Goldwater Institute Files Friend of the Court Brief in Lexi Page Case

Institute urges California Supreme Court to return little girl to foster home where she has lived for four years

Phoenix—Late last week the Goldwater Institute filed a “friend of the court” brief urging the California Supreme Court to hear the case of Lexi Page and return her to the foster family that has loved and cared for her for four years. On Monday, at the direction of the Choctaw Nation, Lexi was taken from her home in California because she is 1.5{010c6536f15f83a69f09c4467fdfb4a5656804feab27fe0dec71ed1e80da306f} Choctaw and sent to live with another family in Utah. The family she was sent to live with is not part of the Choctaw tribe or any other tribe.

A forty-year old federal law called the Indian Child Welfare Act allows tribes to intervene in adoption and foster care proceedings if a child is “eligible for membership in a tribe,” even if the biological parents aren’t members and the child has no connection to the tribe.

“We ended race-based discrimination 50 years ago in the country. But not for Native American children,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute. “ICWA subjects Native American children to separate and substandard considerations in adoption and foster care cases. It is harder to remove them from abusive situations and it is harder to keep them in safe and loving homes than it is for children of any other race.”

Lexi’s race is being used to take her away from a loving, safe home where she has lived for two-thirds of her life because her great great great great grandparent on her father’s side was Native American. She has been sent to live with a non-Native American person in Utah whose only connection to Lexi is that he was married to her late grandmother who had some Native American blood.

In July 2015 the Goldwater Institute filed a class action lawsuit challenging the constitutionality of the Indian Child Welfare Act on equal protection and other grounds.

“Native American children are U.S. citizens and citizens are guaranteed equal protection under the law. We cannot tolerate a situation where children of one race —Native Americans—are subjected to lower standards based simply on their heritage,” said Sandefur.

That lawsuit, A.D. v. Washburn, is currently pending before federal district court in Arizona and if successful, would apply the same standards to Native American children that are applied to children of all other races in adoption and foster care cases.

When an abused child is removed from his home and placed in foster care or made available for adoption, judges are required to make a decision about where he will live based on his best interest. Except for Native American children. The Indian Child Welfare Act requires judges to “presume” that a Native American child’s best interest is to be placed in a with other Native Americans—or as in Lexi’s case, with people vaguely related to Native Americans—and to deny custody to loving and caring families of other races.  Children taken from non-Indian homes are sometimes placed with families they have never met, and in some cases have been placed with abusive and neglectful custodians, at a tribe’s command.

“While it is important to protect the culture and heritage of Native American tribes, the desires of a tribe should never trump the best interests of a child,” said Sandefur.

Rusty and Summer Page, Lexi’s foster parents, have filed an emergency appeal to the California Supreme Court to return Lexi to her Santa Clarita, Calif. home.

Read the Goldwater Institute’s brief in the Lexi Page case here. The brief urges the Court to take the case and address the constitutionality of the Indian Child Welfare Act.

Learn more about A.D. v. Washburn and the Indian Child Welfare Act and the Goldwater Institute’s Equal Protection for Indian Children project at equalprotection.org.

Read a Wall Street Journal column about the case and Lexi’s story here.

About the Goldwater Institute

The Goldwater Institute drives results by working daily in courts, legislatures and communities to defend and strengthen the freedom guaranteed to all Americans in the constitutions of the United States and all 50 states. With the blessing of its namesake, the Goldwater Institute opened in 1988. Its early years focused on defending liberty in Barry Goldwater’s home state of Arizona. Today, the Goldwater Institute is a national leader for constitutionally limited government respected by the left and right for its adherence to principle and real world impact. No less a liberal icon than the New York Times calls the Goldwater Institute a “watchdog for conservative ideals” that plays an “outsize role” in American political life.