Supreme Court of Vermont.

In re A.J.

No. 98-537.

April 1, 1999.

Motion for Reargument Denied April 27, 1999.

Present AMESTOY , C.J., DOOLEY , MORSE , JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

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. ^FN* The United *38 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, 97 S.Ct. 911, 51 L.Ed.2d 173 (1977) (quoting Morton v. Mancari, 417 U.S. 535, 555, 94 S.Ct. 2474, 41 L.Ed.2d 290 (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 nonrecognized branch of the tribe. See id. at 86, 97 S.Ct. 911.

FN* 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, 318 Mass. 396, 62 N.E.2d 193, 197-98 (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.

Applying this rational-basis standard, at least one court has specifically upheld the exclusion of nonfederally recognized tribes under the ICWA. SeeIn re T.I.S., 224 Ill.App.3d 475, 166 Ill.Dec. 732, 586 N.E.2d 690 (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 an Indian 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., 166 Ill.Dec. 732, 586 N.E.2d at 693.

[3] 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 nonrecognized tribes does not violate the Equal Protection Clause.

Affirmed.

Vt.,1999.

In re A.J.

169 Vt. 577, 733 A.2d 36