Why the Lexi Page case may go to the US Supreme Court

The case echoes several other cases pitting the foster care system against the ICWA. In 2013, Adoptive Couple v. Baby Girl, a case involving Veronica, a young Cherokee girl, reached the US Supreme Court.

The Supreme Court of California turned down a petition to re-examine the decision of a lower court ruling that a 6-year old part-native American girl should be removed from the home of a Santa Clarita foster family and returned to her relatives in Utah.

The girl, Lexi, who is is 1/64th Choctaw native American was removed from her foster parents Rusty and Summer Page, with whom she had lived with for four years, last week, following a lower court’s decision that the girl needed to be placed with her relatives, in accordance to the Indian Child Welfare Act (ICWA) – a federal law that seeks to protect the interests of native American children.

The lower court had ruled that the foster family, as the Monitor reported, "had not proven by clear and convincing evidence that it was a certainty the child would suffer emotional harm by the transfer." The couple's lawyer argued in their appeal that the court "erroneously applied the clear and convincing standard of proof, rather than preponderance of the evidence."

Without commenting on the case, the California supreme court denied the appeal, leaving the only two avenues for the case: the state's court of appeal, and the United States Supreme Court.

The case echoes several other cases pitting the adoptive and foster care systems against the ICWA, including the 2013 Adoptive Couple v. Baby Girl, involving Veronica, a young Cherokee girl, which reached the US Supreme Court, and two other cases in Arizona.

The US Supreme Court ruled in favor of the adoptive parents in the 2013 case, stating that the ICWA didn’t apply because Veronica’s biological father, Dusten Brown, who is a member of the Cherokee Nation, never had custody of the child. Brown had signed the adoptive papers before joining the military, but contested the adoption months later saying that he thought he was relinquishing his parental rights to his girlfriend.  

The Indian Child Welfare Act was enacted in 1978 to protect native American children from being taken away from their families. The law mandates social workers finding homes for native children to first find a place with a relative of the child, a tribal member or another native American family, before they consider placing the child through the regular foster care system.

The act was passed to amend historical practices that saw native American children taken from their families and communities and placed in boarding schools in an attempt to "solve the Indian Problem" – native Americans were depicted as "savage heathens" – by assimilating them into mainstream American society.

The act is, however, coming under increased scrutiny. Opponents challenging the act argue that the law is in fact disadvantaging native American children, saying that it makes it harder for social workers to remove the children from families that might be abusive to them, and prevents these children from being placed with loving families.

"It means that Indian kids will not have the same stability that non-Indian kids have," Mark Fiddler, a Minnesota attorney who represented the adoptive parents in the Baby Veronica case told Time Magazine.

"This law creates a separate and unequal legal system for one particular race of children," said Timothy Sandefur, vice president for litigation at the Goldwater Institute, Phoenix think tank, which is challenging the two cases in Arizona. "All Indian children are American citizens, and equally entitled to the legal protections that are accorded children of every other race. This law denies them that protection.  It’s unconscionable – and unconstitutional – that fifty years after Brown v. Board of Education, this country still maintains a substandard set of rules for children of one particular race."

Advocates of the law say that even with the act, native American children are still removed from their communities and placed with foster families where they end up losing their native identity that the communities have fought to preserve. An NPR investigation found that 90 percent of children in South Dakota, for instance, are placed in non-native families.

Others contend that such cases are being used as plots to dispute the act. Matthew Fletcher, the director of the Indigenous Policy Law Center at Michigan State University told Time that lawyers representing the Santa Clarita foster family are "using this to attack tribal sovereignty, attack Indian people, and attack the Indian Child Welfare act," he said referring to Lori Alvino McGill one of the lawyers representing the Pages, who also represented the birth mother in the Couple v. Baby Girl case.

Lexi was 17 months old when she was taken away from her parents' custody. Her father had a criminal history, and her mother had substance abuse problems according to court records. Lawyers appointed to represent Lexi say that she belongs to the family in Utah, which is also taking care of her two sisters. Though Lexi had never lived with the relatives, she had maintained contact with them. She visited them monthly and Skyped with them on a weekly basis, the Monitor reported.