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Appeals Court Returns Custody Battle To Tribe

November 3, 1995

FRANKFORT, Ky. (AP) _ A tribal court must decide whether a 12-year-old Sioux girl will return to the custody of her tribe or remain with her uncle’s ex-wife in the only home she has ever known, an appeals court ruled today.

Kayla American Horse indisputably remains a ward of the Standing Rock Sioux Indian Tribe, which retains complete jurisdiction in the case based on the Indian Child Welfare Act of 1978, the Kentucky Court of Appeals ruled.

The federal act was passed to stem the flow of adoptions of Indian children off the reservation and help maintain tribal identity.

The ruling overturned an April 1994 circuit court decision that gave Leilani Rye Burchett, an Ashland native, full custody of the girl she had raised since infancy.

``I love my daughter and I’ll fight for her no matter how long it takes,″ a tearful Burchett said today from Manchester, Ohio, where she now lives.

Her lawyer, James Moore, said he will appeal to the state Supreme Court.

The controversy began in 1993 when Burchett separated from her husband, Kim Weasel, Kayla’s uncle and an enrolled member of the tribe, whose reservation straddles the North Dakota-South Dakota border.

The tribe had given the couple temporary custody of Kayla because her natural mother, Effie Iron Road, was an alcoholic and could not care for the girl. The tribe retained wardship of the girl.

When the couple separated, the tribe reasserted its jurisdiction over Kayla and demanded that she be returned to the reservation.

Burchett, who is of Cherokee and Choctaw descent, argued that the federal act did not apply in this case because Kayla was not being removed from an existing Indian family. Her attorneys said supreme courts in seven other states had recognized this ``existing Indian family doctrine″ in refusing to allow tribal courts to handle custody cases off the reservation.

Burchett has said Kayla is in no danger of losing touch with the tribe and its culture. She said she has taken the girl and her other two children, who also are on the tribe’s rolls, to cultural events, and given the children books about their heritage.

The three-judge panel, in its unanimous ruling, implored the tribal court to consider that Kayla’s best interests might be served by leaving her where she is, at least for now.

``In view of the entire circumstances of this proceeding and absent some showing the child is endangered in her current environment, we respectfully urge the tribal court to seriously consider leaving Kayla in the only home she has ever known pending final outcome of any proceedings before it,″ Judge Paul Gudgel wrote in the opinion.

Burchett said there is no way the tribe will give her custody after the fight she put up. She called the tribe’s actions ``legal kidnapping.″

``I know I’m going to lose in the end,″ she said. ``This was the big decision as far as I’m concerned.″

Tribal Judge Mike Swallow said no decision has been made, and Burchett’s claim that the birth mother had been promised she would regain custody is ``a false statement.″

Kayla, who was home from school today, would not comment. Burchett said the girl was devastated.

``She just shook her head and tears came down her face, dripping down on her nose,″ she said. ``She never said a word. She just looked at me like, `I can’t believe you let that happen to me.‴

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