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Tribal Ruling : Indian Law Keeps Girls From Father

October 20, 1987|JENIFER WARREN | Times Staff Writer

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.

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