"A rocky vineyard does not need a prayer, but a pickax."
The modest townhouse, centrally located off Academy Boulevard, looks just like all the others in the row, except for its door ornament a pressed and painted metal plaque of an Indian woman, her papoose on her back.
Inside, emblems of Navajo culture decorate an otherwise typically urban living room dominated by two large sofas and a television. On the shelf below the coffee table, a Broncos cap brim is edged with precise and delicate beadwork, half-finished. Navajo rugs, feathers, moccasins, turquoise beads and photos of relatives in native costumes clutter the warm room.
Julie Weil, the trim, dark-haired single mother of the house, remembers Dec. 3, 2003, the day when hell broke loose in her kitchen, setting in motion a court-enforced separation from her oldest son, whose middle names are Chief and Justice.
"I was sewing a quilt," says Weil, a heavy-machine operator by day. "I made the boys grilled chicken sandwiches and told them to hurry up and clean up the kitchen.
"I heard a struggle and thought it was just the usual scuffling, then heard my sons arguing. RJ was becoming belligerent. I ran in there and spanked him twice on his butt cheek, and he started tossing me around."
According to Weil, RJ, 14, knocked her down, put his foot on her face and pulled her hair, sending her younger son, Virgil, into the living room crying. Her friend, Larry, arrived on his Harley at just that moment and broke up the altercation. RJ pulled a knife from a cutlery block, waved it at Larry, then tossed it under the stove and ran out the door.
The family didn't see him for three days. Weil reported the incident to the police. When her son was found hanging out near Wasson High School with some friends, he was charged with felony menacing, assault and harassment, and taken to Spring Creek juvenile detention facility.
Julie Weil expected there would be a hearing about the charges her son faced, and then she would take him home. Instead, when she arrived at Magistrate Regina Walters' courtroom on Dec. 12, 2003, she was met by caseworkers from the El Paso County Department of Human Services, who were taking her son into their custody.
Three years later, she hasn't gotten him back. In that time, she says, her son has been only harmed by the system. Their family, which was supposed to be protected by a 1978 federal law designed to shield Native American families, is fractured.
The law's intent
Weil's case raises many issues concerning the Indian Child Welfare Act, including how and when it applies, how it should be executed and, most importantly, the purpose it serves.
For social service agencies, compliance with ICWA is not merely a good idea; it's the law. For Indian families in crisis, the act can mean nothing less than the preservation of a way of life endangered over centuries of American history.
Under President Jimmy Carter, the ICWA was passed in part to prevent wholesale removal of Indian children from their native homes by state welfare and private adoption agencies. Senate hearings prior to that time showed 25 to 35 percent of all Indian children had been separated from their families and placed in foster care, adoptive homes or institutions like government-run boarding schools. The percentage of Indian children placed for adoption was eight times that of non-Indians.
ICWA ensured Indian children who were removed from their homes would be placed in foster or adoptive homes that reflected their Native American culture and traditions. Congress, at that time, realized the removal problem was great enough to threaten the future of Indian culture. Congress further realized social workers and judges frequently failed to understand Indian communities and were intolerant of native culture, often preferring placement in non-Indian homes.
Under ICWA, when a child custody proceeding occurs, whether voluntary or involuntary, the federal statute supersedes state law. That includes foster care placements, termination of parental rights, preadoptive placements and adoptive placements.
The act guarantees families right to counsel, requires certified written notice to parents and the tribe in child custody cases, and requires state welfare agencies to make remedial efforts to prevent breakup of the family.
ICWA applies to juvenile proceedings involving status offenses like truancy or incorrigibility, but not to juvenile cases when the child has committed an act that, if committed by an adult, would be deemed a crime.
By law, a case falls under ICWA for any unmarried child younger than 18 who is either a member of a tribe or eligible for membership in a tribe and is the biological child of an Indian tribe member. (Julie Weil's enrollment papers show she is a registered member of the Navajo tribe; RJ's father is a member of the Ojibwa tribe of Canada.)
While the charges against RJ disqualify his case from ICWA, Julie Weil's parental rights case would seem to warrant ICWA compliance.
Compliance a problem
Yet despite the act's clear requirements, a recent report by the U.S. Government Accountability Office (GAO) shows many states struggle with compliance to ICWA. The report indicates the scope of the problem cannot be accurately assessed because states are not required to collect data related to ICWA. Only five states collected data on children subject to ICWA in 2003.
Among the compliance issues cited are delays and errors in identifying a child's Indian status, a shortage of Indian foster and adoptive homes, late identification of preferred placements and reluctance of courts to move a child after receiving non-preferred placement. Additionally, the report cites the frequent failure of county-level child welfare workers to join tribes in identifying placements and culturally appropriate services, and a general failure to make active efforts to reunify the family, as required by the statute.
From the first hearing, Weil got off on the wrong foot with child welfare professionals, became upset and was reprimanded.
"She [Judge Walters] treated me like a felon or something," says Weil. "I wanted my son, I tried to advocate for myself. I told DHS I knew my rights. I was escorted by a deputy out of the building."
Later, Weil found out RJ had told an intake officer at Spring Creek that his mother held a gun to his head. She says nothing of the sort occurred, and her friend Larry corroborated her version. Still, RJ was placed in DHS custody and Weil was deemed a danger to him. "Mother," a report stated, "can become violent."
Police and social workers followed up with the family, determining if Julie posed a threat to her younger son. Apparently a determination was made that he was safe in her home, as he was not removed and has lived there since. Family therapy was ordered, and RJ went to a foster home in rural Yoder that DHS records refer to as a "Native American" home. Weil disputes that claim.
"He was put in a non-Indian home. I kept saying, "You can't do that.'"
When contacted about this story, a DHS caseworker said the agency couldn't comment because RJ is a current client. But a close examination of DHS' chronicle of events shows caseworkers searched for a Native American family with which to place RJ, following his initial placement suggesting the family was indeed not Indian, as Weil believed.
From Weil's point of view, at issue are many infractions and misapplications of ICWA, all part of a very complicated series of events. RJ's court records show many instances where DHS reported attempts to comply with ICWA, but Weil says such efforts contacting the Navajo Nation as the law requires, looking for culturally appropriate foster care, attempting to secure a Native American family therapist were all too little, too late. Her son's rights under federal law, she believes, were violated.
Colorado no different
Brenda Bellonger, an attorney with North American Indian Legal Services in Lakewood, says Colorado is in the same boat as most states.
"There hasn't been any evaluation in the state as far as how well the counties are adhering to the act," says Bellonger. "There just isn't any oversight or enforcement. It would be difficult for anybody to say how well or how deficient the state is in compliance."
In 2002, the state Legislature passed House Bill 02-1064 in an effort to step up compliance. Four years later, Bellonger is not sure all counties get the message.
"I get calls all the time that the counties aren't complying," she says, "and I've seen it firsthand ... in a lot of cases over the past few years where there hasn't been compliance. People call me because I'm an Indian attorney, and they know I support their rights."
Bellonger attributes the lapses to "overworked, under-funded, under-trained" social service agencies with high turnover. She believes social workers often aren't trained to ask whether a family has Indian heritage, and if they ask, "they might do it in a way that's threatening."
The federal government, she points out, gives funding to states for family preservation, and states are supposed to tell the government every year how they complied with ICWA. Reports aren't made, data isn't collected and "the fed kind of sits back and doesn't do anything," says Bellonger. "Nobody's really enforcing it."
Frustrated with Colorado social services agencies' inability to provide culturally appropriate services, Bellonger has started a juvenile justice mentoring program aimed at Indian children's specific needs.
"They go to powwows, to Indian dance class and other cultural things like that," she says. "We teach them how to put up a teepee. I've got a couple of kids who are going to do community service, and I want them to spend time with elders as well."
Bellonger's efforts reflect the importance of American Indian cultures and traditions.
"Maybe it's just that Anglo people think that's just not really important," she says. "Maybe it's ethnocentrism."
In April 2004, while her son was still at the foster home in Yoder, Julie Weil received a call from his case worker, Bruce Mayberry, asking her to meet him at an office in Colorado Springs. She did, and upon hearing the news he brought, news he "knew she wasn't going to like," she fell to the ground and began screaming.
Mayberry told Weil her son had gotten a haircut.
In Navajo culture, a boy's hair is never cut, and is worn in a knot, a braid or a ponytail at the back of the neck. "We're to be humble, low-maintenance, not to be vain," says Weil. Leaving the hair as it is represents that.
"I started screaming, "Where's my son's hair?'" says Weil. Two days later, Mayberry delivered RJ's long black braid to his mother. "That was all of his hair," she says, "from all his life growing up. My son was scalped."
According to the DHS record, RJ cut his own hair. Weil says that's one of three versions of the haircut story she's heard. She doesn't believe he cut it himself. She believes it happened in a way that defiles her culture.
Troubles for urban Indians
Under ICWA, tribal jurisdiction often supersedes state jurisdiction, since tribal governments are sovereign in their relationship to the U.S. government, and tribal affiliation and placement drives enforcement of the act.
But Julie Weil says that although the Navajo Nation did respond to DHS regarding her case, she feels the tribal government and its agencies don't have much interest in urbanized Indians like her and her children. She believes if she lived on the reservation, Navajo tribal courts would have intervened more aggressively.
Brenda Bellonger says there's also an issue of lack of resources. "Tribes don't have the money or resources to provide services to help people who don't live on the reservation. They don't have the resources to travel to Colorado Springs."
This underscores the issue of cultural conflict between those advocates who take into account the unique culture of American Indian families and those who advocate for children inside a more mainstream model. Filling the gap between distant tribal courts and state courts are agencies like Denver's Indian Family Resource Center, where Susan Yellow Horse helps run an "urban Indian child welfare program."
DIFRC works with Indian families at risk of losing their children to the child welfare system or families with children already removed from their homes. Some judges are familiar with ICWA and have a working relationship with Yellow Horse's agency. In some counties, she says, neither judges nor county attorneys know about it.
Foster families eager to take in Indian children right away sometimes pressure ICWA procedures. Yellow Horse is particularly sensitive to that, having grown up on a reservation.
"I can remember when some Caucasian families would come on the reservation and look for Indian children to adopt," she says. "We had mission schools, boarding schools where they'd do their recruitment."
Regarding the lack of needed Native American foster families, Yellow Horse also sees a common problem.
"There is no way for us to say, well, we'd like proof that this is a Native American family," she says. "Some children end up with Latino families that claim their Indian ancestry, practice some of the ceremonies and things like that. In those situations, we have no problem.
"But in other situations, where families claim Indian ancestry but have never applied for tribal enrollment or just don't live that lifestyle, well, that's unacceptable."
DIFRC operates as a model program for others around the country, adopting a strengths-based approach to family interventions rather than focusing on deficits as many social service agencies do. In evaluating families for services, Yellow Horse considers factors that potentially strengthen Native American families.
DHS repeatedly reported that Julie Weil failed to comply with their reunification plan for the family by refusing family therapy. Weil says the therapy offered was not culturally appropriate under ICWA and that she requested a Native American therapist. The DHS record shows several attempts to reach that therapist but doesn't explain why he never materialized.
Weil admits she was charged with harassing both her court-appointed family therapist and the foster mother from the Yoder home, though the charges were eventually dropped. Her explanation illustrates the gap in cultural understanding that can cause sparks to fly in sensitive situations like child custody cases.
Weil says she witnessed the foster mother "patting RJ on the butt" and addressing him with an "endearment."
"I said, "What the hell are you doing, you fuckin' child molester?' We don't touch boys that way beyond a certain age. It's not right."
Weil's fierce outspokenness often put her at odds with social workers, therapists and judges. But she persists.
"I could look down the barrel of a loaded gun, and I'm still not scared," she says. "I just kept saying to them, "How can you people go and withhold my federal rights under ICWA?'"
The district attorney's office offered a plea bargain and juvenile diversion to RJ, who pleaded no contest to criminal charges against him, making it possible for the charges to be eradicated from his record once he fulfilled the DA's requirements. Since leaving the Yoder home, he has lived in three other placements: one with a family, two in group homes. He has been in trouble with the law and has been back in court. In April 2007, when he will turn 18, he is scheduled to be emancipated from his guardian, El Paso County DHS.
Most recently, Julie Weil received a letter from her attorney saying RJ had mentioned wanting to return home. The judge wanted to know whether she wanted him to be returned or not.
She pauses for a long while before answering that question.
"I wanted him at home right off the bat," she says. "I wanted him in the first two years. Now I don't know him anymore."
Her son, she says, has been allowed to flunk out of school, has been involved with drugs and alcohol, and has accumulated no life skills in the time he's been in the child welfare system. Had he been returned to her initially, she says, she would have sent him to a Navajo boarding school in Shiprock, N.M., where a nephew of hers went and ended up graduating. At least, she says, she would have been able to decide how to deal with his behavior problems. "He's not a bad kid," she says. "He just got mixed up in some bad stuff.
"I don't even know how to answer [Judge Shakes], except angrily. The finger's going to point back at me again if anything goes wrong," she says. "Everything they said they were going to do got sidetracked. That's why I don't even go to those hearings anymore. It's a song and dance. It's a circus, and we don't need to be spectators."
Meanwhile, based on a financial affidavit that estimates she should have been paying $324 per month for services from DHS over the past three years, Weil has received an overdue bill for nearly $9,000.
"I didn't create this bill," she says. "I know I don't owe it. [DHS] ruined him, ruined our relationship. It's gone forever. There's no family therapy and no Indian ceremony that can get that back."