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The moment her foster parents called her down with ashen faces, Lexi knew she was going to have to say goodbye. Immediately, the 6-year-old began shrieking and crying as her foster parents Rusty and Summer Page wrapped their arms around her and told her they loved her, her three foster siblings loved her, and God loved her.
Lexi didn’t understand why, after staying more than four years in Santa Clarita, Calif., with the Pages—whom she calls “Mommy” and “Daddy”—the government was sending her to extended family in Utah. She couldn’t understand that her being one-sixty-fourth Choctaw (her great-great-great-great-grandfather was full Indian) means a federal law called the Indian Child Welfare Act (ICWA) kicks in and hands the Oklahoma-based Choctaw Nation enormous influence in determining her placement. The tribe chose the Utah family, with whom Lexi’s half-sister also lives. The Pages appealed multiple times over a three-year legal battle to adopt Lexi that culminated on March 21, when a Los Angeles County social worker rang their doorbell to take Lexi away.
What ensued was a harrowing, rushed goodbye. Until that Monday afternoon, the Pages had no idea when the Department of Children and Family Services (DCFS) would show up, and neither were they allowed to tell Lexi that DCFS was coming—and when they did, the Pages had 10 minutes to explain to Lexi what was happening. Outside the house, the social worker and attorney waited silently, ignoring the throng of local media cameramen and protesters piling the sidewalks. Inside, the whole family sobbed and hugged. Nine-year-old daughter Maddie dashed up the stairs to the pink room that she once shared with Lexi and scrambled back down clutching a gift: Maddie’s favorite cream-colored teddy bear and pearl necklace. Her mother also gave Lexi a necklace with an anchor pendant to remind her, “Our anchor is the Lord.”
Then, as seen on videos that went viral that week, Rusty Page picked up the sobbing girl and carried her out to the social worker’s car. Summer Page stood by the driveway with her three young children, their faces distraught. “I love you, Lexi!” screamed the mother, while Maddie ripped out a raggedy shriek, “No!” The other two siblings wept without understanding. Before Rusty Page handed Lexi over, she clung to him and made him promise, “Daddy, you’re my Superman. Promise you’ll fight for me!”
The fight is bigger than Lexi now. Her foster parents want Lexi back immediately, but they also hope to reform ICWA. Currently, they are waiting for the appellate court to rule and are prepared to take the case to the California Supreme Court—and to the U.S. Supreme Court, if necessary.
ICWA is an increasingly controversial law enacted in 1978 to remedy a decades-long injustice against the Native American tribes. Beginning in the late 1800s, both public and private agencies ripped hundreds of Native American children away from their families and put them in government boarding schools and later, non-Indian adoptive homes.
‘What good does it do to preserve an Indian child’s culture if he’s damaged psychologically?’ —Mark Fiddler
Congress passed ICWA with the intent to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” Once a child in any state child custody proceeding is determined to be Indian as defined by law, ICWA supersedes state law and allows the child’s tribe and family to intervene in determining placement: First preference goes to a member of the child’s extended family, then to other members of the child’s tribe, and then to other Native American families. Only after such placement efforts are unsuccessful can the child go to a non-Indian, non-blood-related home.
Many ICWA supporters say the law is the most important American Indian law ever enacted. Marcia Zug, a law professor specializing in American Indian law at the University of South Carolina, said abolishing ICWA would strip children of their heritage and culture and endanger Native American tribes: “The idea that ICWA is not needed anymore, I wish that was true, but Indian children are still removed much higher than children of other groups.”
But cases like Lexi’s have roused waves of outrage across the nation from protesters who say ICWA has become antiquated and abused. Last year, the Phoenix-based Goldwater Institute filed a class-action lawsuit challenging the constitutionality of ICWA, contending that it prioritizes the desires of an Indian tribe at the expense of the child’s best interests. That’s race-based discrimination, the group argues, because it forces more Indian children than non-Indian children into abusive and unstable homes, simply on the basis of race.
Great tension exists within two key words in ICWA: “best interests.” Every side defines it differently, said ICWA lawyer Mark Fiddler. ICWA reformists say the child’s individual emotional and psychological health should be paramount, but ICWA advocates insist the child’s best interests are to stay with Native American families and culture, and thus preserve entire tribes. The latter was Fiddler’s initial belief until he began running into numerous ICWA cases in which authorities were pulling children apart from foster or adoptive parents with whom they had established a bond. Since then, he’s represented hundreds of foster and adoptive parents fighting to keep Indian children. His reasoning: “What good does it do to preserve an Indian child’s culture if he’s damaged psychologically?”
The day the DCFS informed the Pages that they were taking Lexi away, the Pages finally decided to go public: “The world needs to know, because this law doesn’t just affect Lexi. It affects more children than people realize.” A big group of supporters camped overnight near the Pages’ house, while the neighbors opened up their homes and baked brownies for them. The next day, they wept and wailed as DCFS took Lexi away, then sang “It Is Well with My Soul.” Groups also rallied in front of county offices and courts with “Bring Lexi Home” signs and T-shirts. An online petition to “save Lexi” on Change.org garnered more than 100,000 signatures within a week.
Melissa Middleton, representative for the Choctaw Nation, called the campaign a “warped and certainly one-sided” “media spin” devised to dismantle ICWA. She pointed out that had the Pages not appealed the court’s order that Lexi be moved to Utah, Lexi could have left them years ago: “This trauma that it’s caused this child is not the fault of anyone except the Pages.”
The real story is more complicated. The Pages began battling to adopt Lexi only after the court terminated her biological father’s reunification rights in October 2012. At the time of the first appeal, Lexi had already lived with the Pages for 2½ years. They twice won at the Court of Appeals, which ruled that the lower court had “failed to consider the bond between [Lexi] and her foster family, the risk of detriment if that bond was broken, and [Lexi’s] best interests.” But the trial court again ruled in favor of the tribe’s preference—using the same “erroneous” reading of the law, according to the higher court’s opinion.
When a 2-year-old Lexi first entered the Pages’ home in December 2011, the original ICWA-mandated plan was to reunify her with her biological father, an enrolled member of the Choctaw tribe. The father has an extensive criminal history and had already lost custody of another child. Lexi’s non-Indian mother, who has a long history of substance abuse, lost custody of Lexi when she was 17 months old. By the time she joined the Pages, Lexi had already been in two foster homes.
As a result, the Pages and her social workers noticed some serious attachment issues in the girl. She called everybody “Mommy” and “Daddy” and clung onto any stranger, yet trusted no one. Whenever adults picked her up, she dug her nails into their arms, as though terrified they would drop her. She rarely smiled and threw frequent, epic tantrums, pulling at her hair and hurling objects. She ripped things up when she got anxious, hoarded toys and food—typical behaviors of kids who have been neglected or abused.
The Pages, who say they provide foster care because of their faith, decided that for as long as they had Lexi, they were going to treat her like their own daughter. They taught her to differentiate between strangers and family, how to read colors and sing “Jesus Loves Me.” Whenever she got something right, the whole family turned up the music and danced together. She grinned like a Page in family portraits.
Lexi and the Pages’ three biological children did everything together: biking, in-line skating, swimming, water balloon fights. Lexi emulated the oldest girl, Maddie. When Maddie put on her ballerina leotard with fairy wings, Lexi also wiggled into her fairy outfit and copied Maddie’s pirouettes. The second child, Caleb, is the same age as Lexi, but protected her like an older brother. Their friendship was so tight that people assumed they were twins.
Gradually, Lexi blossomed into a chirpy, fun-loving young girl who won her school’s “Citizenship of the Month” and melted even the heart of her gruff neighbor. “Being with the Pages has rooted her, given her the security and attachment she needed to overcome what had occurred the first two years of her life,” said foster agency caseworker Lauren Axline, who handled Lexi’s case for five years. “She identified them as her parents.” Other social workers and therapists also testified that Lexi has a “primary attachment and strong bond” with the Pages, according to court documents.
So when the court terminated reunification services with Lexi’s father, the Pages asked for a “good cause” exception to ICWA, saying it’s in Lexi’s best interests to stay with them. The court later granted de facto parent status to the Pages, which gave them the right to have a voice in court.
Nonetheless, the father, the tribe, and DCFS continued pushing placement with the Utah couple, who are non-Indian but related to Lexi through the wife, the niece of Lexi’s paternal step-grandfather. (The court doesn’t seem to have accounted for the fact that Summer Page is part Southern Band Tuscarora Indian.) In 2015, the court also sent Lexi’s two paternal half sisters to the Utah family, but the older girl no longer lives with that family.
The Page family is still grieving the loss of Lexi. Whenever the doorbell rings, 2-year-old Zoe perks up and yelps, “Lexi’s back!” Maddie refuses to sleep in the bunk bed she once shared with Lexi. The children now sleep on the floor next to Lexi’s bed, surrounded by the stuffed toys they once played with together. Caleb suffers from sudden stomach pains and nausea, and often stares into space. “He feels like he’s lost his twin,” Rusty Page said, choking back tears that fall frequently now. But the Pages worry most about the emotional and psychological impact on Lexi. They’ve sent numerous emails asking for updates from the Utah family, but have received no response.
Meanwhile, the Pages’ case has emboldened other adoptive and foster parents who have also been affected by ICWA to speak up. “What we’re seeing now is an abuse of this law,” said Alyssa Cohen, a Renton, Wash., adoptive mother who lost a 5-month-old baby girl to the tribal foster care system in March. But Cohen added that stories like hers and the Pages’ may be repercussions from past sins: “We never really as a nation did well in taking responsibility for what we did to the Indian population. We just put Band-Aids over things, and we can look at the state of laws like ICWA as proof that we have not done right in terms of reconciliation with the Indian population.”