| (Cite
as: 934 S.W.2d 257)
Supreme
Court of Kentucky.
Leilani
(Weasel) RYE, Appellant,
v.
Kim
A. WEASEL and The Standing Rock Sioux Tribe, Appellees.
No.
95-SC-1021-DG.
Nov. 21, 1996.
*259
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. *260
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 *261
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. They are S.A.
v. E.J.P., 571 So.2d
1187 (Ala.Civ.App.1990); In
the Interest of S.A.M.,
703 S.W.2d 603 (Mo.App.1986); Matter
of Adoption of Crews,
118 Wash.2d 561, 825 P.2d 305 (1992); Matter
of Adoption of T.R.M.,
525 N.E.2d 298 (Ind.1988); Matter
of T.S., 245 Mont.
242, 801 P.2d 77 (1990); Matter
of D.S., 577 N.E.2d
572 (Ind.1991); In
re: S.C., 833
P.2d 1249 (Okla.1992).
The holdings of these courts
have become known as the "Existing Indian Family Doctrine."
Pursuant to that doctrine, the courts have held that the ICWA
was not intended by Congress to be applied to cases where there is no
existing Indian
family or environment because the purpose and intent of Congress cannot
be furthered by such applications of the Act. Matter
of Adoption of Crews, supra; Matter of Adoption of T.R.M., supra.
The courts that have adopted
the Existing Indian Family Doctrine have held that the ICWA is not applicable
in its entirety even though facts were presented which might otherwise
establish threshold jurisdiction under the ICWA. See
S.A. v. E.J.P., supra.
This is true even though the ICWA in § 1911(a) purports
to vest exclusive jurisdiction to hear custody cases involving an Indian
child in the tribal court where the child has maintained a wardship. These
courts hold that if there is no existing Indian family or environment,
§ 1911(a) is not applicable, and the state courts retain jurisdiction.
See Matter
of Adoption of T.R.M., supra.
The Tribe argues that the Existing
Indian Family Doctrine is not consistent with congressional intent and
the holding of Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). The Tribe
contends that because the Existing Indian Family Doctrine is not codified
in the ICWA, it does not properly exist. We acknowledge that
a few states have applied the ICWA but those cases are fact specific and
the various authorities from other states cited by the Tribe are not persuasive.
We
are persuaded by the opinion of the Supreme Court of Oklahoma in In
re: S.C., supra.
Oklahoma, which contains a large Indian population and
consequently one of the states most often presented with this vexing problem,
has been one of the leading states in developing this doctrine. The
Oklahoma court states in pertinent part that recognition of the Existing
Indian Family Doctrine:
...
does not create an exception not contemplated by the legislature. Rather
the *262
preservation of the existing Indian family was an integral purpose of
the ICWA from its inception.
. . .
. .
[T]he
underlying thread that runs throughout the entire Act [is] to the effect
that the act is concerned with the removal of Indian children from an
existing Indian family unit and the resultant breakup of the Indian family.
. . .
. .
In
1987 amendments were presented by the Senate Committee on Indian Affairs.
These proposed amendments were occasioned by courts' refusing to apply
the ICWA to situations like this one. The amendments, if enacted,
would have made application of the ICWA mandatory regardless of whether
the child had 'previously lived in Indian country, in an Indian cultural
environment or with an Indian parent.' ... However, the amendments
never came out of the Senate committee ... and have never been presented
again. Congress being aware of this Court's decision in In
re: D.M.J., as
well as decisions from other states using similar reasoning, has refused
to change the statutory language to do
away with this interpretation.
In
re: S.C., 833
P.2d at 1255.
Obviously, the U.S. Congress
is aware of the Existing Indian Family Doctrine as used by Oklahoma and
other courts and with such knowledge has specifically refused to take
legislative action to alter that interpretation. We are persuaded
that the true intent of Congress is not to disturb situations such as
presented in this case, where the Indian child is fully integrated in
a non-Indian family.
The
Kentucky and Federal courts have recognized the failure of the legislature
to change a known judicial interpretation of a statute as extremely persuasive
evidence of the true legislative intent. There is a strong
implication that the legislature agrees with a prior court interpretation
of its statute when it does not amend the statute interpreted. City
of Richmond v. Public Service Commission,
Ky., 294 S.W.2d 513 (1956). Failure by the U.S. Congress to repeal an
administrative agency's interpretation of a congressional act is persuasive
evidence that the interpretation is the one the legislature intended.
Jewish Hospital
v. Department of Health & Human Services,
791 F.Supp. 168 (W.D.Ky.1992).
We
agree with a Louisiana appeals court which held that after "exhaustive
review of jurisprudence on this issue, the Act and its stated purpose
and legislative history, we are convinced that Congress intended the Act
apply only in situations involving the removal of children from an existing
Indian family and Indian environment." Hampton
v. J.A.L., 658 So.2d
331, 334-335 (La.App.1995). The Louisiana court went on to
observe that its conclusion was supported by the Senate Committee on Indian
Affairs rejection in 1987 of proposed amendments to mandate application
of the ICWA regardless of whether the child had previously lived in Indian
country, in an Indian cultural environment or with an Indian parent. Consequently,
we believe that the Existing Indian Family Doctrine is consistent with
the intent of the U.S. Congress as evidenced by its consideration of the
statutory amendments that would have abolished that doctrine and its refusal
to do so.
We must now consider the place
of the U.S. Supreme Court case of Mississippi
Band of Choctaw Indians v. Holyfield, supra.
The Tribe argues that the Existing Indian Family Doctrine
is not consistent with the holding in Holyfield.
That case stands for the narrow basic proposition that federal
law preempts state law as to the definition of domicile under the ICWA,
and that the domicile of an Indian child is that of its mother if the
child is born out-of-wedlock. Cf.
In re: S.C.,
833 P.2d at 1254.
Holyfield
did not consider the validity of the Existing Indian Family Doctrine and
took no position in regard to it. Holyfield
should not be extended beyond the scope of its specific holding. See
Matter of T.S., supra; Matter of D.S., supra.
The Supreme Court of Washington notes that "Holyfield
supports our conviction that ICWA is not applicable when an Indian child
is not being removed from an Indian cultural setting.... In such
a situation, whether or *263
when the child meets the definition of 'Indian child' under ICWA is not
controlling." Matter
of Adoption of Crews,
825 P.2d at 310-11.
Holyfield
addressed questions of domicile and did not consider the Existing Indian
Family Doctrine. Thus, Holyfield
does not prevent the application of the doctrine here. The
Oklahoma Supreme Court directly confronted the Holyfield
question in In re: S.C.,
supra, in 1992, in
a case involving the attempted invalidation of foster care based on alleged
violations of the ICWA in which the father raised the Holyfield
question. The court determined that the Oklahoma case law was not inconsistent
with the holding of Holyfield
based on three independent reasons, one of which was that the ICWA does
not extend to the factual situation because there was no existing Indian
family.
Holyfield
presented a case of two young Indian parents who sought an adoption by
non-Indians for their newly-born twins. The parents, who resided
on the reservation, traveled away from the reservation in order for the
babies to be born. After the births, both parents consented
to the adoption. The Tribe moved to vacate the adoption on
the ground that the state court did not have jurisdiction and that exclusive
jurisdiction was vested in the tribal courts
by reason of the ICWA. As noted earlier, the sole issue was
domicile which cannot be defeated by a temporary removal for the purpose
of birth.
In In
re: S.C., the
father claimed that Holyfield,
although not expressly contrary to the Oklahoma cases, implicitly overruled
them. Legal commentators speculated that Holyfield
stood for more than just the narrow ruling regarding domicile. See
e.g., Note, The
Indian Child Welfare Act of 1978: Does it Apply to the Adoption
of an Illegitimate Indian Child?,
38 Cath.U.L.Rev. 511 (1989). We agree with the Oklahoma Supreme
Court that it is mere speculation that does not have any persuasive legal
basis and that Holyfield
is not as far-reaching as some might contend. A complete discussion
of this matter may be found in the In
re: S.C. Oklahoma
case.
We agree with the Oklahoma Court
that the Existing Indian Family Doctrine is not really a judicially created
exception, but rather that the ICWA was never meant to apply in those
cases such as Matter
of Adoption of D.M.J.
and In re: Matter
of Adoption of Baby Boy L,
where the Indian children had lived with their non-Indian mothers for
seven and six years respectively. The important part of the
ICWA was the preservation of the existing Indian family, and it was never
intended to apply to cases where there was no such factual basis. The
consistent thread that runs throughout the ICWA is a concern for the removal
of Indian children from an existing family unit, and the subsequent disruption
of an Indian family. That is not the case presented here.
Here,
there was never an existing Indian family. The father is unknown,
and the mother made no contact with the child after voluntarily placing
it with the foster parents. Further, the foster family, while
aware of the Indian culture, did not adopt that culture as a day to day
way of life, a fact that presumably could have been determined by the
tribe if it chose to inquire. The Tribe retained nominal legal
wardship, but expressed no interest in the child until the Kentucky divorce.
The Tribe even declined to render any financial help in a
medical emergency in 1991. Consequently, there is no disruption
of an existing Indian family unit in this case.
We do not accept the analysis
by the Court of Appeals that exclusive jurisdiction based on wardship,
rather than residence or domicile, adversely affects the application of
the Existing Indian Family Doctrine. The Doctrine is an exception
to the jurisdictional provisions of the ICWA which does not apply to the
facts of this case and is not altered by residence, domicile or wardship.
There was no existing Indian family.
The argument by the Tribe that
even if there was such a Doctrine, it would not apply in this situation,
is without merit. The facts of this case demonstrate that
the child has lived off the Indian reservation since 1984 and has had
little or no contact with either her natural Indian parents or the Tribe
since that time. The Indian parents of the child have indicated
no interest in the child and have demonstrated no ability to care for
her. *264
When contacted
regarding the serious illness of the child in 1991, the Tribe refused
to provide any financial assistance to the custodial parents. The
child has grown up in a non-Indian environment involving public schools
and religious faith as well as complete integration in the community.
She does not speak the Sioux language and does not practice
its religion or customs.
The
ICWA should not apply to a factual pattern where the Indian parents had
no contact or custody with the child for over a decade. See
Matter of Adoption of D.M.J., supra.
The ICWA was not applied to a case where the child had lived
for seven years with its non-Indian mother since her divorce from the
Indian father, and five years had passed without the father being involved.
In re: S.C..
This case is very similar to the Alabama case of S.A.
v. E.J.P., in which
it was held:
The
child may be an Indian child as defined in the act, by virtue of her biological
father. However, since birth, she has either resided with
her non-Indian mother or her non-Indian great-uncle except for a period
of four weeks when she lived with her father and paternal grandmother.
The mother and father were never married and never lived together.
The father never supported the mother or the child financially.
The child has had minimal contact with her father. She
has no involvement in tribal activities or any participation in Indian
culture. The evidence reflects that the father has had only
minimal contact with the reservation. The father never exercised
his parental
responsibilities and never attempted to become a part of the child's life.
This
child was never a part of an Indian family environment. She
has never been a member of an Indian family, has never lived in an Indian
home, and has never experienced the Indian social and cultural world.
To apply the ICWA to the facts of this case would be contrary
to the congressional intent.
S.A. v. E.J.P.,
571 So.2d at 1189.
The decision of the circuit court
was fully supported by the evidence pursuant to KRS 403.420, and its final
conclusion that the best interests of the child would be served by continuing
her custody with Leilani Rye is a proper decision. The real
purpose of the ICWA would not be furthered by litigating this case in
the tribal court pursuant to the Existing Indian Family Doctrine because
the ICWA is not applicable here.
In enacting the Indian Child
Welfare Act, Congress intended to stop the unnecessary breakup of Indian
homes by the arbitrary removal of Indian children from existing Indian
families by state court proceedings. However, it is very clear
that Congress did not intend that the ICWA should be applied to totally
divest state courts of appropriate jurisdiction to decide custody issues
with respect to children who, although Indian by birth, have not lived
for many years in an existing Indian family. Nor did Congress
intend to interfere with the determination of the best interests of the
child by a court in the state where
such child lives.
The decision of the Court of
Appeals is reversed and the judgment of the circuit court is reinstated.
STEPHENS, C.J., and GRAVES, KING,
LAMBERT and STUMBO, JJ., concur.
BAKER, J., dissents by separate
opinion.
BAKER, Justice, dissenting.
I respectfully dissent.
The issue in this case is not
who should be entrusted with the custody of the Indian child, Kayla American
Horse, but rather what court has jurisdiction to make that decision. All
other things being equal, the Boyd Circuit Court would be the appropriate
court and its decision made in compliance with the guidelines of KRS 403.270
would be affirmed.
Kayla American Horse is an Indian
child and a member of the Standing Rock Sioux Tribe. Excepting
her first eight months, this child, now thirteen years of age, has lived
her entire life with Kim Weasel, her uncle and a tribal member, and his
wife, Leilani Weasel. Significantly, the Standing Rock Sioux
Tribal
Court granted temporary custody to the Weasels on January 14, 1984. This
order states in part:
*265
That the Standing Rock Sioux Tribal Court retains jurisdiction over the
above-named minor child and that Kayla American Horse be made a ward of
this Court, and....
That
this Order will remain in effect until further notice of this Court.
The Boyd Circuit Court awarded
custody of the child to Leilani Weasel, now Rye, and found that the provisions
of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.) did not apply
and that it was in the best interest of the child to award custody to
Leilani Weasel Rye. The Court of Appeals reversed holding
the Indian Child Welfare Act governed and dictated that exclusive jurisdiction
lies with the tribal court. The Court of Appeals further declared
the "existing Indian Family doctrine" did not apply as the child
had previously been adjudged a ward of the tribal court so as to invoke
the exclusive jurisdiction of 25 U.S.C. § 1911(a).
The pertinent provision of the
Indian Child Welfare Act reads:
§
1911. Indian tribe jurisdiction over Indian child custody proceedings
(a) Exclusive jurisdiction
An
Indian tribe shall have jurisdiction exclusive as to any State over any
child custody proceeding involving an Indian child who resides or is domiciled
within
the reservation of such tribe, except where such jurisdiction is otherwise
vested in the State by existing Federal law. Where an Indian
child is a ward of a tribal court, the Indian tribe shall retain exclusive
jurisdiction, notwithstanding the residence or domicile of the child.
Congress in enacting the Indian
Child Welfare Act made specific findings emphasizing the importance of
maintaining the integrity of Indian tribes and protecting Indian children.
25 U.S.C. § 1901 provides in part:
(2)
that Congress, through statutes, treaties, and the general course of dealing
with Indian tribes, has assumed the responsibility for the protection
and preservation of Indian tribes and their resources;
(3)
that there is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children and that the United
States has a direct interest, as trustee, in protecting Indian children
who are members of or are eligible for membership in an Indian tribe;
(4)
that an alarmingly high percentage of Indian families are broken up by
the removal, often unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high percentage of
such children are placed in non-Indian foster and adoptive homes and institutions;
and
(5)
that the States, exercising their recognized jurisdiction over Indian
child custody proceedings through administrative and judicial bodies,
have often
failed to recognize the essential tribal relations of Indian people and
the cultural and social standards prevailing in Indian communities and
families.
In House Report No. 95-1386 of
the Interior and Insular Affairs Committee dated July 24, 1978 to accompany
H.R. 12533 which was enacted as Public Law 95-608 (Indian Child Welfare
Act of 1978) the Committee answered affirmatively the question "Does
Congress have power to control the incidents of child custody litigation
involving non-reservation Indian children and parents pursuant to the
Indian commerce clause sufficient to override the significant State interest
in regulating the procedure to be followed by its courts in exercising
jurisdiction over what is traditionally a State matter?" That
report evidences a great concern that Indian children not be separated
from the Indian tribal family and that only by empowering tribal courts
with exclusive custody could such a policy be promoted. See
U.S.Code Cong. & Admin.News, 1978 at 7530-7568.
The relationship of Kayla American
Horse as a ward of the Standing Rock Sioux Tribe has remained unchanged
since January 12, 1984. In 1991 when Kayla suffered serious
medical problems the Weasels appealed to the tribe for financial support.
Neither the tribe nor the Bureau of Indian Affairs provided
financial assistance. The record is silent as to whether this
was because
of a shortage of funds or a lack of will.
*266
Nevertheless Kayla to this day remains a ward of her tribe. Moreover
while she has not resided on the reservation since infancy her custodial
father is a member of the tribe and her custodial mother is of Indian
heritage. As pointed out by Justice Brennan in Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), the exclusive jurisdiction
of the tribal court cannot be defeated by simple expedients of giving
birth off the reservation and placing a child for adoption while off the
reservation.
It is very tempting for Kentucky
courts which otherwise would have jurisdiction to ignore the exclusive
jurisdiction vested by Congress in the tribal courts to adjudicate Indian
child custody matters. Congress has chosen to place this responsibility
with the Indian tribal court. With due respect for the primacy
of federal law, Kentucky must transfer the custody determination of Kayla
American Horse to the Standing Rock Sioux Tribal Court. The decision of
the Court of Appeals should be affirmed.
934 S.W.2d 257
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