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
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 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
“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.