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Custody dispute tangled by kidnapping charge

VERMILLION, S.D. - A summer vacation and a chance to get to know his son turned into a nightmare for a doctoral candidate at the University of South Dakota.

R. Niko Mercier claims federal agencies, Nebraska agencies and California courts have ignored the requirements of the Indian Child Welfare Act in a custody battle over his son.

Mercier, who was teaching cultural education classes just a few days ago, began a three-day trek halfway across the nation to defend himself in Kern County, Calif., and raise the issue of how officials ignored ICWA while investigating a complaint filed by his cousin Dawn Campbell of Ridgecrest, Calif. who claimed custody of his son.

The story began a decade ago when Mercier, who returned from military service with his 3-year-old, Korean-born son, began putting his life in order. Mercier had married a Korean woman, but his wife refused to leave her family and culture when Mercier's tour of duty ended.

In 1991, he divorced her and a Washoe County, Nev., court granted him custody of the boy. For two years Mercier raised the child on his own, but financial and personal problems forced him to seek help.

His cousin agreed to help by taking care of his son. Later she asked Mercier to consent to guardianship related to the boy's education, access to medical care and other services. Mercier consented, granting "conditional guardianship" to his cousin.

However, he said he made it clear in a handwritten, notarized document that he would retain parental rights and the guardianship would end in the event his son returned to live with him.

The former Army military police officer continued to move forward with his life, completing his bachelor of science degree at Wayne State College in Nebraska. While he was taking graduate classes, he married a woman from the Ponca Tribe and started a family. Mercier said he realized financial stress on his family from his studies was taking its toll so he returned to work. He worked for the Ponca Tribe of Nebraska as its director of cultural affairs and later as a grant coordinator for the Northern Ponca Housing Authority.

He bought a home in Bloomfield, Neb., and as his financial status stabilized, he was prepared when he received a from his cousin suggesting that his son spend the summer with him.

Mercier said Campbell told him his son was having identity problems and behavioral problems in school. He said she suggested that the boy live with him if he wanted to stay.

Seizing the opportunity to get to know his son again, Mercier agreed. Campbell put little Joey Mercier on a flight to Omaha where Mercier picked him up. As the weeks went by, the boy was introduced to relatives and tribal traditions. Mercier said he frequently took the boy with him to South Dakota, Minnesota and Nebraska to pow wows and tribal rituals. Mercier said Joey called his cousin from the various locations.

He said Campbell objected to the boy's exposure to the Sun Dance and other tribal ceremonies.

Mercier said he had no telephone but allowed his son to use phone cards to call Campbell. However, he said, Campbell told investigators the boy's father was impairing her ability to remain in contact with the child.

Things began to unravel at the end of the summer when Joey called Campbell and told her he wanted to remain with his father, Mercier said. During that phone call, Mercier said Campbell shouted at the child and told him to put his father on the phone. Mercier said he told his son to tell her he would speak to her later when she had calmed down.

Shortly after that call, Campbell filed a complaint of kidnapping. Authorities arrested Mercier Aug. 11, 1999, one block from his home in Bloomfield on a felony kidnapping charge which carries a five-year prison term. Mercier's nightmare began with flashing of the lights on top of a patrol car and the click of a pair of handcuffs, he said.

With his son looking on, he said authorities told him he was charged with kidnapping and they placed him behind bars. They took custody of his frightened son. Joey was placed in a foster home and authorities wouldn't tell Mercier where his child was taken, he said.

Left in a cell, Mercier tried everything at his disposal to dispute the charge, telling authorities they would have to exercise their authority according the Indian Child Welfare Act which required them to follow a different set of protocols if there is any suggestion that a child is an Indian.

"The law applies to descendants of federally recognized tribes," he said.

During an interview, Mercier produced an enrollment card showing proof his son was an enrolled member of the Caddo Tribe of Oklahoma, a federally recognized tribe. He said he turned over copies of documents from his divorce showing he had been granted custody of the child.

Custody issues are covered under ICWA including foster care, guardianship and termination of parental rights. Any placement where the child need not be returned on demand also is covered. All California proceedings are covered by the act, Mercier said. However, the act doesn't include custody awarded in the event of a divorce though it covers custody disputes for unmarried parents.

Mercier remained in jail in Nebraska and told authorities they would have to contact the Nebraska Indian Affairs Office and the tribe concerning removal of the child from his custody.

He said an investigator from the Kern County (Calif.) District Attorney's Office attempted to contact the Indian Affairs Office, but only reached a secretary who said the message would be relayed. Authorities promised to abide by the requirement of 24 hours to allow a response, but the child was taken in custody again a few hours later and shuttled to California, Mercier said.

Meanwhile, Mercier awaited extradition to California. Responsible for the support of his wife and their children, he said he had to come up with $5,000 to secure a $50,000 bond for his release.

Charges were revealed in local newspaper in August 1999 further disrupting his life. Mercier, who had returned to school and was engaged in consulting, said the revelation tarnished his reputation and his consulting business began to quickly dry up. His wife left with their children and he lost his home.

All that was left, he said, was continuing his education. He lives in an apartment and draws $435 a month as a teaching assistant while he works on his doctorate.

"I've lost everything," he said.

Despite the losses and financial hardship, Mercier continues to fight the charge.

"I'm not going to plead guilty. I didn't do it. How could I kidnap my own son when she sent him on a plane to me from California?"

Mercier, who couldn't afford to hire an attorney, was frustrated by a revolving door of public defenders who he said don't know anything about Indian law and judges who ignored ICWA in separating the criminal charge from the issues which triggered it.

Kern County public defenders suggested Mercier strike a plea bargain to reduce the charge, but Mercier refuses, saying he won't plead guilty to an offense he didn't commit.

The most recent offer came Dec. 11 by e-mail when Mercier's attorney Christina Matias offered him several options for a reduction of the charge. The first offer would credit him with time served, three years summary probation, a fine of $80 and $80 in attorney's fees for the charge of deprivation of custody of a child or right to visitation of a child.

The second offer was potential reduction of the charge to a violation of a court order. That would mean pleading guilty to two counts with a penalty of one year of probation. The offer included expungement upon successful completion of probation, but Mercier would have to reveal his conviction to any government entity. He would be able to withhold the information in applying for jobs in private enterprises, he said.

Matias said making the decision to plead would mean Mercier wouldn't have to return to California.

Mercier stood by his commitment as he packed his things in his USD office for the winter break.

The deals offered little consolation as he prepared for his journey and he noted taking any of them would compromise himself and other tribal members faced with similar battles. Such a compromise would close the doors to opportunities he worked toward for years, he said, adding the larger compromise would be allowing the rights of Indian people to be violated without anyone realizing the laws are there to protect Indian people.

Mercier said he contacted an assortment of Indian rights advocates including the California Indian Legal Services and attorneys at the Native American Rights Fund. They told him they didn't take such cases. A benefactor has stepped forward, willing to help him hire a private attorney. However, Mercier said he was reluctant to take a monetary offer, but was seriously considering the move after seeing few options.

California Indian Legal Services claims it provides free or low-cost specialized legal representation to Indians and Indian tribes. It is supported by grants and contracts from a majority of California's federally recognized Indian tribes, the Federal Legal Services Corp., the State Bar of California, private foundations, and individual and corporate contributors.

Mercier, a skilled grant writer, suggested their failure to help was a violation of the terms of federal grants because, he said, they have failed to live up to the mission they expressed when getting the grant funding.

While the cost of the trip to California and return exceeds what the plea bargain might offer, Mercier said he is willing to make the sacrifice and he'll take odd jobs to fund his trip home. Ultimately, he said, he wants his son home.