Rye v. Weasel

• Decision Date: 21 November 1996
• Docket Number: No. 95-SC-1021-DG,95-SC-1021-DG
• Citation: 934 S.W.2d 257
• Court: United States State Supreme Court — District of Kentucky
• Parties: Leilani (Weasel) RYE, Appellant, v. Kim A. WEASEL and The Standing Rock Sioux Tribe, Appellees.

Page 257

934 S.W.2d 257

Leilani (Weasel) RYE, Appellant, v. Kim A. WEASEL and The Standing Rock Sioux Tribe, Appellees.

No. 95-SC-1021-DG.

Supreme Court of Kentucky.

Nov. 21, 1996.

James H. Moore, III, Phillip Q. Ratliff, Campbell Woods Bagley Emerson McNeer & Herndon, Ashland, for appellant.

Richard M. Guarnieri, Johnson Judy True & Guarnieri, Frankfort, William R. Perry, Sonosky Chambers Sachse & Endreson, Washington, DC, Virginia D. Weed, Northeast Kentucky Legal Services, Inc., Ashland, for appellees.

WINTERSHEIMER, Justice.

This appeal is from a decision of the Court of Appeals which determined that the Standing Rock Sioux Tribe continues to have exclusive jurisdiction over all custody proceedings involving the child. The Court of Appeals reversed a judgment of the Boyd Circuit Court which had granted custody of the child to Leilani Rye.

The issue is whether the application of the "Existing Indian Family Doctrine" is a proper basis for placing physical custody of the child pursuant to Kentucky law or whether the Indian Child Welfare Act provides exclusive tribal jurisdiction over child custody proceedings.

Rye argues that the Indian Child Welfare Act is not applicable because the undisputed facts of this case create an exception to the ICWA and the physical custody of the child demonstrates that the child was properly placed by the circuit court pursuant to existing Kentucky law. The Tribe contends that the Indian Child Welfare Act provides exclusive tribal jurisdiction in child custody proceedings involving Indian children who are wards of a tribal court and the Existing Indian Family Doctrine has no basis in law and would not apply in this situation in any event.

Kayla American Horse, an enrolled member of the Standing Rock Sioux Tribe, was born on April 23, 1983 on the Standing Rock Sioux Reservation in North Dakota. Her mother was a member of the Standing Rock Sioux Tribe. The identity of her biological father was never established either in a paternity action or through formal acknowledgement of paternity on the birth certificate of the child. Kim Weasel is a member of the Standing Rock Sioux Tribe. Leilani Weasel Rye is not a member of any Tribe although she claims some Indian heritage through her grandfather. When the child was eight months old, her mother was unable to care for her and placed her voluntarily with Leilani Rye and her then husband Kim Weasel. Kim and Leilani Weasel (now Rye) filed a petition for temporary custody with the tribal court which was granted in 1984 and which provided that the child would be a ward of the tribal court. The Weasels never attempted to seek amendment of the tribal court wardship order or to adopt the child. The parental rights of the mother have never been terminated. The Weasels lived in Wyoming, Delaware and New Hampshire before moving to Kentucky. They separated in April 1993. Kim Weasel returned to the reservation. A divorce petition was filed shortly thereafter.

The Boyd Circuit Court notified the Tribe of the pendency of the custody action as required by 25 U.S.C. § 1911(a). On January 27, 1994, the tribal court ordered the child returned to the reservation. The tribal court moved to intervene in the circuit court action to transfer the matter to the tribal court and to dismiss. The Boyd Circuit Court awarded custody of the child to Rye. The Tribe appealed claiming exclusive tribal jurisdiction and the Court of Appeals reversed the circuit court on that basis. 25 U.S.C. § 1911(a). This Court accepted discretionary review.

Leilani and Kim had two additional children born of their marriage, and together with Kayla, lived as a family unit from 1984 to 1993. In the intervening years, neither the biological mother, biological father or Tribe had any contact with her or contributed to her support either financially or emotionally. Kayla is aware of her Indian heritage but has not lived in a Tribal Indian home. Traditional Sioux religious practices have not been observed in her home, nor have tribal dress or language. All of the Weasel children, including Kayla, attended public schools and the Roman Catholic church. Kayla is a baptized member of the Roman Catholic faith. She knows some words and phrases of the native Sioux language but cannot speak conversationally in it.

Testimony before the circuit court indicated that Kayla is a well-adjusted and happy child. She is a good student maintaining a B average and is participating in a number of extra-curricular activities. She is described by her teachers as aware of her Indian heritage but completely integrated into a well-adjusted content life as a preteenage girl. There was no allegation in the divorce proceeding that Leilani Rye was an unfit guardian, parent or custodian. Kim Weasel made a vague request for a type of joint custody, but in his deposition before the court, there was the implication that if joint custody was not granted, he had talked with representatives of the Tribe and they would "take Kayla out of the jurisdiction ..." because Leilani Weasel Rye is a nonenrolled or non-Indian.

Originally, the Boyd circuit judge ruled that transfer of the action was required by the terms of the Indian Child Welfare Act; however, upon reconsideration of that order, and following several hearings in respect to the applicability of the ICWA to the case, the circuit judge granted custody to Leilani Weasel Rye. The Tribe never appeared at any of the hearings that were held in this case at the circuit court level, and presented no evidence at the evidentiary hearing in regard to the determination of the custody of the child. The circuit court considered Rye's request for custody as a petition for custody pursuant to KRS 403.420, the Uniform Child Custody Act.

The circuit judge found that the child was not raised on the reservation because she was less than one year old when she left and had no contact with the Tribe. The court held that from the evidence the Tribe had not contributed to the support or maintenance of the child in any way and had refused to assist with the cost of open heart surgery for the child in 1991. The court determined that the child was a happy and well-adjusted child and recognized her clear and unambiguous expression of her desire to remain with Leilani Weasel Rye and her sisters. The circuit judge noted that the maturity and intelligence of the child was sufficient to assign significant weight to the wishes of the child. Finally, the circuit judge determined that from the evidence the child would suffer considerable emotional trauma if she were removed from her current surroundings. The judge decided that the best interests of the child under Kentucky law required that custody be awarded to Leilani Weasel Rye.

The Court of Appeals reversed and rejected any reliance on the "Existing Indian Family Doctrine" and determined that none of the cases cited by Leilani Rye involved a child who was previously adjudged by a tribal court order to be a ward of the tribal court. The Court of Appeals concluded that the Existing Indian Family Doctrine would not apply to this case. We disagree.

One of the questions we must decide is whether the decision by the Kentucky Court of Appeals was erroneous in holding that the Existing Indian Family doctrine could not be applied to the facts of this case.

In the mid-1970s, the Congress of the United States recognized a trend which had resulted in a large number of adoption-type cases in which Indian children were removed from their Indian families, tribes and culture and were placed in non-Indian homes for adoption or foster care. The United States Congress enacted the Indian Child Welfare Act of 1978, codified as 25 U.S.C. § 1911. The U.S. Congress believed that the preservation of existing Indian tribes and cultures was threatened by the non-Indian placement trend. The ICWA removed jurisdiction of certain child custody cases from state courts and places such jurisdiction with tribal courts in an attempt to preserve the Indian family tradition. In some states, the question has arisen whether the Indian Child Welfare Act should be applied so as to divest a state court of jurisdiction to determine custody of a child who has not been in an existing family even though the child might otherwise be situated as to come within the terms of the ICWA.

A number of courts have examined the ICWA and determined that because the express purpose of Congress was to prevent the culture shock and underlying emotional trauma inherent in taking children from an Indian environment and placing them in a non-Indian environment, the ICWA applies only in those situations where Indian children are being removed from an existing Indian family.

As early as 1982, the Supreme Court of Kansas stated that the purpose of the U.S. Congress in enacting ICWA was not to dictate that a child who has never been a member of an Indian home should be removed from its primary cultural heritage and background which is non-Indian and be placed in an Indian environment that is as foreign to it as any other. In re: Matter of Adoption of Baby Boy L, 231 Kan. 199, 643 P.2d 168 (1982).

In 1985, the Supreme Court of Oklahoma held in Matter of Adoption of D.M.J., 741 P.2d 1386 (Okla.1985), a termination/adoption case, that the ICWA was not applicable when an Indian child had been in custody of her non-Indian mother for nine years and where the child was not being removed from the custody of an existing Indian parent. Matter of Adoption of D.M.J., supra, discussed the purposes of the ICWA at length. The Oklahoma Supreme Court concluded that the underlying purpose of the ICWA is with the removal of Indian children from an existing Indian family situation and the resultant breakup of the Indian family. Oklahoma determined that the ICWA applies only in those situations where Indian children are being removed from an existing Indian family.

Other states have followed the Oklahoma analysis....