RE: Contested Case HA-16-02 regarding Conservation District Use Application (CDUA) HA-3568 for the Thirty Meter Telescope at the Mauna Kea Science Reserve, Kaohe Mauka, Hamakua District, Hawaii, TMK (3) 4-4-015:OO9

October 7. 2016

l. Credentials and Background

I have been asked by William Freitas to offer expert testimony regarding the traditional status of religious practices at the ahu (altars) located within the proposed TMT site and related matters concerning the protection of traditional and customary practices on Mauna Kea. I am honored to do so. I want to stress and the outset that I am humbled by the request to offer this testimony, especially since I am an outsider to the culture. My testimony will center on traditional themes in Hawaiian religion and the intersection of tradition and law. Regarding details of Hawaiian religion as pertinent to this contested case, I defer another witness, my esteemed colleague Marie Alohalani Brown, professor of Religious Studies at the University of Hawai’i, Manoa.

Please allow me to introduce myself by way of my credentials and research background. Trained at the University of Chicago Divinity School (PhD 2003), I am an associate professor of Religious Studies at the University of Colorado, where I also hold affiliate appointments in the Department of Ethnic Studies and the Center for Native American and Indigenous Studies (Executive Committee member). In addition to these roles, I currently serve on the Board of Directors of the American Academy of Religion (AAR), the largest scholarly organization for the study of religion in the world. In this capacity I also serve as the AAR’s Program Unit Chair (elected by the membership), overseeing the programming for its annual meeting, which attracts approximately 8,000 scholars and is widely regarded as the field-leading conference in the academic study of religion. Prior to my service in these capacities, l was chair of the Law, Religion, and Culture Group of the AAR (2007-2011). I have also served on the Executive Committee of the North American Association for the Study of Religion (2008-2011). My research is currently funded by a several entities, including the University of Colorado, the Research Council of Norway, and the Material and Visual Cultures of Religion project (Yale University). Additionally, I am a member of the Politics of Religious Freedom project, funded by the Luce Foundation and housed at Northwestern University and Indiana University. I serve on the editorial advisory board of History of Religions, a benchmark journal in the field, and am co-editor of the forthcoming Handbook of Indigenous Religion(s), to be published by Brill (Leiden, Netherlands). In the testimony that follows I do not speak on behalf of any of the above-listed entities; I have listed these affiliations to establish my standing in the discipline of the academic study of religion.

My areas of specialization include method and theory in the study of religion, comparative studies of religion, religious freedom issues, and living indigenous traditions. With regard to the latter, my particular focus is upon American Indian and Native Hawaiian religions. My primary research concerns repatriation and burial protection issues, especially with reference to the diverse ways religious claims are made in settings of potential conflict. In other words, I study the intersection of religion and law in the context of living indigenous traditions. In recent years my attention has been drawn to disputes over sacred land with particular attention to implications of such disputes for religious freedom.

Recent publications relevant to my testimony include: “Sacred Places in Urban Spaces: Comparing Kawaiaha‘o and the Newark Earthworks, ” in The Newark Earthworks: Enduring Monuments, Contested Meanings, edited by Lindsay Jones and Richard D. Shield, the University of Virginia Press (2016); “The Politics of Religious Freedom, with Attention to Hawai‘ i,” in Politics of Religious Freedom, edited by Saba Mahmood, Peter Danchin, Winnifred Sullivan and Elizabeth Shakman Hurd, the University of Chicago Press (2015); “Bone Deep Indigeneity: Theorizing Hawaiian Care for the State and its Broken Apparatuses,” in Performing Indigeneity, edited by Glenn Penny and Laura Graham, University of Nebraska Press (2014); “Off the Stage, On the Page: On the Relationship Between Advocacy and Scholarship,” Religion 44:2 (2014); “Varieties of Hawaiian Establishment: Recognized Voices, Routinized Charisma, and Church Desecration,” in Varieties of Religious Establishment, edited by Winnifred Sullivan and Lori Beaman, Ashgate Press (2013); “Apache Revelation: Making’Religion in the Legal Sphere,” in Secularism and Religion-Making, edited by Markus Dressler and Arvind Mandair, Oxford University Press (2011); “Courting Culture: Unexpected Relationships between Religion and Law in Contemporary Hawaii,” in After Secular Law, edited by Winnifred Sullivan, Mateo Taussig, and Robert Yelle, Stanford University Press (2011); “Social Lives of the Dead: Contestations and Continuities in Native Hawaiian Repatriation Contexts,” in Culture and Belonging: Symbolic Landscapes and Contesting Identity in Divided Societies, edited by Marc Ross, the University of Pennsylvania Press (2009); “Authenticity, Invention, Articulation: Theorizing Contemporary Hawaiian Traditions from the Outside, ” Method & Theory in the Study of Religion (2008); and my widely reviewed book, Sacred Claims: Repatriation and Living Tradition, University of Virginia Press (2007). Lest my testimony be taken as that of an uncritical sympathizer, I should point out that I also am known for my work in the critical study of religion. For example, I am co-editor of a book project currently under contract with Oxford University Press, Irreverence and the Study of Religion: Critical Studies in the History of Religions, and am co-organizer of a symposium by the same name to be held at the University of Chicago in November of 2016. Please see my CV for a full publication record.

Let me say at the outset that scholars of religion and law are keenly interested in this contested case and the Mauna Kea dispute in general. This issue is widely understood to be one pertaining to religious freedom and traditional rights, and is being viewed by scholars of religion as standing in a history of religious freedom and land protection disputes that extend back to early colonial times, up to the era of the American Indian Religious Freedom Act (1978), to the Lyng (1988) and Smith (1990) decisions, and to various federal- state-level restoration of religious freedom acts of recent times. In other words, the issue has already entered and shaped academic and legal conversations about the status of traditional rights quite beyond Hawai‘i. For example, two indicators of the visibility of this dispute are projects I am involved with. The first is a symposium thatwill be hosted by the University of Colorado Law School and the Center for Native American and Indigenous Studies this coming March (2017). The topic for this international conference is “Traditional Storytelling and Law.” A keynote speaker, Kalani Flores, will address the Mauna Kea dispute and a symposium session will be devoted to discussion of the topic. The second is a workshop to be held in Hawai‘i in July of 2017 that will focus on the traditional Hawaiian religion in the present, with special attention to Mauna Kea. This workshop is a part of the Indigenous Religion(s) project (INREL), which is housed at the University of the Arctic in Tromso, Norway. Seven senior international scholars of indigenous religions will convene in Hilo to learn about this momentous episode in Hawaiian religious history.

2. Experiences on Mauna Kea

I learned about the dispute on Mauna Kea in the fall of 2014 and observed subsequent events as relayed through the media and social media. During the summer of 2015 l was in Hawai’i for ongoing research on burial protection issues. I made a point of visiting Hawai‘i Island in June to see matters for myself. 1 went up to Mauna Kea on June 24 and 25 and thus witnessed firsthand the events of those days. Foremost, I witnessed many religious activities, including singing, praying, chanting, and the making of offerings at various ahu (altars). I returned in July and witnessed more religious activities, including at Pu‘uhuluhulu, at the hale near the Visitor Center, and at various ahu on Mauna Kea itself.

Subsequent to those visits, I have lectured about contemporary Hawaiian religious practice on Mauna Kea to several audiences, including presentations to my own classes, two lectures at Norwegian universities, and a lecture for the North American Association for the Study of Religion. In those lectures I emphasized the continuity of contemporary religious practice on the mountain with similar religious practices in the same place in the past. My specific focus in all of these lectures has been upon the living quality of Hawaiian tradition as currently manifested on Mauna Kea.

As a follow-up to my 2015 visits, I returned to Mauna Kea this past summer and visited the mountain three times (June 16, June 24-25, and July 8). On all three occasions I witnessed singing, prayers, chants and offerings. On June 24, I met Mr. Freitas for the first time and accompanied a group with him to the summit ahu (two altars in close proximity to one another), which had been constructed the year before on the proposed TMT site. On that day, I witnessed Mr. Freitas lead prayers and chants and guide the process of making offerings at both ahu. In conversation with Mr. F reitas later that day I learned of his felt responsibility to the ahu and his care for them over the past year.

On July 8 of this year I returned with Mr. Freitas to Mauna Kea to learn more from him about the mountain and of his attachments to it. Along with Sally Promey, a colleague from Yale University, we drove to the summit, where we visited the proposed TMT site. Mr. Freitas made offerings a both ahu.

3. Status of Living Tradition in Hawaii, on Mauna Kea, and at the Summit Ahu

A few words about “tradition” are in order here, as tradition is the signal category that triggers legal protection of sacred sites in Hawai‘i. Additionally, theorizing “tradition” has been the focus of much of my scholarly work, including in Hawai’i. Bringing my scholarly perspective into dialogue with the legal parameters of the instant contested case, my observations are as follows.

Tradition is not a thing; it is a process. Living tradition draws upon the past but is necessarily constituted in the present. How could it be otherwise? This is not to dismiss the relevance of the past when assessing tradition, but to note that the past is most usefully understood as a model for present-day actions rather than as a set of rigidly codified practices and beliefs. If the latter were the standard of tradition, then modern Christians, Buddhists, and Muslims, for example, would surely fail to recognize their own religions.

Living traditions are necessarily of this world, not only with reference to time but also with regard to context. The constituent parts of traditions cannot be disarticulated from on-the-ground circumstances. This means traditional practices take place-always and everywhere-in moments configured by political and legal realities. The history of humanity affords scholars of religion no exceptions to this rule. Thus tradition cannot be analyzed or meaningfully described without historical, cultural, geographic, political, and legal contextualization. Likewise, in order to be protected-as the State of Hawai‘i Constitution demands (X11, sec. 7)-tradition must be recognized and protected in specific places, times, and jurisdictions. It is not enough for a state to profess to protect traditions in general: insofar as traditions do not exist in the abstract, neither does protection of them exist in the abstract, aside from mere gesture.

Here a note on strife and tradition is warranted. For reasons outlined above, traditions frequently find expression in moments of conflict. Traditions, especially in their religious capacities, articulate ultimate concerns and deep values. These concerns and values rise to the surface when threatened. This dynamic is broadly true of all religions. For example, key moments in Christian history that eventuated in momentous theological shifts in the tradition unfolded in contexts of social and political crisis (one might consider the crucifixion of Jesus in this light). Therefore, the tendency of some scholars and courts alike to seek “pure” tradition outside of political contexts is misguided.

In addition, and of profound importance to the instant case, it is mistaken to regard activities as non-traditional if they take place in moments of conflict. The fact that a religious structure, for example, is built in a moment of crisis does not diminish its standing as religious. Nor, for that matter, does tension within a community diminish the potentially religious quality of the community’s actions and beliefs, no matter how divided. Indeed, internal strife is the very engine of religious traditions-people fight over the terms of their own traditions precisely because they care so deeply about them. To cite another Christian example, how else can one explain the nuaiggesi‘gt; theology thatcharacterize Martin Luther’s challenge to the established order of his day? To move beyond Christianity, the same might be said of the historical divergence between Sunni and Shiite Muslims or between different Buddhist traditions.

Traditional Hawaiian religious practices should be understood in a similar manner, in the past and present. As is well known, many heiau and ahu were historically constructed in moments of struggle, frequently in anticipation of a battle or in commemoration of one (see, for example, Valerio Valeri, Kingship and Sacrifice: Ritual and Society in Ancient Hawaii, translated by Paula Wissing, The University of Chicago Press, 1985). In such moments, ancestors, deities, and other forces were called upon to assist the people. Aspects of Hawaiian religious life-today follow this pattern. Tradition is manifest in action when catalyzed by circumstances, most especially when the very ground of tradition itself is threatened. Sacred places-e.g., places regarded as having ties to oral traditions, healing, burial, and worship practices-thus receive focused attention when threatened. In Hawai‘i, as in many indigenous contexts, sacred places are often left unto themselves out of deference to their power and sanctity. If threatened, however, the opposite dynamic is triggered as practitioners exercise their kuleana (responsibility) to care for the sacred.

This is how I understand expressions of living tradition on Mauna Kea today and it is the framework for my expert opinion that the ahu (altars) constructed on the TMT site in the days immediately prior to the mass protest of June 24, 2015, are expressions of living Hawaiian tradition and deserve protection as such. Acting in a manner fully consistent with historical traditions, a group of Native Hawaiian traditional practitioners constructed two ahu and conducted ceremonies at them. Subsequently, these same practitioners, and especially William Freitas, have taken on the responsibility to care for these religious sites through ministering to them with regular offerings and ceremony. In this way tradition has been sustained on Mauna Kea. What may appear to some as mere political opportunism is in fact an expression of deeply held traditional beliefs-evidence of sincere religious action in a moment of crisis.

I should note here a point about internal division in the Native Hawaiian community regarding the ahu. Some members of the community have expressed disagreement about the status and meaning of the ahu. To cite one example, I have heard some practitioners express anxiety about the fact that the pohaku (stones) for one of the ahu came from the Kona shoreline, far from the realm of the summit, thus confusing an important ritual distinction. As a scholar of religion, I understand such internal tensions to be parallel to those described above that configure the terrain of all religions. Simply put, the status of the stones would not have been debated had the matter not been significant. Indeed, I take such disputes to be evidence of the religious and traditional status of the ahu. Stones, like bread and wine, tend not to rise to the level of debate unless it really matters.

I would like to close this section with a note on “sincerity,” which is language found in much U.S. jurisprudence regarding religious freedom. It is exceptionally hard to quantify religious belief and even harder to weigh it as evidence. Various legal and administrative bodies have struggled mightily with this issue in recent decades (see, for example,Sullivan et al., Politics of Religious Freedom, The University of Chicago Press, 2015). However, so long as administrative bodies such as the BLNR and courts wish to acknowledge and protect traditional and customary practices and religious freedom, something akin to “sincerity” will remain our collective barometer. How then to gauge sincerity? One profound measure is to look for moments of desecration. Reactions to religious destruction offer a rather stark view to the sincerity of practitioners’ beliefs. On Mauna Kea one need look no further than to the destruction of Ahu o Kauakoko, which, like the summit ahu, was constructed by practitioners during the protests of 2015. Purportedly removed by an Office of Mauna Kea Management worker, the destruction of this ahu on September 12, 2015, brought some of the Protectors to tears (see, forexample, Na ‘au News Now-a F aeebook site of some of the Protectors-September 13, 2015). The site of the former ahu is now one of pilgrimage.

4. Protection of Customary and Traditional Rights on Mauna Kea

Based on the traditional actions and sincerity of the practitioners who built the summit ahu, it is my opinion that members of the Native Hawaiian community would suffer an irremediable religious injury if the TMT project goes forward in its current location. I respectfully urge the BLN R to engage in a robust consultation process with members of the Native Hawaiian community on this matter. Based on the stated criteria for Conservation District Use Permits (HAR 15-5-3oc) and on the Hawai‘i State Constitution, customary and traditional practices and religious freedoms must be balanced with the interests of the State, the public in general, and various specific user groups (see also, D. Kapua‘ala Sproat, “Avoiding Trouble in Paradise: Understanding Hawai‘i’s Law and Indigenous Culture,” . Such balancing is the hallmark of democracy. So too is it the hallmark of religious action to be most intense and expressive in moments of deep crisis. Thus, in assessing competing interests in this case, I would urge the Hearing Officer and the BLNR to grant a full measure of depth, sincerity, and weight to parties who are asserting their religious-based rights.

Of very specific relevance for consideration of the Hearing Officer and the Board, you will recall that the original CDUPA included a section devoted to cultural practices (4.1.4) in which constructing ahu and leaving of offerings were described as traditional practices. Section 4.2.1, entitled “Impacts On Pilgrimage, Prayer, Shrine Construction And Offerings,” reads, in part, “The majority of the areas within the MKSR where observances and rituals are believed to occur would not be affected by the Project… Therefore, the Project is not anticipated to significantly impact the resources available on Mauna Kea used for traditional and customary Native Hawaiian rights involving pilgrimage, prayer, shrine construction and offerings.” Additionally, the Final EIS declares, “Because the Project will not result in the loss or complete destruction of any archaeologic/historic resources with the Maunakea summit region or elsewhere, the impact is considered to be less than significant” (3.3, 3-39).

Not only is the formulation “less than significant” striking and potentially insulting to the practitioners, it has a specific meaning in this context. Namely, ithis aformulation that enables permit applicants to maneuver around the necessity of a full EIS. Here I quote HRS 343-2:

“Finding of no significant impact” means a determination based on an environmental assessment that the subject action will not have a significant effect and, therefore, will not require the preparation of an environmental impact statement.

“Significant effect” means the sum of effects on the quality of the environment,
including actions that irrevocably commit a natural resource, curtail the range of beneficial uses of the environment, are contrary to the State’s environmental policies or long-term environmental goals as established by law, or adversely affect the economic welfare, social welfare, or cultural practices of the community and State.

Whereas the ahu did not exist on the TMT proposed site at the time of the original application, they do now, and in a traditional manner that should trigger full consultation and potential protection. Their presence-and possible absence-is undeniably significant by any reasonable measure, especially when understood within the framework of world religions. Beyond the ahu, I would extend my point to be inclusive of religious action on Mauna Kea in general over the past several years.

In closing, it is my opinion that events on Mauna Kea over the past two years have included many instances of “significant” and sincere religious activity, including those of Mr. Freitas. Even though the religious activities I have described unfolded in political contexts of struggle and protest, I would urge the Board to understand such actions as sincere and deeply religious. The history of the world’s religions is also a history of struggle. Ongoing religious life on Mauna Kea is not an exception to this general rule.