WASHINGTON – The U.S. Supreme Court has been asked to hear a case related to the removal of a 1/64 Native American girl from her potential adoptive family in accordance with the Indian Child Welfare Act (ICWA).

The U.S. Supreme Court was asked to hear the case after California’s high court refused to do so.

"One can’t say why the California Supreme Court refused to take the case, but the court has virtually never taken a case involving the Indian Child Welfare Act – even though there is a major division between the lower state courts regarding the 'Existing Indian Family Doctrine,' which is an important part of how the act works,” Goldwater Institute vice president for litigation Timothy Sandefur told the Northern California Record.

The Goldwater Institute wrote a friend of the court brief in the case, stating that, although the Constitution mandates equal legal treatment of all citizens, regardless of their racial ancestry, the ICWA establishes a separate set of rules for foster care, adoption, and protection for abused or neglected children, if those children are deemed to be “Indian children.”

The institute said these separate rules include different jurisdictional standards, rules requiring that children be reunited with birth parents who have abused or neglected them, greater evidentiary burdens imposed on child protection workers and termination of parental rights in preparation for adoption.

In addition, the institute said, the ICWA calls for “race-based placement preferences for foster care or adoption of Indian children.”

Sandefur said Goldwater believes the case of the girl, named Lexi, presents a striking example of the problems that result from the ICWA.

“That law deprives children of Native American ancestry of the protections of the ‘best interests of the child’ standard, simply because their great-great-great-great etc., grandparents were American Indians,” Sandefur said.

Sandefur said the California courts created a “separate but equal” rule in Lexi’s case, declaring that her best interests are only “one of a constellation of factors” that judges should consider when deciding whether to remove her from the home where she has lived for four of the six years of her life.

“The Indian Child Welfare Act makes it harder to protect children with Native American ancestry from abuse or neglect, forces state child welfare workers to return Indian children to the families that have abused them, and makes it harder for Native American kids in foster care to find the permanent adoptive homes they need,” Sandefur said.

He said the institute’s brief asked the Supreme Court to take this case to address the question of whether it is constitutional to subject American Indian children to this separate-and-substandard set of rules based solely on their race.

In addition to lending support to Lexi’s case, Sandefur said the Goldwater Institute is currently litigating a federal class action lawsuit in Phoenix challenging the constitutionality of the ICWA.

After Lexi’s biological parents were convicted on drug charges, the girl lived in several foster homes, ultimately arriving at the home of Rusty and Summer Page. The Pages decided to adopt Lexi, but the Choctaw Tribe intervened and she was placed with her father’s stepcousins, who are not Native American.

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