Excerpted From: Glenn Ching, Dedman V. Board of Land and Natural Resources: Native Hawaiian Sacred Site Claims, 10 University of Hawaii Law Review 365 (Winter, 1988) (137 Footnotes) (Full Document)


NativeHawaiianLandIn Dedman v. Board of Land and Natural Resources, the Hawaii Supreme Court held that geothermal development of an area considered sacred by Native Hawaiian worshippers of the volcano fire goddess, Pele, was not an unconstitutional infringement of their rights to exercise freely their religion as guaranteed by the first amendment to the United States Constitution and article I, section 4 of the Hawaii Constitution. In assessing whether an unconstitutional infringement of the Native Hawaiians' religious freedom had occurred, the court followed the United States Supreme Court's approach in Wisconsin v. Yoder. The Hawaii Supreme Court concluded that, absent any showing by the Native Hawaiians that they had actually performed religious ceremonies and activities on the land, no discernible objective harm was evident, and therefore, claimants had failed to establish that the requisite "substantial burden"' on their religion was imposed by geothermal development of the region.

The concern raised by Dedman is that the Hawaii Supreme Court's adoption of Yoder's "objective harm"' test prejudicially excludes consideration of the intrinsic religious importance of Hawaiian sacred lands. This note focuses upon this concern. Section II discusses the factual background of Dedman. Section III outlines the relevant constitutional religious standards. Section IV comments on the Dedman decision and proposes that the shortcomings of the approaches taken by courts in applying constitutional standards to Native American Indian sacred site controversies are relevant to an assessment of the Hawaii Supreme Court's analysis in Dedman. Section V discusses the future implications of the Dedman decision. Section VI concludes that Dedman will adversely affect future Native Hawaiian religious claims by advocating constitutional standards which preclude adequate consideration of unique Native Hawaiian theology.

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In Dedman v. Board of Land and Natural Resources, the Hawaii Supreme Court denied the claim of Native Hawaiians that interference with a sacred site unconstitutionally infringed upon their rights to religious freedom. By applying the traditional Yoder analysis in Dedman, the Hawaii court in effect held that governmental acts which, in the eyes of adherents to Native Hawaiian religion, undermined the vitality of the religion and threatened the very life of a worshipped deity, were not unconstitutional absent a showing that the acts caused the claimants some "objective harm."' Thus, the court implicitedly rejected a core belief of Native Hawaiian religion, namely that certain sacred sites have intrinsic religious value and significance, entirely apart from whether such sites have ever been actively used in the practice of the religion.

The Dedman decision is in accord with the majority of decisions of other courts that have addressed sacred site claims by adherents of non-traditional religions. The decision is also subject to the same criticisms that have been leveled against prior decisions in this area; the main criticism is that the application of the Yoder test to non-traditional sacred site claims may improperly deny claimants the full first amendment protections that they deserve and which the authors of the amendment arguably intended them to have.

The court's decision in Dedman appears unfortunate, given the uniqueness and fragility of Native Hawaiian religion, and given also that AIRFA clearly provides a basis upon which the court could have adopted a novel approach in order to protect the special needs of the claimants in this case. Although AIRFA may not provide a cause of action for violation of free exercise rights, the Act clearly expresses Congress's sensitivity to the special characteristics of Native American and Native Hawaiian religions, and Congress's desire that such religions be accorded the full first amendment protections which they deserve. By applying the traditional Yoder analysis to the Native Hawaiian claims in Dedman, the Hawaii Supreme Court arguably let pass an opportunity to implement Congress's intent as expressed in AIRFA and to provide other jurisdictions with a precedent for doing the same.