For This 6-Year-Old, the Law Sees Only Race

Aditaya Dynar and Timothy Sandefur, Wall Street Journal, March 24, 2016

It is hard to imagine the anguish that Rusty and Summer Page must be experiencing. Their 6-year-old daughter Lexi, whom they had raised since taking her in as a foster child four years ago, was wrenched away Monday and sent from her home in Santa Clarita, Calif., to live with another family hundreds of miles away in Utah–solely because of Lexi’s race.

You read that right. Lexi is 1.5% Choctaw. A 40-year-old federal law called the Indian Child Welfare Act requires government officials to take children away from caring foster families and place them with Native American families they may never have even met. Simply because Lexi has a distant Native American ancestor, a Choctaw great-great-great-great grandparent on her father’s side, she was taken from the Pages, who want to adopt her but aren’t Indian. State and tribal authorities sent her from California to live with a couple in Utah instead.

The Goldwater Institute, where we work, has filed a civil-rights lawsuit, Carter v. Washburn, challenging the unconstitutional discrimination at the heart of the Indian Child Welfare Act. The law makes it harder to protect children with Indian heritage, no matter how slight, from abuse and find them permanent and loving adoptive homes. It’s mind-boggling that this federal law enshrines rules of “separate but equal”–actually, separate and substandard–for one racial group. But that’s what it does.

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The Indian Child Welfare Act was written out of a concern that state courts were breaking up tribes by sending Native American children to live off-reservation. But four decades later, it penalizes Indian children by subjecting them to different and less favorable rules than other children. {snip}

Worse, the law gives tribes the power to intervene in any foster-care or adoption proceeding nationwide that involves a child of Indian heritage. That’s why Lexi can have her fate determined by the Choctaw Nation in Oklahoma, a state she has never visited. {snip}

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Rusty Page and Lexi

Rusty Page and Lexi

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