Skip to main content
PRINT EDITION

Kū Kia‘I Mauna: Protecting Indigenous Religious Rights

Abstract: Courts historically side with private interests at the expense of Indigenous religious rights. Continuing this trend, the Hawai‘i State Supreme Court allowed the Thirty- Meter-Telescope to be built atop Maunakea, a mountain sacred to Native Hawaiians. This decision led to a mass protest that was organized by Native Hawaiian rights advocates and community members. However, notwithstanding the mountain’s religious and cultural significance, Indigenous plaintiffs could not prevent construction of the telescope on Maunakea.
Unlike most First Amendment rights, religious Free Exercise Clause claims are not generally subject to strict constitutional scrutiny. Congress has mandated the application of strict scrutiny to federal government action that imposes a substantial burden on religious activity through the Religious Freedom Restoration Act (RFRA). However, because most courts narrowly interpret “substantial burden,” it has become nearly impossible for Indigenous plaintiffs to succeed on claims involving violations of religious freedom. Moreover, RFRA does not apply to state governments, and most states—including Hawai‘i—have not enacted similar protections for religious rights.
This Comment suggests that the Hawai‘i State Legislature should enact a state version of RFRA that would apply strict scrutiny to government actions that impose a substantial burden on religious rights. Further, this Comment urges Congress and state legislatures to enact a more expansive definition of “substantial burden” that respects the First Amendment rights of Indigenous people to practice their beliefs.

Download the Full Article

Other Articles from WLR Print Edition

March 1, 2025 in PRINT EDITION

What’s Important to Write About? A Century of Washington Law Review Topics

Abstract: This Article examines the topics of all lead articles in Washington Law Review during its past ninety-eight years of publication. The analysis illustrates the changing interests of legal academics,…
Read More
March 1, 2025 in PRINT EDITION

Tenant Rights Deserve Consumer Protections: The Case for Overturning State v. Schwab

Abstract: Tenancy is a precarious housing arrangement—tenants do not own their homes yet depend on housing stability as a foundation for engaging in almost all aspects of life. For more…
Read More
March 1, 2025 in PRINT EDITION

Washington’s Implementation of Legalized Cannabis: A Model for Other States and the Federal Government

Abstract: This Article examines the process and outcomes of cannabis legalization in Washington State, offering insights for other states and potential federal legalization schemes. It begins with an overview of…
Read More