by Andrew Walden
Thousands of Hawaiians at last summer's hearings told the US Department of Interior they don't want to be made into a fake Indian tribe, but Hawaii State Senators are quietly considering a bill which child welfare workers say would place native Hawaiian children at risk, create a tribal judiciary--and exempt it from Hawaii public records law.
SB992, introduced by Sen Maile Shimabukuro, D-Waianae, transfers legal jurisdiction over family law cases involving one or more native Hawaiian parents to the so-called 'Kupuna Tribunals.' The bill advanced unanimously 'with amendments' after a February 11 joint hearing of the Senate Committee on Hawaiian Affairs and the Senate Committee on Human Services and Housing. An amended version is not yet available.
The story begins with some text slipped into the Indian Child Welfare Act.
Testifying in favor of SB992, Maile K Hallums, 'Leo Hano' of 'Na Kupuna Tribunal', claims there are "12,000 children unaccounted for" and explains, "Our late Congressional Senator Daniel Inouye paved the way for this bill to be enacted into Hawai’i Revised Statutes when he thoughtfully and steadfastly lobbied to include 'Native Hawaiian' as designated in the Administration for Native Americans out of which come the Indian Child Welfare Act. What better tribute than to follow suit with the Native Hawaiian Child Welfare Act. Upon its enactment into HRS, this body will have the unique distinction of being the only State of the United States to have its law obeyed in all 50 states superseding their own."
If the idea of a Hawaii State Law creating a Tribal Court without an underlying tribe sounds far-fetched, perhaps the idea that such a court could supersede the laws of other states seems even more so. But Hallums claims Na Kupuna Tribunal involvement in family law cases in Arizona, Illinois, and Utah. Testimony supporting SB992 came from a native Hawaiian adoptive parent living in Salt Lake City, Utah. She completed a legal adoption of two Hawaiian children under Utah state law, but complains: "While the Legacy Coalition Family Advocate of the Na Kupuna Tribunal gave support to me in the adoption process, our Utah court system did not recognize their jurisdiction."
The ICWA has similar 50-state reach with sometimes devastating results. ICWA's "poisonous and painful legal cocktail" arrived at the US Supreme Court in 2013, four years after the Cherokee Nation moved to block the otherwise legal adoption of an Oklahoma newborn on the grounds that the absentee father was 2% Cherokee. Hallums tweeted "Native American roots trump" when at one point in 2012 when custody was returned to the abandoning father. The Supreme Court eventually granted custody to the adoptive parents.
The bill, which, according to Hallums, is unrevised from one introduced in 2007, is igniting a firestorm of opposition from family law attorneys both locally and nationally.
Jonathan Callejo, a graduate student at the School of Social Work at UH Manoa, testified against SB992:
I have worked in the social work and related youth mental health and child welfare services field across 15 years. I was a Child Welfare Services Case Manager and Investigator. My own caseload and experience within the system saw the over-representation of Native Hawaiian youth in foster services and as a Native Hawaiian, I appreciate the concern for sustaining our cultural heritage. However I cannot support this measure as it is currently written.
As noted in the bill, “Approximately 50 percent of the foster care cases under the jurisdiction of the Department of Human Services involve native Hawaiian families”. However under Hawaii's triage and differential response procedure for reports, those that end up in the jurisdiction of the department are there because the harm or threat of imminent harm required their removal from the home. Those that remain under the department are there because the home environment has demonstrated an unwillingness or inability to make the changes necessary to support reunification in a timely manner.
This bill would not serve to reduce the number of Native Hawaiian youth at this level of risk, but instead re-label them under the jurisdiction of the tribunal. These would still be children that require that level of out of home placement due to risks to their safety and well-being. If these children are kept within the home despite the safety concerns, then we are trading safety of the child for the family culture.
Dyan M. Medeiros, a past Chair of the Family Law Section of the Hawaii State Bar Association, stated:
As a part-Hawaiian woman born and raised in Hawai‘i, I question the need for this bill. While I was raised to understand and appreciate my Hawaiian heritage and culture, I was also raised to understand and appreciate my Chinese and Portuguese heritage and culture. Every family should have the choice to emphasize whatever culture and heritage they wish to. This bill, however, elevates Hawaiian heritage and culture while minimizing other cultures and ethnicities. Since the majority of Hawaiian children are part-Hawaiian, this law could easily send a message that the non-Hawaiian part of these children is not as good as or somehow lesser than their Hawaiian heritage. That is not good for any child’s self-esteem.
....portions of the bill seem indicate that this bill would actually apply to any custody proceeding, including divorce and paternity cases. This could force a Native Hawaiian family going through a divorce or paternity case to actually have to address their issues in two (2) different forums – the Na Kupuna Tribunal (for custody issues) and the Family Court (for all other issues – property division, child support, etc.)....
If the Na Kupuna Tribunals receive jurisdiction over divorce and paternity cases, parents who are not ethnically Hawaiian would find themselves under the control of a Tribal Court system fixated on keeping the children with the native Hawaiian parent.
Jessi L.K. Hall, another past Chair of the Family Law Section of the Hawaii State Bar Association, testified:
This Bill seems to be premature. I understand that the language in the Bill is patterned after similar laws for Native American tribes. The significant difference here is that the Native American tribes have their own sovereign governments that oversee these tribunals and set rules and regulations. Hawaiians do not yet have that sovereign government that can manage such a program. Allowing a program like this to stand alone will lead to improper use and potentially corruption of a system whose sole purpose should be the safety and protection of the children.
Also, if nearly half of all children in the foster care program are of Hawaiian descent that means these are Hawaiian parents maltreating their children. This is not pono. Children have always been very important in Hawaiian culture. Does it not make more sense to fix the problem first so we do not have so many maltreated Hawaiian children and the cycle of abuse and neglect does not continue? Why not focus on creating programs to assist and educate the parents before the damage is done? If the children are not maltreated they will not need to be taken away from their Hawaiian parents and the parents themselves can instill proper Hawaiian values to their own children.
The American Academy of Adoption Attorneys weighed in with testimony written by its president and attorneys Co-Chairing the Academy's Indian Child Welfare Act Committee. The Academy is crystal clear that Native Hawaiians are not American Indians:
(The Academy) has concluded, based upon the statutes, findings, and case law cited above, that SB 992, as drafted, is unconstitutional....
The Indian Child Welfare Act (ICWA) was enacted pursuant to Congress' power to regulate commerce and based upon its trustee relationship with Indian tribes.
The constitutionality of the ICWA has been upheld by lower courts, which often cite a 1974 United States Supreme Court decision, Morton v. Mancari, upholding a law which granted a hiring preference for Native Americans by the Bureau of Indian Affairs. In this often cited opinion, the Court, stated, "The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities ...."
The Morton test, was ... at the heart of Rice v. Cayetano, the 2000 U.S. Supreme Court decision that invalidated, and found unconstitutional, a Hawaiian state constitutional provision that required members of the Office of Hawaiian Affairs - which administered earned income from land held by the state - to be "Hawaiian" and be elected only by "Hawaiians" ....
In striking down Hawaii's constitutional provision, the Supreme Court emphasized that the case differed from cases involving Indian tribes. In the Rice decision, the Court cited the Morton test with approval and stated that to avoid being an unlawful racial classification; the preference could not be directed to a racial group but rather members of federally recognized tribes. The Rice decision clearly applies to the SB 992 and the reasons it would be found unconstitutional....
State ICWA Laws Cannot Expand Statutory Rights Granted By The Federal ICWA While Congress has the authority to enact the ICWA, based upon the U.S. government's unique trustee relationship with federally recognized tribes, no such trust relationship exists between Indian tribes and the states.
Even if SB 992 involved federally recognized tribes, (which it does not) it would still be unconstitutional.
The Iowa Supreme Court has addressed this issue regarding Iowa's ICWA law. In its decision, In re A. W. and S. W., the Iowa Supreme Court found section §2328.3(6) of the Iowa Code to be unconstitutional. The Iowa Supreme Court stated that given the limits of the state authority to legislate in favor of members of federally recognized tribes, Iowa's ICWA law's expansion of the definition of "Indian Child" to include ethnic Indians not eligible for tribal membership constituted a racial classification that does not survive a strict scrutiny equal protection analysis. The Iowa Supreme Court concluded that the ICWA's definition of an Indian child represents the boundary of federal trust authority and limits a state to only enacting laws as to children who are members or are eligible for membership in a federally recognized Indian tribe. The court further ruled that given the limits of governmental authority, Iowa's expanded definition constituted a racial classification which does not survive a strict scrutiny equal protection analysis.
What is widely misunderstood is that states may only legislate within the boundaries of the delegated federal Indian trust authority and the state's interest is defined by those boundaries....
Additionally, the Multi-Ethnic Placement Act, 42 U.S.C. § 1996b(1) states:
(1) Prohibited conduct. A person or government that is involved in adoption or foster care placements may not - -
(A) deny to any individual the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the individual, or of the child, involved; or
(B) delay or deny placement of a child for adoption or into foster care, on the basis of the race, color or national origin of the adoptive or foster parent, or the child, involved.
SB992 did not receive testimony from the Office of Hawaiian Affairs, but the bill manages to include a OHA's signature clause; The Na Kupuna Tribunals would be exempt from Hawaii's Uniform Information Practices Act.
This drew a response from the Office of Information Practices:
To create confidentiality for the information in question, the bill should state that “the information shall not be disclosed under Chapter 92F” instead of stating as it currently does that “the information shall not be subject to chapter 92F or the Freedom of Information Act (5 U.S.C. 552), as amended.”
The Uniform Information Practices Act (“UIPA”), chapter 92F, HRS, recognizes and gives effect to confidentiality statutes in its exceptions at sections 92F-13(4) and 92F-22(5). Thus, it is only necessary to state that the information “shall not be disclosed” under chapter 92F to keep the information confidential. By stating, as the bill does, that the information “shall not be subject to chapter 92F,” an agency would have no obligation to even inform a requester that the request was denied and provide the reason, as would normally be required when denying a request under the UIPA.
Please note also that the Freedom of Information Act is the federal counterpart to Hawaii’s UIPA and as such applies to federal government agencies, not to state or county agencies. Further, a state law purporting to create an exception to a federal law would not be effective in any case.
OIP describes its testimony as "technical comments", but these 'technical' errors become much more ominous when one considers that state public records laws do not apply to Indian Tribes and Federal FOIA access is limited. The exemptions would apply not only to the records of the cases handled by the tribunal, but also to the organization and finances of the Tribunal itself. As Ms Hall pointed out, "Allowing a program like this to stand alone will lead to improper use and potentially corruption of a system whose sole purpose should be the safety and protection of the children."
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SB992: Text, Status