Wakefield v. Little Light

Murphy, C. J., delivered the opinion of the Court. This appeal draws into question the power of a state court to award custody of an American Indian child to non-Indian petitioners over the objection of the child’s mother and of the Indian tribe to which she belongs, and requires an ³³⁵ examination of the jurisdictional relationships pertaining to child custody among the Indian tribes, the federal government, and the various states. The relevant facts are these: M. Brent Wakefield and his wife Wanda (the Wakefields) were assigned as VISTA volunteers to the Crow Indian Eeservation, Lodge Grass, Montana, when in March of 1972 they first observed Allie Little Light (Allie), a Crow Indian child, then three and one-half years of age, in a neglected and undernourished condition. The Wakefields learned that Allie’s father was dead, that Gail Little Light (Gail), Allie’s mother, was hospitalized in Billings, Montana, with serious injuries resulting from an automobile accident, and that Allie was left in the care of a white woman who lived on the reservation.

The Wakefields thereafter spent considerable time caring for Allie and, over the course of eight months, they frequently visited Gail in the hospital. Eventually, the Wakefields discussed with Gail the possibility of adopting Allie, a proposal which Gail refused. When their tour of VISTA service ended in late October of 1972, the Wakefields prepared to leave the reservation without Allie. On October 31, 1972, a little girl appeared at the Wakefield residence with Allie and said, “Gail says you can take him.” That afternoon the Wakefields met with Gail and requested that she give her permission in writing.

Gail did so, stating therein that the Wakefields could “take Allie with them and be responsible for him wherever they are, including out of state lines.” When Mrs. Janice Bille, a Bureau of Indian Affairs social worker, learned that Allie was to be taken off the reservation by the Wakefields, she petitioned the Crow Court of Indian Offenses (the Crow Court) to have Allie declared a neglected and dependent child and made a ward of the Crow Court. Gail joined in the petition and asked that the Wakefields “be appointed legal guardians of . . . [Allie] for a period of one (1) year.” The Crow Court (Fred Knows Gun, Sr., tribal judge) granted the petition and issued “letters of guardianship” on November 1, 1972, appointing the Wakefields as Allie’s “Special Guardians.” The ³³⁶ Wakefields appeared before the Crow Court and agreed to support the constitution of the Crow Tribe and to perform their duties as Special Guardians according to law. The Wakefields left the reservation with Allie and went to Arizona to viisit Mr. Wakefield’s parents; from there, they prepared and forwarded an “Affidavit of Consent and Waiver of Notice,” to Gail, which she executed after conferring with Mrs. Bille. This document, dated December 12, 1972, recited that Gail consented to the appointment of the Wakefields as “guardians of the estate and person of Allie . . . , a minor, pursuant to the laws of the State of Maryland or of Arizona or of any other jurisdiction that may be chosen by . . . [the Wakefields].” The document also specified that Gail waived “any notice whatsoever of any proceedings in re the guardianship of the estate and person of Allie. . . .” After leaving Arizona, the Wakefields came to Maryland with Allie in December of 1972 and took up residence.

On July 16, 1973, they filed a petition in the Circuit Court for Anne Arundel County pursuant to Maryland Code (1973 Repl. Vol.), Article 16, § 66 (now Courts & Judicial Proceedings Article, § 3-602), to obtain temporary and permanent custody of Allie. Gail was served with notice of the Maryland proceeding and obtained counsel in Montana in October of 1973. Gail telephoned the Wakefields in October and requested that they return Allie to the reservation, but the Wakefields did not do so.

In November of 1973, Gail answered the Wakefields’ petition; she requested that it be dismissed and that Allie’s custody be returned to her. The Crow Tribe of Indians thereafter sought the Court’s permission to intervene in the Maryland proceeding and it was granted. In of 1974, Gail petitioned the Crow Court to terminate the guardianship previously granted by that court to the Wakefields. Counsel for the Wakefields was notified of Gail’s petition but the Wakefields did not enter an appearance in the proceeding.

By order dated July 10, 1974, the Crow Court (Fred Knows Gun, Sr., tribal judge) terminated the Wakefields’ guardianship, granted ³³⁷ permanent custody of Allie to Gail, and ordered that the Wakefields surrender Allie to tribal officials. The order specified that Gail resided on the reservation, that the Wakefields’ special guardianship was for a period of one year only and had expired, that the special guardianship had been granted solely on account of Gail’s temporary ill health, and that Gail was now able to resume her parental responsibilities to Allie. The Wakefields’ petition for custody was heard in the Circuit Court for Anne Arundel County on July 12, 1974. Gail moved to dismiss the petition for lack of subject matter jurisdiction, contending that exclusive jurisdiction to determine Allie’s custody was vested in the Crow Court on the reservation where Allie had remained domiciled.

The chancellor reserved decision on the jurisdictional issue and heard testimony and arguments on the merits of the petition. On October 7, 1974, he dismissed the petition. After stating that “[t]he threshold question is whether this Court may act,” the chancellor concluded: “In oppressing and exploiting a subjugated people, the United States has been a jealous sovereign. In a line of cases beginning with Worcester v. Georgia, 8 L.ed. 483 (1832), the federal government has denied the states any authority over Indian Reservations, or over Indians living on Reservations, in matters where the Indians had the right to govern themselves, Williams v. Lee, 3 L.ed.

(2d) 251 (1959). And where an Indian Nation has a court as part of its government, that court’s proceedings and judgments ‘are on the same footing with proceedings and judgments of the courts of the territories of the Union, and are entitled to the same faith and credit,’ Mehlin v. Ice, 56 Fed. 12 (8th Cir. 1893), at page 19. “These rules require this Court to deny the Petitioners the relief they seek, as the Court does not comprehend that the 1931 federal statute the Petitioners cite [ 46 Stat. 1494 , An Act Relating to ³³⁸ the Adoption of Minors by the Crow Indians of Montana] enlarges this Court’s jurisdiction without some complementary state legislation, and none has been cited.” (Footnotes omitted.) The Wakefields appealed to the Court of Special Appeals. Gail filed a petition for a writ of habeas corpus to obtain Allie’s custody pending determination of the appeal, which was denied. On July 26, 1975, Gail removed Allie from Maryland without the Wakefields’ consent and returned with him to the Crow Reservation in Montana.

We granted certiorari prior to briefing or argument of the case in the Court of Special Appeals. See Code (1974) Courts and Judicial Proceedings Article § 12-203. The Wakefields contend on appeal, as they did below, that the Circuit Court for Anne Arundel County had subject matter jurisdiction to grant the petition notwithstanding Allie’s American Indian origin. They assert that state courts have jurisdiction to determine the custody of an Indian child where “significant acts or omissions” occur off the reservation.

They say that all the complexities of subject matter jurisdiction involving Indians arise fro pi transactions or incidents happening on or affecting those lands belonging to or set aside for the use of Indians or Indian tribes, but that an “off the reservation” Indian is subject to state law in exactly the same fashion as any other citizen of this State. The Wakefields point out that they are Maryland residents, that at the time of the hearing Allie had resided with them for almost 20 months, and was therefore domiciled in Maryland, and that he was brought into Maryland with full knowledge of the Crow Court and Tribe and with the express consent of the mother. In these circumstances, the Wakefields contend that no governmental interest of the Crow Tribe would be infringed if the Circuit Court for Anne Arundel County exercised subject matter jurisdiction to determine Allie’s custody. The Wakefields additionally claim that Congress expressly granted power to state courts to determine the status of Crow Indian children by enacting 46 Stat. 1494 ³³⁹ (1931); that statute, the Wakefields urge, authorizes state courts to decree adoption of Crow Indians, and necessarily includes the lesser power to grant guardianship and custody.

The Wakefields also contend that the proceeding resulting in the Crow Court’s order of July 10, 1974, was a sham specifically designed to frustrate the integrity of the Maryland court where the case had been in active litigation for almost one year. The Wakefields say that in these circumstances Gail was estopped from obtaining the Crow Court decree after having submitted herself to the jurisdiction of the Maryland court. They contend that in any event the Crow Court decree is not entitled to full faith and credit because, among other reasons, it did not involve the right of Indian self-government. Numerous other contentions based on federal and Maryland law are advanced by the Wakefields in support of their argument that the lower court had subject matter jurisdiction and therefore erred in dismissing the petition.

(1) Section 8 of Article I of the Constitution of the United States gives implicit recognition to the distinct sovereign nature of Indian tribes, and to the federal preeminence in their relationship with non-Indians; that section provides that “[t]he Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .” The early landmark decision of Worcester v. Georgia, 6 Pet. 515 , 31 U. S. 515 (1832) reinforced the principle of Indian sovereignty: “The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power. . . . The very term ‘nation,’ so generally applied to them, means ‘a people distinct from others.’ The constitution, by declaring treaties already made, as well as those to ³⁴⁰ be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently, admits their rank among those powers who are capable of making treaties. The words ‘treaty’ and ‘nation,’ are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well-understood meaning.

We have applied them to Indians, as we have applied them to the other nations of the earth; they are applied to all in the same sense.” 31 U. S. at 559 -60 In Worcester , a non-Indian residing on the Cherokee reservation was incarcerated pursuant to a Georgia law which required white persons so residing to register and swear allegiance to the state, and which authorized the enforcement of Georgia laws within the reservation. In striking down these state laws, Chief Justice Marshall sounded the keynote of federal preeminence: “The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our constitution and laws, vested in the government of the United States. “The act of the state of Georgia, under which the plaintiff in error was prosecuted is, consequently void, and the judgment a nullity.” Id. at 561 . (Emphasis added.) In United States v. Quiver, 241 U. S. 602 , 36 S. Ct. 699 , 60 L. Ed. 1196 (1917), the Supreme Court held that existing federal criminal statutes did not reach adultery committed ³⁴¹ by an Indian with another Indian on an Indian reservation.

It said: “At an early period it became the settled policy of Congress to permit the personal and domestic relations of the Indians with each other to be regulated, and offenses by one Indian against the person or property of another Indian to be dealt with, according to their tribal customs and laws.” 241 U. S. at 603-04 . In recent years, as Indians have increasingly participated in American society outside the reservation, the Supreme Court has modified the principles of Worcester and its progeny to permit states to act “where essential tribal relations were not involved and where the rights of Indians would not be jeopardized.” Williams v. Lee, 358 U. S. 217, 219-20 , 79 S. Ct. 269 , 3 L.Ed.2d 251 (1959). In Williams , the Supreme Court held that Arizona courts could not exercise jurisdiction over a civil suit by a non-Indian against an Indian, where the cause of action arose out of a commercial transaction on an Indian reservation. Writing for a unanimous Court, Justice Black said: “Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” 358 U. S. at 220 .

To like effect, see Kennerly v. District Court, 400 U. S. 423, 426-27 , 91 S. Ct. 480 , 27 L.Ed.2d 507 (1971); Kake Village v. Egan, 369 U. S. 60, 74-75 , 82 S. Ct. 562 , 7 L.Ed.2d 573 (1962). The Williams test was reexamined in McClanahan v. Arizona State Tax Commission, 411 U. S. 164 , 93 S. Ct. 1257 , 36 L.Ed.2d 129 (1973); it was there held that a state had no jurisdiction to impose a tax on the income of reservation Indians which was wholly derived from reservation sources. The Court stated: “[W]e reject the suggestion that the Williams test was meant to apply in this situation. It must be ³⁴² remembered that cases applying the Williams test have dealt principally with situations involving non-Indians. ...

In these situations, both the tribe and the State could fairly claim an interest in asserting their respective jurisdictions. The Williams test was designed to resolve this conflict by providing that the State could protect its interest up .to the point where tribal self-government would be affected.” 411U. S. at 179. The most recent expression of Indian sovereignty by the Supreme Court appears in United States v. Mazurie, 419 U. S. 544 , 95 S. Ct. 710 , 42 L.Ed.2d 706 (1975), where, in the course of upholding a delegation of congressional authority to an Indian tribe over the introduction of alcoholic beverages into Indian country, the Court said: “Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, . . . ; they are ‘a separate people' possessing ‘the power of regulating their internal and social relation. “. . . [W]hen Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life.

Clearly the distribution and use of intoxicants is just such a matter . . . .” 419 U. S. at 557 . That the federal government has carefully guarded the exercise of state civil jurisdiction over Indians is well indicated by 25 U.S.C. § 1322 (a) (1968); that statute authorizes a state, with the consent of the Indian tribe to be affected, to exercise jurisdiction over civil causes of actions between Indians, or to which Indians are parties, arising within the areas of Indian country affected by the assumption of state jurisdiction. Maryland has not enacted, ³⁴³ nor has the Crow Tribe consented to, enabling legislation in response to this federal statute, and there is no other federal law granting jurisdiction to the Maryland courts in matters involving custody of Indian children. Contrary to the Wakefields’ position, 46 Stat. 1494 (1931) entitled “An Act Relating to the Adoption of Minors by the Crow Indians of Montana,” does not grant general adoption jurisdiction over Crow tribal members to state courts.

The statute provides that in order for a person adopted by a Crow Indian to inherit from its adoptive Crow Indian parent, the adoption must occur in a state court or under tribal procedures and be approved by the chief federal official on the reservation. The Act, by its terms, is not concerned with adoptions of Crows by non-Crows. See H. Rep. No. 2604, 71st Cong., 3d Sess.

(1931); S. Rep. No. 1689, 71st Cong., 3d Sess. (1931). We think it plain that child-rearing is an “essential tribal relation” within the doctrine espoused by the Supreme Court in Williams v. Lee, supra That the Crow Tribe possesses the requisite judicial authority to protect and enforce such “essential tribal relations” is equally clear.

The 1868 Treaty of Fort Laramie ( 15 Stat. 649 ) — the last and the most important treaty between the United States and the Crow Tribe — provided in Article II for a Crow Indian Reservation “for the absolute and undisturbed use and occupation” of the Crow Tribe, which it described as a “territory of the United States.” Article II also affirmed the power of the Crow Tribe to govern Indians living on the reservation. The only restrictions on its powers of self-government agreed to by the Crow Tribe were contained in Article VI authorizing the United States to pass laws “on all subjects connected with the government of the Indians on said reservations Prior to its adoption in 1949 of a written constitution and bylaws pursuant to the Indian Reorganization Act, 48 Stat. 984 (1934), the Crow Tribe consented to the establishment of a two-tier court system as authorized by 25 Code of Federal Regulations, Part 11. See 25 U.S.C. §§ 476-79 (1934); 25 U.S.C. § 2 (1868). The Crow Court of Indian Offenses functions as a trial court