This West Is OUR West

Lawsuits dispute whether the Indian Child Welfare Act is in the best interests of children

By Lorelei Laird

October 2016

Alexandria P.’s short life has been full of harsh goodbyes. At 17 months, she was taken from her parents after accusations of neglect. Los Angeles County authorities placed her in a foster home—but within months, she suffered a black eye and a scrape and was removed again.

A second foster family gave her up after just a few months, partly because of her extreme neediness. By the time she was placed with her third set of foster parents, Rusty and Summer Page, 2-year-old Alexandria called every adult—even those who were not her foster parents—“Mommy” or “Daddy.” The Pages say she was weepy and clingy, but also volatile.

“If you picked her up, she would freak out,” says Rusty Page, a director at a medical technology company. “If you just sat here like this, she would come and sit on your lap. But the minute you stood up with her, she would freak out, like digging her nails in your arm.”

After most of a year with the Pages at their home in Santa Clarita, California, those behaviors almost vanished. Lexi, as she’s now called, came to regard the Pages and their biological children as family—and vice versa. When her birth father gave up on regaining custody in 2012 (a court had already ruled out custody for her birth mother), the Pages decided to pursue adoption.

They knew it would be an uphill battle. Lexi’s birth father is a member of the Choctaw Nation of Oklahoma, which makes her case subject to the federal Indian Child Welfare Act. ICWA lays out special rules for custody and adoption cases involving children from federally recognized Indian tribes.

Like California law, the act prioritizes placement of tribe members with family. In Lexi’s case, there was extended family in Utah interested in adoption—and officials from the county and the Choctaw Nation expressed a preference for placement there.

Those preferences led to another harsh goodbye. In March, after a three-year legal fight, the Pages were forced to give up 6-year-old Lexi.

On the day slated for the transfer, the Pages’ calm suburban block at the foot of the Tehachapi Mountains was crowded with family, friends and neighbors holding signs with messages such as “Save Lexi” and “Do the Right Thing.” Because of the crowd, county child welfare authorities rescheduled the hand-over for the next day, March 21.

But the supporters were back. A stone-faced Rusty carried Lexi through the crowd as Summer screamed “Lexi!” and restrained her oldest daughter, Maddie, from running after them. Maddie and her little brother, Caleb, watched from the driveway, crying. Summer clutched her youngest, Zoey. County child welfare officials escorted Rusty and Lexi through the crowd, blocking the cellphones many were holding up to record the scene.

As they drove away, foster uncle Graham Kelly ran alongside the car yelling, “We love you, Lexi!” He then fell into the street crying. The Pages and their supporters gathered in a circle to pray. Rusty broke down while telling TV reporters that Lexi had been named student of the month at her school.

Summer and Rusty Page of Santa Clarita, California, are fighting to regain custody of their foster daughter, Lexi. Photo by Earnie Grafton

Two weeks later, a banner and sign remained outside the Page residence—but the slogans had changed to “#BringLexiHome,” and their attention is now turned toward the courts. The Pages’ appeal is pending, and they say they’ll pursue it to the U.S. Supreme Court, if necessary.

WHOSE BEST INTERESTS?

To make their case known, the Pages have given more than 100 media interviews in which they reiterate their message: The Indian Child Welfare Act, originally intended to protect Native American children from overreaching by child welfare authorities, is now acting against many of those children’s best interests.

“This little girl who’s one sixty-fourth Choctaw is being controlled by her one sixty-fourth,” says Rusty. “If she were a percentage of African-American and the African-American community came and ... dictated where she could go, there would be an uproar.”

That’s the theme of several challenges to ICWA in the last year and a half. Chief among those is Carter v. Washburn, a civil rights lawsuit filed in July 2015 against Kevin Washburn (then the assistant secretary of Indian Affairs) by the Goldwater Institute, a conservative nonprofit whose mission includes limiting government. Drawing on comparisons to Brown v. Board of Education, the complaint argues that the act creates race-based disadvantages for American Indian children, including a proposed class of all off-reservation Native children in Arizona, represented by family law attorney Carol Coghlan Carter as next friend. Those disadvantages could include physically dangerous placements, the complaint says.

“Because of ICWA, what’s happened is that these Indian children are given unequal and substandard treatment, and their interests are not considered primarily in considering the best interests of the child,” says Adi Dynar, a research attorney for the institute.

Those are hotly disputed claims among ICWA practitioners. The legislation was enacted in 1978 because, as congressional research found at the time, “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children.” And because many of those children were being raised by non-Indians, tribal cultures were in danger of being wiped out. Tribes still feel those traumas today.

“There is absolutely still an understanding that without ICWA, things would be much worse than they currently are” in terms of children taken from their parents, says law professor Kathryn Fort of Michigan State University’s Indigenous Law and Policy Center. “I think ICWA is absolutely viewed as a tool to protect continued existence.”

Chrissi Nimmo is a Cherokee citizen, assistant attorney general for the tribe in Tahlequah, Oklahoma, and mother of twin toddlers. She says that if “some-thing happened to me, my children are Indian children and they are subject to the Indian Child Welfare Act.” She adds, “I’m glad that there’s a federal law that protects my parental rights, protects my family’s rights and protects my tribe’s rights to my children.”

PAINFUL HISTORY

For many great-grandparents of today’s Indian children, arbitrary removals by nontribal governments were the norm, a practice dating back to the first Indian boarding schools in the late 1800s. The schools were designed by the federal government to assimilate the children into mainstream American society. At the time, memories of U.S.-Indian wars were still fresh, and many Americans considered boarding schools a more progressive option than warfare.

But the policy took a profound toll on families and communities. Students were given new “white” names and punished for speaking their native languages or practicing their religions. Boys had to cut their hair. When they returned home years later, they didn’t know how to be Indians anymore.

Punishment, in keeping with the era, meant beatings, loss of privileges or restricted food. Communicable diseases were common, and underfunding by the government meant some kids went hungry. Without parents nearby, children were vulnerable to physical or sexual abuse. If parents refused to turn their children over, the federal government sent police or withheld the family’s food rations.

Around 1900, tens of thousands of children attended 460 Indian schools across the country, according to a 2006 PBS documentary series, Indian Country Diaries. Boarding schools eventually fell out of favor, in part because of reports of the terrible conditions; a 1975 law permitted tribes to set up their own schools with federal funding. But by the mid-20th century, child welfare workers began removing kids from reservations by claiming neglect—a charge justified by the poverty in which they lived.

By the time the act was under congressional consideration—sponsored by Democratic Sen. James Abourzek of South Dakota, whose state is heavily Native—Indian children were being removed from their homes by child welfare agencies for neglect or abuse in vastly disproportionate numbers to the rest of the population. In 1969 and 1974, the Association on American Indian Affairs found that, in states with high Native populations, 25 to 35 percent of Native children were being removed.