Tribal Ruling : Indian Law Keeps Girls From Father

Hank DeMent figured the fight for custody of his three daughters was over.

In 1985, a San Diego Superior Court judge named him the sole custodial parent, and after his estranged wife challenged the ruling a year later, another judge reaffirmed it.

Soon after, DeMent got yet another judicial endorsement--the tribal court on the Pine Ridge Indian Reservation in South Dakota, where the girls’ mother lives, issued an order recognizing the California decisions and acknowledging DeMent’s custody rights.

So, believing he had the weight of the law behind him, DeMent last June packed his girls off for a summer visit with their mother.

They haven’t been home since.

“This nightmare started with a phone call back in August, the night before they were supposed to get on a plane back to San Diego,” DeMent, 36, recalled in an interview Monday. “She said she wasn’t going to send them home. She said they were staying with her.”

Since that night, the Mira Mesa insurance broker has been embroiled in a frustrating legal struggle to get his daughters--Rachel, 11, and identical twins Genny and Jackie, 8--back. So far, he has failed, despite spending thousands of dollars on attorneys and seeking help from an array of local, state and federal agencies as well as missing children groups.

On top of the strain and anguish his daughters’ absence has caused him, DeMent says he feels acutely betrayed by the judicial leaders on the reservation who once pledged to uphold his custody rights.

“They gave me assurances that they would cooperate and honor the California decisions, so I felt confident,” DeMent said. “I was wrong.”

Meanwhile, his girls have missed almost two months of classes at St. Didacus School, where they are in the sixth and third grades, and DeMent worries about the emotional and psychological toll this bitter parental tug-of-war will take.

Kids Called Victims

“The kids are the real victims in this whole thing,” DeMent said of his towheaded trio, who are less than one-eighth Indian. “This is just tearing them apart.”

At the heart of DeMent’s saga, attorneys say, is the unusual status accorded the sprawling Oglala Sioux Indian Reservation in southwestern South Dakota and similar reserves across the nation. Because such reservations are essentially federal enclaves not under state jurisdiction, the girls’ mother, Deborah Redner, who is one-quarter Sioux, has so far been shielded from all efforts to prosecute her for the offense.

“Because of their peculiar autonomy, these reservations are not bound the same way that a normal political jurisdiction is bound,” said Kevin Elliott, a field representative for Sen. Pete Wilson (R-Calif.) who has been working on DeMent’s behalf. “Many of the laws we have for dealing with this kind of situation simply aren’t enforceable on reservations, which Congress over the years has given a status that makes them almost like a foreign country.”

For example, the San Diego County District Attorney’s Office issued a case against Redner in August, charging her with violating custody orders of the court, a felony offense. But local authorities in South Dakota say they cannot serve the San Diego warrant and arrest the woman while she is on the 2.7-million-acre Pine Crest Reservation, site of the famed Wounded Knee Massacre.

John A. Hewicker II, the deputy district attorney handling the case, said the local sheriff simply does not have jurisdiction on the reservation and therefore is unable to act.

“As a result, we’ve got (copies) of our warrant in communities completely surrounding the reservation so that if (Redner) should wander off sometime, she could be nabbed,” Hewicker said. “Otherwise, there’s nothing the local authorities can do. This is a very unusual case. We really can’t do much more at this point.”

The federal government, meanwhile, which generally prosecutes all major crimes not governed by the reservations’ independent tribal courts, also has been unable to intervene on DeMent’s behalf. A federal statute often used to arrest offenders in child-stealing cases--the Unlawful Flight Against Prosecution Act--does not apply because Redner did not physically abduct the children.

One Way Out

San Diego’s Assistant U.S. Atty. Peter Bowie said that although Congress redefined the act in 1980 specifically to make it applicable in parental kidnaping cases, a warrant still “could not be issued unless the mother had physically grabbed these kids and taken them across state lines with the intent to avoid prosecution.”

“Clearly, that’s just not the case here,” Bowie said.

DeMent’s attorneys say there appears to be but one remaining way out of the vexing legal quandary. Last month, they asked a federal judge in Rapid City to issue a writ of habeas corpus on grounds that the children are being held illegally in violation of their rights.

“It’s definitely an untested area of the law, but we believe this is the only other federal procedure specifically applicable to the facts in this case,” said Tom Tobin, a Winner, S.D., attorney who frequently handles cases involving Indian law. “We are hopeful the judge will issue the writ and bring this thing to an end.”

A hearing was scheduled on Tobin’s motion last week, but a judge granted a 45-day continuance at the request of Redner’s attorney, who said he hadn’t had adequate time to prepare. Although Redner was present in the courtroom, and the DeMents were hopeful that local authorities would arrest her under the San Diego warrant, sheriff’s deputies declined to do so for fear of “causing consternation” with the federal judge handling the matter.

“They would have been skating on very thin ice to have served a local warrant while these people were responding to a federal court order,” Hewicker said.

DeMent and his new wife, Jinger, 31, who had hoped the courtroom appearance might have reunited them with the children, were outraged: “I can’t believe they just let her walk in there with those kids and then walk out again,” Jinger DeMent said. “It was so infuriating.”

Similar Episode

DeMent, who has twice been awarded custody on grounds that he was more equipped to provide a home for his daughters than Redner, is furious that he has been forced to fight the battle once again. But he is not entirely surprised. After all, this is not the first time Redner has refused to send the children home after a visit.

In October, 1985, a similar episode unfolded--and lasted almost six months. In this case, after attempting--and failing--through legal channels to have Redner arrested and the girls returned, DeMent took matters into his own hands.

“I had gotten so frustrated that I went and did a Rambo type of thing,” DeMent said. “I lay in the bushes with binoculars, I had walkie-talkies, a getaway car, the whole works. My parents even helped me out, and they’re 65 and 63. I finally got them when they were getting off the bus bringing them home from school.”

DeMent said he and Jinger considered staging a similar liberation effort when they were in South Dakota during the past two weeks, but decided against it after someone warned them the tribal police were aware of their plans.

“These are not guys you want to mess with,” DeMent said. “It gets pretty hairy out there in the middle of nowhere.”

Aside from their concerns about the girls, the DeMents are resentful that the Pine Crest Reservation so far has been immune to authorities’ efforts to end what amounts to a kidnaping.

“The abilities of the Indian reservation to use the reservations as a sanctuary really, really gripes me,” DeMent said. “I just don’t think that it’s right for them to deny me my rights. I’m not trying to deny them theirs. I just want my kids back.”

Tobin, the DeMents’ attorney in South Dakota, said he hopes this case will help dramatize the need for amendments to federal laws to “fill this big void in the law.”

Bitter Feelings

“From the tribal point of view, these reservations are sovereign nations,” Tobin said. “But someone has to have jurisdiction to prevent situations like this from coming about.”

DeMent also has bitter feelings toward the tribal court, from which he once sought and received a ruling protecting his custody rights. Last month, Redner went to the tribal judges and asked them to award her custody of the children. The court--composed of a new set of judges--complied. It also nullified all previous custody orders and directed that all future requests for visitation be routed through the tribal court.

“They went ahead and held this hearing totally in violation of our rights, without even letting us know it was being held,” Jinger DeMent said. “We found out about it Oct. 6. I guess we weren’t invited.”

If the federal judge grants Tobin’s request and orders the girls returned to San Diego, the District Attorney’s Office will continue to pursue prosecution of Redner, Hewicker said.

“If we back off at this point,” he said, “she might try it again.”