Two years ago, three Visalia girls were orphaned when their parents were killed on a rural road by a suspected drunken driver.
Since the deadly collision, a bitter custody battle has ensued among their relatives, pitting a Visalia couple against members of the Shingle Springs Band of Miwok Indians in Placerville.
The tribe contends the girls, ages 7, 5 and 4, belong with them because they are American Indians. The tribe has invoked the federal Indian Child Welfare Act, which gives preference to tribes in custody proceedings involving American Indian children.
Efrim and Talisha Renteria, both age 33 and of Visalia, say the girls – who are their great-nieces – belong with them because they were raised in Visalia and neither lived on the Shingle Springs reservation nor had any ties to the tribe until after their parents were killed in December 2015.
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Now a strange twist has emerged – DNA tests show the girls have no Miwok blood. And documents in U.S. District Court in Fresno say members of the Shingle Springs Band of Miwok Indians might be imposters because their blood is Hawaiian, not Miwok.
The turn of events comes as Arizona-based Goldwater Institute has filed a petition on behalf of the Renterias that asks the U.S. Supreme Court to protect the rights of some of the country’s most vulnerable citizens: Native American children.
The institute’s lawyers contend the Indian Child Welfare Act, known as ICWA, violates the children’s due process rights and has been unfairly invoked by the Shingle Springs tribe to separate the girls from the Renterias, who have temporary custody.
“This denial of equal protection deserves the attention of the United States’ highest court, and we hope the Supreme Court will agree that this codification of substandard treatment should not stand,” said Goldwater Institute lawyer Timothy Sandefur, who filed the petition Nov. 27.
Goldwater Institute lawyer Adi Dynar says of Indian Child Welfare Act
Davis attorney Joseph J. Wiseman, who represents the tribe in the custody battle, said the Goldwater Institute’s arguments have been used before without success. He said ICWA was enacted in 1978 to right a long history of removing American Indian children from their traditional homes at a high rate and placing them in non-Indian foster homes, thus preventing them from knowing about their culture.
The Shingle Springs tribe has a right to invoke ICWA in the custody proceedings, Wiseman said. And the claim that the Shingle Springs tribe is not Miwok, he said, is totally untrue. “It is a federally recognized tribe,” Wiseman said.
But Fresno attorney Charles Manock, who represents the Renterias, said if the Shingle Springs tribal members are not Miwok, the tribe should not be able to invoke ICWA. “This could be a game-changer, and level the playing field for my clients,” Manock said.
Typically, custody disputes are resolved “in the best interest of the child,” Manock said. In simplest terms, the side that has the most significant relationship with the child usually gets custody, he said.
Since their parents’ death, the girls have lived primarily with the Renterias but have traveled often to the tribe’s reservation 250 miles away to visit with relatives.
DNA tests show the girls have no Miwok blood.
Court records say the Renterias took custody of the girls soon after their parents, Matthew and Sharnae Cuellar, were killed by a suspected drunken driver on a rural road south of Fresno on Dec. 17, 2015. The Renterias are Sharnae Cuellar’s uncle and aunt.
But a tug of war soon ensued because Matthew’s family also wanted guardianship of the children and cited ICWA as a basis for getting custody.
In court papers, the Shingle Springs tribe contends that Matthew Cuellar’s family should have custody because he was a member of the tribe and therefore his children are members. Shingle Springs wants his aunt, Regina Cuellar, to have custody of the children.
Manock and co-counsel Susan Hemb, a family law lawyer in Fresno, contend custody shouldn’t be an issue because Regina Cuellar is unfit to be a guardian. Manock said court records reveal Regina Cuellar associates with criminals, and members of her family have criminal records. The Renterias have no criminal record, he said.
In addition, Manock also said the girls have claimed they’ve been sexually abused when they visit Matthew Cuellar’s family on the reservation.
Folsom attorney James Greiner, who represents Regina Cuellar, declined to comment. But Wiseman said criminal records should not be the basis to deny custody. He also said the “best interest of the child” does not always apply in ICWA cases because the law says American Indian tribes get preference in custody proceedings.
Wiseman, the Shingle Springs tribe’s attorney, said that in this case his clients prefer that Regina Cuellar, who is a member of the tribal government, get custody.
The custody dispute has taken a meandering legal route, court records say, starting with Matthew’s mother, Stephanie Cuellar, taking the girls from the Renterias after getting an emergency order from the Shingle Springs Tribal Court. A tribal judge later found Stephanie Cuellar unfit, so the Renterias got temporary custody. That ended when the tribal court appointed Regina Cuellar as the minors’ permanent guardian.
The Renterias petitioned the U.S. District Court in Sacramento, accusing the tribe of violating their due process rights. The couple prevailed when Judge Morrison C. England Jr. ruled in September 2016 that the Cuellar children had had little contact with Matthew Cuellar’s side of the family “and almost no contact with the tribe.”
England also noted that two of the Cuellars’ children told authorities they were sexually abused by one of Regina Cuellar’s relatives during a custody visit. “While the public interest may favor the placement of tribal-member minors with tribal-member guardians, it favors the prevention of child sexual abuse even more strongly,” England’s ruling says.
The tribe’s history includes Indians being devastated by violence during the California Gold Rush starting in 1849, forcing them to lose their native lands and scatter.
Because England’s ruling did not determine guardianship of the children, both sides took the custody case to Tulare County Superior Court. There, Judge Nathan Ide sided with the tribe, ruling that ICWA applied to the custody proceedings. The Renterias appealed, but the Fifth District Court of Appeal and California Supreme Court declined to hear the case, prompting the Renterias to take the dispute to the nation’s highest court.
In court documents, Sandefur and co-counsel attorney Adi Dynar of the Goldwater Institute say the Renterias should have guardianship of the children “in accordance with the parents’ wishes.” They also contend ICWA can be detrimental to the welfare of American Indian orphans because they might be placed in unfit American Indian homes.
“It’s discriminatory,” Dynar said, because ICWA’s “race-based placement rules” essentially require all American Indian children to be placed with Native American adults instead of non-natives. It’s unfair, Dynar said, because the Cuellar children “have no political or cultural connection to the tribe.”
Dynar said California courts have long held that the “best interests of the child” should apply to children of all other races. But the Shingle Springs tribe contends that because of ICWA “the best interests analysis does not apply,” he said.
Tribe’s conflicted history
The Shingle Springs tribe’s website gives details about its rich history, its government, and its Red Hawk Casino off Highway 50 in El Dorado County. The website says tribal members are descendants of the Miwok and Southern Maidu “Nisenan” Indians who thrived in the Central Valley for thousands of years before contact with Europeans. The tribe’s history includes Indians being devastated by violence during the Gold Rush starting in 1849, forcing them to lose their native lands and scatter.
The Shingles Springs tribe regrouped around 1916 but didn’t gain federal recognition until the 1970s. Since then, the tribe “has sought to honor and protect its territory and cultural heritage to benefit future generations,” the website says.
They could be Hawaiian.
Fresno attorney Charles Manock says of the Shingle Springs Band of Miwok Indians
Manock said he has doubts about the tribe’s bloodlines.
He said DNA testing shows the girls have no Miwok blood. The oldest girl is 18 percent Taino but no other American Indian blood; the 5-year-old is 8 percent Taino and 2 percent Cherokee; and the youngest is 8 percent Taino. The Taino are a subgroup of the Arawakan Indians, who lived in northeastern South America when Christopher Columbus arrived in the New World.
It’s not unusual for siblings of the same parents to have slight variations in percentages of ancestry.
The Renterias also have done DNA testing: Talisha is 9 percent Apache, and Efrim is 4 percent Blackfoot and 7 percent Taino.
The bloodline question extends beyond the family’s custody battle. Manock said he has been in touch with Cesar Caballero who has been in a legal battle with the Shingle Springs Band of Miwok Indians for nine years.
In 2008, the tribe sued Caballero in U.S. District Court for trademark infringement and unfair competition, saying Caballero is representing himself as chief of the Shingle Springs Band of Miwok Indians and doing business as a representative of the tribe.
Caballero countersued the tribe, saying its members are posing as Miwok while living on the 240-acre reservation. His countersuit includes documents from the 1880 Census and 1910 Census, the original deed to the reservation and Bureau of Indian Affair documents to back his claims.
According to Caballero, the Shingle Springs tribe that operates the Red Hawk Casino is not Miwok and is not indigenous to El Dorado County. Instead, the tribe is composed of Maidu Indians with Hawaiian ancestry who had historically lived in Sacramento and Sutter counties.
Caballero says in court papers that he is chief of the descendants of the indigenous Miwok Indians of El Dorado County and represents hundreds of Miwok Indians who have not received the benefits from being federally recognized by the U.S. government.
But in the legal fight, Caballero was caught directing the tribe’s mail to his address. Court records say Caballero was convicted in 2011 of obstructing the delivery of the U.S. mail and spent several months in a federal prison.
U.S. Judge John A. Mendez sided with the tribe, saying the evidence showed the tribe would prevail on its trademark claim. Mendez also threw out Caballero’s countersuit, leading him to appeal to the U.S. Court of Appeals for the Ninth Circuit.
In November 2015, the Ninth Circuit reversed Mendez’s ruling, sending the case back to U.S. District Court.
Caballero and his attorney, Charles Alfonzo, declined to comment, saying the case is in mediation with the tribe. There was no response from one of the tribe’s lawyers, Paula Yost of Oakland, to an email from The Bee seeking comment. But in court papers, Yost says the Shingle Springs tribe is recognized by the U.S. as a sovereign Indian tribe. She said Caballero’s countersuit claiming tribe members are imposters is ludicrous because it would mean the Shingle Springs tribe “somehow hoodwinked the federal government” into placing it on a list of recognized Indian entities.
Manock, however, said he believes there is truth in what Caballero is saying. For evidence, he cites what he’s seen at the Red Hawk Casino, including a Tiki Room and waitresses wearing grass skirts like in Hawaii. He said he also has learned the tribe takes annual retreats to Hawaii and their cultural events are called luaus.
As strange as it sounds, Manock said, “they could be Hawaiian.”