Tribes make gains in two important ICWA cases

RAPID CITY—ICWA (the Indian Child Welfare Act) is one of the most prominent acronyms in Indian Country. A half century back, tribes made their case to the federal government, that Native children were being removed from their homes, community, and culture, at a much higher rate than the rest of the country. As a result, ICWA became federal law in 1978, establishing standards for placement, foster care, and adoption, providing families and tribes deeper involvement in child welfare cases.

Dana L. Hanna has been handling ICWA cases for South Dakota tribes for 17 years, and although South Dakota is a small state, there are more than enough cases to keep any attorney busy round the clock. At present, Hanna has a hundred cases on his desk at his Rapid City office, and according to Hanna, “two out of three abuse cases (in South Dakota) involve Indian children.”

Recently Hanna has been involved in two important but unrelated ICWA cases. One is a South Dakota case regarding a child referred to only as CRW. The other case involves 14-year-old Elias Gonzalez, the son of an enrolled Oglala Sioux Tribe member, although Gonzalez resides in Tulsa, Oklahoma.

On behalf of tribes, what Hanna sought in the CRW case was a ruling that compelled an attorney to act on the wishes of her client, and not solely on what she considered the best interests of the child, which was presently the case. In a report to ICWA directors and tribal leaders, Hanna wrote: “An absolutely necessary part of any attorney’s duty in any case is to meet with his or her client, talk to that client, and advise that client.”

In 2018, 11-year-old CRW was removed from her home by DSS (Department of Social Services) because her father was incarcerated and her mother’s whereabouts unknown. According to the later ruling of the South Dakota Supreme Court: “…responding officers reported that the carpets were covered in garbage, dirty dishes were piled up in the sink, food was spilled on the counters and stove, and the kitchen smelled like sour milk.”

Although not an enrolled member of the Oglala Sioux Tribe (OST), CRW was eligible “by virtue of father’s enrollment status.” This made CRW’s situation an ICWA case, and OST intervened on her behalf. CRW’s lawyer sought termination of parental rights, but that is not what CRW wanted. Hanna said, “…this presented a conflict of interest between the lawyer and her child-client and I asked the court to disqualify the child’s lawyer on those grounds.”

The court ruled against Hanna and OST, but Hanna appealed the ruling to the South Dakota Supreme Court (SDSC). Hanna wrote in his report: “I argued that if the child’s lawyer does not advise the court what the child herself wants the court to do, and if the lawyer does not advocate for what the child-client wants, then those Indian children have been silenced and denied the opportunity to be heard…”

The SDSC ruled against Hanna again, but the tribe did achieve a partial victory on behalf of children like CRW. Hanna: “…the court also ruled that in every abuse and neglect case in which the lawyer represents a child, the lawyer has an ethical duty to meet with the child, consult with the child to find out what the child wants and why, and to advise the court and the other parties as to what the child wants.”

While the attorney can still act against the child-client’s wishes, every attorney must now inform the court and involved parties what those wishes are.

Last week Hanna was contacted by Mike Red Cloud of OST’s ICWA office after Kasey Baldwin, an attorney in Tulsa, contacted Red Cloud concerning her 14-year-old child-client, Elias Gonzalez. In his subsequent report to OST, Hanna wrote that Gonzalez “was driving a stolen car, fleeing from police, and caused an accident that killed an uninvolved victim.” Hanna added that the child-client’s “father is a Mexican national who was deported to Mexico some time ago. His mother is an enrolled member of OST.”

The details concerning the crimes Gonzalez allegedly committed are not pretty. On February 25, state troopers were flagged down and told a pickup was stolen. The driver, later identified as Gonzalez, refused to stop, and according to the officer’s report “struck a vehicle near 31st Street South and 85th East Avenue.” The report alleged Gonzalez achieved speeds in excess of one hundred miles an hour and drove headlong into oncoming traffic.

Killed in the collision were Lanise Dade, 31, and her daughter, Camyea. A teenaged male occupant was injured and taken to the hospital.

According to the report: “Gonzales reportedly attempted to flee on foot but collapsed near the crash site. He was taken to a hospital before being booked into the Tulsa County jail on two complaints of first-degree murder, possession of a stolen vehicle and eluding a police officer.

Later Gonzalez was also charged with robbery with a firearm, kidnapping, another count of possession of a stolen vehicle, and possession of a firearm. The kidnapping and robbery charges “stem from an incident two days prior to the pursuit, when Gonzales and another unidentified person allegedly carjacked a man in north Tulsa.”

In this incident, the victim told police a gun was shoved into the back of his head, and he was ordered to drive to the Town Square Apartments. He said that Gonzalez handed the gun to the accomplice and instructed him to shoot the victim. The victim said he ran and hid until the carjackers left.

About a month before the arrest, Red Cloud participated in an ICWA hearing concerning Gonzalez and his four siblings. The result of that hearing was that Gonzalez was ruled an Indian child under ICWA. Oklahoma asserts Gonzalez is not a tribal member so can be tried by the state—and tried as an adult.

Baldwin’s defense strategy rests on the recent United States Supreme Court ruling in McGirt v Oklahoma. In that ruling the court held that the state has no jurisdiction to prosecute Indian defendants for felony crimes in the Tulsa area because technically the reservation borders still apply, regardless of the changes within those borders. Hanna said, “If the Oklahoma court dismissed Elias’s case for lack of jurisdiction, his case would be prosecuted by a US Attorney in federal court, where he would have a better chance of being tried as a juvenile, not an adult, and the government could not charge him with murder.”

Hanna submitted an amicus brief on behalf of OST, arguing that the tribe had recognized Gonzalez as an Indian child in the previous ICWA case, and so Oklahoma had no jurisdiction to prosecute.

On July 20, 2021, a hearing was held in Tulsa, and the court requested opposing counsel both submit legal briefs in support of their positions and a final ruling would occur on August 24.

“I am confident,” Hanna said, “that Elias Gonzalez and the Oglala Sioux Tribe have an excellent chance of getting this case dismissed in the state court, in which case we will have prevented the State of Oklahoma from sending this unfortunate Lakota child to prison for the rest of his life.”

Both ICWA cases underscore the reality that the 1978 ICWA Act was just a foundation, and that protecting the rights and welfare of Indian children is an ever-evolving challenge. Even in cases where the child is as much perpetrator as victim, tribes, attorneys and advocates strive to create a system refined and nuanced enough that it can fairly address the particulars of any individual ICWA case, however convoluted.

 

(Contact James Giago Davies at skindiesel@msn.com)

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