HOUSE OF REPRESENTATIVES

H.C.R. NO.

50

TWENTY-FIFTH LEGISLATURE, 2010

H.D. 2

STATE OF HAWAII

S.D. 1

 

 

 

 

HOUSE CONCURRENT

RESOLUTION

 

 

REQUESTING THE CREATION OF A JOINT HOUSE AND SENATE INTERIM COMMITTEE TO STUDY THE FEASIBILITY OF ESTABLISHING A TRIBAL HISTORIC PRESERVATION OFFICE WITHIN THE DEPARTMENT OF LAND AND NATURAL RESOURCES AND REQUESTING A PROGRAM AND MANAGEMENT AUDIT OF THE STATE HISTORIC PRESERVATION DIVISION.

 

 


     WHEREAS, the importance of conserving, preserving, and developing historic and cultural objects and places for the public is established in article IX, sections 7 and 9 of the Hawaii Constitution; and

 

     WHEREAS, the importance of protecting historic and cultural property for the education, inspiration, pleasure, and enrichment of all citizens of the State is codified in state law as chapter 6E, Hawaii Revised Statutes (HRS), which expressly established within the Department of Land and Natural Resources (DLNR) a comprehensive historic preservation program to be administered by the State Historic Preservation Division (SHPD); and

 

     WHEREAS, in 2002, based upon concerns about the management and operations of SHPD, including delays in processing county, state, and federal project applications and permits, recurrent backlogs in reviewing compliance reports, difficulty in contacting staff for information, and frustrations concerning the burial sites program, the Legislature, by Senate Concurrent Resolution No. 79, S.D. 1, requested the Auditor to conduct a program and financial audit of SHPD; and

 

     WHEREAS, an audit of SHPD was submitted by the Auditor in December 2002, to the Governor and the Legislature; and

 

     WHEREAS, the 2002 audit reflected a number of troubling issues and problems within SHPD and recommended that the Governor intervene to ensure that management of SHPD is improved and that the Chairperson of the Board of Land and Natural Resources (BLNR) and the administrator of SHPD take steps to improve the protections of the State's historic properties and to prevent the misuse, abuse, and theft of SHPD's limited resources; and

 

     WHEREAS, despite the issues and recommendations of the Auditor's report in 2002, complaints continue to be aimed at SHPD for its recent handling of ancient remains and historic sites, raising concern that the State's cultural and historic resources are not being adequately protected and preserved; and

 

     WHEREAS, in the last several years in particular, SHPD's protection of Hawaiian historic sites has been highly criticized for being understaffed and lacking archeological expertise; other complaints have included accusations of neglect in maintaining reports and an inventory of historic sites, the credibility or appropriateness of the credentials of SHPD's previous Administrator, whose management style allegedly resulted in at least 19 qualified employees leaving SHPD before the Administrator resigned under pressure in 2007, based upon issues relating primarily to complaints of mismanagement of native Hawaiian burials and inappropriate treatment of ancestral bones; and

 

     WHEREAS, despite the appointment of a new Administrator in 2008, the many complaints about SHPD's mishandling of historic sites and ancient remains, including the recent bulldozing of a heiau; management and staffing issues; and the continuation of stalled projects because of backlogged paper work not completed by SHPD, resulted in a federal assessment of SHPD by the National Park Service (NPS) in July 2009; and

 

     WHEREAS, in response to the federal assessment by NPS, an official of SHPD acknowledged that SHPD lacks qualified staff, in part because it is unable to fill positions due to a hiring freeze imposed by the Governor, and is hampered by defective equipment, including SHPD's Geographical Information System, which has not been updated since 2004, and a broken tracking system; and

 

     WHEREAS, on March 19, 2010, NPS released its final report which found, among other things, that SHPD is deficient in the federal program areas of:

 

     (1)  Survey and inventory;

 

     (2)  Review and compliance; and

 

     (3)  National Register of Historic Places and Historic Preservation Planning,

 

largely relating to staffing and availability of information on important sites, giving SHPD two years to comply with NPS' mandated corrective actions, which, if not met, would result in suspension of their annual grant which comprises half of SHPD's budget; and

 

     WHEREAS, a state audit at this time would outline the additional issues at the state level in which SHPD needs assistance, and the Legislature finds that an audit is warranted; and

 

     WHEREAS, in 1992 the U.S. Congress adopted amendments to the National Historic Preservation Act (NHPA) (P.L. 102-575) that allow federally recognized Indian tribes to take on more formal responsibility for the preservation of significant historic properties on tribal lands; and

 

     WHEREAS, Section 101(d)(2) of the NHPA allows tribes to assume any or all of the functions of a State Historic Preservation Officer (SHPO) with respect to tribal land, with the decision to participate or not participate in the program resting with the tribe; and

 

     WHEREAS, a tribe may assume official responsibility for a number of functions aimed at the preservation of significant historic properties and those functions include identifying and maintaining inventories of culturally significant properties, nominating properties to national and tribal registers of historic places, conducting Section 106 reviews of federal agency projects on tribal lands, and conducting educational programs on the importance of preserving historic properties; and

 

     WHEREAS, in accordance with Section 101(d)(2) of the NHPA, the tribes on the NPS' list have formally assumed the responsibilities of the SHPO for purposes of Section 106 compliance on their tribal lands and they have designated Tribal Historic Preservation Officers (THPOs) with whom Federal agencies consult in lieu of the SHPO for undertakings occurring on, or affecting historic properties on, tribal lands; and

 

     WHEREAS, a number of tribes have designated THPOs to address tribal concerns for the preservation, maintenance, and revitalization of the culture and traditions of native peoples, as of April 2008, seventy-six THPOs had been designated in twenty-four different states; and

 

     WHEREAS, as a basic principle, THPOs understand the need for the inherent right of Indian Nations to self-government; and

 

     WHEREAS, the National Association of Tribal Historic Preservation Officers recognizes that the cultural and heritage preservation interests of Indian Nations and their peoples often extend beyond the boundaries of present day reservations and therefore assists in activities relating to cultural and environmental issues that extend onto non-tribal lands; and

 

     WHEREAS, pursuant to the NHPA, as amended, it is the policy of the federal government, in partnership with the states, local governments, Indian tribes, and private organizations and individuals to assist state and local governments, Indian tribes and native Hawaiian organizations, and the National Trust for Historic Preservation in the United States to expand and accelerate their historic preservation programs and activities; and

 

     WHEREAS, for tribes that have not formally assumed the responsibilities of the SHPO, the federal agency must consult a designated representative of the tribe in addition to the SHPO during review of projects occurring on, or affecting historic properties on, their tribal lands; and

 

     WHEREAS, in Act 340, Session Laws of Hawaii 1993, the Legislature placed the island of Kahoolawe, a place of extraordinary cultural significance, into the public land trust with the condition that the State would eventually transfer management and control of Kahoolawe to a future sovereign native Hawaiian entity upon its recognition by the United States and the State; and

 

     WHEREAS, Act 340, Session Laws of Hawaii 1993, is an acknowledgement by the State of the native Hawaiian people, their history, culture, and their inherent right of sovereignty; and

 

     WHEREAS, the Native Hawaiian Government Reorganization Act of 2009 (Akaka Bill) is making its way through the U.S. Congress and appears likely to be approved by Congress in the near future; and

 

     WHEREAS, the Akaka Bill authorizes a process to extend federal recognition to Hawaii's indigenous people for the purposes of a government-to-government relationship with the United States and a formal process to address many unresolved issues confronting the State and its residents; and

 

     WHEREAS, there are obstacles for the native Hawaiian people, including dependence on the State and the federal government, which prevent the native Hawaiian people from developing their full potential as a sovereign nation; and

 

     WHEREAS, the Legislature finds that it is necessary to address the concerns raised by the NPS and to address historic preservation issues related to native Hawaiian historic, religious, and cultural properties; now, therefore,

 

     BE IT RESOLVED by the House of Representatives of the Twenty-fifth Legislature of the State of Hawaii, Regular Session of 2010, the Senate concurring, that the Auditor is requested to conduct a program and management audit of the State Historic Preservation Division; and

 

     BE IT FURTHER RESOLVED that the Auditor is requested to submit a report to the Legislature no later than twenty days prior to the convening of the Regular Session of 2011; and

 

     BE IT FURTHER RESOLVED that the Legislature is requested to create a Joint House and Senate Interim Committee to study the feasibility of establishing a Tribal Historic Preservation Office within the Department of Land and Natural Resources; and

 

     BE IT FURTHER RESOLVED that the Joint House and Senate Interim Committee is requested to be comprised of the current chairs and vice-chairs of the House Committee on Hawaiian Affairs and Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs; and

 

     BE IT FURTHER RESOLVED that the Joint House and Senate Interim Committee is requested to:

 

     (1)  Lead and encourage open discussions about establishing by state law a Tribal Historic Preservation Office within the DLNR for the purpose of assuming all functions of the SHPD with respect to tribal lands returned to the sovereign native Hawaiian entity upon its recognition;

 

     (2)  Follow and report on the status of the Akaka Bill and its potential impact on existing state laws and programs regarding the preservation of significant historic properties on lands given special status by the Akaka Bill; and

 

     (3)  Seek input and comment from stakeholder organizations including SHPD, the Office of Hawaiian Affairs, the Native Hawaiian Legal Corporation, the Hawaii Historic Foundation, the Department of Hawaiian Home Lands, and any other organizations deemed appropriate by the Joint House and Senate Interim Committee; and

 

     BE IT FURTHER RESOLVED that the Joint House and Senate Interim Committee is requested to report its findings to the Speaker of the House of Representatives and the Senate President no later than twenty days prior to the convening of the Regular Session of 2011; and

 

     BE IT FURTHER RESOLVED that certified copies of this Resolution be transmitted to the Governor, the Speaker of the House of Representatives, the Senate President, the Chairperson of the Board of Land and Natural Resources, the Chairperson of the Board of Trustees of the Office of Hawaiian Affairs, the Chairperson of the Hawaiian Home Commission, the Administrator of the State Historic Preservation Division, the Executive Director of the Historic Hawaii Foundation, and the Executive Director of the Native Hawaiian Legal Corporation.

Report Title: 

DLNR; SHPD; Audit; Tribal Historic Preservation Office; Establishment