In re A.J.

In re A.J.  (98-537); 169 Vt. 577; 733 A.2d 36

[Opinion filed 1-Apr-1999]
[Motion for Reargument denied 27-Apr-1999]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-537

                              MARCH TERM, 1999

                                      

In re A.J.	                      }	     APPEALED FROM:
                                      }
                                      }
                                      }	     Franklin Family Court
                                      }	
                                      }
                                      }	     DOCKET NO. 102-05-96 Frjv	


             In the above-entitled cause, the Clerk will enter:


       Mother appeals from a family court judgment terminating her residual
  parental rights.  She  contends (1) that the court erred in failing to
  notify the Micmac and Abenaki tribes that an Indian  child was involved in
  the proceeding pursuant to the Indian Child Welfare Act, 25 U.S.C. §§ 
  1901-1963 (ICWA); and (2) that the exclusion of the Micmac and Abenaki
  tribes from the ICWA  violates their right to equal protection of the law. 
  We affirm.
 
       The facts underlying this TPR proceeding are not at issue and need not
  be recounted in  detail.  Several weeks prior to the TPR hearing, mother
  sent a letter to the court claiming that she  and the minor's father were
  of Native American descent, and requesting that the matter be  transferred
  to a Native American court pursuant to the ICWA.  At the hearing, mother's
  counsel  represented that mother claimed descent from both the Abenaki and
  Micmac Indian tribes.  The  court ruled that the ICWA did not apply to
  either tribe, and that notification of the tribes was  therefore not
  required.  Following the hearing, the court entered judgment terminating
  mother's  residual parental rights. This appeal followed.

       The ICWA requires notification of the parent, the child's tribe, or,
  if the identity or location  of the tribe cannot be determined, the Bureau
  of Indian Affairs (BIA), "where the court knows  or has reason to know that
  an Indian child is involved."  25 U.S.C. § 1912(a). The act defines an 
  Indian child as a minor who is either a member of an Indian tribe or
  eligible for membership in  an Indian tribe.  See id. § 1903(4).  An Indian
  tribe is defined as any Indian tribe or group of  Indians recognized as
  eligible for services provided by the BIA.  See id. § 1903(8).

       It is undisputed that neither the Abenaki nor the Micmac Indian tribes
  has been recognized  as eligible for services by the BIA.  See In re
  M.C.P., 153 Vt. 275, 288, 571 A.2d 627, 634  (1989); Abenaki Nation of
  Mississquoi v. Hughes, 805 F. Supp. 234, 242 (D.Vt. 1992), aff'd, 990 F.2d 729 (2d Cir. 1993).  Accordingly, as we held in M.C.P., "[n]othing would be
  gained by  notifying [the tribes].  They have no special information for
  the court nor do they have an 


 


  interest protected by the ICWA."  153 Vt. at 288, 571 A.2d  at 634. 
  Thus, the court here  correctly ruled that notification was not required
  under the ICWA.

       Assuming that notice was not compelled by the terms of the act, mother
  further contends  that the statutory exclusion of tribes not formally
  recognized by the federal government violates  their right to equal
  protection of the law under the Fourteenth Amendment.(FN1)  The United 
  States Supreme Court has established that the appropriate standard in
  assessing the validity of such  classifications is whether they are "tied
  rationally to the fulfillment of Congress' unique obligation  toward the
  Indians."  Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 85 (1977)
  (quoting  Morton v. Mancari, 417 U.S. 535, 555 (1974)).  Thus, in Delaware
  the high court upheld against  an equal protection challenge a statute that
  distributed funds to a federally recognized tribe, but  excluded a
  non-recognized branch of the tribe.  See id. at 86.

       Applying this rational-basis standard, at least one court has
  specifically upheld the exclusion  of non-federally recognized tribes under
  the ICWA.  See In re T.I.S., 586 N.E.2d 690 (Ill. App.  Ct. 1991).  In
  T.I.S., the biological mother in an adoption proceeding claimed that the
  exclusion  of a Canadian branch of the Chippewa tribe that was not an
  Indian tribe under the ICWA  constituted an impermissible classification
  based upon national origin.  The court rejected the  challenge, holding
  that because the mother was not "a member of a tribe that shares the
  'unique  relationship' with the United States government that prompted the
  enactment of the special  protections embodied in the ICWA," the failure to
  apply the provision of the ICWA to her case  did not violate the federal
  Equal Protection Clause.  Id. at 693.  

       As the Illinois court noted, Congress's express purpose in enacting
  the ICWA was to  preserve the families and culture of those Indian tribes
  whom the United States historically,  "through statutes, treaties, and the
  general course of dealing has assumed the responsibility for  [their] 
  protection and preservation."  25 U.S.C. § 1901(2).  The United States has
  not assumed  this kind of trust relationship with either the Abenaki or the
  Micmac tribes, and thus does not have  the same historical responsibility
  to preserve the cultural and social standards in those tribes that  it does
  with respect to federally recognized tribes.  Accordingly, we agree with
  the court's  conclusion in T.I.S. that the ICWA exclusion of non-recognized
  tribes does not violate the Equal  Protection Clause.

 
 


Affirmed.  


                                      BY THE COURT:



                                      _______________________________________
                                      Jeffrey L. Amestoy, Chief Justice

                                      _______________________________________
                                      John A. Dooley, Associate Justice

                                      _______________________________________
                                      James L. Morse, Associate Justice

                                      _______________________________________
                                      Denise R. Johnson, Associate Justice

                                      _______________________________________
                                      Marilyn S. Skoglund, Associate Justice


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                                  Footnotes

  FN1.  Although mother also invokes the Common Benefits Clause of the
  Vermont Constitution,  ch. I, art. 7, the federal statute controls over the
  state constitutional provision.  See Schaffer v.  Leimberg, 62 N.E.2d 193,
  197-98 (Mass. 1945).  We note further that the State in this case has  not
  challenged mother's standing to assert a constitutional claim on behalf of
  the Abenaki and  Micmac tribes.
  
3