Image from GoFundMe page for family
Rusty and Summer Page, the foster parents who have been trying for years to adopt a girl placed with them because of her biological parents’ criminal and drug abuse histories – her mother reportedly had lost custody of half-a-dozen other children – have appealed to the California Supreme Court to have her returned to the only home she’s ever known while the case proceeds.
WND reported the case made national news Monday when child protective service agents in Santa Clarita, California, forcibly took the crying 6-year-old from her foster family to place her with distant relatives in Utah in compliance with the wishes of the Choctaw Nation of Oklahoma.
The child, Lexi, is 1/64th Choctaw, and a federal law from the 1970s, the Indian Child Welfare Act, gives Indian tribes the authority to dictate such placements for children with even a fraction of tribal heritage, in this case 1.5 percent.
In challenging the lower court’s decision, family lawyer Lori Alvino McGill asked the state Supreme Court to hear the appeal and also asked that custody of the child be returned to the Pages until the appeal is decided.
“We’ll keep fighting for her, keep fighting for what’s right,” she said.
What do YOU think? Sound off on plight of 6-year-old taken from her family
The law under which Lexi was taken already was under a legal challenge that contends it is unconstitutional.
The Goldwater Institute has filed a lawsuit challenging the law as racist and unconstitutional because it not only allows but requires different treatment under the law, based solely on race.
“Alone among American children, children with Indian ancestry who end up in state protective custody are treated not in accord with their best interests but given separate, substandard treatment solely because of their race,” the organization explains.
“This separate, unequal treatment results from a well-intentioned but a profoundly flawed and unconstitutional federal law, the Indian Child Welfare Act, the ICWA. The Goldwater Institute is challenging certain provisions of the act in order to vindicate the constitutional rights of off-reservation children of Indian ancestry in Arizona, and their foster and prospective adoptive parents. The civil rights class action is based on the fundamental principles of equal treatment under law, respect for individual rights, and federalism embedded in the federal Constitution.”
There’s already been a move to make it a class-action case.
While America has “successfully shed must of its history of legally sanctioned discrimination on the basis of race or ethnicity,” there still remains work to be done on issues where still applied are “pervasive separate and unequal treatment to individuals based on a quantum of blood tracing to a particular race or ethnicity,” the institute said.
Based on the 14th Amendment, Congress decided in 1994 and again in 1996 that “race and ethnicity should play no role in state-approved adoptions when it enacted the Multiethnic Placement Act … and the Interethnic Placement Act … which forbid discrimination in adoptions and foster care placements.”
“Children with Indian ancestry, however, are … alone among American children” in that “their adoption and foster care placements are determined not in accord with their best interests but by their ethnicity.”
Defendants in the case are Assistant Secretary of the Bureau of Indian Affairs Kevin Washburn, Interior Secretary Sally Jewell and Gregory A. McKay.
Concerned individuals may contact the Choctaw Nation of Oklahoma or call 1-800-522-6170.
Families rally to keep Lexi Page at her California home with her family (Photo: Twitter)
Race-based discrimination
The Goldwater Institute case originally was filed on behalf of two Arizona children who were in need of adoption, but none of the families that complied with the Indian Child Welfare Act, the ICWA, were able or willing to take them.
“The relevant state court properly having jurisdiction over the matter has not declared baby boy C. as available for adoption because the Navajo Nation repeatedly has proposed alternative ICWA-compliant placements, all of which have turned out to be inappropriate for placement of baby boy C. Baby boy C.’s extended family members have expressly declined to have him placed with them. Other ICWA-compliant placements the tribe has proposed have declined to have baby boy C. placed with them.”
The tribe “has repeatedly” maintained the child cannot be adopted while, for four years, it has looked for a “compliant” placement.
The complaint explains the danger for children of race-based discrimination: “In many instances, children subject to ICWA are removed from caring, loving homes and forced into placements, which sometimes leads to abuse, psychological harm, or even physical trauma and death. In many instances, prospective adoptive parents who otherwise would be allowed to adopt children they have raised since infancy and grown to love are deprived of the opportunity to form permanent families as a result of ICWA.”
The case specifically addresses the precedents in Arizona, explaining that non-Indian children and Indian children are treated under two different standards regarding emergency placement, adoption and a number of other circumstances.
The suit claims the law violates the equal protection guarantee of the Fifth Amendment, the due process guarantee, and the due process and equal protection clauses of the 14th Amendment. It also contends the ICWA “exceeds the federal government’s power.”
“ICWA impermissibly commandeers state courts and state agencies to act as investigative and adjudicatory arms of the federal government or Indian tribes,” the complaint says, by requiring them to “apply, enforce and implement an unconstitutional federal law.”
The lawsuit, pending before Judge Neil Wake in U.S. District Court in Arizona, asks for a declaration that provisions of the ICWA “violate the United States Constitution both facially and as applied to plaintiffs and others similarly situated.”
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Lexi’s family is devastated as the child is taken from them (Photo: Twitter)
‘Child sacrifice’
On its website, the Goldwater Institute recounts the 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.
It quotes William Allen of the Coalition for the Protection of Indian Children and Families, who is a critic of the law.
“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,” Allen said. “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.”
‘Unconstitutional provisions’
The case also seeks an injunction ordering the government not to apply the “unconstitutional provisions.”
The institute argues: “At every turn, a different and substandard set of legal provisions is applied to children with Indian ancestry than those applied to all other children. For example, for Native American children, when the state child protective services takes a child into protective custody because the child is abused, abandoned, or neglected, it has to show ‘by clear and convincing evidence’ that there likely will be ‘serious emotional or physical harm to the child.’ In contrast, under Arizona law, when the Department of Child Safety (DCS) takes a non-Native American child into protective custody because the child is abused, abandoned, or neglected, DCS has to show only that there are ‘reasonable grounds,’ ‘probable cause,’ ‘reasonable efforts’ or ‘preponderance of evidence’ to believe that protective custody will ‘protect the child from suffering abuse or neglect.’
“States cannot disregard a child’s unique background in making an individualized and race-neutral, foster, preadoptive or adoptive assessment, and in terminating parental rights. But the states cannot also turn a blind eye to the child’s safety, security and best interests based solely on the child’s or the adult’s race, for such action is necessarily based on inherently demeaning, stereotypical assumptions about an individual’s race or culture,” the Institute argues.
“In 2013, the U.S. Supreme Court in the Baby Veronica case rejected a particular application of ICWA where a birth father who never had custody of Baby Veronica could not use ICWA to gain custody over her. A core premise of that decision was that ICWA cannot force a child to create a racially conforming relationship and that a child should not be made to sever an existing relationship in order to create new racially conforming ones.”
‘Loving home with her relatives’
In the Page family case involving Lexi, lawyers for the foster parents, only hours after Lexi was taken into custody by government agents, filed an appeal with the California Supreme Court.
The Page’s lawyer, McGill, told the Associated Press that the filing asked the California Supreme Court to hear an appeal of the decision and order that Lexi be returned to the family’s home in the meantime.
The Choctaw Nation immediately opposed the request.
The tribe has released multiple statements about its plans for Lexi, including one Tuesday.
“We appreciate the concern for Lexi and want to assure everyone she is in a safe, loving home with her relatives and her biological sisters,” the tribe said.
Tribal officials have refused repeated requests, submitted again on Wednesday, from WND to answer questions on the case.
A report on Monday’s events:
The chief of the tribe, Gary Batton, a prolific online commenter, wrote last October about the importance of his own adopted children.
"Family is very important to me. The cooler weather has given me the opportunity to spend quality time with my grandchildren over the past few weekends. We have shot baskets and gone fishing. Choctaw Country in the fall is beautiful and it is a blessing to be able to make such good memories," he posted, continuing, "My wife, Angie, and I are adoptive parents. We were elated to welcome our daughter and son to our hearts and our home. If we had not adopted our children, we would not be enjoying our two grandchildren! I thank God every day for them."
He pointed out, "There are many more children needing a place to call home than there are families to provide that home."
And he wrote: "The children can be in the foster homes for a few days, a few months or a few years. I have watched foster parents show strength and compassion as they are called with requests to accept a newborn, a toddler, or sometimes an older child. The unconditional love is evident as they change one child's life, then another, and another even though they know the child will most likely be there for just a short time. The foster families work with the children's families so that they can have a better chance of returning home. More than 100 Choctaw children were returned to their homes last year after temporary intervention.
"There have been many compassionate families who began as foster parents and later adopted a child. In cases where the children have entered foster care and it is not possible for them to return to their parents or their own extended family, the child's foster family can have the first choice in adopting."
In a separate state-of-the-tribe posting at about the same time, Batton wrote: "This is kind of a sad situation but we are going to focus on it – there are almost 1,000 cases in our Indian Child Welfare initiative. We need to do more to keep our families united so we will be adding staff to our Indian Child Welfare."
Concerned individuals may contact the Choctaw Nation of Oklahoma or call 1-800-522-6170.
Chief: 'Do good to all people'
At Christmas, he gave thanks for "all the blessings we receive" and said it's a season "to celebrate the birth of Jesus Christ."
"Jesus teaches us to do good to all people when we have the opportunity," he wrote then. "Christmas is a special time of year when we are blessed with many opportunities to reach out to a neighbor in need."
The damage, however, to a 6-year-old ripped from the only parents she's known can be significant, according to Cheryl Chumley, a court-appointed special advocate and author of the new "The Devil in D.C.: Winning Back the Country from the Beast in Washington."
"This is a perfect example of the damage that government can do when it gets involved in matters it doesn't belong," she said. "Tearing this little girl away from the only home she's ever known is a travesty – and it's a big black mark on government.
"As a CASA, a court-appointed special advocate, I help judges make the difficult decision of where abused and neglected children should ultimately live. And I can tell you, ripping children from a home where they've grown, where they've thrived and where they've lived with family is an upsetting process, at best – a mentally and psychologically damaging occurrence at worst. By all accounts, Lexi was thriving in her present home, but now, because of government policy, she may have to go live with strangers, in an entirely new state.
"God help us if this is what government can do, without barely blinking an eye."
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'Devastated' family
Reports said Lexi is being placed with a non-Indian family related to her "through her step-grandfather."
"Our family is so incredibly devastated," Rusty Page said in a Facebook statement. "But nobody could possibly be more devastated than our 6-year-old daughter who found herself restrained in a car and driven away to go and live in a foreign place hundreds of miles from her family, friends, teachers, home and life."
A measure of the public's interest can be assessed at a GoFundMe page, where $31,000 has been raised for the family's effort in just three days, and Change.org, where more than 92,000 people have signed a petition. On Tuesday for a time, the signatures were coming in at a rate of one per second.
The Change.org petition explained: "The first year of her life she moved from foster placement to foster placement. Lexi has been with a loving, stable family for nearly five years and is thriving and a happy, healthy little girl. To Lexi this family is her everything – her mommy, daddy and brother and sisters."
The petition charges the tribal decision to move the girl to Utah to "live with a non-blood related family who aren't even members of the tribe" is "heartless."
On the petition page was a submission from Lauren Axline of Valenica, California: "I was the foster social worker on this case for 3.5 yrs and I can speak of the deceptive, crooked, and destructive things the ICWA social workers and lawyers have done that are NOT in the best interest of this child or her future. I can also speak of the amazing Page family and how they have loved on Lexi from day one and how much Lexi is truly a part of their family.
"They took a scared 2-year-old who didn't know a parent from a stranger and helped form this beautiful, silly, confident, loving, stable little 6 yr old by the love and nurture they provided for her in their home the last 4.5 yrs."
The petition page also linked to a Facebook page.
There, Kam Eadrey wrote: "I'm part Native American too and I was adopted. Watching this horrific event unfold made me sick to my stomach. I am against what this tribe/DCFS is doing, it is clear they are not putting Lexi's welfare first."
Cheryl Chumley's latest book takes on the Washington behemoth head-on. Don't miss her guidebook for turning back the disastrous effects of Big Government: "The Devil in D.C.: Winning Back the Country from the Beast in Washington"
The case has overtones of the "Baby Veronica" case from several years ago.
The infant was placed with foster parents who wanted to adopt her, but an Oklahoma tribe demanded that she be removed and given a single parent. The U.S. Supreme Court overturned the tribal action, and a lower court allowed the foster family to keep custody.
Matt and Melanie Capobianco adopted "Baby Veronica" from an Oklahoma woman and had custody for 27 months in South Carolina before courts ordered custody transferred to Veronica's biological father, Dusten Brown.
That case involved claims from the Cherokee tribe.
Follow the progress of the case on the GoFundMe and change.org sites.
Concerned individuals may contact the Choctaw Nation of Oklahoma or call 1-800-522-6170.