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.