Someone using the name “Sonny” submitted a comment earlier in the week that raised good questions that perhaps needs further discussion.
Sonny wrote:
More demands for Hawaiians to prove Mauna Kea is sacred or was used for worship by the ancients. Why not go to a Buddhist or Christian church and tell worshippers to provide proof of their beliefs. These “experts” love telling Hawaiians that they have no religion anymore.
Many Native Hawaiians say Mauna Kea is sacred to them. They are conducting cultural protocol there three times a day. Why is that so hard to accept?
So Sonny seems to feel that Hawaiians are being unfairly scrutinized. Well, I’ll try to reply on several different levels.
The First Amendment to the U.S. Constitution guarantees the freedom of religion, as well as freedom of speech, freedom of the press, and more.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
But while each of us has a right to practice the religion of our choice (including the choice of no religion), we don’t have the right to require others to adopt our religious beliefs or believe in our religious symbolism, and the government is prohibited from taking actions the promote one religion over others.
Here in Hawaii, for example, lawsuits forced the removal of large Christian crosses from being displayed at Camp Smith and on Army property near Kolekole Pass, while other public displays have been altered to maintain a separation between religion and government.
Removing the crosses did not prevent any Christians from practicing their religion. It did, however, stop the government from promoting one of the central religious symbols of Christianity.
So it’s clear that Christians and their religious beliefs and practices are subject to scrutiny and regulation in the context of the constitutionally protected “freedom of religion.”
Turning to Mauna Kea, here’s an excerpt from a column I wrote several years ago regarding how the principle of freedom of religion was applied to Mauna Kea by the hearing officer in the first contested case hearing. His findings remained essentially unchanged following the second contested case hearing.
Will the Thirty Meter Telescope violate the religious freedom of those who believe in that the mountain is sacred?
The hearing officer concluded it will not, and spelled out the reasons with some precision.
During the contested case hearings, and continuing today, opponents of the TMT have asserted they have a right to veto power over this project and the overall future of Mauna Kea.
“The law does not support that view,” the hearings officer concluded.
The free exercise of religion “must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion,” he stated.
Telescope opponents point to the sacredness of the entire area, and advocate removal of all observatories already in the astronomy area near the summit.
But the hearings officer came to a different conclusion, again based on legal precedent.
Much of what’s being public disseminated about the Mauna Kea issue conveys the mistaken impression that the process simply disregarded native religious and cultural rights.
“Belief in an area’s religious sacredness does not make development of that area an unconstitutional infringement of religion, and does not give the believer a legal right to stop the development,” Aoki concluded, citing a string of Hawaii Supreme Court and U.S. Supreme Court cases. “Constitutional rights protect against unreasonable interference with religious practices; those rights do not protect against offenses to religious beliefs.”
The hearings officer said members of the Mauna Kea Hui had failed to present evidence showing they had “conducted or participated in religious ceremonies” on the TNT site, and did not identify religious practices that would be interfered with.
“Petitioners (those known as the Mauna Kea Hui whose protest triggered the contested case) and everyone else will have continued access to the area, for religious practices and for any other activity,” the hearings officer concluded.
Customary and Traditional Rights
The Hawaii State Constitution protects traditional Hawaiian practices, while a series of court decisions have clarified what is necessary to claim those protections.
Article XII, section 7 of the Hawai‘i State Constitution provides: “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the rights of the State to regulate such rights.”
The hearings officer found TMT opponents had presented “no testimony or evidence to establish that they engage in any conduct on Mauna Kea that is constitutionally protected as a native Hawaiian right.”
Citing prior Hawaii Supreme Court decisions interpreting the constitution, the hearings officer concluded that practices “associated with the ancient way of life”, and proven to have been established by Hawaiian usage before Nov. 25, 1892, are provided protection.However, reviewing the record in the contested case, he found TMT opponents had presented “no testimony or evidence to establish that they engage in any conduct on Mauna Kea that is constitutionally protected as a native Hawaiian right or that the TMT Project would interfere with any of their practices or that the Project would interfere with constitutionally protected conduct.”
In other words, the TMT opponents did not document that their practices had been in established use prior to the Nov. 25, 1892, trigger date.
That turns out to be a major point, because it is key to triggering the constitutional protections granted customary and traditional rights.
While the constitution and prior court cases protect traditional and customary practices by native Hawaiians prior to the 1892 date, “they do not protect contemporary cultural practices,” the hearings officer concluded, citing prior court cases.
Further, no evidence was presented “of any cultural or religious practices by native Hawaiians — whether contemporary, or customary and traditional — at the five-acre site on which the TMT observatory is proposed to be located,” according to the hearings officer’s findings.
He also pointed to evidence that “native Hawaiian cultural and religious practices are not codified, but rather are individual and personal in nature.”
“The evidence further showed, and Petitioners conceded, that there is no single native Hawaiian viewpoint or opinion on any subject, including the Project; and some native Hawaiians, including native Hawaiian cultural practitioners with lineal or other significant ties to Mauna Kea … support the Project and testified that it would have no impact on their cultural practices,” he wrote.
I’m not fully satisfied with this long winded answer to Sonny’s comment, but it will have to do for now.
The bottom line seems to be that although some (but clearly not all) Hawaiians believe Mauna Kea as a whole to be sacred, the construction of the TMT does not require anyone to give up that belief.
And the TMT, according to evidence presented during the extended evidentiary hearings, will not block access to any areas previously used for for the exercise of traditional cultural or religious practices, practices which have continued during the several decades that other telescopes have operated at or near the summit.
In any case, I present this as just another piece of the Mauna Kea issue that’s overlooked in the spectacle of ongoing civil disobedience on the mauna.
Discover more from i L i n d
Subscribe to get the latest posts sent to your email.
The Pele worshipers that are occupying the Mauna are an affront to Poliahu. They need to leave. The occupiers appear to be observing some bastardize Christian/Hawaiian view. You cannot according to the Christian God. The Gods of Hawaii never left us, ka po’e left them. So who are you and what do you believe in?
Yeah, I agree with you, Ian. I am pro-TMT all the way.
It would be logical to find no evidence of religious practice in a place that is basically off limits to believers. There is significant historic evidence by Western visitors in the early 19th century that Hawaiians did not ascend to the summit area of Maunakea for religious reasons and kapu. Unfortunately, the American legal framework for religious practice is ill-suited for indigenous claims of sacredness and while it appears as a suitable tool for the needs of believer, it is appearance only, it is illusory. Religious freedom jurisprudence and federal laws expanding it in the United States are basically for evangelical Christians to overcome or erode the Establishment clause of the First Amendment and court routinely hold that it does not apply to the belief systems of religious minorities or indigenous peoples because it doesn’t fall within the framework of sacred/profane as understood by evangelical Christianity. Consider these two cases as examples: Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988) and Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
Actually, Christian evangelicals have been at the forefront of calling for the protection of religious liberties of indigenous people.
http://www.mtv.com/news/3011233/religious-freedom-brought-to-you-by-animal-sacrifice-and-peyote/
“But in Employment Division v. Smith, the Supreme Court ruled against religious freedom — and religious people of many faiths came together to fix the problem. In 1989, two Native American men went before the Supreme Court after losing their jobs because of their faith. They were members of the Native American Church — like mainstream Christians, they believe in one God; unlike mainstream Christians, they use the hallucinogenic drug peyote in religious ceremonies. After drug tests required by their employer, both men tested positive for peyote and were subsequently fired from their jobs. The Supreme Court ruled in 1990 against the two men, saying that they were trying to use religion as an excuse to disobey the law, similar to someone attempting to avoid paying their taxes because taxation violated their religious beliefs. The reaction to the ruling was immediate, and negative. Christians, Jews, and the ACLU worked together and pushed the federal Religious Freedom Restoration Act (RFRA) through Congress in 1993, when it was signed into law by Bill Clinton.”
The State incessantly paints Native Hawaiians as violence prone. “State of Emergency” Ige proclaimed. Where was the evidence of violence?
Protesting and disagreeing is not violence. Native Hawaiians on the mauna are unarmed. The kupuna arrested were unarmed. Some were in wheelchairs! Their main tenent is nonviolent Kapu Aloha. Not one leader has ever endorsed violence.
Falsely stereotyping the worldwide movement opposing TMT as violent will never resolve this situation. It just deepens the hurt.
against unarmed protectors, sending in
Who said those on the mauna are violent? The protectors are being pono. It’s those on social media who are being provocative and racist.
It is not a peaceful protest if you continue to break the law by blocking the road, illegally parking vehicles and destroying endangered native plants on the Mauna. Shame on you Ki’ai you don’t speak for all Hawaiians. What God are you praying to? You say hawaiian gods, but many hold christian Bible’s in there hand. You seem to be confused. You should all be arrested!!!
Firstly the hearing officer refered to the TMT as a public project, which it is not
Also, ceremonial activities is not the defining measure of sanctity.
So the reasoning used by the quoted hearing officer is actually out of context and quite honestly out of touch.
The state and many TMT supporters continue to try and shamelessly put to question the legitimacy of spiritual and religious beliefs and practices of a people who continue to be illegally occupied and oppressed in their own land. It’s time to stop making excuses and do what is right, period.
It is being built on public property. State property.
You know it’s a shame that we forget to show RESPECT to people of different cultures, different ways of living and trying to keep their homes/land whatever, the government, the business people always taking for their own interests and money in their pockets, I love Hawaii with all my heart, my husband is Hawaiian, my children were born and raised there and you know their rights as Hawaiians they couldn’t get into schools, get into the programs that were set up for them,but every one that had money or whatever bought up all the land ,built homes and businesses to live according to their life style shunned the locals (Hawaiians ) to work, to own ,to fight for what is theirs and so we now arrest our people for standing up for what they believe and it belongs to them, so again we just don’t get it,Hawaiians are beautiful , wonderful humble people just like other cultures around the world and we just take, show no respect and tear them down piece by piece ,I hope my children and I, my husband will be able to go home one day and have a home of our own and treated with respect we deserve, and all this wasted time the state, government, businesses who ever will put their time and money to Hawaii to the problems that are on the rise, make us the island’s we were and are,ALOHA
Thank you for letting me share
We love you Hawaii, we stand with you Mauna Kea, God Bless all
I am haole and Quaker. The land is public land. (Hawaiian really but this is another story) as such,seek unity before moving forward. There is not unity. It might take a long time. It might not but the people of Hawaii should not move forward until unity is reached. It might mean that tmt moves elsewhere. Vow to protect everyone in your community. Commit to being in unity, no matter what, and remarkable things will happen.
What this well reasoned article outlines is that the TMT standoff has consequences for Rule of Law. Unlike the Dakota Access Pipeline, there are literally no native rights being trampled on by the TMT. Also unlike DAPL, which threatened the water source and livelihood of the Lakota and non-native communities, the TMT offers opportunities for all our citizens and even humanity as a whole. Finally, the TMT is, by the protesters own admission, and by the language used by their supporters, a proxy for asserting “above the law” status for a subset of Native Hawaiian activists that openly claim they alone have authority to realign political power and economic resources as they see fit. This cannot be tolerated in a pluralistic society. Compromise over access and protected areas is easily attainable. Only one side is unwilling to acknowledge that Mauna Kea, and all lands, can be preserved and shared. And that’s because sharing is not what they have in mind. And they won’t stop with Mauna Kea.
Sacred places around the world are being used for commercial gain. Indigenous people do not have the resources to protect their Mauna Kea. TMT and the State have been saturating the media with ads using native Hawaiians, keiki, educators.Now they are using social media to portray Kia’I as violent, murderous terrorists. Psychological warfare is used when physical tactics are ineffective or damaging to a campaign.
Out of all of the revenues collected from leasing, renting Hawaiian ceded lands OHA gets only 20 %.What is done with the 80% the state gets? Hawaiians should not be blamed for the State losing millions of dollars when the TMT is built elsewhere. How many keiki will benefit from TMT?
The main beneficiaries will be the tour companies who bring thousands of people to Mauna Kea. They pay taxes? Increase tourism? Again, money. Our ‘aina, culture, is used in various ways for economic benefit. Let it be pono, give Hawaiians a say whether it is pono. Maybe then we all can be pono.
The denial the ‘validity’ of the spiritual significance of Mauna Kea shocks and saddens me. Would anyone use the same arguments to support construction of a TMT on Mt Rushmore? Mt. Fuji? Mt. Rainier? I can’t argue about the nature of the ‘sacredness’ of Mauna Kea (I am not Kanaka Maoli), but I do question the reasoning behind these arguments.
I argue particularly on two (non-spiritual) issues: law and the corporate economy.
“Legal precedence” is often used to justify the construction of TMT – even though that is a flawed argument. Throughout modern history there have been significant incidents of overturning legal precedent via activists’ efforts. In fact, the progression of human rights has always required a challenge of legal precedent (especially of precedents professed by majority). Consider apartheid, segregation, slavery, denial of voting rights … these are just a few *legally protected* practices that were eventually overturned. Even in Hawaii, activists overturned US law. In the 70’s a ’majority of Hawaiians’ did NOT join in the fight against the LEGAL bombing of Kaho’olawe. Still (as you well know, Ian), a band of activists overturned that US law – for ‘public good’. How can anyone not address the connection of protecting Kaho’olawe to the protection of Mauna Kea?
My second point, ‘the corporate economy’ is more complex – and one of global concern. Aside from the way laws have been changed by public activism – or possibly because of that – the precedence of corporate rights over public voice has substantially increased in past few decades. People are just now beginning to question corporate privilege in the US. Still, in Hawaii few discuss how TMT is a *private* entity – exercising corporate privilege.
Corporations don’t have to answer to public voices:
– There is no political mechanism that calls for accountability of ‘TMT, Inc’
– TMT is not required to have any public input, oversight or recourse for complaints (unless one believes that UH & the Governor provide adequate protection of public interest).
– Corporate transparency is legally optional; TMT can basically show or not show anything.
In effect, TMT can promise anything to the people of Hawaii – as it has promised money, education, and other economic ‘kickbacks’ – but it does not have to deliver anything. It does not even have to allow UH astronomers access if the stockholders decide they need more profits down the line. Those are decisions they can make without any public input or knowledge.
There are so many unanswered (unasked!) questions.
Is the desecration/industrialization of Mauna Kea an issue of ‘public good’ – or one to simply be left to corporations in concert with sympathetic/intertwined governing officials? Has anyone revealed all the TMT’s financial incentives promised and/or distributed so far?
It is very troubling to see that there isn’t more discussion in Hawaii about this *private entity* masquerading as “public good.” In the future many more such ‘ventures’ will arrive on the shores (see failed SuperFerry); it is past time for this discussion. From my perspective, TMT is not an ‘economic asset’ to Hawaii; It is a fraud. I am strongly suspicious of anyone promoting TMT.
TMT on Mauna Kea is a stalemate.
It will be welcomed and built on LaPalma.
And the new James Webb Space Telescope will be much better anyway, though it will be more expensive.
TMT will be the subject of Hawaii politics for years to come.
Aloha Oe.