County gives birth father custody, Tribal court sends police to take children

January 22, 2010

To whom it may concern: I am writing to you in hopes that you may be able to provide some answers for my family. I would like to tell you a story without going into too many details due to concerns about the pending legal cases surrounding this situation.

Approximately two years ago, my brother opted to divorce his wife of 13 years for multiple reasons … After a custody battle in our local county court system, my brother was awarded custody of their two daughters, then age 11 and 3, with the mother receiving visitation every other weekend. The mother also received mental health treatment at an inpatient ..facility for approximately one week and was to continue to receive outpatient services while meeting regularly with the psychiatrist.

Because the divorce was not final and my brother wanted to believe his marriage could be salvaged, he opted to allow his wife to return home with the stipulation that she would engage in regular mental health treatment and take her medication daily. It was not long, however, before his wife stopped taking her medications and slipped back into her old ways. She again left the family and divorce paperwork was filed. This time, however, she claimed that my brother was physically abusive toward her and the two children, an accusation which had never been mentioned before even through out the previous custody battle. She also had no evidence to substantiate her claims (i.e. pictures, doctors reports, police reports, etc.).

However, one day Children’s Services showed up at his door and said they were taking his two daughters away. Keep in mind, my brother had only ever spoken with Children’s Services on the phone once but had never met him or been to his home. They stated that there was evidence of abuse but would not show it to him. An emergency hearing was held four days later at which time the county courts ruled that there was no evidence of abuse in the past or currently and that Children’s Services had not done their job correctly. So, the girls were returned to my brother.

The next day, my brother came home from work in the evening to find paperwork taped to his door from an Indian Tribe (which he knew both his wife and two daughters to be registered members of in the state of Michigan although the family actually resided in Indiana). The paperwork told him that he was to appear in a tribal court in another state the following morning which, by this time, was less than 12 hours away. He contacted his lawyer at his home who told him that he did not have to attend because he had never heard of this court and that he had not been given enough notice. So he did not go.

So, my brother went to pick up his daughter from school the next day only to find police men there stating that they had received paperwork from the tribal court that morning stating that both children had been made wards of the tribe and that the tribal police were on their way to pick up the girls. Nothing further happened that day, but an emergency hearing was held four days later in the county courts to determine jurisdiction. No one from our county had ever heard of a tribal court and the judge said that, to the best of his knowledge, he had no choice but to rule that the tribe had jurisdiction. The tribe picked up both girls after school that day and drove them straight to their mother’s home and that’s where they have been ever since. Despite the fact that the county courts had already given custody to my brother because his wife was deemed unable to care for them. The … is too mentally ill to be able to take care of herself (let alone two children) and cannot hold down a job.

Our courts recognized this, but the tribal court is refusing to give the children back to my brother because he is not Indian. My brother has completed everything the tribe has requested of him including supervised visitations, multiple drug and alcohol test, a domestic violence assessment, a psychological assessment, two alcohol assessments, etc. and all have come back in his favor. Yet, with every new test in his favor, they get more and more angry and have now taken away his visitation completely (he has not seen his girls or been allowed any contact with them at all since Dec. 21, 2009). They have made countless allegations against him including that he is an alcoholic and a drug addict; that he has abused his children and now ex-wife, that he has various mental illnesses; that he is a “deadbeat dad,” that he doesn’t care about his children, etc.

His girls were taken away on April 22, 2009 and we have been fighting for them ever since. My brother’s rights have been violated over and over again and the tribe answers to no one for their actions, as they hide under the protection of the Indian Child Welfare Act. They even looked at him and said, “If you hadn’t done this to us 50 years ago, you wouldn’t be in this mess now.”

He has done everything the tribe has requested of him, yet they will not drop this case or allow him to see, speak to, or e-mail his children. We have paid $10,000 just in retainer fees to lawyers not to mention the thousands of dollars in outstanding bills we still owe the lawyers. My brother has now had to file bankruptcy and will likely lose his home shortly. I understand that your organization is not here to give legal advice, but our family wants to know what can be done to help these girls.

Are there legal avenues we haven’t explored? What rights are afforded to non-Indian parents of an Indian child? Does the Indian Child Welfare Act even apply in divorce/custody cases where no adoption or termination of parental rights is involved or is the law being mis-construed to fit the needs of the tribe? Are there advocacy groups out there that will speak out in these cases to help non-Indian parents? Are there other organizations out there as well that have spoken out about the damage being done by the Indian Child Welfare Act? Have you ever heard of any other case where the ICWA is being used in this manner? Any information you can provide to us would be so very much appreciated.

Although it is clear that other families are being affected negatively by the ICWA, we have failed to find any cases quite like ours and sometimes its a very lonely and hopeless feeling. We were oblivious to these laws at all until these girls were taken and we are seeking to educate ourselves now not only so we can reunite our family but also so we can be a voice to others who may be experiencing the same thing. Thank you so much.