Report Title:
Hanai Adoption
Description:
Establishes an advisory task force to study the consequences of integrating the practice of hanai into statutory law. Requests the task force to propose draft legislation for consideration for the 2004 legislature. Requests the advisory task force to submit an interim report to the 2003 legislature, and a final report to the 2004 legislature. (CD1)
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THE SENATE |
S.B. NO. |
2043 |
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TWENTY-FIRST LEGISLATURE, 2002 |
S.D. 1 |
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STATE OF HAWAII |
H.D. 1 |
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C.D. 1 |
A BILL FOR AN ACT
RELATING TO ADOPTION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that adoption has been an integral part of ancient Hawaiian life and has served as a customary way of life to the present day. Perhaps the most generally recognized form of adoption is hanai, meaning "to feed".
Hanai refers to a child who is reared, educated, and loved by someone other than the natural parents. The hanai relationship occurs most often within the family, so the child is rarely raised by strangers.
Traditionally, the permanent quality of the hanai relationship made it a near equivalent of legal adoption. However, early Hawaii cases recognized that not all hanai relationships carried with them proprietary and other rights, such as the right to inherit property.
In 1841, the Hawaii legislature enacted the first written law of adoption, and subsequently, Hawaii courts refused to give legal recognition of hanai or other customary adoptions unless the statutory adoption procedures had been followed.
Today, Hawaii’s courts continue to distinguish between legal adoption and hanai relationships. In Maui Land & Pineapple Co. v. Naiapaakai Heirs of John Keola Makeelani, 69 Haw. 565, 751 P.2d 1002 (1988), the Hawaii Supreme Court refused to reconsider the case law surrounding customary adoptions, holding that, "... while adoption by custom was recognized in early times, beginning in 1841 and continuing until the present time..., there were written statutes of adoption which had to be followed in order to constitute the adoptee's legal heirs of the adopters ... Even prior to the enactment of any statutes on the subject of adoption, the mere fact that one was a 'keiki hanai' did not, by Hawaiian custom, carry with it a right of inheritance."
Despite this, it is not uncommon for families to enter children into hanai relationships without a clear understanding of the legal ramifications involved. Questions then arise to the legal guardianship and custody of the "keiki hanai" compounding the difficulties experienced by state agencies, the courts, and most especially the families and children involved.
The legislature further finds that the State is mandated to protect and preserve the customs and traditions of native Hawaiians. Article XII, section 7, of the Constitution of the State of Hawaii states, "The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights."
Clearly, the hanai relationship is a customary and traditional practice that is unique to our island state. However, there is a need to confront the differences between native Hawaiian cultural practices and the western judicial system.
The purpose of this Act is to establish a temporary advisory task force to study the legal ramifications of integrating the practice of hanai into statutory law and propose legislation for consideration during the regular session of 2004.
SECTION 2. (a) There is created a temporary advisory task force on hanai relationships and adoption rights, to be known as the hanai adoption advisory task force, to be convened by Volunteer Legal Services Hawaii. The task force may review applicable case law, statutory law, and customary and traditional practices related to the hanai relationship.
(b) The task force may be comprised of twelve members, of whom two may be appointed by the president of the senate, two by the speaker of the house of representatives, and four by the governor. The ninth member may be selected by the eight appointed members and may serve as the chairperson of the task force. In selecting task force members, the appointing authorities shall ensure that there is representation from the neighbor islands, native Hawaiian community, legal community, nonprofit community, foster care and adoption community, three branches of state government, and general public. In addition, the task force may include as ex-officio nonvoting members:
(1) The director of human services, or the director’s designee;
(2) The attorney general, or the attorney general’s designee; and
(3) The chair of the board of trustees of the office of Hawaiian affairs, or the chair’s designee.
The task force members may be appointed within thirty days of effective date of this Act and the appointments shall terminate upon the submission of the final report to the legislature. Any other law to the contrary notwithstanding, any state or county officer or employee may be appointed as a member of the task force.
(c) No vacancy in the task force shall affect its powers and the vacancy may be filled in the same manner in which the original appointment was made. A majority of the members of the task force shall constitute a quorum.
SECTION 3. The task force established under section 2 of this Act may submit an interim report to the legislature not later than twenty days prior to the convening of the regular session of 2003, and a final report of findings and recommendations, including proposed legislation, not later than twenty days prior to the regular session of 2004.
SECTION 4. This Act shall take effect on July 1, 2002.