What is the Lexi Page story about?
Last month, 6-year-old Lexi was taken from the foster family she had been living with in California for the past four and a half years and sent to live with another family in Utah. The reason for the change was because Lexi is one sixty-fourth (1.5 percent) Choctaw and is subject to the Indian Child Welfare Act, which allows tribes to intervene in child welfare and adoption proceedings.
Why has the captured the attention of so many evangelicals?
Lexi’s foster parents, Rusty and Summer Page, are members of Grace Community Church, led by John MacArthur in Sun Valley, California. MacArthur mentioned the story on Twitter, as did Albert Mohler, Tim Challies, and numerous other evangelicals. The Bring Lexi Home petition has been signed by more than 100,000 people.
What is the Indian Child Welfare Act?
The Indian Child Welfare Act of 1978 (ICWA) is a federal law that governs the standards for removal of Native American children from their families. The Congressional declaration of policy states:
[I]t is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.
At the time, the law was deemed necessary because, as B. J. Jones explains, “as many as 25 to 35 percent of the Indian children in certain states were removed from their homes and placed in non-Indian homes by state courts, welfare agencies, and private adoption agencies.”
“Non-Indian judges and social workers—failing to appreciate traditional Indian child-rearing practices—perceived day-to-day life in the children's Indian homes as contrary to the children's best interests,” Jones adds.
Shouldn’t Native American children be placed with Native American families?
In many situations courts have determined that it is in the best interest of children to be placed with relatives. The ICWA adds that this should mean Native American children should be with Native American family members. That standard has become complicated, though, by the broad definition of what constitutes a Native American child. Under the ICWA, “Indian child” means any unmarried person who is younger than 18 and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.
Lexi is considered by the Choctaw tribe to be eligible for membership because a great-great-great-great-grandparent on her father’s side was Choctaw.
The family that Lexi was placed with in Utah are not Choctaw, but they are distantly related to her through her step-grandfather. One of her biological sisters lives with the family in Utah, and another lives down the street. Over the years, Lexi has maintained a relationship with the family. They have visited her in California, and she has been on extended visits to them in Utah.
What is the case for Lexi being sent to live with the family in Utah?
The Choctaw Nation of Oklahoma says they have advocated for Lexi to live with her relatives in Utah since 2011. “Placement with family is the gold-standard of any child-custody case, not just a case involving tribal children,” the tribe said in a released statement. “The Pages were always aware of this goal.” The tribe also notes:
Many steps have been taken by the Choctaw Nation to ensure the best placement of Lexi. An independent clinical psychologist was brought in to gauge her ability to transition from the foster home to her relatives. The California court appointed a marriage and family therapist to perform a child custody evaluation to assess the mental health and parenting practices of both parties. The experts along with Lexi's long-time individual therapists, her social worker and her attorney, all agree it is in her best interest to be with her relatives. The foster family understood this. All children, not just Native children, do better with caring relatives.
The case was decided in the California court system three separate times, with three different trial court judges ruling in favor of Lexi's relatives in Utah. We, as a tribe, are required to follow federal law. The foster family filed appeals three times to keep Lexi, delaying the reuniting of Lexi with her relatives.
What is the case for allowing Lexi to stay with the Pages?
Lawyers for the Page family argue that the Pages “have been the only consistent source of love, nurturing, parenting, and protection she has received her entire life.” The legal team also notes:
Congress did not intend ICWA's placement preferences to be used to remove a child from a loving home in these circumstances. The placement preferences are just that—preferences—and they apply only when a child is in need of a placement. They were also designed to give state courts flexibility to depart from the placement preferences where there is “good cause” to do so. If the good-cause exception isn't satisfied in this case, it is difficult to imagine when it ever would be.
Reading ICWA to demand this tragic result is inconsistent with Lexi's constitutional right to stability and permanence—a right recognized by the California Supreme Court more than 20 years ago. And applying ICWA to children who had no prior connection to any tribe raises grave equal protection concerns, as the U.S. Supreme Court recognized in 2013, in Adoptive Couple v. Baby Girl. The bottom line is that children subject to ICWA are second-class citizens, by law. They do not get the same best-interest-of-the-child standard that applies to all other children.
What are the broader issues of the case?
While the Indian Child Welfare Act may have been necessary legislation to correct problems related to the treatment of Native American children in foster care and adoption situations, it threatens to re-establish a form of “separate, but equal” race-based system.
The ICWA allows Native American tribal leaders to intervene in any child welfare proceedings and adoption proceedings that involves a child that is “eligible for membership” in their tribe. But as the Goldwater Institutes says in an amicus brief on the Page case, virtually all Native American tribes determine eligibility for membership on the basis of biological ancestry. There is no established minimum amount of biological relationship needed, and tribes have the exclusive authority to determine membership.
This race-based standard—which does not apply to children who are white, black, Hispanic, Asian, and so on—trumps the “best interest of the child standard,” the standard that would normally be the primary consideration.
The care, protection, and safety of children has been a dominant political concern of Christians for centuries. How we treat children, as John Piper notes, is a telling sign of how we serve our neighbors. In commenting on Mark 9:33–37, Piper says:
Why does Jesus illustrate his point about serving with a child? The discussion wasn't about children. Why does Jesus bring them in?
The answer is that there is no political payback in serving children: they can't vote. And they don't give speeches about how great is your helpfulness. In fact they pretty much take for granted that you will take care of them. They don't make a big deal out of the fact that you pour your life out for them. And so, children prove, more clearly than any other kind of people, whether you are truly great or not—whether you live to serve or live to be praised. (Cf. Luke 14:13–14 for how the poor, the maimed, the lame, and the blind also prove this.)
Relatively few children will likely ever be affected by the ICWA. But those who are will be the vulnerable and orphans, children most in need of protection. Whatever we think of particular laws like ICWA, we have a duty as citizens to advocate that laws related to adoption and foster care are being used to secure the safety, security, and best interest of the children.