HAR §13-300-31. Burial site identification; ethnicity evaluation

(a) A burial site may be identified by oral or written testimony in the following manner: (1) The council or the department where appropriate shall evaluate the testimony presented; (2) To the best of their ability, witnesses shall provide information including the location and description of a burial site; (3) The council shall recommend to the department whether to accept the testimony presented regarding a Native Hawaiian burial site; and (4) A burial site recognized by the department based on oral or written testimony shall be classified as previously identified. (b) Burial sites discovered during archaeological inventory survey that appear to be over fifty years old shall be classified as previously identified for which the council or department, whichever is applicable, shall determine appropriate treatment. (1) Information relating to the location or description of burial sites identified during the archaeological inventory survey shall be placed in a section of the archaeological inventory report such that the section may be readily removed should the council or review board deem the information to be sensitive. (2) Possible burial sites identified during archaeological inventory survey shall be classified as previously identified where human skeletal remains are confirmed during the archaeological data recovery phase. (3) Where human skeletal remains discovered during archaeological inventory survey are not situated in a burial site context, the department shall be immediately notified. (c) In order to develop a statewide inventory of burial sites, the department shall: (1) Consult knowledgeable persons regarding the location and identity of human skeletal remains in a burial or reburial site; (2) Acquire authorization from the landowner for access to the property where a burial or reburial site is located; (3) Inspect and document the location and description of a burial or reburial site; (4) Place appropriate information on the statewide burial site inventory; and (5) Provide written notification to the landowner of burial site documentation. (d) The department shall extrapolate relevant information from its records relating to burial and reburial sites including location by island, district, ahupua`a, tax map key number, street address where available, and name of present landowner, and place all such information on the burial site inventory. (e) Where known lineal descendants disagree with the recording of any information from a related burial or reburial site, no information shall be placed on the burial site inventory provided the department maintains a record of the tax map key of the property in which the burial or reburial site is located for purposes of protection from harm. (f) The department shall immediately notify any known lineal descendants when a permit is being reviewed by the department for the parcel in which a related burial or reburial site is located, or where an activity is known which may cause harm to a related burial or reburial site. (g) An evaluation of ethnicity shall be made by the department for all human skeletal remains situated or formerly situated at a burial site. The following evidence shall be gathered and considered accordingly: (1) Oral or written evidence relating to the human skeletal remains or burial site evaluated by department cultural specialists, including but not limited to: (A) Histories and traditions associated with specific places and families; and (B) Genealogies. Where oral or written evidence establishes ethnicity by a reasonable belief, the evaluation ends. Where the evidence does not establish ethnicity by reasonable belief, paragraph (2) shall apply; (2) Archaeological evidence relating to the human skeletal remains or burial site gathered by a professional archaeologist or archaeological firm meeting department minimal qualifications and standards. Evidence shall be evaluated by department archaeologist including but not limited to: (A) Burial features including burial goods or other indicators of burial treatment; (B) Where a cultural layer is associated with a burial site, the nature of its contents including artifacts and food remains; or (C) The age of radiocarbon dates associated with the cultural layer in which human skeletal remains are situated. Where the archaeological evidence establishes ethnicity by a reasonable belief, the evaluation ends. Where the archaeological evidence alone does not establish ethnicity, but when considered together with any oral or written testimony, ethnicity is established by reasonable belief, the evaluation ends. Where the evidence does not establish ethnicity by reasonable belief, paragraph (3) shall apply; (3) Osteological evidence, to be gathered by a physical anthropologist meeting department minimal qualifications, in accordance with section 13-300-32. Where osteological evidence fails to suggest ethnicity by reasonable belief, appropriate treatment of the human skeletal remains shall be determined by the department. (h) Where a previously identified burial site is proposed to be preserved in place, no osteological or disturbing archaeological investigation shall occur, unless authorized by the department. (1) Where oral or written testimony does not establish ethnicity by reasonable belief, archaeological surface evidence and any pre-existing archaeological evidence from the burial site or pre-existing osteological evidence from burial sites in the surrounding area shall be reviewed by the department. (2) Where human skeletal remains are reasonably believed to be Native Hawaiian, the burial site shall be so classified and the council shall determine appropriate treatment. (3) Where human skeletal remains are reasonably believed to be non Native Hawaiian, the burial site shall be so classified and the department shall determine appropriate treatment. (4) Where existing evidence fails to clarify ethnicity by a reasonable belief, appropriate treatment of the human skeletal remains shall be determined by the department. [Eff SEP 28 1996 ] (Auth: HRS §§6E-43.5, 91-2) (Imp: HRS §§6E-43, 6E-43.5, 43.6)