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The Battle for ICWA Goes to California With Contested Choctaw Foster Case

In a Los Angeles County courtroom this morning, the Second District of the California Court of Appeals heard oral arguments in Children and Family Services v. J. E. et al (CFS v. J.E. et al), in which a non-Indian foster couple is fighting for permanent custody and adoption of a Choctaw child, in spite of state and federal statutes requiring Indian placement preference under the Indian Child Welfare Act.

According to sources close to the case, Summer and Russell Page are foster parents seeking to terminate the parental rights of a father, who is a member of the Choctaw Nation of Oklahoma, under the legal doctrine of having become “de facto parents”—in spite of the fact that theirs is the third foster home in which the child has resided since being placed in foster care, and the fact that father had custody of his child for over seven months and was present at her birth. The ruling on the case is expected to be released on or around July 18.

Lawyers for the the foster couple included some of the same legal team that represented Matthew and Melanie Capobianco in the Adoptive Couple v. Baby Girl, in which Cherokee tribal member Dusten Brown lost his daughter in September 2013 after an exhaustive legal process that went all the way to the Supreme Court last year. The Court ruled on the narrow legal device that Brown could not have been deprived of his child because he never had “continued custody” of her, in spite of convincing evidence that he was denied that opportunity by his daughter’s birth mother from the outset of her pregnancy.

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Lori Alvino McGill, who is not licensed to practice law in the state of California, was one of the key players in the epic crucible pitting the nation’s Indian tribes against the powerful U.S. adoption industry in Adoptive Couple last year. As such, she was again before another state appeals court this morning representing the couple pro hac vice.

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According to eye-witnesses, McGill told the court this morning that the Pages should retain custody of the child known only as “A.P.”, because the child “is not enrolled” and lacks “eligibility” to become a tribal member, even though under ICWA, Section 1903(4) specifically defines an Indian child as “an unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”

Father, however, is in fact an enrolled member of the Choctaw Nation, which automatically gives his child eligibility status under federal law.

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Additionally, echoing her position from media outlets last year, McGill also argued that the Indian Child Welfare Act in its totality is “unconstitutional” because of the tribal placement preferences, which have been in effect for over 35 years.

Unlike Dusten Brown, however, the father in CFS v. J.E. et al, previously had custody of his child for over seven months, which has been documented by numerous sources close to the case. The child went into foster care after he was arrested for possession of stolen property. But court watchers and foster care experts say that arrest should not be grounds for the termination of parental rights, as it would set a dangerous precedent for all parents who have an arrest record with childen in foster care.

“The courts have been pretty clear that Congress has the plenary power to act on behalf of Indian tribes and has, in fact, made the determination over and over again that ICWA eligibility falls under federal purview,” says a Washington, D.C., attorney who does not represent a party in this case. “In spite of what happen in Baby Girl, the attorneys for the foster parents are arguing a statutory interpretation of the law—not a Constitutional one.”

Unlike South Carolina, which has only one federally-recognized tribe (the Catawba Indian Nation) and few American Indian residents, California has the largest number of Indian tribes in the United States—over 100—and the largest number of tribal members, at nearly half a million. Proportionally, therefore, California has the largest number of ICWA cases in the country. Because of the sheer volume of ICWA cases in that state, experts say that California simply has more legal experience with the statute and is a lot less willing to play with federal law in regards to tribal children.

Additionally, California has the most diverse population of Indian people from all over the country, and in particular from Oklahoma, because of the mass human migration that took place during the 1930s and the Dust Bowl. In fact, tribes across the country have local offices to take care of the human services because of the volume of their tribal members who reside in that state.

“California has been very consistent in their treatment of the Indian Child Welfare Act,” says the Washington attorney. “They have thus far been unwilling to rule that ICWA is ‘unconstitutional.’ However, because of the ruling in Baby Girl, we continue to be concerned about the words ‘continued custody’ because that opens the door to possession of our children by estoppel, which Justice Sotomayor wrote about in her dissent in that case.”

With over 175,000 members, the Choctaw Nation is the third largest tribe in the nation after the Cherokee and Navajo and is one of the sister tribes to the Muskogean linguistic group, which include the Chickasaw, Muscogee Creek and Seminole Nations of Oklahoma. Choctaw tribal members from coast to coast were voicing their outrage at what they say is the latest assault on the Indian Child Welfare Act.

“Each of us has a story and for native children the connection to their tribe and the knowledge of where they come from is part of that story,” says one Choctaw tribal member living in California, who declined to be identified because the tribal government has not yet made a public comment. “It goes beyond simply who has custodianship or possession of the child. Instead of squabbling over who has a child or for longer periods of time we should stop and think about what is in the best interests of that child long-term self-identity and connection. A parent simply stating they have ‘de facto’ current status doesn't necessarily give that child the very essence of what they need to be who they fully are. We need to look beyond the current needs of just having a child being in a placement [and] think about the whole picture of the child.”

Please visit Indian Country Today Media Network for more coverage of this developing story.