native Hawaiian following an
evaluation of ethnicity pursuant to section 13-300-31;
(B) The affected landowner or the landowner's
representative;
(C) Any appropriate
ethnic organizations where human skeletal remains are reasonably believed to be
non Native Hawaiian following an evaluation of ethnicity pursuant to section
13-300-31; and
(D) Any known lineal
or cultural descendants.
(2) At a minimum, the burial site component
of the preservation plan shall include statements describing:
(A) The location of all inadvertently
discovered human skeletal remains and any burial goods determined to be
preserved in place;
(B) Short term
measures to immediately protect all burial sites including, but not limited to,
fencing, buffers, and site restoration; and
(C) Long term measures to properly manage and
protect all burial sites including, but not limited, to buffers, landscaping,
and access by known lineal or cultural descendants.
(3) In order to provide perpetual protection
for human skeletal remains inadvertently discovered, departmental
determinations to preserve in place shall be recorded in the bureau of
conveyances. In addition, any affected landowner may enter into an in situ
burial agreement with the State.
(j) Where the department determines to
relocate the human skeletal remains, the burial site component of the
archaeological data recovery plan shall be prepared by the department or with
the department's concurrence.
(1) In
preparing the burial site component of the archaeological data recovery plan,
the department shall consult with the same parties as stated in subsection
(i)(1).
(2) At a minimum, the
burial site component of the archaeological data recovery plan shall include
statements describing:
(A) All inadvertently
discovered human skeletal remains and any burial goods determined to be
relocated;
(B) The archaeological
methods utilized to conduct disinterment;
(C) The location and manner by which human
skeletal remains and burial goods will be curated where reburial will not occur
immediately following disinterment;
(D) The reburial site location mutually
agreed upon by the landowner and any recognized lineal descendant;
(E) The manner in which the reburial site
will be prepared;
(F) Short term
measures to immediately protect the reburial site including, but not limited
to, fencing and buffers; and
(G)
Long term measures to properly manage and protect the reburial site including,
but not limited to, buffers, landscaping, and access by known lineal or
cultural descendants.
(3) In order to provide perpetual protection
for the newly established reburial site, all departmental determinations to
relocate human skeletal remains and any burial goods shall be recorded in the
bureau of conveyances. In addition, any affected landowner may enter into a
reburial agreement with the State.
(k) Intentional removal of inadvertently
discovered human skeletal remains or burial goods is prohibited until a
determination to relocate is made by the department pursuant to section
6E-43.6,
HRS, and this chapter, except that the department shall be authorized to allow
temporary removal of the remains or burial goods to protect from imminent harm,
until a determination is made.
(l)
The implementation of the preservation plan or archaeological data recovery
plan shall be the responsibility of the following persons:
(1) The landowner, permittee, or developer,
in discoveries related to development where land alteration project activities
exist; and
(2) The department, in
non-land alteration project contexts.
(m) Reburial shall be based on commonly
accepted cultural practices as routinely recorded by the department. Additional
requests by lineal or cultural descendants beyond commonly accepted cultural
practices, deemed specific or special by the department following consultation
with the appropriate council or ethnic organization, may be accommodated
provided that any additional expenses incurred are paid by the
descendants.
(n) In the event the
landowner or it's authorized representative knowingly fails to comply with any
of the provisions of the preservation plan or archaeological data recovery
plan, and directly or indirectly causes the taking, appropriation, excavation,
injury, destruction, or alteration of any burial or reburial site, the action
may be considered a violation of applicable provisions of chapter
6E, HRS, and this chapter and subject
to statutory and administrative penalties.
(o) The inadvertent discovery of Native
Hawaiian skeletal remains and any burial goods on lands managed by the
department of Hawaiian home lands shall be governed by applicable provisions of
the Native American Graves Protection and Repatriation Act (
25
U.S.C. §3001 ).
Notes
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