Letters: Criticism of article on Indian child
“Children of the Tribe”, October, sadly reports without question the Pages’ version of Lexi’s transfer to a kinship placement supported by her own attorney, the state of California and the Choctaw Nation. Worse, the article uncritically highlights the media event created by the foster parents and their counsel (and disappointingly includes photographs). The affair violated Lexi’s privacy rights, which is why state social workers attempted to block cellphone video, and may have also violated their attorney’s duties under the ABA Model Rules of Professional Conduct: 3.4 (fairness to opposing parties), 3.6 (trial publicity) and 4.4 (respect for rights of third persons). Hopefully, readers will not learn from this article that the best way to fight a child’s placement with her family is by creating an unethical media circus.
The article misstates the law as well. Lexi would be with her Utah relatives with or without the Indian Child Welfare Act. California law weighs placement heavily in favor of relatives, not foster families, in these cases. However, only in California could a foster family appeal the placement of their ward under its unique “de facto parent” doctrine. In addition, the Multiethnic Placement Act, enacted by Congress in 1994, explicitly excludes ICWA cases from its application. Finally, the article devolves from reportage into racial politics, asserting that this tragedy only transpired because of Lexi’s racial heritage. Lexi herself is a citizen of the Choctaw Nation. The Choctaw Nation’s citizenship requirement, like that of the United States, requires a political connection between the individual and the nation, not mere ancestry. The only reason there was a media-fueled tragedy is because counsel for the foster family pointed at the act and the Choctaw Nation to incite race-based animosity when the facts and the law were not in their favor.
Matthew L.M. Fletcher
East Lansing, Michigan
My mentor is a now-retired federal judge, one of ICWA’s co-authors. The profound lack of information on this simple piece of much-needed legislation, nearly 40 years after its enactment, is astounding. There is no way non-Native American care providers can supply the cultural, historical and spiritual upbringing a Native American child needs and deserves as their birthright.
Our culture had been decimated for generations before this law was enacted. We have a right to raise our future elders and leaders in our own culture. If the roles were reversed and we suddenly wanted to adopt white children and raise them as Native American, the media and others would be outraged.
Why is it considered OK to remove our children from their birthright cultures and raise them as something they are not? All tribes have an extensive and well-trained foster family system, beyond our extended families, in which we can raise our own children. The ICWA was written to apply to all children who can prove Native American heritage, whether the parents are enrolled or not. Where Native American children are involved, white courts have no jurisdiction—period.
Perhaps the fault lies with the dependency system, not the ICWA. There is almost nothing I can see, other than venue, that implicates the ICWA. This situation is played out daily in dependency courts for non-Native American children. There is a preference for kinship options and especially those with other siblings. I have no doubt that foster families become attached to the children in their care, but they are given clear boundaries. The state caseworker apparently failed to enforce them. A foster family cannot be allowed to decide when or if a child gets to visit family members. That is the agency’s job. This isn’t about tribal connections or race—this child is reportedly being raised in a non-Native American household either way and is not being raised with native traditions. The adults involved need to realize this should be about a little girl’s welfare, not about adults staking out an ideology or political agenda.