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Hmong Law:

Readers who are interested in choice of law, and in the use of foreign law in U.S. courts, will likely be interested in this today's Minnesota Court of Appeals decision in Ramsey County ex rel. Yang v. Lee. The conclusion:

The county‟s assertion that the law of the Hmong governs is not implausible, but it is not supported by any authority that demonstrates that the county has correctly described the law of Thailand. The county did not offer any expert testimony regarding the legal effect of the Conflict of Laws Act and its application to Hmong living in Thailand, and appellant‟s expert on Hmong culture testified that he had no knowledge of Thai law regarding adoption. Even if the county is correct that the Conflict of Laws Act applies, the language of the act, on its face, suggests that to determine what law applies, more must be known about the facts of the case than that Yang, Lee, and Y.P.L. are all Hmong. Therefore, because the county has neither produced a foreign country‟s adoption decree for Y.P.L.‟s adoption nor demonstrated that the adoption satisfied the legal requirements for an adoption in Thailand, we conclude that the district court correctly determined that the county did not prove that the cultural adoption is recognized in Thailand as valid.

The backdrop, of course, is that people who move to America bring their legally defined family relationships (marriages, adoptions, and the like) with them. When American courts must then apply American law (e.g., child support law) that turns on those family relationships, they must determine and apply often obscure foreign law rules in the process.

ValentinoRossi:
Tell that to Walt Kowalski.
8.18.2009 6:03pm
Malvolio:
There's a huge definitional problem. The H'mong come from dozens of subgroups and thousands of villages spread out over southern China and Indochina, and none of those entities, AFAIK, produces a written legal code in the sense that the US or Thailand does.

So if a Flower Hmong from Vietnam married a Striped Hmong from Laos, and they had a child in Thailand (this being a perfectly reasonably scenario), what kind of "H'mong law" should apply and what would that law actually say?

Further, even when all parties agree (as they seem to in this case) the Thai law prevails, Thai law is (as the court notes) very casual about family law, with things like marriages and births being officially noted only on an as-needed basis.

Finally, the circumstances of this adoption (the parents using false names and falsely claim to be the child's parents) are irregular even by Thai standards.

I'm glad I'm not judging this case.
8.18.2009 6:28pm
vivi (mail):
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8.19.2009 2:43am
Ben Maimun (mail):
The case report indicates that the parties and the court tacitly agreed to bark up the wrong - but politically correct - tree.

Anyone who has actually lived in Asia will recognize immediately what actually happened: the parents simply effected an "adoption" by registering the adoptive child as their own biological child with the Thai government. This practice is common and de facto accepted in Japan, Taiwan and China, and presumably in countries like Thailand and Laos as a cheap and convenient way to effect an adoption. Indeed, this practice is not unknown in the U.S.

The court and the inevitable "community elder" make much of a customary Hmong ceremony celebrating the adoption, but the parties' actions indicate that they believed the adoption to have become legally valid by registration with the Thai government. The procedure was handled by the wife who - unlike her husband - could read Thai. The course of events is similar to a civil marriage ceremony followed by a church wedding.

As so often, it seems that the three "assistant county attorneys" - all women - were thrilled at a chance to demonstrate their faux cultural sensitivity and international sophistication by arguing the case on the basis of ill-understood customary laws of a semi-literate tribal group.

As noted by other posters, the so-called "Hmong" (also known as Miao) are actually widely dispersed throughout Southern China and Indochina, with numerous subgroups in different countries speaking different languages and following different customs. Significantly, the parties in the case had for generations lived in countries (Laos, later Thailand) with well-developed personal status registration systems based on French/continental law precepts and were well aware of the need to obtain official papers documenting the adoption.

The use of "fake names" in the birth certificates is a red herring - it appears that each party consistently used a Thai-sounding name to avoid arrest as blatantly illegal aliens from Laos. Presumably, this practice is informally endorsed by Thai authorities who do not want the presence of large numbers of Laotians to be reflected too blatantly in official records.
8.20.2009 2:44pm
ReaderY:
As with the Enclosure Acts of the 19th Century, organized nation-states consistently refuse to recognize the customary practices of tribal societies only loosely connected to the the formal nation-state of which nominally members, and this lack of recognition invariably results in big, big losses to tribal members.

It's been all to common for people to be declared to have no recognized legal relationship to the land their family has inhabited and cultivated for centuries, simply for failure to havea document required by some law one's never heard of written in a language one doesn't know in a capital city one's never visited.

There are reasons not to recognize customary law. But generally speaking, it kept the peace in tribal societies at least as well as formal law.
8.20.2009 9:40pm

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