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Excerpted From: Terina Kamailelauli'i Fa'agau, Reclaiming the Past for Mauna a Wkea's Future: The Battle over Collective Memory and Hawai'i's Most Sacred Mountain, 22 Asian-Pacific Law and Policy Journal 1 (May 15, 2021) (565 Footnotes) (Full Document)

MaunakeaThe ' lelo no'eau (proverb) “I ka w ma mua, ka w ma hope” illustrates how Knaka Maoli (Native Hawaiians) orient themselves temporally. “Ka w ma mua,” literally translated as “the time in front,” describes the time that precedes the present (i.e., the past). Likewise, “ka w ma hope” means “the time in back,” the time coming after the present (i.e., the future). Knaka Maoli appreciate that they “stand [] firmly in the present, with [their] back[s] to the future, and [their] eyes fixed upon the past, seeking historical answers for present-day dilemmas.” Recollections of the past, however, “are largely constructed in the present.” While looking to history can provide insight for the present and into the future, understandings of history depend on “who tells it, how it is told, which stories are shared, the nuances and complexities, [and] the language used.” And as those social understandings of the past evolve, so do the solutions for present-day problems.

Traditionally, Knaka Maoli fixed their eyes on “ka w ma mua” by looking to their history and ancestral knowledge preserved through mo'ok'auhau (genealogies), mele (songs), and mo'olelo (stories). But near the end of the 19th century, many Knaka worried their ancestral knowledge would be erased, leaving future generations lost without the cultural kahua (foundation) Native Hawaiians relied upon since time immemorial. As American businessmen seized control over the archipelago and Hawai'i's native population declined due to foreign-introduced disease, “non-native historians developed and promoted [a] narrative” that failed to “acknowledg[e] ... [Americans'] hostile takeover of an indigenous sovereign” and instead centered “around sugar planters, the economy, and land and power in Hawai'i.” Prevailing for nearly a century after the 1893 illegal overthrow of the Hawaiian Kingdom, colonial narratives developed and promoted by foreign historians centered around shifting economic and political power in Hawai'i. This “history” crafted by non-natives suppressed Native Hawaiians' historical accounts, along with their collective memory of the injustice that took place in Hawai'i.

Which aspects of history are told, and how they are told, determine social understandings of justice and how that “justice” will be accomplished. Collective memory--a powerful tool wielded by colonizers for centuries--can be reclaimed and deployed by Knaka and other Indigenous People to undergird justice claims. Knaka Maoli today are deliberately looking to the past--through stories, songs, genealogies, and chants--to understand how they can shape and determine their future. They continue the effort to recover parts of history left out of colonizers' narratives. And while the courts often tell a different version of “history,” Native Hawaiians have persisted in making these recovered narratives public and changing the way others understand what justice for Native Hawaiians requires.

In October 2018, the Hawai'i Supreme Court published the decision In re Contested Case Hearing re Conservation Dist. Use Application (CDUA) Ha-3568 for the Thirty Meter Telescope at the Mauna Kea Sci. Res. On the heels of protracted administrative trials (contested case hearings) and earlier litigation, the court's Mauna Kea II decision affirmed the state's Board of Land and Natural Resources' (“BLNR's” or “the Board's”) grant of a Conservation District Use Permit (“CDUP” or “the Permit”) for the development of the Thirty Meter Telescope (“TMT”) on Maunakea. Many assumed that the court's ruling finally “clear[ed] the way for TMT to begin construction.” But when developers sought to break ground on the TMT in July 2019, several hundred Kia'i (guardians) gathered at the base of the Mauna Kea Access Road to halt the contentious project's construction, which they have been successful in doing for nearly two years as of this writing.

The present conflict engulfing TMT is the culmination of a decades-long battle over the summit of Maunakea. This conflict, however, is not simply a battle over a sacred mountain, but a battle over the collective memories of Maunakea and Knaka Maoli and the injustices committed against them. The Hawai'i Supreme Court majority and TMT stakeholders and supporters recall memories altered by their “hopes and desires” to justify their approval and support for the project. On the other hand, Kia'i, other Knaka Maoli, and their allies remember and retell a competing collective memory of injustice, one that “integrates the ancestral with claims of right” to Maunakea. These present-day constructions of the past will determine the future of Maunakea and other Knaka Maoli struggles for justice. The prevailing collective memory of “ka w ma mua” will inform what will be done “ka w ma hope.”

This article unpacks the incomplete “history” of injustices in Hawai'i and on Maunakea--as depicted by BLNR's approval of TMT's CDUP and reinforced by the Mauna Kea II majority--that the Hawai'i Supreme Court and TMT supporters deployed to rationalize and clear the way for the telescope's development. Further, this article explains how the prevailing collective memory of injustice will determine the fate of the TMT on Maunakea and shape narratives of justice for Native Hawaiians “ka w ma hope.” Part II explores collective memory and explains its power and potential for justice struggles in Hawai'i with an example from Rice v. Cayetano (2000). Part III examines the cultural and historical significance of Maunakea to Hawai'i and Native Hawaiians as well as the history of Western astronomy on the mountain's summit. Part IV provides the legal background of this battle over Maunakea and outlines the State of Hawai'i's affirmative duty to protect Native Hawaiian traditional and customary rights. Parts V and VI illuminate the recent and ongoing battle over the collective memory of injustice of Maunakea. Part V closely examines the Mauna Kea II majority and dissenting opinions and their effects on public perception surrounding Maunakea and justice for Native Hawaiians. Part VI then brings light to Native Hawaiians' oft-ignored familial, spiritual, and legal claims to Maunakea--with examples from Kia'i's testimony before BLNR, the court, and the public--to combat the narrative that has paved the way for the approval of the TMT. Finally, Part VII concludes this article by looking to “ka w ma hope” and contemplating the future of Maunakea.

[. . .]

Dr. Jonathon Osorio foresaw, as presented in his contested case testimony nearly four years ago, that “the renewal of the protest on the mountain, should the TMT prevail [in court] and try to resume construction, will shake the political foundations of the state.” Just as Dr. Osorio predcited, Knaka Maoli have done just that. Through investigating, criticizing, and correcting the innacurate historical narratives deployed by the Hawai'i Supreme Court and others in support of the TMT, Knaka Maoli have illuminated their collective memory of injustice, one which sets the controversy shrouding Maunakea against a backdrop of colonization's continued destruction to Maoli land (including Maunakea), Maoli people, and Maoli self-determination.

This battle over Maunakea is, at its heart, a battle over the collective memory of Maunakea and Knaka Maoli and the injustices commited against them both. As Professor Yamamoto points out, “if we seek justice by claiming civil or human rights, we must at the outset critically engage the dynamics of group memory of injustice.” These group memories are “not about simply recalling past events” but rather they are constructed in the present--they are “built and continually altered.” The collective memory cast by Mauna Kea II, only appearing to take into consideration Maoli voices and perspectives, justified the resulting curtailment of Native Hawaiian traditional and customary rights. By ignoring the purpose and intent behind Native Hawaiian traditions and customs on the Mauna, the court deemed that no “relevant” traditional and customary rights were ever exercised by Knaka. According to the majority's selective version of history--void of Native Hawaiians, of the continued resistance to development on Maunakea, and of the University and BLNR's mismanagement of the summit's resources, void of any discussion of the illegal overthrow--“justice” requires that the TMT, having gone through the “proper” legal process, ought to be built.

Although the memories acknowledged by decisionmakers (i.e., BLNR, the Mauna Kea II court) typically dictate notions of justice, the legal process “is one, but only one, significant aspect” in shaping both collective memory and justice. Despite the court's use of historical narratives that, in actuality, perpetuate colonization's harms to Maunakea and Knaka Maoli, Kia'i and their allies have illuminated that the battle also “take[s] place on the terrain of culture.” Through mass demonstrations, social media, and Maoli scholarship, art, and literature, Knaka Maoli have increasingly controlled the stories told and retold about Maunakea, Native Hawaiians, and their justice struggles.

By taking control over the narrative, Knaka Maoli have more fully and accurately portrayed the collective memory of injustice shrouding Maunakea, one that is not separate from the enduring injustices Native Hawaiians face as a result of colonization. Deploying collective memory as a political tool, Native Hawaiians also envision the K Kia'i Mauna movement as a part of a larger movement to rectify colonization's gravest harms, including global climate change and human rights violations against Indigenous Peoples. Through actively reshaping the collective memory of Hawai'i's past (“ka w ma mua”), as Maoli Political Scholar and Professor Kamanamaikalani Beamer succinctly put, Native Hawaiians have “altered what's possible in Hawai'i and what's possible” for Knaka Maoli in “ka w ma hope.”

J.D. Candidate, Class of 2021, William S. Richardson School of Law.

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