Goldwater Institute Supports Appeal by Foster Parents in Controversial Indian Child Adoption Case

Phoenix–Goldwater Institute lawyers today filed a friend of the court brief in support of the foster parents of “Lexi,” the six-year-old California girl caught in the middle of a case involving a controversial federal law called the Indian Child Welfare Act.  That Act dictates how foster care and adoption cases must be decided when a child has Native American ancestry. The Institute, which is challenging the Act’s constitutionality in a separate federal lawsuit, urges the California Supreme Court to take up Lexi’s case.

“This law discriminates against Native American children,” said Timothy Sandefur, Vice President for Litigation at the Institute, who authored the brief.  “It makes it harder to rescue abused Indian children from dangerous situations and harder to find them the safe, loving adoptive families.” 

Lexi was born to a drug-addicted mother and a father with an extensive criminal history. She lived with foster parents Rusty and Summer Page for four of her six years of life; she calls them mom and dad, and considers their other children to be her siblings. But because her great-great-great-great-grandfather was Choctaw Indian, she is subject to the Indian Child Welfare Act, which gives the Mississippi Choctaw tribe the power to block the Pages from adopting her.

In March, child welfare workers took Lexi from the Pages and sent her to live in Utah with a man who had been married to her late grandmother, because the Choctaw tribal government ordered that she be placed there. The Pages argued that this was not in Lexi’s best interests, but the Act overrides the “best interests of the child” rule that normally applies to child welfare cases.

“The Act defines ‘Indian child’ in terms of biology,” said Sandefur. “Then it establishes a separate and unequal set of rules for children of this one racial category. Lexi has no affiliation with the Mississippi Choctaw tribe—except for DNA. But that’s enough to allow the Choctaw government to take her away from the couple she calls her ‘mommy’ and ‘daddy’ and send her to live with a different family, instead.”

The Pages appealed that decision, but the California Court of Appeal ruled in June that “When the best interests of an Indian child are being considered,” courts “should take an Indian child’s best interests into account as one of the constellation of factors.”

“For kids of other races,” Sandefur notes, “the child’s best interest is the overriding consideration. But not for Native American children. Their best interests are compromised in order to benefit tribal governments.”

The Goldwater Institute’s lawsuit challenging the Act is pending in federal district court in Phoenix. It argues that six different provisions of the act violate basic federal constitutional guarantees, including the requirement of equal protection of the law. Tribes have urged the court to dismiss the case, but no decision has yet been made.

“All Indian children are citizens of the United States entitled to the equal protection of the law,” said Sandefur. “It’s disgraceful that in the 21st century, our laws still segregate Native American children, and disregard their best interests simply because of who their great-great-great-great grandparents were. We will not rest until Native American children are treated as equals and their best interests treated as the most important question in all child welfare proceedings.”

Read about the Goldwater Institute’s challenge to the Indian Child Welfare Act here: http://www.goldwaterinstitute.org/en/work/topics/constitutional-rights/equal-protection/case/equal-protection-for-indian-children/

Read the Goldwater Institute’s in-depth report about the Indian Child Welfare Act, “Death on a Reservation,” here: http://equalprotection.org/story/

Watch an original short film on ICWA here: http://equalprotection.org/equal-protection-for-indian-children-video/