IN THE SUPREME COURT OF THE STATE OF MONTANA Number DA

September 17 2010 IN THE SUPREME COURT OF THE STATE OF MONTANA Number DA 10-0099 IN THE MATTER OF THE ESTATE OF WILLIAM F. BIG SPRING, JR., Deceased JULIE BIG SPRING AND WILLIAM BIG SPRING, III, Appellants, V. ANGELA CONWAY, DOUG ECKERSON, and GEORGIA ECKERS ON, Appellees. RESPONSE BRIEF OF APPELLEE ANGELA CONWAY TO AMICUS CURIAE BRIEF OF THE BLACK FEET TRIBE On Appeal From Montana Ninth Judicial District Court, Glacier County Before the Honorable Laurie McKinnon Ron A. Nelson Burt N. Hurwitz Church, Harris, Johnson & Williams P.C. P. 0. Box 1645 Great Falls, MT 59403 406-761-3000 Fax: 406-453-2313 rnelson@chjw.com Attorneys for Appellee Angela Conway APPEARANCES: Joe J. McKay Linda Hewitt Conners Sandra K. Watts P.O. Box 1803 P.O, Box 7310 P.O. Box 849 Browning MT Kalispell, MT Browning, MT 59417 59904 59417 406-338-7262 406-755-2255 406-338-7777 Fax: 406-338-7262 Fax: 406-755-5155 Fax: 406-338-5363 powerbuffalo@ lindaconners@ Attorney for Amicus yahoo.com attomeysmontana. com Curiae Blackfeet Attorney for Attorney for Appellee Tribe Appellants Doug Eckerson 319875.1 -

TABLE OF CONTENTS Statement of Issue...1 Statement of the Facts and Procedural History...1 Summary of Argument...1 Argument...2 I. There is no federal preemption of State jurisdiction...2 IL Concurrent jurisdiction does not interfere with tribal self government... 2 A. Fisher does not stand for the proposition that Tribal Court has exclusive jurisdiction over Indian probate proceedings...3 B. Probate actions are in rem proceedings concerning property, therefore the Plains Commerce holding is applicable...6 III. The Tribe is not currently exercising jurisdiction over probates...8 Conclusion...11 EXHIBITS A. Estate of Alma L. Pemberton a/kla Alma Augare, Inventory and Appraisement B. Deed from the Estate of Alma L. Pemberton to Donald Pemberton

TABLE OF AUTHORITIES Bonnet v. Seekins, 126 Mont. 24, 243 P.2d 317 (1952)... 3 Fisher v. District Court, 424 U.S. 382 5 96 S.Ct. 943 (1976)...3, 4 5 5 State ex rel. Firecrow 's Adoption v. District Court, 167 Mont. 139, 536 P.2d 190 (1975)... 4 Estate ofstanding Bear v. Belcourt, 193 Mont. 174, 631 P.2d285 (1981)...11 Iron Bear v. District Court, 162 Mont. 335, 512P.2d 1292 (1973)... 2 5 3 5 8 5 11 Plains Commerce Bank v. Long Family Land and Cattle Company, Inc., 544 U.S. 128 S. Ct. 2709 (2008)...7 UNITED STATES CODE: American Indian Probate Reform Act, 25 U.S.C.A 2201 et seq.... 2 MONTANA CODE ANNOTATED: Mont. Code Ann. 3-5-302...3 Mont. Code Ann. 71-1-104... 5 Mont. Code Ann. 72-1-103(15)...6 Mont. Code Ann. 72-4-202 (1)(a)...6 BLACKFEET AUTHORITY: Blackfeet Tribal Law and Order Code of 1967, Chapter 3, Section 4.... 9

Blackfeet Tribal Law and Order Code of 1967, Chapter 3, Section 5...9 Blackfeet Tribal Law and Order Code of 1967, Chapter 3, Section 8...3 Resolution 25-67 (passed November 20, 1967)...9 Resolution 92-72 (passed December 13, 1974)...9 OTHER: 23 Am. Jur. 2d Descent & Distribution 12 (2009)...6

STATEMENT OF ISSUE Whether the Ninth Judicial State District Court, Glacier County, Montana, has subject matter jurisdiction over the probate of a Blackfeet tribal member's estate, where the only estate asset is fee land located within the exterior boundaries of the Blackfeet Reservation and at least one heir is not a Blackfeet tribal member. STATEMENT OF FACTS AND PROCEDURAL HISTORY Appellant Angela Conway adopts the Statement of Facts and Procedural history as set forth in her Brief dated July 8, 2010. SUMMARY OF ARGUMENT The Blackfeet tribal court and the state district court have at least concurrent subject matter jurisdiction in this matter. The Tribe and Appellant's argument for exclusive tribal jurisdiction in this matter is contradicted by federal, state, and tribal law existing at the time of William F. Big Spring, Jr.'s (Bill) death in 2003. Declarations of exclusive jurisdiction are only bare assertions that do not create law from thin air. The test this Court must apply to determine jurisdiction is: "(1) whether the federal treaties and statutes applicable have preempted state jurisdiction; (2) whether the exercise of state jurisdiction would interfere with reservation self- 320210.2

government; and (3) whether the Tribal Court is currently exercising jurisdiction in such a manner as to preempt state jurisdiction." Iron Bear v. District Court, 162 Mont. 335, 346, 512 P.2d 1292 5 1299 (1973). ARGUMENT I. There is no federal preemption of State jurisdiction. The American Indian Probate Reform Act, 25 U.S.C.A. 2201 et seq., (AIPRA) was not the law of the land at the time that Bill died in 2003, nor at the time when the personal representative filed the application for informal appointment in Glacier County on September 29, 2004. AIPRA was not effective until October 24, 2004, and it is not retroactive. Moreover, AIPRA by its terms does not apply to fee land. See 25 U.S.C.A. 2205 (AIPRA applicable to "trust or restricted land"). There is no question that AIPRA has no bearing and is not applicable in this case. Yet, the Tribe claims that the "guiding principles of AIPRA", Amicus Br. 9 (Aug. 27, 2010), support a finding of preemption. In the instant case, the necessity for a federal law such as AIPRA confirms that at the time Bill died there was concurrent jurisdiction between the state courts and tribal courts. 320210.2 2

II. Concurrent jurisdiction does not interfere with tribal selfgovernment. The District Courts of Montana are courts of general jurisdiction. Mont. Code Ann. 3-5-302. The Montana Supreme Court has stated Indian persons "use the courts of this State for many things divorces, contracts, torts, inheritance, and the entire spectrum of legal matters" and are "entitled to do so." Iron Bear at 339, 512 P.2d at 1295, citing Bonnet v. Seekins, 126 Mont. 24, 243 P.2d 317 (1952). "For Montana to deny... reservation Indians the use of its state courts...would amount to a denial of equal protection of the laws to our citizens." Iron Bear, 162 Mont. at 347, 512 P.2d at 1299. A. Fisher does not stand for the proposition that Tribal Court has exclusive jurisdiction over Indian probate proceedings. In Fisher v. District Court, 424 U.S. 382 5 96 S.Ct. 943 (1976), cited in the Amicus Brief at 5, the United States Supreme Court found that the tribal courts have exclusive jurisdiction to determine adoptions between tribal members living on tribal land.' The Amicus Brief attempts to analogize an adoption proceeding to 'Interestingly, the Blackfeet Tribal Law and Order Code of 1967, with respect to adoptions, states: "All members of the Blackfeet Indian Tribe shall hereafter be governed by State law and subject to state jurisdiction with respect to adoptions hereafter consummated." Chapter 3, Section 8. 320210.2 3

a probate proceeding of an estate containing only fee land. Amicus Br. 5-6 The attempt fails. First, in Fisher, the Court held, "State-court jurisdiction plainly would interfere with self-government" because "[i]t would subject a dispute arising on the reservation among reservation Indians to a forum other than the one they have established for themselves." Id. at 387-388, 96 S.Ct. at 947. However, in Fisher, all parties were registered tribal members. Id. at 383, 96 S.Ct. at 944. Additionally, the mother and child in Fisher were living within the exterior boundaries of the reservation. State ex rel. Firecrow 's Adoption v. District Court, 167 Mont. 139, 143, 536 P.2d 190, 193 (1975). However, in the case at hand, Angela Conway is not member of the tribe, but merely a descendent and does not reside on the Blackfeet Reservation. Descendent Form, Ex. 1 to Appellee 's Brief (March 6, 2006). Fisher is not analogous in this situation because not all parties to this action are registered Tribal members living within the exterior boundaries of the reservation. Additionally, an adoption proceeding is inherently in personam, whereas a probate action is strictly in rem, as argued in section B below. The facts of Fisher do not support a conclusion that state court jurisdiction would interfere with tribal self-government in this probate. 320210.2 4

The Fisher Court also stated that not allowing the tribal court exclusive jurisdiction over the adoption in which all parties were Indian members living on the reservation "would create a substantial risk of conflicting adjudications affecting the custody of the child." Fisher at 387-388, 96 S.Ct. at 947. In contrast, in the probate arena, district courts often share concurrent jurisdiction with other courts during ancillary probate proceedings. When a decedent dies with property in more than one state, courts in all the states in which the decedent's property is located have jurisdiction for the probate of property within its borders. This does not create "conflicting adjudication," but provides concurrent jurisdiction in order to properly transfer all of the decedent's property. Furthermore, to the extent a party believes Blackfeet Tribal Law should control distribution of estate assets, he or she can argue that Blackfeet Tribal Law controls, rather than Montana laws of succession. There is no reason that the District Court in Glacier County could not apply principles of Blackfeet Tribal law and tradition during a probate proceeding in that court. Interestingly, before Angela Conway discovered Willie and Julie's attempt to exclude her, they were content to assert and follow the Montana succession statutes. Mont. Code Ann. 72-1-104 states, "Unless displaced by the particular provisions of this code, the principles of law and equity supplement its 320210.2 5

provisions." There is no provision in the Montana Probate Code which would disallow a district court judge from considering statements of Blackfeet tradition during the probate proceeding. In fact, Montana courts often follow the laws of succession of other jurisdictions. For example, in an ancillary probate conducted in Montana with respect to property located in Montana, the court would apply laws from the decedent's domiciliary jurisdiction. In an ancillary probate conducted for real property of a person who died intestate, "the courts of the situs would usually apply their own local law, they may in certain situations look to the local laws of another state to determine questions involving intestate succession to local land." 23 Am. Jur. 2d Descent & Distribution 12 (2009). B. Probate actions are in rem proceedings concerning property, therefore the Plains Commerce holding is applicable. A probate action is an in rem proceeding concerning the administration and distribution of property. Mont. Code Ann. 72-1-202(1)(a) gives the court subject matter jurisdiction over "estates of decedents." Mont. Code Ann. 72-1- 103(15) defines "estate" as "the property of the decedent, trust, or other person whose affairs are subject to chapters 1 through 5." (Emphasis added). Because the subject matter jurisdiction over an estate is strictly exerted over the property, not a deceased person, jurisdiction of a probate cannot be determined by the decedent's 320210.2 6

status as an Indian. Therefore, the Plains Commerce Bank v. Long Family Land and Cattle Co., 544 U.S., 128 S.Ct. 2709 (2008) holding of no tribal jurisdiction over fee land within the exterior boundaries of the reservation is applicable. The Amicus Brief attempts to distinguish Plains Commerce from the facts of this case, but this distinction is not persuasive. The important fact of the Plains Commerce case is not who owned the fee land located within the exterior boundaries of the reservation, as argued in the Amicus Brief at 12-13, but rather that the land was owned fee simple. "Our cases have made clear that once tribal land in converted into fee simple, the tribe loses plenary jurisdiction over it." Plains Commerce, 128 S.Ct. at 2719. There is no question that William Big Spring Jr.'s land was owned in fee simple. CPR, Doc. 1], Inventory and Appraisement (March 10, 2006). The reasoning of Plains Commerce mandates that jurisdiction over the probate of an estate containing only fee simple land is, at a minimum, held concurrently with both tribal and state district court. Additionally, the Plains Commerce Court stated, "Not only is regulation of fee land sale beyond the tribe's sovereign powers, it runs the risk of subjecting nonmembers to tribal authority without commensurate consent." Id., 128 S.Ct. at 2724. Because Angela Conway is not a member of the Tribe, she should not be 320210.2 7

denied access to a state district court to determine her inheritance of fee land through a probate proceeding off of the reservation. III. The Tribe is not currently exercising jurisdiction over probates. The third requirement of the Iron Bear test is whether the tribal court is currently exercising jurisdiction in such a manner as to preempt state jurisdiction. Iron Bear v. District Court, 162 Mont. 335, 346 5 512 P.2d 1292 5 1299 (1973). The Tribe and Appellants, in their Briefs, cite one tribal court probate, In re the Estate of Dan Boggs, 2008 P 21, Blackfeet Tribal Court. Amicus Br. 11. However, a simple call to the Glacier County Clerk of Court revealed seven probates of enrolled Blackfeet members which have been filed and completed in the District Court since 2008: Estate of Roland D. Black Weasel, DP 08-12; Estate of Zachary R. Gervais, DP 08-22; Estate of Alma L. Pemberton a/ida Alma Augare, DP 08-25; Estate of Stacey Rae Everybody Talks About, DP 08-29; Estate of Mary Ellen Davis a/ida Maryellen Davis, DP 09-5; Estate of Joseph J. Rutherford, Sr., DP 09-7; Estate of Max Lee Kipp, DP 09-13; Estate of Eva Katheryn Guardipee Upham, DP 10-17. A closer review of just one of these estates revealed the transfer of real property within the exterior boundaries of the reservation. Estate of Alma L. Pemberton a/ida Alma Augare, DP 08-25. See 320210.2 8

attached Exhibit A, Inventory and Appraisement, and attached Exhibit B, Deed from the Estate to Donald Pemberton. The Tribe, except for its statements in the Amicus Brief, is not exercising jurisdiction in such a manner as to preempt state jurisdiction. 1) The Tribe has no probate code. Appellants 'Brief on Appeal 25. 2) The Blackfeet Tribal Law and Order Code of 1967 has only two references to probates located in two sections, totaling approximately one page, in the "Determination of Heirs" (Chapter 3, Section 4) and "Approval of Wills" (Chapter 3, Section 5). 3) The language cited by the Tribe regarding probate actions is permissive. "any member claiming to be heir of the decedent may bring suit in the Tribal Court to have the Court determine the heirs of the decedent..." (Emphasis added). Blackfeet Tribal Law and Order Code of 1967, Chapter 3: Domestic Relations, Section 4: Determination of Heirs. 4) Tribal members, including the Appellants Willie and Julie, are choosing to file probates in state court, see above and CPR, Doc. 3, Application for Informal Appointment of Personal Representative (September 29, 2004). The Amicus Brief includes the text of Resolution 25-67 (passed November 20, 1967) and Resolution 92-72 (passed December 13, 1974), which purport to 320210.2 9

abolish any concurrent jurisdiction which existed in the Blackfeet Tribal Law and Order Code of 1967. Amicus Br. 6-7. While they abolish concurrent jurisdiction, the Tribe has created nothing to fill the void. Both the Tribe and the Appellants discuss "custom of the Tribe," but never say what that custom is or how a litigant in a probate action in tribal court would proceed in proving or disproving tribal custom. Moreover, as mentioned above, a Montana district court can apply Tribal Law just as it can apply the laws of another state. What the Tribe must do to assert exclusive jurisdiction is an open question. Is it enough to file an amicus brief at the Supreme Court asserting exclusive jurisdiction? Or, should the Tribe appear in state court probate actions like the seven listed above and file challenges to jurisdiction on behalf of the Tribe? Has the Tribe requested notice from State Courts? Has the Tribe instructed members on the proper procedure for filing probates? Has the tribal court communicated in any way to state district courts their assertion of exclusive jurisdiction? The Tribe did not list any concrete steps it has taken to exercise exclusive jurisdiction, beyond their appearance as Amicus Curiae in this case. Therefore, we must conclude that the Tribe is not exercising jurisdiction over all probates of Indian property. 320210.2 10

CONCLUSION This Court has noted, "the purpose of probate is the just and equitable transfer of estate property to the proper heirs." Estate of Standing Bear v. Belcourt, 193 Mont. 174, 1801) 631 P.2d 285, 290 (1981). If the Tribe has exclusive jurisdiction over probates, the attached deed from a previous probate is void. If the Tribe has exclusive jurisdiction, the above listed probates and any transfers of property subsequently made are void. If the Tribe has exclusive jurisdiction, the chain of title for all fee land on the reservation must be reviewed to assure that the Tribal Court approved the transfer of the property to the decedent's heirs. Additionally, any personal representative's deed pursuant to a state court probate on any fee land on the reservation, and all subsequent deeds would be void. This result would frustrate the purpose of the probate code and throw property rights into uncertainty. This scenario can be avoided if it is determined that there is concurrent jurisdiction for probate actions. Appellants cannot satisfy the Iron Bear test. Their position, adopted by the Tribe in the Amicus Brief, that tribal court has exclusive jurisdiction over probates is not tenable. This Court must determine that the state district court has jurisdiction over this matter based on the following: 1) There was no federal law preempting state jurisdiction at the time of Bill's death; 2) Concurrent jurisdiction 320210.2 11

would not interfere with tribal self-government because this probate action is concerning fee property; and 3) The Tribe has taken no concrete steps to exercise exclusive jurisdiction over probate actions. DATED this 16th day of September, 2010. - L It/on A. Nelson, Esq. Attorney for Appellee Conway CERTIFICATE OF SERVICE I, RON A. NELSON, hereby certify that the foregoing was duly served upon the respective attorneys for each of the parties entitled to service by depositing a copy in the United States mail, postage prepaid, 1 Ødressed to each at the last known address as shown on this page on the i'ay of September, 2010. Linda Hewitt Conners P. 0. Box 7310 Kalispell, MT 59904 Joe J. McKay P. 0. Box 1803 Browning, MT 59417 Sandra K. Watts P. 0. Box 849 Browning, MT 59417 Ron A. Nelson 320210.2 12

CERTIFICATE OF COMPLIANCE Pursuant to Rule 27, M.R.Civ.P., I hereby certify that the foregoing Appellee's Brief meets the requirements in Rule 27 as follows: 1. Line spacing Double-spaced 2. Typeface Times New Roman, Proportionally spaced, 14 Point 3. Word count 21431 - Does not exceed 5,000 word limit Excludes Certificate of Mailing and Certificate of Compliance - Word Perfect 12.0 DATED this 16th day of September, 2010. 5, JOHNSON & WILLIAMS, P.C. IN RON A. NELSON 320210.2 13