Escaping The ICWA Penalty Box:
In Defense of Equal Protection for Indian Children
By Timothy Sandefur*
“And finally this, when the sun was falling down so beautiful we didn’t have time to give it a
name, she held the child born of white mother and red father and said, ‘Both sides of this baby
In early 2016, a six-year-old Californian child named “Lexi” was taken from the arms of
her weeping foster parents, Rusty and Summer Page, 2 and sent to live with her step-second-cousin in Utah instead. She had lived with the Pages for four of her six years of life, after Los
Angeles child welfare officials removed her from her drug-addicted mother and incarcerated
father. 3 She was strongly bonded to the Pages, called them “mommy” and “daddy,” and
regarded the Pages’ other children as her siblings. 4 Nobody alleged that the Pages had mistreated
Lexi. She had found love and stability in their home. Had this been an ordinary case, they
would almost certainly have adopted her, as they wanted to do.
* Vice President for Litigation and holder of the Clarence J. & Katherine P. Duncan Chair in Constitutional
Government, Goldwater Institute. J.D. 2002, Chapman University School of Law; B.A. 1998, Hillsdale College.
This article depends heavily on extensive research performed by Adi Dynar, Clint Bolick, and Mark Flatten.
1 SHERMAN ALEXIE, THE LONE RANGER AND TONTO FISTFIGHT IN HEAVEN 148 (2d ed. 2013).
2 See, e.g., Charlotte Alter, Inside the Agonizing Custody Fight Over Six-Year-Old Lexi, TIME (Mar. 27, 2016),
3 Brenda Gazzar, Santa Clarita Family Won't Give up on Lexi Despite Legal Setback, L.A. DAILY NEWS (July 12,
legal-setback; Lindsey Bever, “Keep Lexi Home”: A Foster Family’s Wrenching Fight for A 6-Year-Old Choctaw
Girl, WASH. POST (Mar. 24, 2016), https://www.washingtonpost.com/news/morning-mix/wp/2016/03/24/keep-lexi-