The Democratic Party’s Indian Problem

Montana’s first territorial governor, Brigadier General (and Democrat) Thomas Meagher.
A version of this story first appeared on Indian Country Today Media Network in March 2014.

On the afternoon of March 9, the Montana Democratic Party leadership was holed up in a small stone building in the state’s capital, Helena. Inside were Democratic National Committee members Jorge Quintana and Jean Lemire Dahlman, party chair Nancy Anderson and other members of the party’s executive board.

Outside on the sidewalk were Mark Wandering Medicine, Northern Cheyenne (shown below), and three other Native Americans who had tried to persuade the board to support an equal-voting-rights lawsuit. Reporters and a documentary film crew waited with them, hoping to learn how Democrats had just ended up saying ‘no’ to minority civil rights in the second decade of the twenty-first century—and in an election year.

Across the street was a striking bronze statue of Montana’s first territorial governor, Brigadier General (and Democrat) Thomas Meagher. He’s depicted astride a warhorse and brandishing a saber—forever in command. For today’s Democrats inside the building, the mood was perhaps less so. As the sunny afternoon wore on, they began exiting the building, bolting out the back or down the front steps, chins tucked, grimacing. They refused to comment on their rejection of the resolution Wandering Medicine had offered.

Wandering Medicine’s document had requested party support for a federal lawsuit, Wandering Medicine v. McCulloch, that would give Natives satellite voting offices on their reservations during the month leading up to federal elections, thus the same ballot-box access as those living in mainly white county seats. The latter vote in their local county courthouses during that month; for some reservation residents, the journey can be nearly 200 miles round trip. The U.S. Department of Justice has joined the suit on the side of the Native plaintiffs. Lead defendant is Montana’s secretary of state and top elections official, Linda McCulloch, a Democrat.

When Wandering Medicine presented the resolution to the executive board, he was accompanied by his wife, Ilo; William Main, Gros Ventre former chairman of Fort Belknap Indian Community and a board member of Four Directions voting rights group (seen below); Michaelynn Hawk, Crow and the head of Indian People’s Action, in Butte (also seen below, exiting the building); and Bret Healy, a Four Directions consultant. Press was barred from the meeting.

The executive board didn’t vote on Wandering Medicine’s request. “They wouldn’t even bring it to the floor,” he said after the meeting. A spiritual leader as well as a Vietnam veteran wounded in action, he’s from a tribe that sent virtually all of its military-eligible members to fight that war—1,700 out of a population of 7,500, he recalled. He’s a man of gravitas and honor. “We’re on record as American patriots. We aren’t asking for anything other than voting, the most fundamental right of our democracy.”

The party did endorse an alternate resolution from the Montana Indian Democrats Council. This document promises Native Americans forms of voter registration they already have and “opportunities to improve” voting access. An early draft of the MIDC resolution provided to Wandering Medicine the day before the executive board meeting shows the word “equal” crossed out in a reference to enfranchisement and the word “equitable inked in above it.

[UPDATE: Shortly after this article was published on Indian Country Today Media Network, Montana Democratic Party spokesman Bryan Watt contacted ICTMN to note that the word “equality” does appear later in the MIDC resolution. However, ICTMN editors observed, again, the document hedges. That is, the word appears within a phrase, “continuing to fight for equality in voting access,” that seems to advocate a process that may result in equality, but falls short of advocating equality itself.]

OJ Semans, the Rosebud Sioux co-head of Four Directions, was furious. “I wasn’t there back when the treaties were written, but now I see how it worked. Party operatives and lawyers know perfectly well what means what. They twisted the English language and the law with intent to deceive us. They thought, ‘Those dumb Indians will never figure it out!’”

A Democratic Party official called “presumptuous” questions about the party’s actions and said the MIDC resolution was a strong endorsement of equality, approved unanimously by the executive board. “MIDC is party-appointed,” objected Hawk, a former member of the group. “They represent the Democratic Party, not the tribes.”

“That’s what’s been happening all along,” said Wandering Medicine. “Double talk and dragging out the process.”

The elephant in the room
Voter suppression is one activity where politicians reach across the aisle in the Treasure State. Opposing the Wandering Medicine plaintiffs—who are from the Northern Cheyenne, Fort Belknap and Crow reservations—are 14 Republican and Democratic officials. They teamed up before the 2012 election to fight the requested polling places. Their attorneys are a top-level bipartisan pair—DNC member Quintana is McCulloch’s lawyer, while South Dakota Republican Party secretary Sara Frankenstein represents the other defendants.

Keeping voting inconvenient for a minority group is a puzzling philosophical choice for the party of Bobby Kennedy, Lyndon Johnson and Barack Obama. It’s not legal, according the Justice Department. And it’s hardly strategic. In a state of hard-fought elections and razor-thin victory margins, Montana’s Native Americans make up 8 percent of the state’s population and register and vote overwhelmingly Democratic—more than 90 percent on some reservations. When Indian turnout was low in 2010, Democrats “took a shellacking,” and the GOP earned a supermajority in the state legislature, reported the Billings [Montana] Gazette. Democratic U.S. Senator Jon Tester has credited his one-percent 2012 win to Native voters. The state party’s spokesman would not explain its stance on the requested satellite offices.

When tribes first asked for the month-long access ahead of the 2012 election, McCulloch called satellite offices illegal—until she was corrected by then-attorney general, now governor, Steve Bullock. After that, McCulloch and Republican and Democratic county officials said it was too complicated to run two voting terminals in a county in advance of Election Day: one at the courthouse and one on the reservation. Recently, McCulloch’s elections deputy admitted in a Wandering Medicine deposition that their office has done nothing in the past 18 months to adjust the state’s voting computer program to smooth the process.

Montana Republican Congressman Steve Daines, who’s running for the Senate, may benefit from the Democrats’ position. He has been reaching out to tribes, with the appointment of a tribal liaison and backing for issues important to tribes.

Native voters may reconsider allegiances in the context of low party loyalty throughout Montana, said Main. “Politicians switch all the time. In the 2014 primary, one Democratic candidate is a former Republican lieutenant governor.” Main added, “Many of us Indians are Kennedy Democrats, voting to honor our grandparents’ admiration of Jack and Bobby Kennedy. We may rethink that.”

Semans foresaw Indians registering as Independents, saying, “It would do more good in the long run.”

Said Democratic state legislator Sharon Peregoy, who is Crow: “No one should take the Indian vote for granted.”

Party time!
Montana Democrats were cheerier on the night before their ill-fated meeting with Wandering Medicine. Ladies in party dresses and gents in trim suits showed up for their annual dinner, at Helena’s Lewis & Clark Fairgrounds. Senator Tester was one of the first luminaries to arrive, swaggering into the cavernous hall. The biggest, brawniest guy in any room, he also plays the trumpet and blared a credible version of the Star Spangled Banner for a thousand cheering Democrats.

Hollywood-handsome Governor Bullock (shown above with Wandering Medicine) and soldier-turned-Senator John Walsh were next. GOP kingmaker Karl Rove is directing attack ads against Walsh, a former National Guard adjutant general who led combat troops in Iraq. In a speech that evening, Walsh brushed off the smears, saying they twisted the record on his campaign for better armor for soldiers, and anyway he was tough enough to take it.

Big-tent Democratic ideals abounded, with a Blackfeet victory song by Jay Dusty Bull (left), a recollection of defending Jews against a Klan attack and a rousing keynote address by Planned Parenthood head Cecile Richards. Politicians, including Walsh, shown below with Crow officials, discussed Native issues. 

Walsh has been visiting tribes and has spoken to tribal members about the controversial satellite offices. “It’s the right thing to do,” Walsh said. “I want to improve the situation on reservations, and communicating and working together means everyone’s lot will improve. Voting rights are very important and a big part of that.”

“The Democratic party is undercutting its candidates,” said Wandering Medicine. “It’s a stumbling block to progress—but only that.”

Wandering Medicine has a plan: “The Democrats had their opportunity. Now, I’ll ask the Republicans for a commitment. Will they support us Native plaintiffs and reject those fighting the satellite offices?”

Stay tuned.

c. Stephanie Woodard. Photographs by Joseph Zummo. This article was written with support from the George Polk Center for Investigative Reporting. It first appeared on Indian Country Today Media Network in March 2014. For a later version, go here.

Elephants, Donkeys, Billionaires—And Another Native Vote Win

This article first appeared on Indian Country Today Media Network in February 2014. For more on the situations mentioned, click on the “voting rights” link at right.

Recently, we learned about two Native voting-rights wins in one day in Montana. Today, we turn to the neighboring state of South Dakota for the third breakthrough that same day.

On January 22 in Pierre, a state senate committee was considering a bill to prevent non-governmental groups from helping cash-strapped counties afford early-voting offices on Indian reservations. The proposed ban was the brainchild of South Dakota’s secretary of state and top elections officer Jason Gant.

Part of the state’s Republican administration, Gant has also opposed using Help America Vote Act (HAVA) funds to assist Native voting and fought (unsuccessfully) in federal court to curtail early voting on the Pine Ridge Indian Reservation.

Testifying before the committee, Gant called the donations part of a “slippery slope.” He raised the specter of “a billionaire coming from New York” and chucking money and influence around the state. Skeptical committee members got Gant to admit that the only non-governmental entity helping fund precincts of any kind is a small in-state Native voting-rights nonprofit called Four Directions. Gant also acknowledged that without Four Directions donations, “I wouldn’t know what the future would hold for those places.”

Four Directions head OJ Semans, who is Rosebud Sioux, testified against the bill, calling voting “the bedrock of our democracy” and pointing to the value of participation. Said Semans: “To improve their social and economic conditions, tribes and tribal members have to participate in the electoral process.”

Semans added that approving the bill and cutting off the early-voting offices would tell Native citizens, “We don’t want you to participate.”

More opposing testimony came from Rep. Kevin Killer, Oglala (D-Shannon County), and Rep. Troy Heinert, Rosebud Sioux (D-Todd and Mellette counties). Said Heinert: “Native voters have a lot of problems getting to the ballot box, and this bill would create another hurdle.”

One Republican senator brought up the “elephant in the room”: the Native vote is overwhelmingly Democratic, and increasing Native turnout increases Democratic ballots.

Other senators on both sides of the aisle saw increased access as a plus and local control as the ruling factor. Said Senator Jean Hunhoff (R-Yankton), “If local governments have decided [accepting donations is] a way to increase access, they should be allowed to make that decision.” Senator Angie Buhl O’Donnell (D-Sioux Falls) agreed: “There’s a need for more voting access, and this is a way to solve it.”

In the end, the committee’s bipartisan five-to-one vote against the proposal astonished political watchers more accustomed to this red state’s hostility to the Native vote and, more generally, to the state’s largest minority group. “By the time the meeting was over, most everyone was talking equal access to voting,” recalled Semans.

I’m delighted that the committee saw this bill for what it was, which is a solution in search of a problem,” said Sioux Falls attorney and state elections board member Richard Casey. He reported that the state’s HAVA Task Force is working on language that would allocate funding for early-voting satellite offices on reservations and in other communities that meet certain criteria (poverty, distance from county seats and more).

However, South Dakota isn’t singing Kumbaya yet. Republican rainmakers appear to be talking about re-introducing the failed senate bill, along the theory that it’s not dead-dead until the legislative session is over in March. A call to Secretary of State Gant revealed that he was in a meeting and couldn’t comment, according to state elections coordinator Brandon C. Johnson. About reintroducing the senate bill, Johnson said, “Honestly, I haven’t heard a thing.”

c. Stephanie Woodard. This article was written with support from the George Polk Center for Investigative Reporting.

Slammin’ Judges, Gunslingers—and Stunning Native Voting-Rights Wins

This article first appeared on Indian Country Today Media Network in February 2014. For more on the cases, click on the “voting rights” link at right.

Native voting-rights advocates scored three successes in three cities on one day—January 22, 2014. Two were in Montana, and a third was in South Dakota. That morning in a federal courtroom in Great Falls, Montana, the Wolf Point School District acknowledged before U.S. Magistrate Judge Keith Strong that its school-board electoral districts are malapportioned, violating Native voters’ constitutional rights.

The school district serves children from the Fort Peck Indian Reservation. Currently, each board member from the mostly non-Native part of town represents 143 people, while each member from the mainly Native area represents 841 people. As a result of shutting out Native parents, studies have shown, Fort Peck kids have received an appalling education for decades.

The Fort Peck plaintiffs were represented by the American Civil Liberties Union. “You could say things went well for us,” opined Jim Taylor, Montana ACLU’s legal director.

No question, progress was made,” said co-counsel Laughlin McDonald, director emeritus of the ACLU’s Voting Rights Project. He credited “the Voting Rights Act and increased awareness of the importance of equal participation.”

Now Jackson et al v. the Board of Trustees of Wolf Point School District moves into the remedy phase, according to McDonald. This might include redrawing the electoral districts, changing the school board’s size and “bailing in” the board under the Voting Rights Act. The last would put the board under ongoing Justice Department scrutiny.

“We’ll meet with the other side and pursue mediation,” said McDonald. “If we can’t agree by February 21, we’ll have another hearing on February 24, and the court will decide.” For the court’s final order, go here.

That afternoon, over in Billings, Montana, U.S. District Judge Donald Molloy had a burr under his saddle even before he opened a preliminary hearing for voting-rights case Wandering Medicine v. McCulloch. The lawsuit was brought in 2012 by tribal members who want early-voting offices on their reservations. The offices would give them the same number of days to register and vote as other Montana residents.

State and county officials oppose this. Their side seemed triumphant until the first judge hearing the case hung up his robes after revelations that he’d sent hundreds of racially and sexually charged emails. Judge Richard Cebull’s 2012 decision denying the early-voting offices was vacated by the Ninth Circuit Court of Appeals in October 2013, Judge Molloy took over, and everyone was back to square one.

The state and county officials petitioned Judge Molloy to stop the Native plaintiffs from continuing to use David Bradley Olsen as their pro bono attorney, claiming he was overly aggressive. Olsen is an award-winning lawyer from Henson & Efron, a large Minnesota firm that he and co-counsel Steven Sandven, of Sioux Falls, told the judge is able to handle the research required by a complex case like Wandering Medicine; Olsen was also one of the attorneys who argued before the Ninth Circuit when it vacated Cebull’s decision. Keeping Olsen out of Montana probably seemed like a good idea.

Judge Molloy set a hearing for January 22, listened to the officials’ legal team defending their claims about Olsen, then dismissed them, calling them “vexatious” and “frivolous” and warning “this is not a very good way to start off with me.” However, the judge also cautioned Olsen that “every gunslinger that comes to town thinks he’s the toughest one, but check your guns at the border and do your job as a lawyer, and we’ll all [be] able to deal on the merits of what I think is a very interesting case.” He brought down his gavel and ended the hearing.

Lead plaintiff Mark Wandering Medicine, who’s Northern Cheyenne, was pleased. “It felt like we’re finally on an equal footing, with a judge who wants to stick to the facts and the law. He has given us what we always wanted, equal respect, and now the case will progress.”

This article was written with support from the George Polk Center for Investigative Reporting.

Racist Emails of Federal Judge, and Why Native Advocates Want to See Them

This article first appeared on Indian Country Today Media Network in February 2014. For more reaction to the scandal, check here.

They say the cover-up can be worse than the crime, and right now they’re running neck and neck in the Ninth Circuit Court of Appeals, the federal court system for the nine westernmost states. Both the Ninth Circuit and one of its former chief district judges, Montana’s Richard Cebull, have been taken behind the judicial woodshed by a federal panel with a very long name—the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States.

On January 17, the oversight panel reprimanded Cebull for sending hundreds of emails with disparaging racial, sexual, religious and political content, including “disdain and disrespect for African Americans, Native Americans and Hispanics.” During Cebull’s career, he sentenced numerous persons of color and, in fall 2012, used what the Justice Department called a “completely incorrect” reading of the Voting Rights Act to deny Wandering Medicine v. McCulloch, a Native American voting-rights lawsuit with implications for minority ballot access nationwide.

The federal oversight panel also sternly reminded the Ninth Circuit judges who uncovered Cebull’s many messages, then attempted to sanitize them, that it’s “important to maintain public confidence in judicial conduct.”

Finally, the panel made public the report the Ninth Circuit investigating judges had written, then tried to replace with a second, milder document.

That’s a start, said Bret Healy, consultant to Native voting-rights group Four Directions, which is advising Montana tribes on Wandering Medicine v. McCulloch. “The full content of the emails must be released. Even learning in the current, tougher report that the messages are ‘disparaging’ or went to ‘colleagues’ and ‘court staff’ isn’t enough. What did they say? Who received them? How did they reply? Cebull was a federal judge. The public deserves to know.”

The scandal’s first round landed in February 2012, when Cebull emailed colleagues a sexually repellant slur directed against President Obama’s late mother. The message was forwarded and ended up at a newspaper. The story went national, with officials, organizations and members of the public demanding Cebull’s resignation.

This furor was still in full cry in the fall of 2012, when Cebull heard Wandering Medicine v. McCulloch. In the suit, Montana Native plaintiffs asked for equal access to early voting. Cebull played out the proceedings until Election Day, when he decided Indians couldn’t have early-voting offices.

“Every once in a while, a spotlight suddenly shines on what you’ve been fighting for, and everything becomes clear,” said OJ Semans, Rosebud Sioux civil-rights leader and co-director of Four Directions. “Back in 2012, we knew Cebull was no good, and to have the federal oversight panel confirm it is perfect.”
Meanwhile, Wandering Medicine v. McCulloch didn’t die in Cebull’s courtroom. The Native plaintiffs appealed, and other Ninth Circuit appeals judges (not involved in the cover-up) vacated Cebull’s decision and sent the case back to Montana for a re-do. A new judge will preside over a preliminary hearing this week and a trial in June.

“That’s good,” said Healy, “but if Cebull hadn’t heard this case to begin with, tribal members in Montana would have equal voting rights already, and we wouldn’t be wasting all this time.”

Sioux Mother Rescues Abused Children, Faces Arrest

 This article first appeared on Indian Country Today Media Network in January 2014. For a report on a petition on the mother and children’s behalf, which garnered some 12,000 signatures, check here.

The emergency room doctor was furious at what he had seen, recalled Audre’y Eby, who is Rosebud Sioux and the mother of disabled 16-year-old twins. One of her sons, who is blind and autistic, squirmed on the examination-room table, screaming, “Ow, ow, it hurts!” The doctor had found livid red and purple bruises covering his penis and scrotum, according to the Nebraska hospital’s records. Those injuries would soon lead to an arrest warrant for the mother—not because she had caused the harm, but because she did not return her son, along with his wheelchair-bound twin, to their abusers.

Indian child welfare expert Frank LaMere called the twins’ situation more extreme than any he’d seen in his many years of work in the field. “These boys are suffering,” said LaMere, who is Winnebago and the director of Four Directions Community Center, in Sioux City, Iowa.

Injuries Eby discovered her blind son suffered in 2013.
The day before the ER visit, Eby drove from the Nebraska farm where she lives with her husband, Faron, to pick up her boys from their father in Iowa. It was early August of 2013, and she was going to have them for the once-a-month weekend visit the courts allow her. The boys’ father is Eby’s ex-husband; he has physical custody of the kids, and his live-in girlfriend is their primary caretaker. Eby and the boys are Native, and the father and his girlfriend are white—facts that LaMere says overshadow decisions that social-services professionals and the courts make on the children’s behalf.

During the five-hour drive to Nebraska, both twins complained. Eby put the grumbling down to the road trip—a long one for such special-needs kids. The sighted twin has cerebral palsy and can suffer painful muscle spasms, and his brother has residual discomfort from a vehicle accident he was in with his father a few years ago. “We stop for breaks, but it’s a lot of sitting still,” Eby said.

The next day, the blind twin began complaining again, and Eby saw blood in his overnight diaper. Alarmed, she and Faron loaded both boys into their car and headed for the ER. After the exam, at a moment when only health-care personnel were present, the doctor asked his patient, “Who did this to you?” The child named his father’s girlfriend. The doctor questioned the sighted twin, who confirmed his brother’s story.

The doctor told Eby that the injuries were consistent with being kicked in the groin. He immediately called Nebraska’s Department of Health and Human Services to report alleged child abuse, hospital records show. Eby says the physician also warned her that if she didn’t keep the boys until their wellbeing could be guaranteed in Iowa, he’d have to report her for exposing children to an unsafe situation: “He said Nebraska law required him to do that.”

Eby’s fateful decision to keep her kids in Nebraska soon led to an Iowa judge issuing a warrant for her arrest. She is trapped between the laws of two states and fearful for her sons’ safety.

The Nebraska doctor’s report launched an extensive investigation by Iowa’s Child Protective Services (CPS). The investigation included another physical exam and interviews of social workers, teachers and others who’d interacted with the twins. The boys participated in a Telemed closed-circuit TV interview observed by social-services and law-enforcement personnel in Iowa and Nebraska. (The twins’ names, and that of their father, whose last name they bear, are being withheld to protect the children’s privacy. All official documents quoted here were obtained under Iowa law.)

Both children claimed the kicking occurred after the blind twin was discovered masturbating. In the interview, he says that his dad had once threatened that “he’s gonna cut my privates off” for doing that. At one point, the boy begs, “Please help me. I’m scared.”

The investigation led to a determination that the father’s girlfriend caused the groin injuries, which means the abuse was “founded.” The father and girlfriend already had several abuse and neglect determinations between them. CPS gave the twins its highest score for risk of abuse and recommended a criminal investigation.

The girlfriend has appealed the most recent abuse finding, according to Iowa Department of Human Services (DHS) documents. No charges appear to have been filed against her. She claimed the boy did the damage to himself and told CPS, “I love the boys and would never do anything to hurt either one of them.”

The father told ICTMN that whatever happened didn’t happen in Iowa and that the couple would appeal more of the abuse and neglect rulings. Over the years, fourteen additional allegations have been investigated and dismissed, he noted.

One twin was sent alone on an errand and landed in the ER.
Iowa DHS documents record a startling list of incidents at the father’s home: Among many, the father recently pressed on the wheelchair-bound twin’s nose until it bled, resulting in one of the founded-abuse determinations; during that altercation, the father is described as splitting the child’s lip, hitting him with a belt and causing a rug burn on his head. On another occasion, the dad poured hot sauce down that boy’s throat while the girlfriend pressed her elbow into his neck to ensure he swallowed it. A social worker recounts watching the father smash a sandwich onto the blind boy’s forehead, purportedly to get him to eat his lunch. The girlfriend has stuffed a cloth down one boy’s throat to silence him. Punishments include cold showers.

Social workers describe quasi-military discipline. “I’m trying to instill values like honor, loyalty and courage in my children,” the father said. “If that’s wrong, then a lot of parents are wrong.”

Judy Yellowbank, who is Winnebago and the program director at Four Directions Community Center, likened the twins’ treatment to torture. She charged that there’s a double standard in child welfare. “Native parents would be behind bars if they had committed the child abuse and neglect that these two white caregivers have,” Yellowbank said.

Following the recent kicking incident and subsequent abuse finding, Iowa DHS recommended returning the twins to their father’s home, with the caveat that the live-in girlfriend no longer be primary caregiver. When asked how that set-up would work from a practical point of view, the father refused to answer.

One of Eby’s attorneys, Judy Freking, of LeMars, Iowa, asked, “What is the purpose of a child-abuse investigation if, upon concluding that abuse occurred, DHS does not get involved, and DHS does not offer any services to correct the problem that led to the abuse of these boys?”

The father is determined to get the kids back, saying Iowa can provides them more services than rural Nebraska, where the Ebys’ farm is. He recently went to Iowa juvenile court, claiming that his ex-wife was keeping the boys in Nebraska because of “extreme hostility” toward his girlfriend. The judge agreed, writing in an order issued this past September, “It’s apparent this animosity has been a factor.” The judge noted the father’s claim that he had “fully and properly cared for the boys.” The order does not mention the existence of the founded abuse and neglect rulings or any criminal investigation.

In October, a district court judge issued an arrest warrant for Eby. She learned of it when it pinged into her email from the Iowa courts’ online system. “I couldn’t cry because my sons were here. I called Faron. He came home from work and sat with the boys, so I could get myself together. Faron has been such a powerful support in all this. We both want the boys living on the farm with us.”

After Eby and the boys’ biological father separated in 2003, when the boys were six, she cared for them. When they turned 12, she thought they should get to know their father. “At the time it seemed like a reasonable idea,” Eby recalled. As the problems in the father’s home mounted, she fought to get the boys back, succeeding briefly in 2011. Through all the abuse and neglect findings, Iowa DHS documents reveal, the agency’s goal has generally been to reunite the twins with their father, and the courts have concurred. He receives their social-security and other subsidies.

Attorney Freking wondered if the situation would have played out similarly if Eby had committed the abuse. LaMere has an answer, and it’s simple: No. He said that Eby’s situation is emblematic of the double standard Yellowbank described. Indian parents are expected to leap enormous hurdles to keep their kids—with no second chances and no benefit of the doubt, said LaMere.

“It does appear that Audre’y and her ex-husband aren’t on equal footing in terms of Iowa DHS recommendations to the courts,” said Freking.

Patterns in Indian child welfare
Recently, Nebraska Department of Health and Human Services did a home study that confirmed Eby and her husband provide her twins with a good home. However, past turbulence in Eby’s life, including drug involvement as a young woman, may be why Iowa won’t grant her primary custody. “Audre’y has left those problems behind, she’s a good mother, and her home study is positive—but that’s not good enough,” said LaMere. “Many of us Native people have lived tough lives, and as far as the system is concerned, anything we’ve been involved with follows us forever. We are not allowed to grow and change.”

The phenomenon is common in Indian child welfare, LaMere continued. “I see it in meetings I attend with Native parents. The parent has solved the problem that caused the children to be taken away. Perhaps it hasn’t been an issue for years. But that’s never good enough. At one meeting, a social worker announced she’d found dirty dishes in the sink at the Native mother’s home, so she shouldn’t get her kids back. I became unglued. I stressed that the mother didn’t lose her children over dirty dishes, and they couldn’t be kept from her for this reason.”

The problem has its roots in history. Federal policy long supported forcibly assimilating Native people as a way to solve the “Indian problem.” Starting in the late 1800s, Native children were sent to government- and church-run boarding schools, where “Kill the Indian, save the child,” was the mantra. And many did die—of beatings, starvation and disease. Sexual and emotional abuse led others to commit suicide. The pervasive trauma, touching virtually every Indian family, stalks Native communities to this day.

During the mid-20th century, boarding schools were closed or turned over to the tribes, and the Indian Adoption Project took over as the assimilation mechanism. This federal program, aided by states and churches, swept about a third of Native children into non-Native homes. After hearing much testimony, Congress passed the Indian Child Welfare Act (ICWA) in 1978 in an effort to stem the social and cultural holocaust.

ICWA established Indian preferences for placement of Indian children like Eby’s sons, whether they are enrolled tribal members or eligible for enrollment. ICWA allows tribes to intervene on behalf of their children and requires “active” efforts keep Indian kids with Indian families. “Legally, that means more than ‘reasonable’ efforts,” said LaMere. “It means busting your butt to make it happen.”

In the real lives of Native people, it just doesn’t work out that way. “If you’re having any problems with the system, they’ll take your kids anytime they want,” said a Santee Sioux grandfather, whose granddaughter and grandniece died after being adopted out of his family—one at the hands of her new father and the other by drowning.

ICWA may be federal law, but its enforcement takes place county by county, according to LaMere. He described progress in applying the law in one Iowa jurisdiction—Woodbury County, with its large Native population centered in Sioux City. “I have to believe that if Audre’y’s case had been dealt with here, she would have gotten custody of her sons. However, in other parts of Iowa, and in many states, old attitudes persist about Native people.” There’s a sometimes unspoken and sometimes openly acknowledged belief that American Indians can’t or shouldn’t take care of their kids, LaMere said. Neither the Iowa DHS Native Unit, which oversees Native-related cases, nor the Rosebud Sioux Tribe responded to requests for an interview about these issues.

The Iowa courts’ seeming inability to deal even-handedly with Native people causes ambiguities for other agencies, including law enforcement. In a phone interview, local Iowa police chief Dan Kremer, who observed the CPS Telemed interviews related to the blind twin’s ER visit, said at first that some were “out to hang” the father and his girlfriend. “Maybe they need hanging,” Kremer then added, “but so far the courts have not gone after them.” He pointed out that the situation in the home “has been going on for a long time.”

Looking forward
Since the twins have been on the Nebraska farm, they’ve put weight on their once-emaciated frames, and Eby has let their crewcuts grow out. “They look so handsome now!” she said. The other day, she recalled, one son told her, “I don’t feel shrunken any more.” She enjoys seeing them caught up in the rhythms of farm life. “Family comes to visit. We have real sit-down dinners with no TV, and Faron makes root beer floats on Saturday nights.” 

Eby called LaMere an important ally in her long struggle. “Frank says to focus on the good, pray and be mindful of what we have. I don’t think I’ll ever be able to express the pain of all this, but the love I can.”

LaMere sees a lesson: “The Creator sent us these two boys as teachers—to instruct us to renew our fight to keep our kids safe and our families intact.”

For Eby’s family, the future is uncertain. “On January 6, I’ll turn myself in at an Iowa police station,” she said. “Frank and my lawyer will be there. It should be okay. I should be able to pay the $1,000 bond and return to Nebraska. If I go through this, I’ll be able to ask for a new court date and hopefully will eventually get custody.”

Audre’y Eby paused. “Somehow, life has to be bearable for my boys. Is there anything else I can do?

c. Stephanie Woodard. Photographs courtesy Audre’y Eby.