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Indian Children's Law in Choctaw Foster Case Praised by Some, Criticized by Others

The Indian Child Welfare Act is hailed as a protective tool for native communities by some and criticized as misinterpreted and misguided by others.
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A California couple's fight to reunite with a 6-year-old foster child who was taken from their home last week because she is 1/64th Choctaw Native American has cast a spotlight on the Indian Child Welfare Act.

The law has been long hailed as a protective tool for Native American communities by some and criticized as misinterpreted and misguided by others.

The Indian Child Welfare Act of 1978 was enacted in response to the high rate of Native American children being taken from their families, tribes and nations.

A 1976 study by the Association on American Indian Affairs found that more than a quarter of Native American children were being taken from their homes, according to the National Indian Child Welfare Association. Eighty-five percent of those children were placed in non-Native homes or institutions, including boarding schools, according to the association.

The two main reasons for the alarming rates of relocation for Native American children were that "federal boarding school programs heavily encouraged the separation of Native families" and "culturally insensitive" child welfare laws were relied upon to justify removing the children from Native practices, according to the United Nations.

"The effect of the situation to indigenous nations, who were losing children by the thousands, was essentially cultural genocide," the United Nations said in a 2010 report.

Some argue that the law, in today's society, reaches past its original purpose.

A recent case that gave voice to the critics was the highly publicized saga of Baby Veronica. Veronica, a Cherokee girl, was put up for adoption by her non-Native American mother and fostered by Matt and Melanie Capobianco for 27 months.

When Veronica's biological father, Dusten Brown, who is Cherokee, returned from military deployment in Iraq, he said he hadn't intended to put the child up for adoption, and he was granted custody of the then-4-year-old under the Indian Child Welfare Act.

The Capobiancos fought for Veronica, and the case eventually reached the Supreme Court, which ruled that the act doesn't apply when the biological parent in question never had custody of the child.

Veronica was returned to the Capobiancos in 2013.

The Indian Child Welfare Act "improperly interferes with Indian children's fundamental due process rights. On the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children," the couple said at the time. "While we understand why ICWA was established, we feel strongly it was not intended for custody cases like Veronica's and so many other children."

Johnston Moore believed two of those children were placed with him and his wife. Months into fostering two boys, a relative stepped forward and revealed that they were 1/16th Native American, he wrote on in 2015.

"When questioned, the boys knew nothing of their tribe or Native heritage. The reservation itself was over 1,500 miles away, and neither of the boys had been enrolled in the tribe by their abusive grandfather," Johnston wrote.

After a long legal battle, the Moores were able to keep the boys only after their birth mother testified that she wanted her sons to stay with them.

"In some cases, justice prevails, and children are able to stay in loving, stable families in which they've attached, but in others, it doesn't, and children are removed from homes in which they have lived and thrived for considerable amounts of time because of nothing more than some minute blood connection to a federally recognized tribe," Moore wrote.

Moore added that while the Indian Child Welfare Act often accomplishes what it was intended to, it also sometimes allows for "what it wasn't intended to do."

"That law needs to be repealed or repaired," Rusty Page, whose foster child of more than four years, Lexi, was taken from him and his wife on Monday, told NBC News. Lexi was placed with distant relatives in Utah because her birth father is Choctaw Native American, according to court documents, meaning the Indian Child Welfare Act applies to her.

The Pages have appealed to the California Supreme Court to reverse a lower court's decision to re-place Lexi.

"We can't have a law in this country that keeps doing this to children, I think the world sees that now. We're fighting until this law changes," Page said.

In fact, the Indian Child Welfare Act was changed just last year — for the first time since its inception.

Then-Attorney General Eric Holder announced the initiative to "promote compliance" with the law to prevent it from being "systematically violated."

A substantial update was to more specifically define "good cause," a term used in the original law for reasons that a Native American child might be left with a non-Native family.

"Evidence suggests that 'good cause' has been liberally relied upon to deviate from the placement preferences in the past," the U.S. Bureau of Indian Affairs said. "Commenters noted that, in some cases, a State court departed from the placement preferences because an Indian child has spent significant time in a family's care, despite the fact that the placement was made in violation of ICWA."

The amendments specified that "good cause" did not apply even if a custody process was "at an advanced stage" or "a child over 12 objects to the transfer."

Essentially, the law became more stringent.

Areva Martin, a Los Angeles lawyer who often focuses on women's and children's issues, told NBC News on Saturday that she thinks the Page family might still be able to rely on a good cause argument to get Lexi back.

"Should the law even be relevant in a case like this?" Martin asked. "You have a child that has so little Native American blood, who's never been part of a tribal community, who has been placed in what is, for all practical purposes, an appropriate foster care home for so many years," she said.

Nicole Adams, the executive communications manager of the National Indian Child Welfare Association, said the focus on "blood quantum" is "offensive."

"It is intended to deliberately mislead the public, using a race-based argument to incite emotions," Adams told NBC News. "The child involved in the California ICWA case is not part-Choctaw. She is a Choctaw child. Period."

The law, in its stronger iteration, is necessary, the National Indian Child Welfare Association argues, because Native children are still removed from their homes at more than double the rate of white children, as documented by the the National Council of Juvenile and Family Court Judges.

"Disparate treatment of Native American children that denies them basic protections afforded to other children is rampant to this day," said Adams. "The highly publicized, controversial cases that come into the spotlight often do so because federal law was not followed in the first place, not because there is fault with the law itself."