The Complexity of Custody Under the Indian Child Welfare Act


Rusty and Summer Page are the foster parents of six year old Lexi. Lexi became a member of their family when she was two. She had previously been in two other foster homes. The Pages also have three biological children. They live in Santa Clarita, California. Their plan was to adopt Lexi.

They are not certain what the future holds for their family now. On March 20, 2016, the Los Angeles County Department of Children and Family Services arrived at their home with some devastating news.

The Indian Child Welfare Act

Lexi was taken away by L.A. Department of Children and Family Service social workers. The Pages were told she was going to be placed with some relatives of her father who is Native American. These relatives are not Native American. They live in Utah. The issue was not the quality of the Page’s parenting. This action was taken because Lexi is 1/64th Choctaw Indian.

The Indian Child Welfare Act, (ICWA) was enacted in 1978. The purpose of this Federal legislation is to keep tribal families together and to try to enhance the stability of Native American Families.

In an interview with ABC News, the Pages said they initially “supported an earlier plan that would have returned Lexi to her birth father, but he distanced himself from his daughter in 2012, according to court documents.”

Lexi’s Relatives Respond

A court appointed attorney for Lexi offered a statement in this interview, stating “Her family in Utah have been waiting to receive her for over three years. During that time, they have traveled to California monthly, and she has visited their home as well.” In response to this action, the Pages have appealed their case to the California Supreme Court.

Past Supreme Court Action

A similar case was reviewed by the United States Supreme Court three years ago in Adoptive Couple v Baby Girl (Baby Veronica). This case also focused on a custody dispute. Baby Veronica’s father, Dusten Brown, is a member of the Cherokee Nation. A non-native couple, Melanie and Matt Capobianco, petitioned to adopt Veronica. The Capobiancos had raised Veronica for 27 months after her biological mother put her up for adoption.

This case was significant for many reasons. It was closely watched by the Native American community, because in addition to its impact on ICWA, it highlighted the ability of Congress to introduce laws that impact upon Native American tribes across the country.

The Supreme Court was split in a 5-4 decision in the Baby Veronica case. They ultimately ruled in favor of her adoptive family. USA Today reported that “4 of the Justices from both sides of the ideological spectrum found no way to deny the father his rights under ICWA-five others including Justice John Roberts, an adoptive father himself-said the adoptive parents were the consistently reliable adults in ‘Baby Veronica’s’ life.”

Supreme Court Justice, Samuel Alito, spoke for the majority in the Baby Veronica case. He wrote “the law’s ban on breaking up Native American families cannot apply, if the family didn’t exist in the first place.” Justice Alito went on to explain that “Veronica’s father had not been present during her mother’s pregnancy and he had agreed to give up his parental rights. He later changed his mind.”

Statement from the Choctaw Nation

Now the Page family, Lexi, and her relatives in Utah, anxiously await a legal decision that will change all of their lives forever. ABC News reported the Choctaw Nation made a statement regarding Lexi. It was reported that representatives of the Choctaw Nation stated: “The Choctaw Nation desires the best for this Choctaw child. The tribe’s values, of faith, family and culture is what makes our tribal identity so important to us. Therefore, we will continue to work to maintain these values and work toward the long-term best interests of this child.”

The Best Intentions in a New Case

For now, Lexi, a young girl, has been taken away from a family she knows who loves her. She appeared tearful as the separation occurred. She is old enough to have developed strong emotional bonds with the Pages and their children. All of them will have to cope with the emotional trauma created by Lexi’s absence.

Lexi’s biological family members in Utah believe they are doing what is best for her. They feel Lexi being with them is the right thing for her.

Nobody in this scenario has evil intent. All are doing what they believe in their hearts is the right thing for Lexi. The question of the stability of Native tribes, versus the best interests of a single child, will have to be determined. One thing is certain. There will be many people watching to see how the California Supreme Court rules. It may directly impact future choices regarding the adoption of Native American children and reshape the definition of their “best interests.”

Iris Waichler, MSW, LCSW, has been a licensed clinical social worker for over 40 years. Waichler authored “Riding the Infertility Roller Coaster: A Guide to Educate and Inspire” which won 4 major book awards including best book of the year from Mom’s Choice and NAPPA. Her new book, “Role Reversal How to Take Care of Yourself and Your Aging Parents,“ will be released August 16, 2016.

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