By Malia Blom Hill
Though there has been a great deal of talk about the pros and cons of the Akaka Bill regarding the future of Hawaii, it is surprising to see how little of that debate takes into account the established precedents that govern those Native American tribes already recognized by the federal government.
While there has been some debate over the extent to which the Bill creates a “tribe” in the same sense for Native Hawaiians as it has for Cherokees or Seminoles, it is certain that all existing precedent (and indeed the Constitutional provision that—probably—allows Congress to act in the case of the Akaka Bill) come from the laws governing Indian tribes.
In other words, if we want to peer into the future of a post-Akaka Hawaii, we ought to take a look at what’s happening with tribal law.
And when you consider just how haywire things can go, it’s hard to find a better example than the Indian Child Welfare Act. The Act was passed in 1978 in response to real and serious concerns about the alarmingly high number of Indian children who were being removed from their homes (and their tribes) to be placed in non-Indian homes—threatening tribal stability and even survival.
In response, Congress gave tribes an extremely strong voice in child custody proceedings involving an Indian child, including exclusive jurisdiction over cases where the child resides on the reservation or is a ward of the tribe.
Doesn’t seem so bad, does it? Enter the law of unintended consequences.
While the Act certainly served its function in protecting the survival of the tribes and their culture, the obvious potential for abuse of the Act’s provisions have also created a heartbreaking collection of cases where the welfare of children and families takes a back seat to political intrusion and people exploiting the system for their own purposes.
It’s all there: children returned to a home where the State had evidence of sexual abuse—and over the objections of the children’s own natural parents—by a tribal court exercising its exclusive jurisdiction over the case. Children taken away from a non-Native parent by the family that can use the Act to settle old scores. And the list goes on and on.
And now consider what the Indian Child Welfare Act could mean for a Native Hawaiian tribe—especially in a state where people are proud to call themselves “hapa.”
If the Act is determined to apply to the new Native Hawaiian government (and there’s no evidence that it won’t), family law in Hawaii may take a very ugly turn, with the Native Hawaiian government (or that side of the family) having the power to set the rules and run the show in child custody cases—even to the point of being able to come in long after custody has been settled and remove a Hawaiian child from a “non-Hawaiian” home.
The pain that this could cause to a community and culture that has such a proud tradition of ohana is profound.
Our islands are different. Our culture is different. There’s a reason that the opponents of the Akaka Bill point to our history to show that Hawaii has always been an inclusive society, not a tribe. What a shame it will be if this Bill tears apart our long tradition of unity by creating a new tribe.
Malia Blom Hill is a Research Fellow of Grassroot Institute of Hawaii, where one of her major projects is centered on https://www.4hawaiiansonly.com Please visit and consider helping by adding your research, commentary, or support. Malia may be contacted by email at 4hawaiiansonly@gmail.com
[…] with the first two installments of our new series on possible unintended consequences of Akaka. The first looks at the possible impact of the bill on children and families in light of the Indian C…, a federal law meant to give recognized tribes a say in the custody of children that could have […]
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