Cultural Self-Determination for Native Hawaiians
Remarks by Iokona Baker Post-J.D. Research Fellow

March 21, 2007
Panel on Scholar-Advocacy: Fashioning New Remedies for Injustice
Thelton E. Henderson Center for Social Justice, Boalt Hall School of Law, Berkeley, CA

I. Introduction

Aloha and good afternoon. First, mahalo and thank you to those who have worked so hard to put this event together. Also, and importantly, my thanks to each of you for taking the time out of your busy lives to be with us today. It is an absolute honor for me to be here as an emerging scholar advocate, with you, scholar advocates in Berkeley, on an issue that is dear to my heart and to my people: justice for Native Hawaiians.

Today I will touch on three main issues:  First, I’ll share with you my own experience and why I decided to get involved with social justice work; second, I’ll talk about some of the specific scholar advocacy training and work that I have done; and finally, tying it all together, I will discuss a specific and concrete example of how this scholar advocacy training and work is translated and applied to real, front-line justice advocacy for Native Hawaiian child welfare.

II. My Experience

It is important to acknowledge that telling you a little bit about myself, and how and why I got involved as a justice scholar and advocate, is a crucial component of advocacy work.  Setting up the context for your issue and laying the proper framework is important because it is your opportunity to frame your issue and tell your story. And justice work is all about stories. It is about how real people and real lives are impacted. Connecting unjust policy to real suffering, connecting unjust law to a real person’s pain, is important because it forces us out of the sterile and very mechanical process that we call “the law.” The unraveling of these stories reveals both immediate harms and historical injustices. 

And importantly, these stories force us, and others, to ask two fundamental questions: First, how can a society professedly committed to equality and justice under the law visit such inequality and injustice upon entire groups of people because of their race or gender or national origin? Second, how can the same law, in concert with politics, at times be used as an instrument of liberation and even justice?

So today, I begin with my story—about how and why I became involved with social justice work.

Often, when a Native Hawaiian person addresses a group like this, he would begin by reciting his genealogy, generation by generation, tracing back hundreds, even thousands of years. This showed a respect for and a connection to our ancestors, our chiefs, and our gods.  It connected us to our past, to our culture, and to who we are today. It connected us to each other. Yet, as I stand before you, I am unable to share with you my own genealogy.  I am telling you this because the fact that I do not know my own genealogy is reflective of the breakdown in my own family that mirrors the devastation and deterioration of the indigenous Hawaiian community. The federal government has acknowledged that devastation in Congress’s 1993 Apology Resolution, recognizing the United States’ illegal overthrow of the Hawaiian nation and the destruction of native culture and the harsh impact on the Hawaiian community.

My interest in justice work stems directly from my desire to participate in the healing of the Hawaiian community, remedying the historical injustices, and reclaiming our right to self-determination.

III. Advocacy Training

The key transition in justice advocacy work is being able to transform a desire or need for social change into an ability to actually effectuate that change. Part of my training as a scholar, to do this kind of advocacy work that fosters change and healing, required breaking away from traditional legal thinking.  That meant taking classes taught by critical race theory professors: classes that focused on race, interracial justice, reparations, social justice, indigenous rights, and organizing. It also meant forming our own small group of peers. During my first semester in law school, I found other students who shared an interest in justice work and we began to organize workshops to learn critical theory about the social importance of who makes and enforces legal rules, about the malleability of legal language, about the political significance of framing legal controversies, and about the predictive power of Derrick Bell’s interest-convergence thesis. And we continue today to develop these analytical tools so that we can apply them in the different advocacy situations that we encounter as students and as new attorneys.

So how does this scholar advocacy training and work translate to front-line justice advocacy?

IV. Case study: Applying the Critical Tools of Inquiry—ICWA and Native Hawaiian Child Welfare

For the past eight months I have been doing research focusing on the preservation of Native Hawaiian families and culture, and the protection of Native Hawaiian children. In Hawai‘i, the family court and the state’s child protection agencies, both institutions charged with safe-guarding and protecting our children, have used state law, policy, and the power of the courts to carry out large scale removals of Native Hawaiian children from their homes and communities. The removal of any child form his home is tragic, regardless of race, but the statistics on the removal of Native Hawaiian children is particularly disturbing.  While Hawaiians make up between 17-19% of the population, more than half of the children who are removed from their homes in Hawai‘i are Native Hawaiians.

Furthermore, once removed, the majority of these children are placed with non-Hawaiian families, often severing their familial and cultural ties permanently.  The impact of these removals has been devastating, not only on an individual level for the children and their families, but on a community level as well. The removals continue to inflict pain and harm on a Native Hawaiian community that is already struggling with a history of injustice. The harms are cumulative.

My goal was to approach this problem—using my scholar advocacy training and critical tools of inquiry—to properly analyze and expose the historical roots of the problem, to explore solutions that would mandate systemic changes in child welfare policy and procedure, and to open the door for the indigenous community and, importantly, the larger Hawai‘i society, to begin the process of healing.

As a starting point, I began looking at a piece of federal legislation that was passed by Congress to address the widespread removal of Native American children from their families and tribes. The Indian Child Welfare Act of 1978 (ICWA) gave federally recognized tribes jurisdiction over state child custody proceedings involving Indian children.  This was important because it was an acknowledgement by Congress that tribes have a right to self-determination and that tribes, not the states, should determine what is in the best interests of Indian children. It gave tribes the power to stop the removals.

My initial idea was to draft similar legislation for Native Hawaiians.  But in trying to do so, I got stuck behind traditional legal barriers.

Traditional legal analysis is akin to looking through a microscope.  This narrow lens approach ignores the big picture and concentrates on a narrow legal concept. This approach allows the courts to ignore the human issue, the moral issue, the justice issue, and instead, produces for the court an almost mathematical issue, a series of logical deductions based on black letter law—void of any context.  This narrow lens is what has allowed civil rights law to be “turned on its head.” Unfortunately, the law often forces us to operate under a narrow lens framework.

As I was poring over the Indian Child Welfare Act and considering ways of drafting similar legislation for Native Hawaiians, it became clear under traditional legal analysis that such legislation would be immediately subject to constitutional challenges. Why? Because Native Hawaiians, unlike those tribes who receive protection under ICWA, are not federally recognized. While Morton v. Mancari clarified that Congress has the authority to create legislation for federally recognized Indian tribes based on a “political” relationship, Rice v. Cayetano, a landmark case that was a huge setback for Hawaiian justice advocates, revealed that Native Hawaiians, without federal recognition, likely had no such political relationship with the United States.

So under traditional legal analysis, that’s it, end of story!  The problem remains, but there is no traditional legal remedy.  But that is not really the end of the story.  When we look through a wide lens, and employ tools of critical inquiry, we begin to ask deeper questions.  What are the systemic sources of the harms?  How do we heal the wounds of deep systemic injustice? When we ask these questions we look not only at Native Hawaiians, but also at other groups facing long histories of injustice with present day consequences.

Through this wide lens approach we are able to see the continuing harm to Hawaiian families. But we also begin to see similar harm to African American families who have been devastated by involuntary removals. And of course, we see the harm to Native American families and communities.  What we also begin to see are the sources of the harms.  In an important respect, the family breakdown and breakdowns in community structures are all tied to long standing, unresolved systemic injustices; whether rooted in the illegal overthrow of the Hawaiian nation, confiscation of land and suppression of culture, the enslavement of a people followed by Jim Crow segregation and violence, or the violation of treaties, theft of lands, and physical as well as cultural genocide.

So what is called for, then, is not simply about the removal of one child from one family, though that is very important, the focus should also be on the restoration of broken communities. The focus should be on healing group members in terms of culture, identity, and families. So what we are really talking about is restoration. And restoration, not in terms of a remedy for discrimination, but rather restoration of what was lost or destroyed from varying forms of American colonialism that link Native Hawaiians, African Americans, and Native Americans.

So how then do you restore communities? It means that communities need to take responsibility themselves, but it also means that the state needs to support that effort in part by sanctioning indigenous mechanisms, created by and run by Native Hawaiians, not only to handle child removal issues, but also to handle community building in the face of hard socio-economic and educational realities.

This is restorative because it is supporting the Hawaiian community in rebuilding itself through its families. It is justice because it is affirming the indigenous people’s right of self-determination. So restorative justice provides the moral grounding for dealing with systemic harms, including Native Hawaiian child welfare.

But will this framework withstand the narrow legal test applied by the court?  Perhaps not, if the legal test is still tightly construed and narrowly argued. But a restorative justice moral framing may be the first step in arguing that the legal test in racial versus political distinctions are too rigid, and that the legal test itself should be grounded more in appropriate responses to long standing harms.