March 31, 2016

ICWA, Lexi, and the worst of American history

by Jesse Johnson

Today I want to give a summary of the foster care case happening out in California involving a family from Grace Church and the ICWA (Indian Child Welfare Act). I—along with many other pastors—have encouraged people to sign a petition about this case, so I think it requires some more explanation, and then I will close with seven recommended posts to read on the ICWA and Lexi.

The gist of the story: Lexi, a six-year-old girl in Los Angeles who had been in foster care since she was seventeen-months old, was placed with a family from Grace Church (where John MacArthur pastors) for the last four years. The family, the Pages, began the process of adopting Lexi after her biological parents both ceased reunification efforts.

In a typial foster-adopt situation, here is what happens: the court would appoint the child an attorney/advocate, who would meet with her, meet with the foster-adopt parents, and meet with any other extended family who want to pursue adoption. The child’s advocate then makes a recommendation to the court based on what would be in the child’s best interest and the court gives its verdict.

But because Lexi is Native American (she is 1/64 Choctaw), the LA County Department of Family and Children’s Services did not follow this approach. Because of the ICWA—a federal law which mandates that in the adoption proceedings of a Native American child that the Indian Tribe get the final say in their placement—the LA County DFCS moved to block the adoption in court, and remove Lexi to extended family in Utah.

Three different times trial courts cited the ICWA and sided with DFCS in wanting Lexi moved to Utah, but the first two times the court was reversed on appeal. The third decision is being appealed now, but while the appeal was pending, DFCS transferred Lexi to Utah.

Now if this were just about one girl, one family, and one church, I probably wouldn’t be blogging on it. But there are several elements of this case that intersect a biblical world view, so I want to address them here.

Every story has two sides, but that doesn’t make both of them correct

First, many people have pointed out that the goal of foster care is to reunite families, not to pursue adoption. Thus, the idea goes, the Pages are in the wrong here for trying to adopt Lexi, and turning this whole thing into a media circus, and causing more harm than good for her (here is an example of this version of the story).

But just because there are two sides to a story doesn’t mean both are correct. While the goal of foster care is most certainly to reunite families, in this instance years had gone by without Lexi’s family successfully pursuing reunification. At some point, it really is in a child’s best interest to have a permanent situation with a family that has raised her, rather than being moved to second-cousins whom she has never lived with. Courts and social workers should be allowed to make that decision, but in cases involving the ICWA they are essentially bared from asking that question.

The judges of the California Appellate Court seem aware of that reality. In fact, it is not fair to blame the Pages for prolonging this process, because it was in fact the appellate court that wrote:

We recognize that a final decision regarding Alexandria’s adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA’s placement preferences.

(Here is the full opinion; link goes to pdf download).

The worst part of American History

The most sinful part of American history has been our nation’s unbiblical obsession over classifying people by race. From slavery to “separate but equal,” our country has often defined people’s rights based upon the perceived race in their blood.

This goes against a biblical world view because the Scriptures teach that there is only one race—the human race. A few years ago I heard Thabiti Anyabwile make an observation that has stuck with me: whenever societies classify people by race, they always to do it to take away rights, not to give them. In other words, the very concept of race results in the exploitation of the powerless.

Such is the case with ICWA (for a history of the ICWA and how it intersects with Lexi’s case, read the last half of this story). When it was passed in 1978, some estimates were that one-third of Indian children were being removed from reservations by social services. This law was meant to stop that.

But overtime the protections of social services have changed, and the impacts of the law have likewise changed. For example, in Lexi’s case her father tried to pursue reunification, but failed to meet the criteria from social services to ensure Lexi would go into a stable home. It was then he realized that the ICWA could in a sense by-pass the reunification efforts, and place Lexi with his family without having to go through the county system (this is described in detail here).

The result is that because Lexi is 1/64 Indian (which she likely doesn’t even know), the laws meant to ensure she has a stable family do not apply to her. This is evidence that the sins of racism in our country’s past still haunt us today.

Seven articles to read if you want more information on Lexi’s case and the ICWA:

(Click on the blue words to go to the linked posts)

1. George Will explains why the ICWA is a “most pernicious” law and should be overturned. If you are going to read one thing on this issue, I recommend this article:

By treating children, however attenuated or imaginary their Indian ancestry, as little trophies for tribal power, the ICWA discourages adoptions by parents who see only children, not pawns of identity politics.

He concludes by saying that the ICWA should be “overturned or revised before more bodies and hearts are broken.”

2. Years before Lexi’s case became news, The Washington Post ran an editorial calling for courts to rein in the ICWA. They concluded with this line:

Lawmakers surely did not mean to protect the rights of Native American biological parents to the point that a child’s unwed, absent father can undo an adoption that her biological mother and legal custodian determined to be in her best interests, merely because she has a drop of Native American blood in her.

3. The Daily Mail (a London news source) wrote about Lexi’s case, including an interview with one of her case workers who said that the way the DCFS handled this case was appalling because it, “hid key-facts, overlooked damning visitation reports, and refused to put the child’s best interests first.”

4. This is also the sentiment of the NY Post columnist Naomi Riley. She writes an important article that describes how the ICWA is actually hindering the adoption of many Native American children into families that would otherwise care for them. She asks:

What would make a state official take a 6-year-old girl from a family she has lived with for four years to place her with a distantly related (through her paternal step-grandfather) couple in another state? An obsession with racial identity, a commitment to political correctness and adherence to a deeply unjust law called the Indian Child Welfare Act.

5. The LA Times shows that the concept of “foster-adoption” in Los Angeles is functionally broken, and in cases where ICWA is involved, it is nearly impossible (this story also has the tidbit that the Page’s lawyer used to clerk for Justice Ginsburg).

6. Al Mohler spoke about this case and ICWA on The Briefing (3 minute audio clip). His take-away: that the federalization of social services leads to a situation where people make their careers off of elevating legal principles above the needs of individual children. It simply is not possible to have a federal law designed to stop abuse on an Indian reservation be used by county social services to decide what is best for a six-year-old.

So what are we to do with all this? Well, we should pray for the following:

  • That Lexi would remember the gospel truths she has learned with her family of the last four years.
  • That the courts would uphold justice, and that there would be a judge somewhere who would have the ability to do what many people across the political spectrum are calling for: rein in the ICWA.
  • That Lexi’s family and church would have confidence in God’s care for his people. If two sparrows cannot be sold, or one sparrow cannot fall to the ground without God knowing about it, is he not in control of this situation?
  • That the laws, cultures, and attitudes of our country would move beyond classifying people by race, and instead people would repent from our failure to believe the accounts of the flood and creation in Genesis.

7. Finally, a caution. When a case like this involves a child, and in this case a church that we know and respect, it is very easy to get carried away. Pastor Don Green, himself a former lawyer, gives a very helpful plea to people who care for the Pages to remain balanced in their thinking. He read through the second appellate court order (the one that overturned the trial court’s use of ICWA) and reminds us that these judges are doing a good job of weighing the evidence and working toward balancing a law that seems to be at odds with child welfare. He encourages us to trust the Lord, to view the political future of ICWA as a matter of Christian liberty, and to be very, very cautious about “calls to hasty action based on emotion and partial information”:

 Make sure your heart is settled first on Christ and not any human issue of the day. I realize this has been a heart-wrenching case. It’s precisely in such times that we must be most committed to biblical thinking and not simply follow what everyone else is doing.

Jesse Johnson

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Jesse is the Teaching Pastor at Immanuel Bible Church in Springfield, VA. He also leads The Master's Seminary Washington DC location.
  • Don Green

    Jesse, thank you for the kind reference. There’s a nuance I should point out. My post was neutral on the future of ICWA. I did not encourage anyone “to work to overturn ICWA.” I only said that it would be legitimate to use the political process to that end if one so desired.

    • Thanks. I fixed it above (I think). Thanks for reading and thanks for your faithful ministry in Cincinnati, and especially your series on the Sermon on the Mount. I’m grateful for you Don.

  • Mindy at Grateful for Grace

    So are the reports that Lexi has visited the extended family for years inaccurate? That is an important piece of the puzzle to me, as it shows the Pages knew the long term plan.

    • Kristin

      Here is a timeline published by the Page supporters so you can see when events occurred. It was Lexi’s court appointed attorney that originally filed a stay of removal from the Page home, not the Pages. By that time, she’d been with them for over a year.
      http://saveourlexi.com/timeline/

    • The Pages website does say that the family has visited her, but notes that they did not become “the long term plan” until after the father ceased reunification. The LA Times article linked above provides some helpful background on that process in general, and the Indian Times article linked way up talks about that from this case in particular.

  • Jason

    I know of cases where foster families get adoptions to go through because both biological parents wave rights only to have those parents second guess themselves years later and drag that child (and the only parents that child has ever known) back through the courts.To my knowledge, they didn’t even need ICWA or anything like that to make the case that blood relation is more important than years of responsible child care.

    It’s always sad to see people exercise their rights in a way that harms others (especially children) just because they don’t want to lose the power they have. To make matters worse, the adopted parents are often slandered throughout the whole thing as they are painted as nearly kidnappers for caring for children while the biological family was completely indifferent.

    • I think the difficulties you describe, as well as the ones reported on by the LA TImes in the article above, are one of the main reasons for the increase in international adoptions.
      It is a sad statement on society that abortion costs so little and is so easy, whereas adoption costs so much and can (especially from the Los Angeles system) be practically impossible.

  • Ray Adams

    Thank you for clarifying and balancing the concerns that exist. A trustworthy evaluation. And a most helpful conclusion – “Make sure your heart is settled first on Christ and not any human issue of the day.” Or in Paul’s words, “Keep seeking the things above where Christ is seated at the right hand of God.” (Col 3:1) My application of Paul’s words may, to some, seem simplistic given the grief, pain and anguish. Simple truths are stabilizing, because foundational.

  • Jack Shaffer

    “in this instance years had gone by without Lexi’s family successfully pursuing reunification” – not exactly true. The extended family expressed interest in October of 2011, 2 full months before she was placed in foster care with the Pages. This is in the appeal document from 08/2014. They were told they had to wait until reunification with the father was either consummated or failed before they could even be introduced to her. It was only 10 months until reunification failed. At that point they were introduced. By Spring of 2013, there was a plan to transition her, but the Pages sought adoption. Again, all of this is in the appeal document.

    • By “years had gone by” I meant since Lexi entered the foster system. The Indian Country article above explains how the family in Utah became the perfered family as a result of the father’s inability to meet the demands of social services.

      Which, btw, is an entirely different point. I had written about it but deleted it above because it just didn’t really fit. But reading that Indian Country story (along with the LA Times story) give me sympathy for the families who are seeking reunification. They make the point that the system is broken, and that reunification is very difficult. There is that one quote in the IC article that an inmate has more visitation rights than a father whose child is in foster care. So I certainly see the allure of using the ICWA to bypass the broken system. But (as George Will points out) when you bypass the system, what gets sacrificed is child safety.

      • Jack Shaffer

        I get it and don’t disagree that the law is misapplied and needs changed or nuanced. Unfortunately, a lot of our brothers and sisters seem to have acted on the emotional aspects of the case rather than the facts. To appeal to the fact that she had been with them so long overlooks their role in extending the length of time. It seems that there was a solution barely more than a year from the time they received her. It just wasn’t the outcome the Pages desired. I haven’t read anything (in court documents – my skepticism takes other information with a grain of salt) to indicate that, given a “traditional” fostering situation, the extended family was found to be unsuited for adoption. It’s a difficult case and if they want to use the system to appeal to gain custody, I have no problem with it. That’s why it exists. Just spare me the emotionally charged language to try to move me to one side or the other (not accusing you – just speaking generally). I certainly agree with your bullet-pointed conclusion.

        • Yeah. I’d also encourage you to look again at the wording of the ruling I quoted at the top–it was the appellate court itself that said it was worth taking more time with Lexi living with the Pages while the courts sort through this. So “their role in extending the time” is not quite a fair way to say it either. The justices owned that element of this case.

          • Jack Shaffer

            I think you’re misapplying the point they’re making. This is now 2014 – she’d been fought over for about a year-and-a half and had been with the Pages all that time. The court is speaking of the time during the appeal process. They make no comment about getting to that point. Remember, this is foster care, not adoptive services. There is no appeal process if there is no court case.

          • Jack Shaffer

            The BIA Guidelines set out a list of three factors that may, either singly or together, constitute good cause not to follow the placement preferences in appropriate cases. Id. at 67,594.

            These three factors are:

            (1) The request of the biological parents or the child when the child is of sufficient age;

            (2) The extraordinary physical or emotional needs of the child as established by testimony of qualified expert witnesses; or

            (3) The unavailability of suitable homes that meet the preference criteria.

  • Cheryl

    Jesse,

    Thank you for what I think is a very balanced and fair summary and explanation of the entire situation, and of the bigger picture. This needed to be written and needs to be widely circulated!

    Unfortunately, I have several Grace peers who read Don’s article and walked
    away blaming the Pages for not being good, law-abiding foster parents.
    🙁 I’m going to try to get this article circulated just as widely so
    they’ll truly consider the facts and then apply a godly response to the *real* situation. 🙂

    • Well, I read Don’s post and didn’t take it that way at all. I took it as a caution to not make an issue like this the focal point of your spiritual life. Instead, take a step back, and trust that the Lord is at work, even through imperfect judges and an imperfect (and often unjust!) system.
      On a practical level, I think the public enthusiasm for Lexi’s case was good and intended to stay her removal by the County. I wish it had worked. But now she has been removed, the case is in the hands of an appellate court (and appeals courts have already ruled in the Pages favor 2xs) and so let’s trust the Lord. Who knows? Maybe this court will again find in the Pages favor. But I agree with Don that nobody should be asking the courts to ignore laws or disregard them. The best case scenerio would be that the ICWA gets seriously reined in (which is what the NYPost, Washinton Post, Wall Street Journal and dozens of other major papers have asked for in editorials).

    • Tracy

      I would agree with Cheryl. II have seen people blame the Pages as well due to Don’s article even though I am sure that wasn’t his intention. The Pages have operated within the law. The appellate court threw it back to the LA courts twice because they grossly failed to protect Lexi’s best interests and they are appealing the third ruling. The CA supreme Court is simply not stepping in at this time – they are waiting for the lower appellate court to rule. I have also seen many bashing Grace and Christians in general using Don’s article. Especially where he said they had their day in court. They still have their day. It’s not over. Christians are called to take care of orphans and widows and they are allowed to within the law through foster care and adoption and in that current case law – all lawful. I am sad with the conclusions about the Pages that some walked away with from his article. Most of it was great exhortation and contained Biblical wisdom.

  • It also bears mentioning that last time the ICWA was in front of the Supreme Court, it was a case very, very similar to Lexi’s, and the ruling was in favor of the foster parents. it was a 5-4 ruling, but the judges didn’t line up along typical divisions. In fact, Scalia was in favor of the ICWA. So if this case were to get to SCOTUS again, and the breakdown with the judges were the same, it would likely by 5-3.

  • tovlogos

    Excellent, honest story Jesse.
    “But there are several elements of this case that intersect a biblical world view,” I see that as the point
    in this story and every facet of our lives, which hard hearts can’t assimilate.
    Thank you for staying tuned to the good fight.

  • Robert E

    Very helpful Jesse.

    Something that stood out to me was your comment, “The most sinful part of American history has been our nation’s unbiblical obsession over classifying people by race.” I think more likely the greater sin are the 59 million abortions since Roe v. Wade :(.

    • True. I see them as connected. When you look at the history of PP, they came out of a failed attempt at eugenics. In fact, the way our country accepts abortion is very much tied to our history of racial shame (“Its my property, I can do what I want with it” or “Its not a person, it doesn’t deserve the full rights of a citizen” etc.) IOW, much of abortion has grown out of our view of some people as property.

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