Oklahoma Judge Gives Custody of Deseray to Absentee Shawnee Tribe

By Suzette Brewer,

Third Pregnant Woman Identified by Tribal Lawyers

At a closed-door hearing last week in Oklahoma County, Judge Allen Welch granted custody of the infant girl “Deseray” to the Absentee Shawnee Tribe and ordered her return to Oklahoma. The baby had been unlawfully removed from Oklahoma in June by Bobby and Diane Bixler of Irmo, South Carolina, in violation of the Indian Child Welfare Act and Oklahoma state law. The Bixlers are represented by Raymond Godwin and Nightlight Christian Adoptions of Greenville, the same attorney and agency who represented Matt and Melanie Capobianco in the adoption of Veronica Brown.

Charles Tripp, attorney for the Absentee Shawnee Tribe of Oklahoma, said the Bixlers took Deseray when she was only a few weeks old with no custody orders or paperwork of any kind authorizing them to take the child out of state, which is tantamount to kidnapping, for which they could face federal criminal charges. The tribe is seeking domestication and enforcement of Oklahoma orders in South Carolina so that Deseray can be returned home for further proceedings in regards to her custodial placement.

Tripp, who is managing partner of Oklahoma-based law firm Legal Associates for Indian Country, said the removal of Deseray with no legal framework for her adoption is nearly Dickensian in its bald violation of state and federal laws.

“They literally paid their money and split with the kid,” said Tripp. “The big issue here is the wholesale auction of Indian children—but right now we're focusing on getting this little girl back to Oklahoma and transferring the case to Absentee Shawnee tribal court so we can make a determination as to where she is best served.”

In May, the Bixlers had gone to Stillwater, Oklahoma, for the birth of Deseray, whose parents had split several months before she was born. At the hearing last week in Oklahoma county, Paul Swain, the Tulsa attorney who represents the Bixlers, told Judge Welch that the reason the couple went back to South Carolina with no custody order was simply because the Bixlers were tired of waiting for the paperwork to be finalized and that “Mr. Bixler needed to get back to work.”

When asked about the current whereabouts of the infant girl as rumors had been swirling that she had been “re-homed” with another couple, Swain hedged.

“She's in South Carolina,” he told the court. Welch was not impressed. Finally, after several vague answers, Swain said that the girl is still with the Bixlers. Judge Welch then removed Swain from the case, granted the tribe custody and ordered the immediate return of the baby, who turned four months old last week.

But the story of how Deseray wound up in South Carolina with little more than a car seat and a diaper bag is a story with familiar refrains.

Same Song, Different Lyric

Crystal Tarbox was an easy target. Abandoned by her biological father as an infant, her life afterward is the very definition of instability. Having grown up with a rotating string of father figures and frequent address changes, she had her first baby at 15 and dropped out of high school. Her second baby came when she was 19 and living in Florida with a boyfriend who would later go to prison.

Having moved back home to Oklahoma, she worked at a series of low-paying, minimum wage jobs while raising two young daughters. Last year, at 23, she moved in with her now ex-boyfriend, Jeremy Simmons in Mannford, Oklahoma. Soon after, she became pregnant with her third child, another girl.

Tarbox, who is a member of the Absentee Shawnee Tribe of Oklahoma, had been in an out of counseling from an early age for a variety of issues, including anxiety, according to her mother, Janet Snake. But in 2011, Tarbox was dealt another blow when her biological father, who had been diagnosed with bi-polar disorder, killed himself. Unemployed and with a third child on the way, she was overwhelmed and unsure of her relationship with Simmons, who also has a criminal history.

In short order, she ended her relationship with Simmons and impulsively married the father of her second child, Matt Tarbox, who had just recently been released from incarceration. Shortly thereafter, she gave up the baby who came to be known as “Deseray” for adoption to the Bixlers, who according to insiders paid approximately $50,000 for Tarbox's “expenses.”

In an interview with Indian Country Today Media Network, Simmons said that he was aware that Tarbox had a troubled history and that he had tried to help her during her pregnancy, taking her to her scheduled doctor's appointments and even buying her pre-natal vitamins.

“I came home one day and she had just cleared out and took everything,” he said. “I still tried to continue to help her after we split but she wouldn't talk to me and refused to accept any money from me.”

Two days later, she married Matt Tarbox, the father of her second child who had just been released from prison. Soon after, relatives say the couple sought help from the First Baptist Church of Cushing, Oklahoma, who reportedly set up the contact for the adoption agency.

In May, the Bixlers drove to Oklahoma from South Carolina to attend Deseray's birth at Stillwater Medical Center. Godwin had “subcontracted” Tulsa-based attorney Mike Yeksavich to handle some of the paperwork, though they later had a falling out over fees and responsibilities. At the time, Yeksavich asked the court to appoint him at the girl's legal guardian, apparently in order to finalize the adoption.

But he has since distanced himself from Godwin, claiming that the responsibility for the paperwork fell squarely on Godwin's shoulders. As the two attorneys squabbled over money and “assigned duties,” the Bixlers cleared out of Oklahoma, taking Baby Deseray with them back to South Carolina with no legal authority whatsoever to do so.

Before they had even pulled into their driveway in Irmo, South Carolina, papers had already been filed in Greenville by Godwin to finalize the adoption.

It was there that a South Carolina family court judge finally caught on to what was happening. Right off the bat, the judge realized that no Interstate Custody for the Placement of Children (ICPC) paperwork had been filed. In fact, no other paperwork had been filed save for the documents from Raymond Godwin's office.

With no ICPC filing in place, the South Carolina judge refused to finalize the adoption. In Tulsa, Mike Nomura, director for the State of Oklahoma ICPC, was aware of the lack of due diligence and made his irritation known to all parties, including Yeksavich and Godwin.

Seeing the handwriting on the wall, Yeksavich subsequently sent a heated letter to Godwin demanding the return of Deseray.

“...I told [Nomura] I will not [file an ICPC request for the Bixlers] as I do not agree with placement with your clients and the termination case has been dismissed. He thinks I still have 'custody' of the child...this is a demand for your clients to return the child to Oklahoma and surrender physical possession of the child and advise what date your clients will be in Oklahoma with the child so coordination of a change in physical custody can be made.

Since your clients chose to secretly ignore the law it is my position they have all liability for the child's safe keeping until they surrender physical custody of the child and have no right to physical custody of the child.”

Meanwhile, the lawyers for the Absentee Shawnee went to court to enforce the Indian Child Welfare Act, setting the stage for another epic, interstate custody battle between an Oklahoma Indian tribe and the state of South Carolina.

For Tripp, who is not only an Indian lawyer, but also a pre-ICWA adoptee, the obligation to enforce ICWA has become a mission because of the long, unrelenting history of taking Native children from their tribes.

“It's time for the Department of Justice to get involved and investigate the misdeeds and wrongdoings of these agencies and lawyers in regards to the abduction of our children,” he said. “This is nothing new, but rather just a continuum of the tactics and policies in which greed and the colonial 'white is right' mentality have taken over.”

There's One Born Every Minute

At last week's hearing, Barbara Bado withdrew from representing Crystal Tarbox. But before she departed, she had something to say. Leaning over to one of the tribal attorneys before the hearing, she inquired about what should be done about yet another Absentee Shawnee birth mother, who is due to give birth this November.

Bado told the attorneys that the tribal member, whom she does not represent, is homeless, living in a park, sleeping on friend's couches, trying to avoid more jail time. With multiple warrants for her arrest, fines and legal fees, Bado was asking about ICWA.

“She sent us several emails saying, 'We want to comply with ICWA', and asked us for a list of potential placements with tribal members,” said Tripp. “Which all sounds great, but then came the hitch: She said that there were 'expenses,' that needed to be paid, which included living expenses, fines, outstanding warrants and legal fees. There was nothing direct, but clearly, they don't want her picked up because let's face it, if she delivers the baby in jail, the kid will go to DHS and not only will the mom not get paid, the attorneys won't make a cent. So they're out there soliciting for 'expenses,' with the underlying threat that they'll take their business elsewhere.”

For Don Mason, who represents Jeremy Simmons in the Baby Deseray case, it's nothing new under the sun.

“It's very manipulative,” he says. “It's always cloaked in words like 'expenses,' but it's a lot of cash up front and the cash is always funneled in ways that it's hard to track. And when these attorneys get caught, they always hide behind the law and the bible pretending that they're do-gooders, when in fact they are selling children for profit. In the end, however, it's the exploitation of both sides: Poor birth mothers who are desperate and adoptive parents who will pay any price for a child. But no matter how glossy it appears, it's still human trafficking.”

RELATED: Trafficking Native Children: The Seamy Underbelly of U.S. Adoption Industry

In the case of Crystal Tarbox, for example, the money that she received from the adoption has since disappeared and she and her husband are now living with her mother, who is helping to raise Tarbox's two older daughters. As of this writing, Tarbox remains unemployed.

A Time for Healing Our Communities

For many lawyers and mental health experts in Indian country, it is the underlying issues involving poverty and mental health that need to be addressed so that individual tribal members and Native communities don't continue to fall prey to an adoption industry that has turned toward vulnerable Native women who may have few choices in giving up their children. The preservation of Indian life in America is, after all, the reason the Indian Child Welfare Act was enacted to begin with.

Dr. Art Martinez, a clinical psychologist and consultant from California, says that funding and resources for Native communities is crucial to helping retain children for the long-term survival of the tribes.

“It's a huge problem,” says Martinez, who is a Chumash tribal member. “The tribes do care about their children and they do want to stop it, but the reality is that they very rarely know about these adoptions until it's too late. And there are loopholes which are exploited by the attorneys that we have been battling since ICWA was passed. And unfortunately, it's the children who become the victims of these situations.”

Martinez says that poverty plays an enormous role in the mental health issues that plague Indian communities. Crucial infrastructural needs like decent housing, intensive in- and out-patient treatment facilities, safe houses, medical care, sound nutrition and traditionally-based wellness initiatives should all play a part in preserving tribal life, which has undergone centuries of assault on their existence.

According to the American Psychiatric Association, American Indians and Alaska Natives are more than twice as likely to live in poverty; they have a life expectancy 6 years lower, and an infant mortality rate higher than the U.S. Average. American Indians have twice the rate of violent victimization than that of African Americans and more than 2.5 times the rate of white Americans. Additionally, they die at significantly higher rates of tuberculosis and diabetes.

But most significantly, suicide is the second leading cause of death among 10-34 year-olds, while 33 percent of American Indians lack health insurance, compared to 11 percent of whites.

“We need dedicated resources for intensive community work around wellness and healing,” says Martinez. “We're still wiping tears from the historical trauma we've all suffered, but we need to stop the kinetic attacks on our communities. We need resources to address our unique issues, because poverty and mental health impacts not only individuals, but families, communities and entire tribes.”

For Tripp, who works with tribes all over the country, it is the not-so-subtle message from the dominant society that Indian children are up for grabs.

“They pick on the weak. And the weak are people in poverty, with health issues, societal problems, drug and alcohol abuse and criminal histories. They're easy pickings. And in the United States, we have this notion that more money equals a 'better life.' But what constitutes a good life is a sense of love and caring, a sense of belonging. A sense of 'place.' But in order to do that, we have to protect our children. We have to give them a safe and steady place to grow up in a community that loves and cares about them,” he says. “I have had several mothers who have told me they don't want their kids to be Indian. And that's a sad statement. Because what it says is that there has been some success in a society that, at its very core, is racist toward Indians. That somehow being Indian is less than, that it's bad. Somewhere, that message has gotten through to the most vulnerable people in our communities. So we therefore need to redouble our efforts and help those who may be in trouble so that we can preserve our legacies and cultures for future generations.”