September 17 2013
DA 12-0719
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 264
IN RE THE ESTATE OF:
DOROTHY McGILLIS GOPHER,
Deceased.
APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. ADP-10-0127
Honorable Thomas M. McKittrick, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Melinda Gopher (Self-Represented); Blair Gopher (Self-Represented);
Missoula, Montana
Glenn Robert Gopher (Self-Represented); Miranda Gopher
(Self-Represented); Mary Gopher-Parenteau (Self-Represented);
Great Falls, Montana
For Appellee:
Neal P. DuBois; Sutton & DuBois, PLLC; Great Falls, Montana
Submitted on Briefs: August 7, 2013
Decided: September 17, 2013
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Melinda Gopher, Blair Gopher, Glenn R. Gopher, Miranda Gopher, and Mary
Gopher-Parenteau (hereinafter “the siblings”) appeal the order of the Eighth Judicial
District Court, Cascade County, appointing five co-trustees to a charitable trust with a
ceremonial tribal flag as the trust property. The siblings challenge the District Court’s
assumption of jurisdiction over the probate of the estate of their mother, Dorothy
McGillis Gopher (the Estate), an enrolled member of the Blackfeet Tribe who lived in
Cascade County and whose estate property, the flag, was located in Cascade County.
The siblings assert that this estate matter belongs in the Blackfeet Tribal Court. Appellee
Mike Gopher, brother of the siblings, asserts jurisdiction in the District Court is proper.
We affirm.
ISSUE
¶2 A restatement of the dispositive issue on appeal is:
¶3 Did the District Court err when it assumed subject matter jurisdiction over the
Estate of Dorothy Gopher?
FACTUAL AND PROCEDURAL BACKGROUND
¶4 Dorothy McGillis Gopher died intestate on October 2, 2008. Dorothy was an
enrolled member of the Blackfeet Tribe, and at the time of her death, she was domiciled
in Cascade County, Montana. Dorothy was survived by seven children: Glenn, Thane
(since deceased), Mike, Blair, Miranda, Melinda, and Mary. Dorothy’s estate consisted
of one asset, a thirteen-star flag known as the “Ojibwe Peace Flag.” The flag has been
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held by successive individuals since an unknown date, beginning with an Indian
individual named Ah-On-Te-Ways. Eventually, in 1946, Mary Chippewa Gopher
received possession of the flag. Following Mary’s death in 1965, her son Robert Gopher
possessed the flag. When Robert died in 1998, his wife Dorothy took possession of the
flag. Robert’s will specified that Dorothy was to pass on the flag to one of their sons
when he became of age, but Dorothy did not do so. Thus, when Dorothy passed away,
the Estate obtained possession of the flag.
¶5 Mike Gopher filed an application for informal probate in the District Court on July
22, 2010. For the next two years, the District Court dealt with the family dispute that
accompanied the Estate administration. On August 5, 2012, several of the Gopher
siblings filed a petition before the Blackfeet Tribal Court to name Blair Gopher and
Melinda Gopher as personal representatives in their parents’ estates. Glenn Gopher and
Melinda Gopher then filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction in
District Court on August 15, 2012, and filed the same motion again on August 24, 2012.
On October 30, 2012, the Blackfeet Tribal Court issued an order asserting exclusive
jurisdiction over the Estate. Meanwhile, proceedings in the District Court continued, and
on November 1, 2012, the District Court denied the motions to dismiss.
¶6 On November 2, 2012, the District Court issued its Findings of Fact, Conclusions
of Law, and Order. The District Court found that Ah-On-Te-Ways had been the trustor
and first trustee of a charitable trust with the flag as trust property and that all subsequent
possessors of the flag had been successor trustees. The District Court found that the
Estate would be unjustly enriched if it retained possession of the flag since the flag is for
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the benefit of the entire Ah-On-Te-Ways Band, not solely Dorothy’s heirs. To facilitate
the transfer of the flag to a successor trustee, the District Court imposed a constructive
trust on the Estate, appointed five co-trustees, and ordered the Estate to transfer the flag
to the co-trustees. The District Court concluded as a matter of law that it had jurisdiction
over the parties and subject matter and that venue was proper as Dorothy died while
domiciled in Cascade County.
¶7 The siblings filed the appeal in this case on November 30, 2012. On February 26,
2013, the Blackfeet Tribal Court issued an order stating that “this matter has evolved into
a dispute over personal property” and the tribal court “does not assert subject matter
jurisdiction over the thirteen star flag at this time as the dispute has never been within this
court’s jurisdiction.”
¶8 The siblings argue that Dorothy Gopher was the owner of trust property within the
exterior boundaries of the Blackfeet Indian Reservation, the flag was part of the residual
property owned by Dorothy, and the Blackfeet Tribe has exclusive jurisdiction over
probate proceedings involving tribal members, whether or not they lived on the
reservation, under the Blackfeet Law and Order Code. Furthermore, they argue the
District Court’s assumption of jurisdiction unlawfully infringed on the Blackfeet Tribe’s
right of tribal self-government and violated the American Indian Religious Freedom Act.
Though they note that the Blackfeet Law and Order Code does allow a tribal court to
relinquish its jurisdiction to a state court, they argue the Blackfeet Tribal Court asserted
exclusive jurisdiction over the Estate. They ask that we reverse the District Court’s order
and allow the matter to conclude pursuant to Blackfeet Tribal jurisdiction.
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¶9 Mike Gopher urges us to affirm the District Court. Mike argues that his siblings
filed the probate action in Blackfeet Tribal Court in an attempt to “subvert” the District
Court proceedings. Mike points to the February 26, 2013 Blackfeet Tribal Court order
refusing to assert subject matter jurisdiction, and argues that the siblings failed to file a
proper brief addressing this order even though this Court issued an Order in March
granting them time to do so. Mike further argues that the flag has no ties to the Blackfeet
nation and that there is no evidence of its religious significance.
STANDARD OF REVIEW
¶10 We review de novo a district court’s ruling on a motion to dismiss for lack of
subject matter jurisdiction. In Re Est. of Big Spring, 2011 MT 109, ¶ 20, 360 Mont. 370,
255 P.3d 121.
DISCUSSION
¶11 Did the District Court err when it assumed subject matter jurisdiction over the
Estate of Dorothy Gopher?
¶12 As a preliminary matter, motions to dismiss for lack of subject matter jurisdiction
may be raised at any time by any party, and a court must dismiss an action if it
determines that it lacks subject matter jurisdiction. M. R. Civ. P. 12(h)(3). A state
court’s exercise of jurisdiction is improper if it is preempted by federal law or if it
infringes on tribal self-government. Big Spring, ¶ 46.
¶13 At issue is whether the District Court’s assumption of subject matter jurisdiction
infringed on tribal self-government. To resolve the issue, we look to the Blackfeet Tribal
Court’s February 26, 2013 order. Judicial notice of laws may be taken at any stage of the
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proceedings. Section 26-10-202(f)(1), MCA. Our Rules of Evidence include a
non-exhaustive list of the kinds of law appropriate for judicial notice and provide that a
court may take judicial notice of “[r]ecords of any court of this state or of any court of
record of the United States or any court of record of any state of the United States.”
Section 26-10-202(b)(6), MCA. A tribal court order, though not expressly listed in the
rule, is a record analogous to those listed in § 26-10-202(b)(6), MCA, and is thus law of
which we may take judicial notice. We note that the order was not filed until after the
siblings had filed their opening brief. However, as the siblings do not take issue with the
genuineness of the order, we take judicial notice of the tribal court order.
¶14 In its order, the Blackfeet Tribal Court unequivocally declined to assert subject
matter jurisdiction with respect to the flag, the subject of this appeal. The Blackfeet
Tribal Court noted that the “flag is located in Cascade County and has never been on the
Blackfeet reservation” and Dorothy was domiciled in Cascade County at the time of her
death. The Blackfeet Tribal Court stated it “will not accept any further filings from the
Gopher family in regards to the thirteen star flag until they have prevailed in their
litigation in the State Court.” No evidence supports the siblings’ argument that the
Blackfeet Tribal Court’s decision was made “prematurely or through error.” Because the
Blackfeet Tribal Court has expressly declined to assert jurisdiction over the Estate
property, it is clear that the District Court did not unlawfully infringe on the Blackfeet
Tribe’s right of tribal self-government. Moreover, because Dorothy resided in Cascade
County at the time of her death and the corpus of the Estate is located in Cascade County,
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venue was proper, and the District Court did not err when it assumed jurisdiction over the
probate of the Estate. Sections 72-1-202(1)(a), 72-3-111(1), -112(1)(a)-(b), MCA.
CONCLUSION
¶15 For the foregoing reasons, we affirm the District Court’s decision.
/S/ PATRICIA COTTER
We Concur:
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS
/S/ JIM RICE
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