How are Indigenous communities grappling with the failure of settler law to deliver basic religious freedom protections, including with regard to sacred lands and ancestral human remains? At an even more fundamental level, how are such communities dealing with the senselessness of regnant jurisdictions concerning Indigenous sovereignty and self-determination? My contribution to this symposium takes up these questions by sketching some of their implications in Hawai`i, a place neither quite here nor there in terms of federal Indian law and broader constitutional frameworks.
As described by J Kēhaulani Kauanui and others, in protracted efforts to assert their traditional and customary rights, Hawaiians currently are navigating messy legal jurisdictions at a number of scales, ranging from county and state levels to federal and international domains. Throughout this way-finding process, to invoke a voyaging trope, their homing instincts have proven strong. So strong, in fact, that the primary jurisdiction they are now appealing to is their own. Just how this move to foreground and act upon “inherent sovereignty” will play out remains to be seen. For our purposes, the way Hawaiians articulate and perform auto-jurisdiction is important for understanding how some Indigenous peoples are asserting their religious practices and identities in the contemporary moment beyond the ruts of state-shaped religion-making. Hawaiian rejections of non-Indigenous jurisdictions can be read in the register of refusal, which has recently been theorized by Audra Simpson, among others. In a complementary way, Shiri Pasternak and Pamela Klassen have provided recent theorization of Indigenous jurisdiction with special attention to tradition, custom, and spirituality. Linking these frames, by auto-jurisdiction, I mean to convey the ways people look past the putative authority and mechanisms of prevailing jurisdictions and, alternatively, invoke the authority of tradition as long-term grounded experience in order to construct and speak forth their legitimacy. In key respects, auto-jurisdiction thus insists upon and instantiates counter-hegemonic temporal and juridical ontologies, as Mark Rifkin has recently shown.
Auto-jurisdiction is a project of the “collective self” that is articulated and amplified by communities, if not always in unified or consistent ways. Furthermore, assertions of auto-jurisdiction increasingly seek and receive reciprocal recognition from Indigenous “distant selves” situated elsewhere. In this way, auto-jurisdiction is a collective, collaborative, and corroborative phenomenon that is gaining visibility and momentum in Indigenous communities from Sápmi to Guam, and it is especially legible in protest settings where mutual affirmations of inherent sovereignty are critical to the bonds of solidarity formed therein.
An additional comparative note is warranted here. Indigenous communities around the globe are quite literally defined by the ways they stand at odds with hegemonic jurisdictions and, at the same time, they also often struggle internally over what jurisdictions maximize their potential to self-determine in lasting ways. How they articulate and pursue the protection of “religion” in these precarious positions is something that demands attention. What can be said in the wake of Standing Rock, among other recent conflicts, is that enactments of Indigenous jurisdiction are having real world impacts, even when self-assured representatives of nation-state jurisdictions and their subsets choose to downplay this phenomenon. The fact that criminalization of Indigenous protest movements is on the upsurge speaks to the success of Indigenous jurisdiction, for it is not protests per se or even specific violations of law (e.g., trespassing or obstruction) that have prompted such a response. Rather, it is the move to stand beyond law that is so provocative.
Jurisdictions of Religion
Three potentially watershed legal matters in Hawai`i are currently being contested that have relevance to religious freedom and auto-jurisdiction. The first pertains to a large-scale burial protection dispute at Kawaiaha`o Church that has triggered state and federal law; another involves ongoing protests asserting the sacred status of Mauna Kea in the face of telescope development; the third concerns federal recognition of Native Hawaiians on the model of American Indian tribes/nations. Jurisdictional issues are front and center in each of these disputes and cut across debates about all of them. Of particular relevance for my analysis, the caretakers of the iwi (human remains) and the `āina (land) are somewhat divided on jurisdictional grounds. The caretakers of the iwi usually articulate their standing and responsibilities by means of state and federal law whereas the Kia`i (protectors) on Mauna Kea and elsewhere often announce their aspirations in terms of a restored Hawaiian Kingdom (i.e., a form of political sovereignty wholly external to the U.S.). Despite these different standpoints relative to the framing force of law, iwi and `āina protectors are increasingly moving to a shared articulation of Indigenous jurisdiction.
But why have Hawaiians been pulled in opposite jurisdictional directions up to now? Simply put, human remains receive fairly strong protection under federal and state law in Hawai`i whereas land does not. Hawaiians faced significant threats to burial grounds in the 1980s, rallied around these threats, prompted a proactive state legislative response as a result, and catalyzed living Hawaiian tradition in the process. The federal Native American Graves Protection and Repatriation Act (NAGPRA) was passed shortly thereafter (1990), with considerable input from Hawaiians. While imperfect by most any measure, NAGPRA and the state burial law are widely regarded as being effective, including by many Native Hawaiians, religious leaders among them. However, international repatriation cases have recently decentered the place of law in favor of more autonomous modes of jurisdiction wherein some Hawaiian groups have enunciated their claims in the register of basic human rights and with a stated intent to work cooperatively with museums to replace returned bodies with vitalized relationships.
In stark contrast, land claims – whether sacred or not – have met little in the way of relief. Settler governments, especially those whose narrative is shaped by discourses of discovery and destiny, tend not to acknowledge Indigenous claims to land and seldom concede that religious sensibilities outweigh the government’s claims to “its own land.” This general picture holds true in Hawai`i. Therefore, when land protection activists such as the Mauna Kea Kia`i (Protectors) seek redress, they have little reason to have faith in the State of Hawai`i or the U.S. Instead, they find the future in the past. Claims to a restored Kingdom of Hawai`i are on the lips of many of the land activists.
Clearly, the move to auto-jurisdiction is risky. It is premature, at least with reference to Hawai`i, to say anything conclusive about its lasting impact and possible futures. As a mode of being and speaking, and in a global comparative frame, claims to self-jurisdiction are not available to all Indigenous peoples, at least not without tremendous potential costs. But in a place like Hawai`i, with putatively democratic mechanisms in place as a check on state violence, an acknowledged history of a stolen Kingdom, and a very robust and youthful generation willing to exert claims and take chances, the future of Indigenous jurisdiction is almost certain to be lively.
It is one thing to improvise tactics of inherent jurisdiction on the ground, as is currently the case of the Kanaka Rangers at Hale o Kuhio, an occupation camp at the base of Mauna Kea. It is quite another to launch and sustain a movement that seeks a thoroughgoing revolution and maximal sovereignty, which is the logical and aspirational extension of auto-jurisdictional self-fashioning. It should be an urgent agendum for scholars of Indigenous religions and law to track and understand moments and movements that evince bridgework from the former to the latter, and current trends suggest that we can expect more along these lines in coming years from communities across the globe. Meanwhile, what can be said is that the ways some Hawaiians are invoking their own jurisdiction has had the effect of rupturing “law’s perpetuity.” In other words, and regardless of apparent successes and failures vis-à-vis forces of the state, Hawaiians asserting auto-jurisdiction have tapped into the law’s most intimate language about itself as speakers of it. The success of the immersion school movement in Hawai`i provides ample evidence of how capable Hawaiians are at rejuvenating languages, however lost or latent they might appear. The language of the Kingdom is spoken fluently today.
What remains to be seen, among other things, is the effectiveness of such movements for protecting religious practices and sacred places. It has become increasingly obvious in Hawai`i that neither the state constitution nor federal frameworks are providing any substantial relief. Even more troubling than the failures of extant mechanisms to yield cultural protection and religious freedom are the manifest failures of due process in a number of recent disputes that are so egregious as to cause already marginalized Hawaiians to distance themselves yet farther from a state not of their own making. To give but one example, in the Thirty Meter Telescope contested case hearing, which lasted six months and included forty-four days of testimony by Native Hawaiians, the hearing officer found “no new facts” with regard to petitioners’ and intervenors’ claims about traditional and customary practice at the proposed project site and on Mauna Kea in general. The state supreme court recently affirmed this finding. A stark response to the majority’s “degradation argument,” however, can be found in Justice Wilson’s minority opinion.
How will auto-jurisdictional paths into the future be navigated by Native Hawaiians? Questions loom about community buy-in, actionability, and facing down the stark realities of military presence and the stubborn normativity of the tourist economy. But if ever the hold of the nation-state was felt to be loosening just as people on the ground are prepared to wrestle, my sense is we are at that moment. In place of guesswork from the sidelines as to what will happen next, I recommend a soundtrack for the movement. For those with gentle sensibilities, I suggest Hāwane Rios’ recently released single, “Directions.” For those who appreciated their protest music with a blunt delivery, check out Homework Simpson’s “I live in the (Kingdom).”