                                                                                    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


                                             2
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

                                              3
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.

                                              4
¶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


                                              5
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,



                                              6
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




                                            7
