Honorable Robert Bunda

President of the Senate

Twenty-First State Legislature

Regular Session of 2002

State of Hawaii

Sir:

Your Committees on Hawaiian Affairs and Judiciary, to which was referred S.B. No. 2043 entitled:

beg leave to report as follows:

The purpose of this measure 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 by the 2004 Legislature.

Testimony in support of the measure was received from the Department of Human Services, asking that it not be the administering agency for the project, the Hawaii State Commission on the Status of Women, Volunteer Legal Services Hawaii, the GLEA Foundation, the Civil Unions – Civil Rights Movement, Blueprint For Change, and a private citizen. The Judiciary took no position on the measure but submitted comments.

Your Committees find 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 and 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.

Your Committees further find 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 has been perpetuated through generations within our island state. However, your Committees believe that there is a need to confront the differences between native Hawaiian cultural practices and the western judicial system.

Your Committees note that hanai relationships are not solely practiced by those of Hawaiian descent within our community. Many ethnic groups in Hawaii have embraced this practice for generations.

Your Committees also note that testimony indicated that the cost of studying this issue has been estimated at approximately $50,000. However, rather than amend the measure to reflect this estimated amount, your Committees defer to the Committee on Ways and Means to make a final monetary determination.

As affirmed by the records of votes of the members of your Committees on Hawaiian Affairs and Judiciary that are attached to this report, your Committees are in accord with the intent and purpose of S.B. No. 2043, and recommend that it pass Second Reading and be referred to the Committee on Ways and Means.