R.P. & S.P. v. Los Angeles Dept. of Children & Family Services

November 8, 2016 • Legal Briefs
By Timothy Sandefur, Aditya Dynar, and Ilya Shapiro

This California case — which has become notorious as the “Lexi” case — involves the Indian Child Welfare Act (ICWA, pronounced “ick‐​wa”), a federal law that dictates how courts decide foster care, adoption, and child welfare cases involving children of Native American ancestry. ICWA overrides the “best interests of the child” standard that state courts would normally use, and requires that children of American Indian background be placed with foster or adoptive parents of Indian ancestry (even of different tribes) rather than with parents of other races. ICWA doesn’t just govern reservations, either — it applies to children who have no cultural connection to a tribe and have never even visited a reservation. That’s the case with Lexi, a 6‐​year old girl whose last full‐​blooded Indian ancestor was her great‐​great‐​great‐​great grandfather. Because that’s enough to qualify her as an “Indian child” under ICWA, the Choctaw Tribe of Oklahoma was given power to take her from the California foster family with whom she lived for four years, and to place her with another family in Utah. The California courts ruled for the tribe, finding that although Lexi might experience severe trauma from being separated from her foster parents — whom she calls “Mommy” and “Daddy” — that wasn’t enough to block the tribe’s dictates. California courts have ruled that, for children of other races, “the child’s best interest becomes the paramount consideration after an extended period of foster care.” But in Lexi’s case, the court ruled that a separate‐​but‐​equal standard applies: an Indian child’s best interest, it said, is only “one of the constellation of factors” judges should consider. This case highlights some of the worst aspects of ICWA — a law passed with good intentions, but which in practice makes it harder to protect Indian children from abuse and neglect, or to find them the permanent, loving adoptive homes they need. Joining the Goldwater Institute, Cato filed an amicus brief asking the Supreme Court to review the case and address ICWA’s constitutionality. The Court should find that its explicit system of racial segregation is unconstitutional and that all children should receive the same legal protections, regardless of race.

About the Authors
Aditya Dynar
Ilya Shapiro

Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and publisher of the Cato Supreme Court Review.