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(Cite
as: 224 Ill.App.3d 475, 586 N.E.2d 690, 166 Ill.Dec. 732)
Appellate
Court of Illinois,
First
District, Fourth Division.
In
the Matter of the Petition to Adopt T.I.S., a minor.
No.
1-90-3357.
Dec.
31, 1991.
Exclusion
of the West Bay Band of Chippewa Indians, which was
based in Canada, from the definition "Indian tribe" under the
Indian Child Welfare Act did not violate equal protection; classification
was based on Indian tribe's eligibility for Department of Interior
Services and reflected the unique relationship between the United States
government and tribes located within U.S. boundaries. Indian Child Welfare
Act of 1978, § 2(4),
25 U.S.C.A. § 1901(4);
U.S.C.A. Const.Amend. 14.
Argument
not made to the trial court was waived on appeal.
Biological
parent had the burden to prove that the Indian tribe
of which she was a member fell within eligibility requirements
of the Department of the Interior for Indian Child Welfare
Act protection, and thus her acknowledgement that Canadian based tribe
was ineligible for services from Department of Interior waived issue
of whether tribe was eligible for services under treaties in
which the tribe allegedly had a successor interest. Indian Child
Welfare Act of 1978, § 2
et seq., 25 U.S.C.A. § 1901
et seq.
**691
***733
Richard B. Kapnick and Mark B. Blocker, of Sidley &
Austin, Chicago, for petitioner-appellant.
Thomas P. Hanrahan, Chicago, for appellees.
Steven Paul McSloy and William Y. Chan, of Cravath, Swaine
& Moore, New York City, amicus curiae.
Justice McMORROW delivered the opinion of the court:
W.S., the biological mother of T.I.S., a minor, appeals from
the trial court's refusal to set aside her consent to
the child's adoption by R.W. and E.W. W.S. argued that
her consent to the adoption was invalid, because she did
not execute the consent form before a judge, as required
under the Indian Child Welfare Act (hereinafter the ICWA). (25
U.S.C. § 1901
et
seq.
(1978).)
The trial court determined that the ICWA was not applicable
to W.S.'s consent to adoption of the child, because the
Indian tribe of which W.S. is a member is not
an "Indian tribe" under the definition of that term as
stated in the ICWA. See 25 U.S.C. § 1903(8)
(1978).
On appeal, W.S. argues that the trial court's refusal to
apply the ICWA to the tribe of which she is
a member violates the equal protection clause of the fourteenth
amendment to the United States Constitution. (U.S. Const., amend. XIV.)
In an amicus
curiae
brief, the Indian tribe of which W.S. is a member
claims that it is an "Indian tribe" under the ICWA.
We conclude that the exclusion of W.S.'s tribe from the
requirements of the ICWA does not violate equal protection. We
also conclude that the argument of amicus
is waived on appeal. Accordingly, we affirm the trial court's
judgment in the instant cause.
*477
The record reveals the following pertinent facts. W.S. gave birth
to a baby boy, T.I.S., in November 1989 and agreed
to place him for adoption in the home of R.W.
and E.W. On January 29, 1990, W.S. signed a final
consent to adoption form in the offices of the Department
of Supportive Services of the circuit court of Cook County,
and R.W. and E.W. filed a petition to adopt T.I.S.
On the same day, the trial court entered an order
that acknowledged W.S.'s final consent to the minor's adoption, terminated
W.S.'s parental rights in the child, made T.I.S. a ward
of the court, and granted temporary custody of the
child to the adoptive parents, R.W. and E.W.
In July 1990, W.S. filed a petition to vacate her
consent to adoption of T.I.S. In this petition, W.S. alleged
that she is a member of the Chippewa Indian tribe.
W.S. claimed that as an American Indian, her consent to
adoption had to be obtained before a judge in accordance
with the ICWA. (25 U.S.C. § 1913
(1978).) R.W. and E.W., the adoptive parents, filed a motion
to dismiss W.S.'s petition to vacate, arguing that W.S. is
a member of the West Bay Band (Chippewa) tribe, which
is not an "Indian tribe" under the ICWA.
Following briefing and argument, the trial court granted the adoptive
parents' motion to dismiss W.S.'s petition to vacate. A day
later, the trial court entered a final order of adoption.
W.S. appeals.
**692
***734
W.S. challenges the constitutionality of the definition of "Indian tribe"
under the ICWA as applied to the tribe of which
she is a member. On appeal, W.S. acknowledges that she
is a member of the West Bay Band Indian tribe,
located in Canada.
The ICWA was enacted in order to redress the evils
associated with Indian children being taken from their families and
placed in non-Indian homes. (Mississippi
Band of Choctaw Indians v. Holyfield
(1989), 490 U.S. 30, 32- 34, 109 S.Ct. 1597, 1600,
104 L.Ed.2d 29, 36.) This separation deprived the children of
their cultural heritage and interfered with the tribes' function as
autonomous communities. (Mississippi
Band of Choctaw Indians,
490 U.S. at 34-36,
109 S.Ct. at 1600-01, 104 L.Ed.2d at 37-38.) The ICWA
specifically incorporates these concerns into the expression of Congressional findings
embodied therein. 25 U.S.C. § 1901
(1978).
The ICWA sets forth particular procedures for the removal of
an Indian child from his or her family, including the
requirement that a biological mother's voluntary consent to adoption be
obtained before a judge. (25 U.S.C. § 1913
(1978).) In order to apply the terms of the ICWA,
the child whose placement is at issue must *478
be an "Indian child." (See In
re Stiarwalt
(1989), 190 Ill.App.3d 547, 137 Ill.Dec. 420, 546 N.E.2d 44.)
Under the ICWA, an Indian child is defined as "any
unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe." (25
U.S.C. § 1903(4)
(1978).) In addition, an "Indian tribe" is defined as follows:
"any
Indian tribe, band, nation, or other organized group or community
of Indians recognized as eligible for the services provided to
Indians by the Secretary [of the Interior] because of their
status as Indians, including any Alaska Native village * *
*." 25 U.S.C. § 1903(8)
(1978).
W.S. asserts that this definition, as applied in the instant
cause, creates an impermissible classification based upon national origin. According
to W.S., although the ICWA ostensibly applies to all Indian
citizens, section 1903(8) treats
her differently simply because her tribe, the West Bay Band,
is now located in Canada. W.S. claims that the circuit
court's failure to apply the Act to her tribe is
particularly irrational given the fact that the tribe originated in
the United States and relocated to Canada only after the
United States government "forced" the tribe off U.S. land in
1836. W.S. also observes that to deny her the benefits
of the ICWA illogically contradicts the Act's stated purpose of
preventing the destruction of Indian families and the separation of
Indian children from their parents.
We are unable to conclude that
the ICWA's definition of "Indian tribe" constitutes an impermissible
classification based upon national origin. The ICWA applies
when the child is or may be enrolled as a member of an Indian tribe that
is eligible for the services of the Department of the Interior. The
classification based upon the Indian tribe's eligibility for Department
of Interior services reflects the unique relationship between the United
States government and Indian tribes located within the boundaries of this
country. The United States Supreme Court has repeatedly upheld classifications
designed to preserve this relationship. (E.g.,
Washington v. Confederated Bands and Tribes of the Takima Indian Nation
(1979), 439 U.S. 463, 99 S.Ct. 740, 58 L.Ed.2d 740; Delaware
Tribal Business Committee v. Weeks
(1977), 430 U.S. 73, 97 S.Ct. 911, 51 L.Ed.2d 173; United
States v. Antelope
(1977), 430 U.S. 641, 97 S.Ct. 1395, 51 L.Ed.2d 701; Fisher
v. District Court (1976),
424
U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106.) As *479
the court stated in Morton
v. Mancari (1974),
417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290:
"Literally
every piece of legislation dealing with Indian tribes and reservations,
and certainly all legislation dealing with the [Bureau of Indian
Affairs], single out for special treatment a constituency of tribal
Indians living on or near reservations [in the United States].
If these laws, derived from historical relationships and explicitly designed
to help **693
***735
only Indians, were deemed invidious racial discrimination, an entire Title
of the United States Code (25 USC) would be effectively
erased and the solemn commitment of the Government toward the
Indians would be jeopardized." 417 U.S. at 552, 94 S.Ct.
at 2483-84, 41 L.Ed.2d at 302.
Based upon this reasoning, the Supreme Court in Morton
concluded that "[a]s long as the special treatment can be
tied rationally to the fulfillment of Congress' unique obligation toward
the Indians, such legislative judgments will not be disturbed." 417
U.S. at 555, 94 S.Ct. at 2485, 41 L.Ed.2d at
303.
In the instant cause, the ICWA's classification is reasonably connected
to preserving the family unit of those having membership in
American Indian tribes located in the United States, and in
guarding against the removal of Indian children from their families
within the United States in order to place those children
in non-Indian families. (See 25 U.S.C. § 1901(4)
(Congressional finding that ICWA passed in order to respond to
circumstance that "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 * * *).)" W.S. has acknowledged that
the West Bay Band is not eligible for services of
the Department of the Interior, and that the tribe is
not located in the United States. Thus, the instant record
does not reveal that W.S. is 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. We cannot say that the failure
to apply the provision of the ICWA to the case
at bar violates the equal protection clause of the United
States Constitution. See In
re Armell
(1990), 194 Ill.App.3d 31, 42-43, 141 Ill.Dec. 14, 550 N.E.2d
1060.
In an amicus
curiae
brief, the West Bay Band acknowledges that it is not
presently eligible for services provided by the Department of Interior,
and that it is not classified as eligible to receive
such benefits from the Department. (See Fed. Register 52829-32 *480
(Dec. 29, 1988) (listing of Indian tribes eligible for services
of Department of Interior).) Amicus
claims that the West Bay Band would be eligible for
services provided by the United States Department of the Interior
if it were to apply for such eligibility (see 25
C.F.R. Part 83 (1991) (procedures for establishing American Indian tribe's
eligibility for services from Department of Interior)), particularly in view
of the treaties between the United States and Indian tribes
to which the West Bay Band allegedly has a successor
interest. (See, e.g.,
Treaty of Amity, Commerce and Navigation between the United States
and Great Britain, 8 Stat. 116 (1794) (Jay Treaty); Explanatory
Article to the Jay Treaty, 8 Stat. 130 (1796); Treaty
of Peace and Amity between the United States and Great
Britain, 8 Stat. 218 (1814); Articles of a Treaty between
the United States and the Ottawa and Chippewa Nations, 7
Stat. 491 (1836).) On this basis, amicus
contends that the West Bay Band falls within the definition
of "Indian tribe" under the ICWA.
This argument was not made to
the trial court, however, and is therefore waived on appeal. (See
Greer v. Illinois Housing
Development Authority
(1988), 122 Ill.2d 462, 508-09, 120 Ill.Dec. 531, 524 N.E.2d 561.) Moreover,
whether an Indian tribe is recognized as eligible for services from the
Department is a question of fact, and it is the biological parent's burden
to prove that the Indian tribe of which she is a member falls within the
eligibility requirements of the Department. (In
re Stiarwalt, 190 Ill.App.3d
at 552, 137 Ill.Dec. 420, 546 N.E.2d 44.) Because the biological
mother in the instant cause has acknowledged the West Bay Band's ineligibility
for services from the Department of the Interior, we decline to address
the argument of amicus
upon review.
For the reasons stated, the judgment of the circuit court
of Cook County is affirmed.
AFFIRMED.
LINN and JOHNSON, JJ., concur.
224 Ill.App.3d 475, 586 N.E.2d 690, 166 Ill.Dec. 732
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