§6E-43 Prehistoric and historic 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.

(e) 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. [L 1988, c 265, pt of §1; am L 1990, c 306, §13; am L 1992, c 113, §4]

Law Journals and Reviews

Ensuring Our Future by Protecting Our Past: An Indigenous Reconciliation Approach to Improving Native Hawaiian Burial Protection. 33 UH L. Rev. 321 (2010).

Ke Ala Pono--The Path of Justice: The Moon Court's Native Hawaiian Rights Decisions. 33 UH L. Rev. 447 (2011).

Case Notes

This section and §13-300-51, Hawaii administrative rules (HAR) confer upon an aggrieved claimant the right to a contested case hearing as long as the written petition meets the procedural requirements of §13-300-52, HAR; where it was undisputed that claimant complied with the requirements of §13-300-52, HAR--that is, claimant's written petition was proper--a contested case hearing was mandated by statute under this section and agency rule under §13-300-51, HAR, and thus, was "required by law". 124 H. 1, 237 P.3d 1067 (2010).

Where a contested case hearing was required by law under §6E-43 and §13-300-51, Hawaii administrative rules, and would have determined the rights, duties, and privileges of specific parties, and: (1) the department of land and natural resources' denial of claimant's request for a contested case hearing represented a "final decision and order"; (2) claimant followed the applicable agency rules and, therefore, was involved "in" the contested case; and (3) claimant's legal interests were injured--i.e., claimant had standing to appeal, the circuit court erred in dismissing claimant's agency appeal for lack of subject matter jurisdiction. 124 H. 1, 237 P.3d 1067 (2010).

Where the main footprint of the church building project had not been maintained and actively used as a cemetery for over sixty years and the church was not in the process of removing or redesignating the project site as a cemetery when government approval for the project was sought, subsection (a), which excludes human skeletal remains found in a "known, maintained, actively used cemetery", did not apply to the project; thus, the project and the burial sites it affected were subject to the requirements of §6E-42. 128 H. 455 (App.), 290 P.3d 525 (2012).