“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