The Indian Child Welfare Act and the Battle over Lexi

By Laura Page
Associate Editor, Vol. 22

After more than two years of protracted litigation and aggressive media coverage, the family at the center of a challenge to the Indian Child Welfare Act (ICWA) filed a petition for Supreme Court certiorari last month.  The Pages, former foster parents to six-year-old Lexi, initiated the challenge when the child was removed from their home and placed with relatives, pursuant to ICWA guidelines preferring placement of Indian children with families who share their cultural heritage.  The appeal comes amid several state challenges to the constitutionality of ICWA, which aims to promote family reunification and preserve the cultural heritage of Native American children in the foster care system.

Under ICWA, states must comply with established minimum federal standards when a Native American child is removed from her home per allegations of abuse or neglect.  These standards aim to preserve a Native American child’s cultural heritage and, if at all possible, reunify the family.  Most important of these is the provision of placement preferences for children in foster care: “in the absence of good cause to the contrary, an Indian child who has been removed from her home must be placed with 1) a member of the child’s extended family; 2) other members of the Indian child’s tribe; or 3) other Indian families.”  An “Indian child” is defined in the statute as “any unmarried person who is under age eighteen and is either a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

Lexi, the child of a Choctaw father and non-Native mother, was removed from her parents’ care after allegations of neglect.  As the child of a tribal member and therefore eligible for membership herself, Lexi is considered an Indian child within the definition of ICWA.   In its discretion under ICWA, the Tribe consented to her temporary placement with the Page family (none of whom are Native American) until Lexi could be either reunified with her father or placed with her extended family in Utah.  When her father ultimately failed to complete reunification services, the Department of Children and Family Services began preparing for Lexi’s transition to Utah, where she would join her aunt, uncle, and two half-sisters.

Her foster family steadfastly opposed this change in placement, arguing that ICWA should not be invoked to trigger her removal from their care if they intended to formally adopt her.  After living with the family for four years, they argued, Lexi had developed strong attachments – she considered the Pages her parents and their children her siblings.  After a months-long hearing, during which the family argued that good cause existed to deviate from the ICWA placement preferences, the trial court ordered Lexi’s gradual transition from her foster home to that of her extended family in Utah.  The California Court of Appeals upheld this decision, after which the family sought review of the decision by the California Supreme Court.  When that Court declined to hear the case, the family filed a petition for certiorari to the U.S. Supreme Court.  No decision has yet been made as to whether the Court will hear the case.

In the meantime, the family has pursued a highly public and controversial media strategy to gain public support for their case.  When Lexi was moved to Utah pursuant to the initial trial court order, the family refused the Department of Children and Family Services offer of private transfer, opting instead for public removal of the child from their home.  This decision was in stark opposition to typical transfers of children in foster care, who are accorded a heightened level of privacy as wards of the state.  As a result, social workers charged with driving Lexi to her new home were met with swarms of cameras, protesters on the family’s lawn, and media teams requesting comment.

The resulting story was compelling; videos from the transfer show a crying Lexi being carried away from the family amid shouts of protesters.  Subsequent reports highlighted Lexi’s heritage and upbringing, implying that invoking ICWA was unreasonable because she is only 1/64th Choctaw, has never lived on a reservation, and has little to no connection with her Indian heritage.

However, this paints a deceptive picture.  These reports distort the central aim of ICWA: the preservation of Indian families.  The Act aims to rectify a long and dark history of forced assimilation of Native American children, centuries of tension around entitlement to land and resources, and disputes over tribal sovereignty.  Within the meaning of the Act, the determination of Indian heritage is neither one of land use or bloodlines – rather, the child’s citizenship classification as a member of a sovereign tribe warrants heightened efforts to reunify families and ensure the preservation of cultural heritage.

As of now, it is unclear whether the U.S. Supreme Court will grant the family’s petition, but its decision either way will send an important message about the future of the increasingly-challenged ICWA and the children it seeks to protect.  By denying the petition, the Court would uphold the California decisions requiring proof of clear and convincing evidence before deviation from ICWA placement preferences are approved.  More importantly, sovereign tribes will continue to exercise authority over the placement of their children.  Granting the petition, on the other hand, would represent a willingness to consider challenges to the constitutionality of the Act and could ultimately threaten the end of heightened protection for Native American children.  In the meantime, the future of children like Lexi and their families hang in the balance.