- __ I __~_. .~

Z28 :Md. 347 ATLANTIC RBPORTER, 2d SERIES

INational In' National Indian Law Library

I

NILL No. ~ NILLNo. 002319~--~-'------"'l

\/9 7 'S"/f!3

-'lote need not 4ecidewhetherinterferencewith an accusec.'s right to counsel.may beharrnlesscollstitutional error, or whetherthe rightto counsel is one'ofthose,·flconsti­tut1c'mal rights sobas-ic to a ,fair: trial thattheir infraction can never be. treo.tedasharrrtl~ss error." Chapman" v.. CaUfo'TniaJ

386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 24i\.L.R.3d 1065, rehearing denicdJ

386 U.s. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241(1967). No one spoke for appellee at anystage of the trial. Thus, there is no wayof kno\ving whether there was weakness inthe state's case or ,·{hether appellee had aperfect defense to -the crimes charged. Cf.Yopps v. State, 228 Md. 204; 178 A.2d 879(1962). In the face of a record in such astate, we cannot say that. the error washarmless beyondil reasonable doubt.

htdgllwlI of tlte COllrt of Special Ap­peals .affirmed; costs to be paid by Cecil

COltnt:y.

M.Brcnt WtH<.ZFtELD et ex.

-',,:'-Gall LITTLE LIGHT, oto.. ot al.

No.5.

l'rocccflillg" was brought by petitionersto ollt:\ill !'llstody of Ind:,lT1 child. TheCircuit Court for AUlle i\rumlcl COUlIty,J:11111"; I .. \Vra,v, J.o di:'lllis~;ell111."litioll, :mdtlic (")1!!I' ',f f:11"';II" 1:"1'<t1llt-cl t"ITtiorari

lJrilJI h j,!;,'~itl;'. III :trr',lllllvlIt ill ('tlllrl of

~:l,n:i.d '\!.'1" .t!. Th,.: ( '1IIlft 1'( Appl·;th,

.\1uq,:,j'. '", .l.r ). 'd lii;\L j\lri:"~idi,,n OVt.:r

lIJ(liail ,,',,\i\ f ,'1' .:'!'''~II,;.\:, nf (,:U:,t\l<!y l'cti­

ti{JiI ':".'1 "'!':fllll1!l;rl on b:\',is of

child's d.omicile, "that domici1e of- Indianchild who. had been living in Marylandwith petitioners for approximately,., 20months under guardianship of Erniteddu..;ration remained in Ivlontanareservationwhere mother lived, and that exclusive ju­risdiction over his custody, was vested, ·inthe Crow Court of Indian Offenses. '.

Affirmed.

I. Indians C=>27(2)

In- absence of enactment by }.-farylandof enabling' legislation in, response to· fed­eral. statute authoriz-ingstateJ with consentof affected Indian ;tribes, to exerc1se' juris~diction over civil. causes of actions beN,reenIndians, or, to which Indians are' parties,-arising' within areas of Indian country af,;.fectedby 'asst1mptior. of state jurisdiction,and consent of affected Indian tribes, nofederal la\'/ existed which granted jurisdic­tiOrito Ivlaryland courts in matters involv­ing custody .of Indian ~hildren. CivilRights Act of 1968, § 402(a), 42 U.S.c.A.§ 1322(a).

2. Indians C=>27(2)

Statute entitled 1IAn Act Relating tothe Adoption of Minors by the Crow Indi­ans of Montana" docs not grant gencraladoption jurisdiction over' Crow tribalmcmh\?·r.s· to,.statc.. COl1rts" J.mt.PJ9yi4~~ .. !~_atin order for pcr$Ous adopted hy Crow Indi- .an to itlherit from its aJoi.1tive Crow Imli­an parcnt, adoption must occur in statccourt or \tuder· tribal l)focedurcs amI bc ap~

proved by chief fcderal official on rCSCrV~l­

tion. Act of Morell 3, 1931, 46 Stat. 149-1.

3. lndlnns C=::J.32

Child rcarin~ is an "essential tribalfunction," within purview of doctrinc pcr~

miltillg' states tu ;lct Whl'I'C essential trihatrc1atiol\:-> are not 11lvdVCtl and where rightsof IIHli:lIl~ WOIlhl Hut be jeoparttizcll, whichCrow t riht• Pll'i~;t'::St.'S n:qtli~;ill~ judicial a\1;­

thority tll prlllt'd awl t'oforcc throlll~h tir­tlen·; rc"pl'di1l1~ l:ll;U"lti:tll~;hi{l or cllstotly of

Crow childrell. Trv:dy with the Crow 111­llians, 15 Stat G·P); 25 U.S.CA..§§ 2, 4iG--

\ 4i9; 'Ch-:~;R;

U.S.C.A. § 13

Sce"pul,for·'ot!li~~

definition~.

4. Indlar:·.s e=:

Althougon exercisewhere esser-.valved ane :dized, o'r w}.'"on right;dtheir ~wn.lc.,

gene'ral pro!,selves outs~·

same rights·sui!jectto j,.same manTIcstalecitizel1'

5. Indians c::In vie\',".

Indian Off,tion over ::tioner's' spe,of limited·st3.te courtover Cl15!O{:

child's til)!!

18-1-207.

6. DomlcHe.

-- Domic'.~,.

:yarcnt wit1·

7. Dom!clle

IndlO1.ns i

been Ii\'ill;:20 Tllo!\!h:'g-uan!ian:;!;in t\tO!\t;\·

lived, .\\l(~

hi~ custod'.of Imli;ul I

19·I·-2l17~

n. Parol;', .'

Mdh:hrlJll~~hl ·1

WAI{EFIELD v. LITTEE: LIGHT Md, 229

MURPHY, Chief Judge.

John G. Gill, Jr., Rockville, for appel­lants.

10. Indians ~32

Where Indian child's domicile re­mained within boundaries of Crow Indianreservation in Montana and exclusive j u­risdiction over his custody was in theCrow Court of Indian Offenses, t:ircuitcourt correctly chose not to exercise sub­ject matter jurisdiction over petition forcustody of such child.

Elloyd Eroid Lotridge, Baltimore, LegalAid Bnreau, I nco (John C. Eidleman, An­napolis, on the brief) for Gail Little Light,etc. and others, part of -appellees.

Bertram E. Hirsch, New York City, forCrow Tribe of Indians, other appellee.

Argued before MURPHY, C. J., andSINGLEY, SMITH, DIGGES, LEVINE,ELDRIDGE:and()'J)OJol~.E:LI"JJ~.

9. Courts e:=>24

Mother of Indian child could not hy'consent confer subject matter jurisdictionon state court to entertain petition for cus­tody of child.

This appeal draws into question the powerof a state court to award custody of anAmerican Indian child to non-Indian peti­tioners over the objection of the child'smother and of the Indian tdbe to whichshe belongs, and requires an examinationof the jurisdictional relationships pertain­ing to child custody among the Indian

child is that of

Cit.£! n>4 3.J7 A.2d 22.<1

-Ji9; Civil Rig'hts Act of 1968, § 402(c), 42 custody of illdian child approximafely twoV.S.C.A. § 1322(c). weeks after expirafioll of lrill:tl decrec

::l.,c IJUhliearioll WOI"clH nnd PhrmWH which had granted special Rllardian~;hiJl offOl' other juclicinl eOllSlrueUOIl1'l nllil child to petitioners, and whose actions atdefinitions, 110 time could have l,ccn construcd :.s

evincing settled purpose to relinquish allparental claims to child, did not abandonchild.

4. Indians <$=027(2)

Although restrictions have been placedon exercise of state jurisdiction in areaswhere essential tribal relations are in­volved and tribal rights would be jeopar­dized, or where state action would infringeon right of reservation - Indians to maketheir own laws and be ruled by them, as ageneral proposition Indians who find them­selves outside' the reservation have thesame rights and responsibilities, and aresubject to jurisdiction of state courts insame manner and to same extent as otherstate citizens.

5. Indlans ~32

In view of facts that Crow Court ofIndian Offenses had continuing jurisdic­tion 'over Indian --child's custody, and peti­tioners' special guardianship over child wasof limited duration, determination whetherstate court had subject matter jurisdictionover custody petition was made on basis ofchild's domicile. Code 1957, art. 16, §§184-207,

6. Dom iclle ~5

Domicile of a minorparent with whom he lives.

8. Parent and Child <$=02(3.7)

Mother, who intervened in proceedingbronght 'by petitioners in Maryland fpr

7. Domicile ~5

Indians ~32

Domicile of Indian child, who hadbeen living in Maryland for approximately

" 2:0..months.._with ..-pet~ tJoneI'S- --under-- 'special ~

guardianship of limited duration, remainedin Montana reservation where motherlived, and thus' exclusive jurisdiction overhis custody was vested in the Crow- Courtof Indian Offenses. Code 1957, art. 16, §§184-207.

IIi

I

, i

an "essential tribal,iew of doctrine per·Nhcl'c essentiai trib·alved and where rightsbe jeopardized, whichrequisite judicial au­. enforce through or·ianship or custody. ofIy with the Crow In­; U.S.C.A. §§ Z, 476-

An Act Relating tocs by the Crow lndi­5 not grant general

Q.ver. Crow tribalrts but provides thatlopted by Crow Indi- ' \adoptive Crow Indi- .must occur in stateIrocedures and be ap-~l official on reserva-" 1931, 46 Stat. 1494.

:tment by Marylandin response to fed-

r state, with consent~s, to exercise juris­s of actions betweenIndians are parties,t Indian country af­)f state jurisdiction,~d Indian tribes, noich gr.anted jurisdic­:s in matters involv­an children. Civil402(a), 42 U.S.c.A.

domicile of Indianliving in Maryland

:lpproximll.tc1y 20lship of limited du­lantana reservation.d that exclusive ju­.tody was vested intn Offenses.

230 .Md. 347 ATLANTIC REPORTER, 2d SERIES

tribes, the fcderitl government, and thevarious states.

The relevant facts are these: M. BrentWakefield and his wife Wanda (theWakefields) were assigned as VISTA vol­unteers to the Crow Indian Reservation,Lodge Grass, :Montana, when in March of1972 they first observed Allie Little Light(Allie), a .Crow Indian child, then threeand onc,-half years of age, in a neglectedand undernourished condition. The Wake­fields learned that Allie's father was deadthat Gail Little Light (Gail), Anie's moth:er, was hospitalized in Billings, Montana,with serious injuries resulting from an au­tomobile accident, and that Allie was leftin the care of a white ..woman who lived onthe reservation. The Wakefields thereaf­ter spent considerahle time caring for AllieamJ, over the course of eight months, theyfrequently vi:·;jtcd Gail in the hospital.Eventually, the Wakefields discussed withGail the possibility of adopting Allie, aproposal which Gail refused.

\\'hen their tour of VISTA service end­ed in late October of 1972, the Wakefieldsprepared to leave the reservation withoutAllie. On October 31, 1972, a little girlapp~ared at the Vvakcfield residence withAllie and said, "Gail says )'011 can takehim." That afternoon the Wake fields metWith,G~il'l,n.d ",rt:;g\l¢s.t~(L th(~t ,!?h~ "giye" lu~r

permission in writing. Gail did so, statingtherein that the Wak~fields could {(take Al­lie with them and be responsible for himwherever they are, including ont of statelin<.:s."

vVhen Mrs. Janice Bille, a Bureau of In­dian Affairs social worker, learned thatAllie was to bc taken off the reservationby thc Wakefields, she petitioncd the CrowCourt of Indian Offenses (the CrowCourt) to have Allie declared a neglcctedand dependent child and made a ward ofthe Crow Court. Gail joined in the peti­tioll ,-lnd asked that the Wakefields "be ap­IJointcd leg-al guardians of . [Allie]frJr a period of onc (1) year." The CrowCourt (Fn.:d Knows Gun, Sr., tribal judge)

granted the petition and ,issued "letters ofguardianship" on November 1, 1972, ap­pointing the \iVakefields as Allie's "SpecialGuardians." The Wake fields appeared be­fore the- Crow Court· and agreed to support

· the constitution of the Crow Tribe and toperform their duties as .Special Guardiansaccording to law.

The \"'lakdields left the reservatipn withAllie and went to Arizona to visit Mr.

· Wakefield's parents; from there, they pre­p~red and forwarded an "Affidavit ofConsent and Waiver of Notice," to Gail,which she executed after conferring with

, Mrs. Bille. This document, dated Decem-, ber 12, 1972, recited that Gail consented to

the appointment of the Wakefields : 'as· Hguardians of the estate and person of Al­

lie " a minor, pursuant to the lawsof the State' of Maryland or of Ari~oni~ orof any other jurisdiction that may be ~ho­

sen by [the Wakefields]." Thedocument also specified that Gail waived"ani-notice whatsoever of any proceedipgsin re the guardianship of the estate andperson of Allie .'. . ."

After leaving Arizona, the Wakefields'came to Maryland with Allie in Decemberof 1972 and took up residence. On July16, 1973, they filed a petition in the CircuitCourt for Anne Arundel County pursuant toMaryland Code (1973 Repl.Vol.) Article16, § 66 (now Courts & Judicial· Proeeed~ings Article, § 3--602), to obtain temporaryand permanent custody of Allie. Gail wasserved with notice of the Maryland pro~

ceeding and obtained counsel in Montanain October of 1973. Gail telephoned theWake fields in October and requested thatthey return Allie to the reservation, but the'Wakefields did not do so. In Novemberof 1973, Gail answered the Wakefields' pe­titian; she requested that it be dismissedand that Allie's custody be returned to her.The Crow Tribe of Indians thereaftersought-the COlIri's permission. to intervenein the Maryland proceeding and it ,~'asgranted.

In June of 1974, Gail petitioned theCrow Court to terminate the guardianship

prevWa~

wasWa~

the1974Sr.,fieldCllstcthe'ficiasidecfieldad athe!soleI:heaItsum~

TlhC<lfidol (

to dmattsivedy ,­reselicilc<the jandtion.petitoldact,"

gaabe,P,gothelUI

tergoU.( I'hath,'ar

in~

M,1. 231

to the same faith and credit,' Mchhn 'u,fcc, 56 Fed. 12 (8th Cir. 189.1), at page19.

"T'hese rules require this Court todeny the Petitioners the r~licf they seck,as the Conrt docs not comprehend thatthe 1931 ·federal statute the Petitionerscite [46 Stat. 1494, An Act Relating to

. the Adoption of Minors by the Crow In­dians of Montana] enlarges this Court'sjllri~diction wit11011t :-;OI11C complcment,,1rysta:e_ legislation, and none has been cit­ed." (Footnotes omitted.)

The Wakefields appealed to the Court ofSpecial :Appeals. Gail filed a petition fora writ of habeas corpus to obtain Allie'scustody pending determination of the ap­peal, which was denied. On July 26, 1975,Gail removed Allie from Maryland withoutthe Wake fields' consent and returned withhim to the Crow Reservation in Montana.We granted certiorari prior to brie£ing orargument of the case in the Court of Spe­cial Appeals. Sce Code (1974) Courts andJudicial Proceedings Article § 12-203.

Cite 1l:-1 :H't A,ttl 228

WAKEFIELD v. LITTLE LIGHT

The Wakefields' petition for custody washeard in the Circuit Court for Anne Arun­del County on July 12, 1974. Gail movedto dismis~ the petition for lack of sl~bject

matter jurisdiction, contending that exclu­sive jurisdiction to determine Allie's custo­dy was vested in the Crow Court on thereservation where Allie had' remained dom­iciled. The chancellor reserved decision onthe jurisdictional issue and heard testimonyand arguments on the merits' of the peti­tion. On October i, 1974, he dismissed thepetition. After stating that "[t]he thresh-.old question is whether this Court mayact," the chancellor concluded:

previously granted hy that court to theWakcfic1ds. COUllSel for the Wake fieldswas notified of Gail's petition hut, the\,yal~efic1ds did not enter an appearance inthe proceeding. By order dated July 10,19i4,' the Crow Court (Fred Knows Gun,Sr" tribal jtldge) terminated the Wake­fields' gllardianship, granted permanentcustody of Allie to Gail, and ordered thatthe Wakefields surrender Allie to tribal of­ficials', The order specified that Gail re­~icled Oil the reservation, that the vVake­fields' special guardianship was for a peri­od of one year only and had expired, thatthe special guardianship had been grantedsolely on account of Gail's temporary illhealth, and that Gail was now able to re­sume 'her pa~ental responsibilities to Allie.

The Wakefields contend on appeal, asthey did below, that the Circuit Court forAnne Arund~l County had subject matterjurisdiction to grant the petition notwith­standing Allie's American. Indian' origin.They assert that state courts have jurisdic­tion-to determine the custody of an Indian

"In oppressing and exploiting a subju- child where "significant acts or omissions"gated people,. the United States has been occur off the reservation. They say thata- jealous sovereign. In a line of cases allthe complexities of subject matter juris­beginning with Worcester v. Georgia} [6 diction involving Indians arise from trans-Pet. 515,] 8 L.Ed. 483 (1832), the federal actions or incidents happening on or af-government has denied the'states any au- fecting those lands belonging to or setthority over Indian Reservations, or over aside for the use of Indians or Indian

--- :_~-- -1ndi-ans--living" on- 'Reservationsj"'--ill-'mat- - ., tribesr-bl1t..-tha-t·an'~'~off -the·-resCfvation~!- In-·ters where the ~Jl(lians had the right to dian is subject to state law 1n exactly thegovern themselves, iFiIliallls 'll. Lee, [358 sallle fa~hion as any other citizen of thisU.S. 217, 79 S.Ct. 269,] 3 L.Ed. (2d) 251 State. The Wakefield, point out that they(1959). And where an Indian Nation are Maryland residents, that at the time ofhas a court as part of its government, the hearing Allie had resided with themthat court's proceedings and- judgments for almost 20 months, and was thereforelare on the same footing with proceed- domiciled in Maryland, and that he wasings and judgments of the courts of the brOltght into Maryland with full knowledgeterritories of the Union, and- are entitled of the Crow Court and Tribe and with the

i\I

IIi

i\

I\ '

d "letters ofI, 1972, ap­lie's «Specialappeared be­ed to supportTribe and toial Guardians

the WakefielMlie in Decemberlence, On Jnly>n in the Circuitunty pursuant topl.Vol.) Articleuclidal Proceed­)btain temporaryAilie. Gail was

~ Maryland pro­nse! in MontanaI telephoned theId requested that ..

5_~LV"~ti9~LP~.~ ...~?~"). In Novemberc Wakefields' pe-t it be dismissede returned to her.ldians thereafter;sion. to interv~ne

ding. and it was

Lit petitioned thethe guardianship

servation with

lto visit Mr.; ere, they pl'e­'''Affidavit of,tice/' to Gail,)nferdng withdated Decem-

il consented toWakefields asI person of Al­lOt to the laws. of Arizona orat may be cho­efields]," The.at Gail waivedmy proceedingsthe estate and

_~i'''''~S;''F'''''''' ..... .... ......... _,.,"'" t. " . 'to'" • t* _

232 Md. 847 ATLANTIC REPORTER, 2d SERIES

express consent of the mother. In these. circumstances, the Wake fields contend that

no governmental interest of the CrowTribe would be infringed if the CircuitCourt for Anne Arundel _County exercisedsubject matter jurisdiction -. to determineAIJie's custody.

.The Wakefields additionally claim thatCongress expressly granted power to statecourts to determine the status of Crow In­dian children hy enacting 46 Stat. 1494(1931); that statute, the Wakefields urge,authorizes .state courts to decree adoptionof Crow Indians, and necessarily includesthe Jesser power to grant guardianship andcustody.

The Wakefields also contend that theproceeding- resulting in the Crow Court'sorder of July 10, 1974, was a sham specifi­calIy designed to frustrate the integrity, ofthe Maryland court where the case had .been in active litigation for almost oneyear. Tire Wakefields say that in thesecircumstances Gail was estopped from ob­taining the Crow Court decree after hav­ing submitted hersel f ·to the jurisdiction ofthe Maryland court. They eontend that inany event the Crow Court decree is not en­titled to full faith and credit because,among other reasons, it did not involve theright of Indian self-government. Numer­ous other contentions based on federal andMaryland law are advanced by the Wake­fields in support of their argument th<J,t thelower' c:ourthad sllhject matter jurisdictionand therefore erred in dismissing the peti­tion.

(1)

Sectioll R 01 Artidc I of th~ C()lI~liltllillll

of t1w l1nitt't1 StilleI'! g-iv('s ifllplicit rccogni­tion to the distinct sovereign nature of J11­

dian tribes, and to the federal preeminencein their relationship with non-Indians;that section provides that j'[tJhe Congressshall have Power . ~ • To regulateCommerce with foreign Nations, andamong the several States, and with the Indi­an Tribes • • • ." The early landmark

decision of Worcester v. Georgia, 6 Pet.515, 31 U.S. 515,8 L.Ed. 483 (1832) rein­forced the principle of Indian sovereignty:

liThe Indian nations had always beenconsidered as distinct, independent politi~

cal communities, retaining their originalnatural rights, as the undisputed posses:­sors of~the soil from time immemorial,with the single exception of that imposedby irresistible power. . . . The veryterm 'nation,' so generally applied tothem, means 'a people distinct from oth­ers.' The constitution, by declaring trea­ties already made, as weB as those to bemade. to be the supreme law of the land,has adopted and sanctioned the previoustreaties with the Indian nations, and con­sequently, admits their rank among thosepowers who are capable of making trea­ties. The words 'treaty' and 'nation,' arewords of our own language, selected inour diplomatic and legislative proceed­ings, by ourselves, having each a definiteand well-understood meaning. We haveapplied them to Indians, as we hav~ ap­

plied them to the other nations of theearth j they are applied t~ all in the ~amesense."31 U.S. at 559-60.

In Worcester. a non-Indian residing- on theCherokee reservation was incarcerated pur­suant to a Georgia law which requiredwhite- persons so residing to register andsw.ear aJlegiance to the state. and whichauthorized the en forcement of GeorgiaJaws within the reservation. In strikingdown these state laws, Chief Justice Mar­shall sounded the keynote of federalpreeminence:

"Th(' ('ht'rol~l't' Ilalipll, IlIt'll, is II tlislind

t~Olll11lll11il)', on'lIpyillg' il:i OWli krritory,with IJOlIIhlaries accurately described, inwhich the laws of Georgia can have noforce, and which the citizens of Georgiahave no' right to enter, but with the as­sent of the Cherokees themselves or inconformity with treaties and with theacts of Congress. The whole intercourse'between tlte United Stales and this 1la-

lionvcstelStat"

"Ttder ,proseljudgnld. al

In Unit36 S.C!.premecriminalcommittan on aT

"At

tied Ipers01India!and· 0

perserbe de,custon36 S.C

In fecingly paside thehas moeand its"whereinvolvedwould n

Lee, 35!270, 3 Ithe SUIcourts Cl

a civil 51

dian, whof a ("011

ITSt'f\,al i('ollrt, ./1:

,jEssen

COllgnwhetherighttheir c358 lJ.~

To likeCOllrt, 4(

)47 J

WAKEFIELD v. LITTLE LIGH', Md. 233Cite nR 347 A.2d 228

tio" is, by o"r co"stit"tio" a"d laws, 27 L.Ed.2d 507 (1971); Kake Village v.vested i" the gover"",,,,t of the U"ited Ega", 369 U.s. 60, 74-75, 82 S.Ct. 562, 7States. L.Ed.2eJ 573 (1962).

Georgia, 6 Pet.4~.1 (18.12) rcju­lian sovereignty:

had always beendependent politi­19 their originalldisputed posses­ime immemorial,~ of that imposed, .. Thc vcryrally applied toistinct from oth~

ly declaring trea­ell as those to be: law of the land.,ned the _previotlsnations, and con­'ank among those, of making trea­, and 'nation,' are:uage, selected in:islative proceed­19 cach a definiteaIling. We have" as we have ap­r, nations of theto all in the same,

.n residing on theincarcerated pur-

which required~ to register andstate, and whichlent of Georgia:ion. In strikinghie! Justice Mar­note 0 f federal

then, is a distinctirs--·own-territory;:tely described, inrgia can have notizens of Georgiabut with the as­themselves or in.es and with thewhole intercourseates and this na~

II

"The act of the state of Georgia, un­der which the plaintiff in error wasprosecuted is, consequently void, and thejudgment a nul1ity."[d. at 561. (Emphasis added.)

In U"ited States v. Qltiver, 241 U.S. 602,36 S.Ct. 699, 60 L.Ed. 1196 (1917), the Su­preme Court held that existing federalcriminal statutes did" not reach adulterycommitted by an Indian with another Indi~ ..an on an Indian reservation. It said:

"At an early period it became the set­tled policy of Congress to permit thepersonal and domestic relations of theIndians with each other to be regulated,and offenses by one Indian against theperson or property of another Indian tobe dealt with, according to their tribalcustoms and laws." 241 U.S. at 603-04,36 S.Ct. at 700.

In recent years, as Indians have increas­ingly par~icipated in American society out­side the reservation, the Supreme Courthas modified the principles of Worcesterand its progeny to permit st~tes to actuwhere essential tribal relations were notinvolved and where the rights of Indianswould not be jeopardized." Williams v.Lee, 358 U.S. 217, 219-20, 79 S.Ct. 269,270, 3 L.Ed.2d 251 (1959). In Williams,the Supreme Court held that Arizonacoutts could not exercise jurisdiction overacivil·suit by a non-Indian against an In~

dian, where the cause of action arose outof a commercial transaction on an Indianreservation. Writing for a unanimousCourt, Justice Black said: -

"Essentially, absent. governing Acts ofCongress, the question has always beenwhether the state action infringed on theright of reservation Indians to maketheir own laws and be ruled by them."358 U.S. at 220, 79 S.C!. at 271.

To like effect, see Kennerly v. DistrictCOltrt, 400 U.S. 423, 426-27, 91 S.Ct. 480,

347 A.2d-151/~

The Williams test was reexamined inMcClanahan v. Arizona State Tax Com­missio", 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); it was there held that astate had no jurisdiction to impose a taxon the income of reservation Indianswhich was wholly derived from reservationsources. The Court stated:

"[Wje reject the suggestiou that theWilliams test was meant to apply in thissituation. It must be remembered thatcases applying the Williams test havedealt principally with si.tuations involv­ing non-Indians. . . . In these situa­tions, both the tribe and the State couldfairly claim a·n interest in asserting theirrespective jurisdictions. The Williamstest was designed to resolve this conflictby providing that the State could protectits interest up to the point where tribalself-government would be affected."

, 411 U.S. at 179,93 S.Ct. at 1266.

The most recent expression of Indiansovereignty by the Supreme Court appearsin United States v. Mazurie, 419 U.S. 544)95 S.Ct. 710, 42 LEd.2d 706 (1975), where,in the course of upholding a delegation ofcongressional authority to an 'Indian tribeover the introduction of alcoholic bever­ages into Indian country, the Court said:·

HIndian tribes are unique aggregationspossessing attributes of sovereIgnty overboth their members and· their territory,

.; they are 'a separate people'possessing 'the power of regulating their

__ "_i~.~e~~~.l .. Cl_n4_ social reJ~~~~ns.

" [Wjhen Congress delegatedits authority to control the introductionof alcoholic beverages into Indian coun­try, ~t did so to entities which possess acertain degree of independent authorityover matters that affect the internal andsocial relatious of tribal life. Clearly

_,f? ';"_ .( A • CAt •. •

234 Md.

j *

347 ATLANTIC REPORTER, 2d SERIES

the distribution and use of intoxicants isjust snch a matter. . . .It

419 U.S. at 557, 95 S.Ct. at 717.

[1,2] That ·the federal government hascarefully guarded the exercise of state civiljurisdiction ove~ Indians is well indIcated

I by 42 U.S.c. § 1322(a) (1968); that stat­ute authorizes a state, with the consent ofthe Indian tribe to be affected, to exercisejurisdiction .over civil causes of actions be­tween Indians, or to which Indians areparties, arising within the areas of Indiancountry affected by the assumption of statejurisdiction. Maryland has not enacted,nor has the Crow Tribe _consented to, ena­bling legislation in response to this federalstatute, and there is no other federal lawgranting jurisdiction to the Marylandcourts in matters involving custody of In­dian children. Contrary to the Wakefields'position, 46 Stat. 1494 (1931) entitled "AnAct Relating to the adoption of minors bythe Crow Indians of Montana," does notgrant general adoption jurisdiction overCrow tribal members to state courts. The'statute provides that in order for a personadopted by a Crow Indian to inherit fro111its adoptive CrQw Indian parent, the adop­tion must occur in a state court or undertribal procedures a~d be approve~ by thechief federal official on the reservation.The Act, by its terms, is not concerned\!lith a~o_p~i?ns .0fC=rovvs _by !1()n~Cro\V~.

See H.Rep. No. 2604, 71st Cong., 3d Sess.(1931); S.Rep. No. 1689, 71st Cong., 3dSess. (1931).

[3] We think it plain that child-rearingis an "essential tribal relation" within thedoctrine espoused by the Supreme Court inWilliams v. Lee, supra. That the Cro';'Tribe possesses the requisite judicial au­thority to protect and enforce such "essen­tial tribal relations" is equally clear. The1868 Treaty of Fort Laramie (15 Stat.649)-the last and the most importanttreaty hetween the United States and the

I. 'l'lJe jlUlr.~~li of OWSl! .'OUrlN lire ftllPoillted forfour-yeur t:~)rnlH hy tJH~ (;omruisNiOllcr of JIl­ditm Affairs, Imhje/'l to eOllfirllllltioJ! hy II two-

Crow Tribe-provided in Article l[ for aCrow I ndian Reservation II for the absoluteand undisturbed use and occupation" of theCrow Tribe, which it described as a Uterri­tory of the United States." Article II alsoaffirmed the power of the Crow Tribe togovern Indians living on the reservation,The only restrictions on its powers ofself-government agreed to by· the CrowTribe were contained in Article VI author­izing the United States to pass laws Han allsubjects connected with the government ofthe Indians on said reservations . . . ."

Prior to its adoption in 1949 of a writtenconstitution and bylaws pursuant to the In­dian Reorganization Act, 48 Stat. 984(1934), the Crow Tribe consented to theestablishment of a two-tier court system asauthorized by 25 Code of Federal Regula­tions, Part 11. See 25 U.S.c. §§ 476-79(1934); 25 U.S.c. § 2 (1868). The CrowCourt of Indian Offenses functions as atrial court of general civil and criminal ju­risdiction; the Crow Tribal Court of Ap­peals is vested with jurisdiction over ap­peals taken from judgments 6f the CrowCourt of Indian Offenses.1 The CrowCourt of Indian Offenses primarily hearsmatters involving Crow tribal members,but it also has jurisdiction over suits in­volving members and nonmembers broughtbefore the court on the agreement of bothparties. 25C.F.R. § 11.22<:, The federalregulations also provide for tribal controlover marriage, divorce, and tribal customadoption. ·25 C.F.R. §§ 11.27-11.30. Fed­eral law grants '~futl force and effect". totribal customs and ordinances in the deter­mination of civil causes adjudicated instate conrts. 25 U.S.c. § 1322(c) (1968).Although such ordinances must be "adopt­ed by an Indian tribc in the exercise ofany authority which it may possess" andTIlust be consistent with the state's civillaw, the statutc manifestly indicates the re­gard in which traditional, unwritten Il1?iancustom is held. Sec also 25 C.F.R. § 1'1.23

l:hinls VOltl of the Irihnl ('oUllC'il. 2ti (U'~.n.

§ 11.3.

(CWi

allsu:th,II.poII.SUI

un(e<

nosioshisigpalabl

thostatiOlest429diabeehalbehguafortraifedhadIndBasera1

"e<

el

el

w

,l1

II(

0'

9t

WAKEFIELD v. LITTLE LIGHTCite liN 3-17 A.2d 22,'i

Md. 235

'\rticle II for afor the absoluteCll\lOltion" of theibcd as a "tcrri~

Article IT alsoCrow Tribe to

the reservation.its powers ofby the Crow

tide VI a11thor­laSS laws "011 all

government of, ..

;1005 • • • •

1949 of a writtenrsuant to the In-

48 Stat. 984;onsentcd to the. court system asFederal Regula­l.S.C. §§ 476--79l68). The Crow; functions as aand criminal ju·,al Court of Ap­diction over ap­ltS of the Crow~S.l The Crow

primarily hearstribal members,

In over suits in~

nernbers brought'Treement of both;c. The federal:or tribal controlod tribal custom1.27-11.30. Fed­:e and effect" toIces in the detefM

" adjudicated in, 1322(c) (1968).'··tnu'st--be--lIadopt~

the exercise oflay possess" andthe state's civilindicates the re­

unwritten Indian25 C.F.R. § 11.23

oUDeil. 25 C.FoR.

lII

\I

\\

II,

(Courts of Indian Offenses apply ordj~

nances, customs, :md l1sal~es of the trihe inall civil matters). The federal reg-ulationssupple!llcnt trihal CtlstOllls and usages inthe area of child welfare. See 25 C.F.R. §11.30 (determination of paternity and sup­port); § I I.3GC (juvenile delinquency); §11.41 (abduction); § 11.64C (failure tosupport dependent persons); § 11.65 (fail­ure to send children to school) j § 11.66(contributing to the delinquency of a mi~

Itor). That the absence of written provi­sions in the Crow law respecting guardian­ship or cllstody of Crow children did notsignificantly impair the tribe's judicial ca­pability to act in such matters is, we think,abundantly clear.

(2)

Despite the power of the Crow tribal­courts and' the implications of the T¥mia-11tsHinfringement" test, there is little case au­thority bearing directly on the matter of.state jurisdiction over' the domestic rela­tions of Indian tribal members. The earli­est case, In re Lelah-PHc-Ka-Chee, 98 F.429 (D.lowa, N.D.l899), concerned an In­dian child whose non-Indian guardian hadbeen- appointed by a state court. A writ ofhabeas corpus was brought on the child'sbehalf because, as a consequence of theguardianship, she was allegedly beingforced to attend an off-reservation Indian.'training school against her wishes. Thefede-ral court found that the state courthad no authority to appoint guardians, forIndian children living on the reser~ation.Basing its decision on the doctrine of fed­eraJ preeminence, the court said:

."As-I-"iil:1d'er::5tana'-lt',-~i:he"pu~po~e of thecession by the state to the national gov,,:ernment of the jurisdiction over the res·ervation- and the Indians living thereonwas to center in the one governmeJ1t theduty of taking charge of these Indians,..and thereby to avoid the evils that wouldnecessarily arise from a divided controlover them.. "

98 F. at 432.

The court madc it dear that its hoJ<lingwas not i11tendcd to apply to <I. • • indi­viduals who may have scvcn~d their tribalrelations, or who have hccollle incorporatedint'o the. citizenship of the state in whichthey reside " f d. at 433. Secalso Peters ". Malin, III F. 244 (C.C.N.D.Iowa 1901).

In two cases decided the same day, a di·vided Supre';,e Court of Washington heldthat state juvenile courts had no jurisdic­tion to declare, as "dependent," Indianchildren residing on a reservation. InState ". Snperior Conrt, 57 Wash.2d 181,356 P.2d 985 (1960), the children had beenabandoned by their fathers, and removedby state authorities, from a grossly neglect~

ful mother. The child in In re Colwash}57 Wash.2d 195, 356 P.2d 994 (1960), hadbeen abandoned by both parents on th.e res­ervation, and had for almost two yearsbeen a ward of the state court. No Indian·claimed jurisdiction for the tribal courtand no federal officer claimed jurisdictionfor any federal agency during this time.The state court, on its own motion, dis­missed, its custody for lack of jurisdictionand its judgment was affirmed on ~ppeal

on the ground that no state jurisdictionvested beyond that expressly granted byCongress, assented to by the Indians, oraut40rized by the state legislature pursuantto a federal enabling statute.

The first reported case' where a statecourt assumed custody jurisdiction over anIndian child was In re Cantrell, 159 Mont.66, 495 P.2d 179 (1972). There the Mon­tana Supreme C~:)tlrt"_lJP_~~!4_§_t~Jc;;,c.o,urt.j.u.,,

tisdicH6ri'ol'an ·In"Ciian" child, a, member -ofthe Fort Peck Tribes, who had been aban­doned off the reservation by its p'arentsfot: more tha~ one year. At the time juris­diction was assumed the child was appar~

ently domiciled on the reservation. TheMontana court distinguished Williams andother Supreme Court cases on the groundthat the abandonment occurred off the res­ervation and continued for over a year~

See also United States ex rei. Cobell v.

_____......_ ........-.,....., ............._.........-'F'

'to --------_.236 Md. 347 ATLANTIC REPORTER, 2d SERIES

Cobell, 503 F.2d 790 (9th Cir.l974), a caseinvolving the custody of an Indian child,where the federal court concluded that ju­risdiction was vested in the state court- be­cause the Indian tribe had ceded jurisdic­tion to it.

A federal district court in a state which,like Maryland, has no state enabling, legis­lation to complement 25 U.S.c. § 1322(a),held in Wisconsin Potowatomies, Etc. v.H ollsloll, 393 F.Supp. 719 (D.W.Mich., N.D.1973), that the state court was withoutjurisdiction to make an award of custodyof Indian children. There, a full-bloodedIndian married a white woman. They andtheir children had been living sporadicallyon and off the reservation. Marital prob­lems arose, the wife and children movedoff the reservation, the husband followedthem, and killed his wife and himself~ TheMichigan- Department of Juv~nile Servicesfiled a petition ina state court for custodyof the children, claiming that they weredependent and neglected, and it was grant­ed. Approximately six months thereafter,the Indian tribe filed an, action in federalcourt, claiming that the state court lac}cedjurisdiction)! The federal court weighedthe respective interests of the state and theIndian tribe in the children, in light of the~ichigan custody statute and the case lawconcerning Indians. It concluded thatU[i]f tribal sovereignty 'is to have anymeaiiin-g' at a.ll'a.t fhis'Junciitre"of history:it must necessarily include the right, withinits own boundaries and membership, toprovide for the care a"nd upbringing of itsyoung, a sine qua non to the preservationof its identity." 393 F.Supp. at 730. Itheld that the Michigan jurisdictional basisof physical presence in custody cases wasnot suitable because "deeper" issues wereinvolved, and that lithe only rational ap­proach is to determine the domicile of thechildren at the time their physical custodywas gained" by the state court. Id. at 731.The court founJ that the children's domi-

2, 'Vhether tlte Intlillil tribe intervened, or at·tempted to intel'velle, in the Htntc court pro· .

cile remained on the Indian reservationand that the Indian tribe thus retained ex­clusive jurisdiction to determine the matterof their permanent custody since the tribehad a tradition or custom of child care andhad not waived its right to assert jurisdic­tion.

(3)

[4) While it is thus clear that the caseshave placed restrictions on the exercise ofstate jurisdiction in areas where essentialtribal relations are involved and tribalrights would be jeopardized, or where stateaction in,fringed on the right of reservationIndians to make their, own Jaws and beruled by them, Williams v. Lee} supra, as ageneral proposition Indians who find them­selves outside the reservation have thesame rights and responsibilities, and aresubject to the jurisdiction of state Icourtsin the' same manner and to the same extentas other state citizens. Mescalero ApacheTribes v. J01les, 411 U.S. 145, 93 S.C!.1267, 36 L.Ed.2d 114 (1973). In holdingthat New Mexico could impose a gross re­ceipts tax on a ski resort operated by anIndian tribe on off-reservation land leasedfrom the federal government, the SupremeCourt said in Mescalero Apache TribcJt:

H[W]e reject the broad asser­tion that the Federal G()v~~n~ent "hll,.sexclusive jurisdiction over the Tribe forall purposes and that the State is there­fore prohibited from enforcing its reve~

nue Jaws against any tribal enterprise'(w]hether the enterprise is located onor off tribal land.' Generalizations onthis subject have become particularlytreacherous. The conceptual clarity ofMr. Chief Justice lVlarshall's view infeVorcestcr v. Georgia,. ., has givenway to more individualized treatment ofparticular treaties and sped fic federalstatutes, including statehood enablinglegislation, as they, taken together, af-

cccdillg ('aunot he Ul-l(~cl'tllill fn)J1l the ('ollrt'gopiuion.

feet theans, anThe tr

statemelthat, e,may bewould igovernl1granted

at 1270.

In a simother cOlflstate interlthe reserv-:Cobell case

liThe 5twelfaredispute.the stateschool ~

Cobell bPresencethe parelthe asserchild Ct

Conflict

503 F.2d

The iutewere alsotomics, theas follows:

"If thisuch indcin the liTon the 0

selves tostate law

comes atfrom OTIC

~W3 F.Sup

That Mardictional illPursuant tovcmhcr I,\Vakefickb'from sOllleti

WAKEFIELD v. LIT'l:LE LiGHTCite fiR 3-J7 A,2d 228

Md. 237

lian rcscn-atioll!Ius retained ex­·mint: the matter. since the tribef child care and

I assert jurisdic-

~r that the casesthe exercise ofwhere essentialved and tribal, or where statet of reservationn laws and beLe,e, supra, as awho find them­ltiol1 have theiIi ties, aqd areof state courtsthe same extent'scale,'o Apache

145, 93 S.Ct.3). In holdinglose a gross re.,operated by anjon land leased1t, the Supreme4pache Tribe.:

le broad asser­,overnment hasr the Tribe forState is therew

)rcing its revew

"ibal enterpriseis located on

eralizations onle particularlyfuar'-CIafity~of"­

han's view in" has given

d treatment ofpecific federalhood enablingI together, af-

crom the court's

i

I

!

feet the respective rig-hts of States, Jndi­ans, and the Federal Government.The upshot has been the rcpeatedstatements of this Court to the effectthat, even on reservations, state lawsmay be applied unless such applicationwould interfere with reservation self­government or would impair a rightgranted or reserved by federal Jaw.

" 411 U.S. at 147-48, 93 S.Ct.at 1270.

In a similar spirit of fripartite balancing,other courts have begun to examine thestate interests in Indian children found offthe reservation. As the court said in theCobell case (supra):

HThe Statc of Montana's interest in thewelfare of tbe Cobell children is beyonddispute. The children were domiciled inthe state and enrolled in the state publicschool syst~m when Joan and Henry.CobeII began their divorce proceedings.Presence, domicile and jurisdiction overthe parents are well recognized bases forthe assertion of jurisdiction to determinechild custody. Restatement (Second)Conflict of Laws § 79 (1971). . . ."

503 F.2d at 794.

The interests of the tribe and the statewere also balanced in Wisconsin Potowa­tomies, the issue there aptly being phrasedas follows:

"If then, Indians are to be accordedsuch independence and sovereignty with­in the limits of their reservation, ,,!-nd ifon the other hand, they subject them­seJves to the benefits and obligations ofstate law when without, the question, be-:­

-t-om"e's' -if"wnat 'po-jili" the" "tr~lIls'form~ti~~"

from one to the other is accomplished."

393 F.Supp. at 730.

That Maryland also has cognizable juris­dictional interests in this case is dear.Pursuant to the Crow Court decree of No~

vember I, 1972, Allie had been in theWakefields' custody and lived in this Statefrom sometime in December of 1972 until

the custody petition was filed on July 16,1973. Thereafter he was enrolled inMaryland public schools, and continued tolive in the State until July 26, 1975. TheCrow Court did not have before it a peti.;,tion to dissolve the guardianship granted tothe Wakefields until June II, 1974, morethan seven months after the expiration ofits 1972 decree.

[5] The traditional Maryland methodof determining subject matter jurisdictionin child custody cases has been to identifythe domicile of the child. See, e. g., MillerApache Tribes v. ]oucs, supra, may i1Ius­". Miller, 247 Md. 358,231 A.2d 27 (1967);Naylor v. Naylor, 217 Md. 615, 143 A.2d604 '(1958): By Chapter 265 of the Actsof 1975 (Code, Art. 16, §§ 184-207) juris­diction of MaryJand courts to make childcustody determinations ~as substantiallybroadened to encompass considerations oth~

er . than the child's domicile. Under theprovisions of that Act, :which became ef-·fective on July I, 1975 during the pendencyof this appeal, jurisdiction to make a childcustody determination may attach, interalia, where a child Jives within this Statewith a person acting as a parent for sixmonths prior to the filing of the Marylandcustody petition. But while this Act, andSupreme Court cases such as MescaleroApache Tribes v. Jones, supra, may ilJuswtrate Maryland's significant interests withAlJie's custody, other Supreme Court cases,including particularly Williams v. "Lee, su­pra, and federal statutes such as 25 U.S.c.§ 1322(a), sltpra, recognize the significantinterests of" Indian self-government.Weighing these competing considerations

,i,nJight _of .-the,.unique--facts -"-in-this' casei-'in,;;eluding in particuJar" that the Crow Courthad contin~ing jurisdiction over Allie'scustody, which it last validly exercised twodays prior to the Maryland custody pro­ceeding, and taking into ~ccount the limit­ed duration of the, Wake fields' guardian­ship, and considering" that there can be"nogreater threat to "essential tribal rela­t,ions," and no greater. infringement on t~e

right of the Crow Tribe to govern them-

"

238 Md. 347 ATI;AN"TIO REPORTER, 2d SERIES

selves than to interfere with tribal controlover the custody of their children, we

.. agree with the conclusion expressed inWisconsin PoJowatomies that in determin­ing whether to exercise subject matter jur­isdiction in such circumstances, the onlyrational approach is to determine the dom­icile of, the Indian child. By using the In­dian child's domicile as the state's jurisdic­tional basis, the Indian tribe is affordedsignificant protection from tosio.g its essen­tial rights of child-rearing and maintenanceof tribal identity.

[6, 7] That the domicile of a minor·child is that of the parent with whom helives is well settled. See Ross v. Pick, 199Md. 341, 86 A.2d 463 (1952). Thus, Allie'sdomicile prior to the tribal court decree ofNovember I, 1972 was clearly on the CrowIndian reservation where his mother resid­ed. Although the Crow Court decree ofNovember 1, 1972 contained no express in- "dication of the extent of the Wakefields'authority over Allie's domicile, it appearsthat the "special guardianship" was limitedto one year, Indeed, the special nature of

. the Crow Court decree was explained inexpert" testimony in the proceedings belowby Marjorie Wilkinson, an associate judgeof the Crow Court of Indian Offenses.She testified that the Tribal Court couldnot give custody for more than a <?ne-yearperiod,:' and that :tJi-f'it-'s'going to' be -longerthan a year, they have to come back andrenew it in the tribal court." The Wake­fields never returned to the reservationwith Allie during or after this period. Inaddition, the guardianship petition whichGail executed specifically requested the ap­pointment of a legal guardian for a periodlimited to onc year. \ And, as we have pre­viously indicated, the Crow Court decreeof Jnly 10, 1974 terminating the Wake­fields' special guardianship, entered by thesam~ judge who signed the earlier decree,

3. \-Vo t!nl"l~I'IJlju 110 ,101l1lt thnt 11. Mlll'yJllud(:()I1r(; HllllUJd exerdHC jnl"isdidioll in llll mller­glHH:y ClVllr It uc/-{ledt!d or dCJl(~I\(lellt lndinlll:hild foulld ill Muryllllld, without rcgurd to

stated that that guardianship was for aone-year period and that the Wakefields sounderstood. Althongh the Wake fields dis­puted this understanding of the duration ofthe November I, 1972 decree, the specialvestiges of Indian sovereignty concerning"essential tribal relations" like child-rearw

ing and tribal identity reinforce the policynot to easily imply the guardian's authorityto ,shift domicile to another state. See"Rew

statement, Conflict of Laws (2d) § 22(2)(1969), comment h. We think, in the cir­cumstances of this case, that Allie's domiwcile remained on the reservatiol). in MOllwtana, and'that the Maryland court properlydeclined to interfere with the jurisdictiono'ver his custody aIrea~y vested in the CrowCourt of Indian Offen::,;es.3

(4)

[8] The Wake fields raised three otherarguments which merit discussion.- .First,they contend that the facts of this case in­dicated that Gail abandoned Allie. In Lo­gan v. Coup, 238 Md.. 253, 258, 208 A.2d694, 697 (1965), we defined child abandon­ment as:

"Any wilful and intentional conduct onthe part of the parent which evinces asettled purpose to forego all parental du­ties and relinquish all parental claims tothe child, and to renounce and forsakethe child 'entirely~"

Assuming that a legal abandonment wouldhave conferred subject matter jurisdictionon the lower court, it is clear that therewas no abandonment in this case. Thefacts indicate little more than two weekspassed between the expiration of the tribaldecree on October 31, 1973 and Gail's in­tervention in the :rvlaryland custody prowcecding. At no time could her actions beconstrued to evince a settled purpose to re­linquish all parental claims to Allie.

hiH tlOllJi<'ill!. Rec lri.~eoll.';jn PoIQwalo/1lic",jgfc. "I'. .JIjJlI,~ftl'/l, 3!1:l 11'J:~1l1l11. Ilt 730; COlIc,ArL lH. § '1.'-:U(u) (3).

[9] Ttthe IlAffi(-Notice," ,suhject 111,

courts. Vmay not con a COll

lvlayar v. '288 A.2d f88 Md. 585

·The W,Supreme l

trict COlm1082, 43state cOUl;tcustody ojsignificantthe resen~

proceedingcourt to reglectful IT

" pus proceemother aUjurisdictioreleased flhad been!case washalf of thplace weT{ing that t'

reservatiOIthe state cdiction ovtribe 'occuraddress thlthe case, <l

on DeCote

429, n. 3, 9~

[10] Siwithin thereservatiolcourt corrcumstance~

chie suujec

Orda Q)

pellallts.

239Md.

v.

STATE of Maryland.

No. 19.

Jon Fredorlck ..PEARSON

Court of Special App~a's of Maryland.

Nov. 3, ]975.

The Circuit Court for Prince George'sCounty, William B, Bowie, J., fO\lnd de­fendant guilty of possessing a controlleddangerous substance, MDA, and of con­tempt, sentenced him to four years on thesubstantive offense and two years. to beserved consecutively, on the contempt con­viction and defendant appealed, TheCourt ~f Special Appeals, Orth, C. J., 'heldthat (1) while defendant e1aimed that the.trial judge committed reversible error inexplaining to the jury defendant's disap·pearance during the trial, and in in formingthem of the guilty plea of a codefendant toa lesser charge, the propriety of those re·marks was not properly before the Courtof Special Appeals, where no timely objec­tion or exception was made by defendantto said remarks; in any event, the conten·tions presented afforded no"" reason to re·verse defendant's conviction and· sentenceon the substantive offense, and (2) wheredefendant, apparently voluntarily, failed to J

return to the 'courtroom after the luncheonrecess, he was guilty of constructive con·tempt) since his conduct did not, in fa~t,

interrupt the order of the courtroom or in·terfere with the conduct of business; ac·cordingly. the trial court acted improperlyin proceeding as if defendant had commit·.ted direct contempt by summarily punish·ing.him-;-furthermore,defendant's'·act··was'­a criminal contempt and, therefore, thesafeguards applicable to a criminal pro­ceeding should also have been observed.

Judgment on substantive offense af­firmed j judgment as to contempt vacatedand proceeding remanded for a new hear·ing.

PEARSON v. STATECite nR 347 A,2d 2311

[9J The Wakefield, also argned thatthe l<A ffidavit of Consent and Waiver of-Notice/' which Gail executed, conferredsubject matter jurisdiction in the Marylandconrts. We ca'nnot agree. That a party'may not confer subject matter jurisdictionon a court by consent is well settled.A1ayar v. ShcarwaJer Sailing, 265 Md. 280,288 A.2d 887 (l9i2); Meyer v. He"dersOIl,88 Md. 585, 42 A. 241 (1899).

[10J . Since. Allie's domicile remainedWithiii--the boimdaries of the Crow -Indianreservation in Montana, we think the lowercourt correctly concluded that in the cir·cumstances of this case it should not exer­cise subject matter jurisdiction.

Order affirmed; costs to be paid byap­peYa"ts.

'The Wakefields also contend that theSupreme Court case of DeCoteo" v. Dis­trict Co""ty COlll't, 420 U.S. 425, 95 S.C!.1082, 43 L.Ed.2d 300 (19i5), holds thatstate courts have the right to determine thecustody of an Indian child where cert~in

sign-ificant acts or omissions occurred offthe reservation. In that case dependencyproceedings' had been initiated in a statecourt to remove an Indian child from a ne·glectful Indian mother. In a habeas cor­pus proceeding filed in the state court, themother alleged that the state court had nojurisdiction and requested that her child bereleased from the foster home in which hehad been placed. The central -issue in thecase was whether the lands upon whichhal£ of the acts of parental neglect tookplace were nonreservation lands. In hold·ing that these lands were not part of thereservation, the Supreme Court held thatthe state court had civil and criminal juris.diction over conduct of members of the,tribe occurring thereon. The Court did notaddress the jurisdictional issue presented in

.the case, and thus the Wakefields' relianceon DeCoteau is misplaced. See 420 U.S. at

. 429, n. 3, 95 S.C!. 1082.

\

IIIbandonment would

matter jurisdictionis clear that therein this case. There than two weeksiration of the tribal19i3and Gail's in­yland custody pro­auld her actions be,~ttled purpose'to re·ms to Allie,

\Ilship was for athe \Vakefic1ds so

IC \Vakefidds dis­of the duration ofIccrC'e, the specialeignty concerning5" like child-rear­>in force the policyllarc1ian's authorityler state. S ('c Re·,aws (2d) § 22(2)~. think, in the cir·that Allie's domi·

servation in ]\'lon­and court properlyth the jurisdictionvested in the Crowes.3

;',.,

ntional conduct on1t which evinces a'go all parental du­e parental claims to[ounce and forsake

con.sin potowatomies,,Supp. at 730; Code.

raised three otherdiscussion. First,cts of this case in·med Allie, In Lo­253, 258, 208 A.2dned child abandon-

4l