Rusty Page prepares to turn over Lexi to the government on March 21

Rusty Page prepares to turn over Lexi to the government on March 21, 2016.

The California family denied by the California Court of Appeals in their effort to regain custody of 6-year-old Lexi, a foster child who had never known another home, now is appealing to the state Supreme Court.

And there’s now a powerful new precedent from an adjacent state that lends support to their contention that Lexi should be returned to her foster parents, Rusty and Summer Page. The girl, who is 1/64 Choctaw, was removed in March from the Pages and placed by order of the tribe with distant step-cousins in Utah under the authority of the Indian Child Welfare Act, the ICWA.

WND learned Friday that a petition has been filed with the state’s high court asking whether the ICWA applies if children “have never been domiciled on Indian lands and lack any significant connection to a tribe.”

It also questions whether the law violates the Fifth and 14th Amendments “as several California appellate courts have held.”

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Additionally, it asks whether ICWA “requires the removal of a child from her fit de facto parents where that placement complied with ICWA’s foster placement provisions … and the child has not otherwise been removed from that placement and is not in need of a new placement.”

And, it asks what is “good cause” for exceptions to the federal mandate.

It was last March that social workers forcibly removed Lexi from the Pages’ Los Angeles-area home where she had lived since she was about 2 years old. The Pages want to adopt her.

But the ICWA gives the tribe authority over Lexi, even though she is only 1/64th Choctaw. The tribe actually ordered her to live with a non-blood relative who is not Native American.

Those involved in the case, from the tribe to county agents, agree Lexi has formed an exceptionally strong bond with her foster parents. The girl considers Rusty and Summer to be her parents and the Pages to be her family.

Lexi’s biological mother is struggling with drug addiction and gave up the child when she was 17 months old. Lexi’s father has a criminal record of grand theft and domestic abuse and has terminated efforts to reunite with the child.

A spokeswoman for the Pages told WND their legal team has reached out with a filing in the state Supreme Court, asking for an end to a decades-long disagreement in the state court system over the ICWA.

The spokeswoman’s report said: “Despite recommendations from child experts, Lexi has not been allowed to speak with the Page family since she was forcefully removed from her home nearly five months ago. Since being removed from the only family she had ever known, Lexi has missed piano recitals, participating in musicals, family vacations and many other traditions Lexi was so very fond of.”

Part of the issue is that the ICWA itself is under constitutional challenge in Arizona. Lawyers in that battle announced Friday that a 2-year-old girl known as “A.D.” had been awarded to adoptive parents against the wishes of the Gila River Indian Community.

The Goldwater Institute, which is backing the fight against the ICWA there, confirmed the Arizona Court of Appeals found the tribe acted too late in the process to prevent the adoption.

A.D. was taken from a drug-addicted mother shortly after birth and placed with a non-Indian foster family.

“This decision comes as a great relief,” said Adi Dynar, the Goldwater Institute attorney who argued the case. “But it just highlights the problems with the Indian Child Welfare Act. This law creates a separate and unequal legal system for children of Native American ancestry.”

The legal challenge to the ICWA is pending in federal court in Arizona, and the custodial ruling came from the state court system. A.D. is one of the children involved in the federal case, too.

The ICWA was adopted in 1978 and applies to children who are “eligible” for tribal membership.

“It gives tribal governments powers equal to – and sometimes greater than – the rights of birth parents,” Goldwater said.

“Even if an Indian parent wants her child adopted, and doesn’t want the act to apply, the tribe can override those wishes and block the adoption,” explained Dynar.

It is the one time when current federal law permits racial discrimination in adoption.

“They’re the only people it’s legal to discriminate against on the basis of race,” said Dynar. “But it’s important to remember: all Indian children are citizens of the United States, entitled to constitutional protections.”

The court decision technically held that the tribe should have taken over the case, if it wanted to be involved, before the biological parents’ rights had been terminated by the court.

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Early in the dispute, the Choctaw Nation of Oklahoma issued a statement on the case:

The Choctaw Nation’s values of faith, family and culture are what makes our tribal identity so important to us. From the beginning of this case, the Choctaw Nation advocated for Lexi’s placement with her family.

Lexi’s family was identified early on, and they have created a loving relationship with her. The Pages were always aware that the goal was to place Lexi with her family, and her permanent placement has been delayed due to the Pages’ opposition to the Indian Child Welfare Act.

We understand the public’s concerns for Lexi’s well being as this is our main focus, but it is important to respect the privacy of this little girl. We believe that following the Choctaw Nation’s values is in Lexi’s best interest.

The Choctaw Nation will continue to uphold these values and advocate for Lexi’s long-term best interest.

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WND has reported multiple turns in the case, including when it was revealed one of the judges in the case facilitated a tribal “blessing” in the courtroom, when a social worker who worked on the case pleaded for the court to consider what is best for Lexi, when the state Supreme Court initially ruled against the foster family and when social workers warned the little girl would be traumatized by being ripped from the only family she has known.

The last time the ICWA was considered in the U.S. Supreme Court, in 2013, the justices sent a case over custody of a young girl to the South Carolina Supreme Court, which ordered “Baby Veronica” to have her adoption by non-Indian Matt and Melanie Capobianco finalized.

The couple, like the Pages, had lost custody for a time because of the ICWA, which allows Indian tribes to dictate the placement of children in protective services cases even if the child has only a small fractional percentage of Indian heritage.

The 2013 Baby Veronica case had almost identical circumstances: She was part-Indian and her father, who had lost custody, tried to get her back. The courts ultimately ruled in favor of the adoptive family.

Lexi’s case burst into the headlines when social workers took the crying, resisting child away from her Santa Clarita, California, foster family.

“We ended race-based discrimination 50 years ago in the country. But not for Native American children,” said Timothy Sandefur, vice president for litigation at the Goldwater Institute. “ICWA subjects Native American children to separate and substandard considerations in adoption and foster care cases. It is harder to remove them from abusive situations and it is harder to keep them in safe and loving homes than it is for children of any other race.”

On its website, the Goldwater Institute recounted the similar case of Laurynn Whiteshield and her sister, Michaela.

“Laurynn spent most of her life in a home where she was loved and protected. From the time she was nine months old, she and her twin sister, Michaela, were raised by Jeanine Kersey-Russell, a Methodist minister and third-generation foster parent in Bismarck, North Dakota. When the twins were almost three years old, the county sought to make them available for adoption. But Laurynn and Michaela were not ordinary children.

“They were Indians.

“And because they were Indians, their fates hinged on the Indian Child Welfare Act, a federal law passed in 1978 to prevent the breakup of Indian families and to protect tribal interests in child welfare cases.

“The Spirit Lake Sioux tribe had shown no interest in the twins while they were in foster care. But once the prospect of adoption was raised, the tribe invoked its powers under ICWA and ordered the children returned to the reservation, where they were placed in the home of their grandfather in May 2013.

“Thirty-seven days later, Laurynn was dead, thrown down an embankment by her grandfather’s wife, who had a long history of abuse, neglect, endangerment, and abandonment involving her own children,” the report says.

William Allen of the Coalition for the Protection of Indian Children and Families, who is a critic of the law, said: “I would go so far as to call the legislation a policy of child sacrifice in the interests of the integrity of the Indian tribes, meaning the end has nothing to do with the children. It has everything to do with the tribe. To build tribal integrity, tribal coherence, the law was passed in spite of the best interests of the children.”

A video about the case:

A second video:

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