Estate of Standing Bear by and through Billy v. Belcourt, 80-390

• Citation: 631 P.2d 285,193 Mont. 174
• Decision Date: 09 July 1981
• Docket Number: No. 80-390,80-390
• Parties: The ESTATE OF Douglas J. STANDING BEAR, Deceased, by and through Corrine Billy, Personal Representative, Plaintiff and Appellant, v. Gerald BELCOURT, Jean Belcourt, and Leota M. Standing Bear, Defendants and Respondents.
• Court: United States State Supreme Court of Montana

Page 285

631 P.2d 285

193 Mont. 174

The ESTATE OF Douglas J. STANDING BEAR, Deceased, by and through Corrine Billy, Personal Representative Plaintiff and Appellant, v. Gerald BELCOURT, Jean Belcourt, and Leota M. Standing Bear Defendants and Respondents.

No. 80-390.

Supreme Court of Montana.

Submitted June 16, 1981.

Decided July 9, 1981.

Altman & Lilletvedt, Frank Altman, argued, Havre, for plaintiff and appellant.

Wm. George Harris, Missoula, for defendants and respondents.

DALY, Justice.

Plaintiff is the personal representative of the estate of Douglas J. Standing Bear. She appeals from an order of the District Court of the Twelfth Judicial District, in and for the County of Hill, dismissing for lack of subject matter jurisdiction her action in claim and delivery to recover a road grader alleged to be property of the estate.

Douglas Standing Bear was killed in a car accident on July 22, 1978. He was, and his three natural children are, enrolled members of the Wind River Arapaho Indian Tribe in Wyoming. His wife, defendant Leota M. Standing Bear, and his adopted daughter, Teresa Standing Bear, are enrolled members of the Chippewa-Cree Tribe in Montana. At the time of his death, decedent, his wife, and three of the children were domiciled on the Rocky Boy's Indian Reservation. The fourth child was living in Havre, Montana.

On October 1, 1976, the Bureau of Indian Affairs approved an Indian Business Development Grant to decedent in the amount of $30,000 for the purchase of a motor grader so that he could start a private contracting business. The grant required that decedent obtain 60 percent of the cost of the grader from other sources. He applied for and received a $54,000 loan from the First National Bank of Havre and a guaranty for that loan from the Small Business Administration. The Havre bank obtained a perfected security interest in the grader. Upon decedent's death, a credit life insurance policy paid the loan balance to the bank.

On August 9, 1978, upon application of Leota Standing Bear (decedent's widow), she was appointed as personal representative of her husband's estate and jurisdiction placed in the District Court of the Twelfth Judicial District, County of Hill. Leota M. Standing Bear was subsequently restrained by orders of the state District Court dated April 11, 1979, May 7, 1979, and October 4, 1979, from disposing of any property belonging to the estate of Douglas J. Standing Bear. On October 4, 1979, the court removed her as personal representative for cause. One of the decedent's natural children, Corrine Billy, was thereafter appointed personal representative of the estate.

On August 23, 1978, Leota M. Standing Bear petitioned the Tribal Court of the Chippewa-Cree Tribe and was appointed administrator of decedent's estate. Subsequent proceedings were had in that court by Leota M. Standing Bear, in the estate of Douglas J. Standing Bear, and on June 18, 1979, the Tribal Court granted her ownership of certain assets of decedent located at that time on that reservation, including the Caterpillar motor grader. All of these proceedings and orders were made ex parte without any notice to any interested persons, including any of decedent's other heirs or potential heirs.

On March 10, 1980, the Tribal Court made and entered an order vacating all prior orders made in the matter of the estate of Douglas Standing Bear for the reason that the Tribal Court did not have jurisdiction over the estate since decedent was not an enrolled member of the Chippewa-Cree Tribe.

At the time of decedent's death, the road grader was located on the Fort Peck Indian Reservation. It was moved to the Rocky Boy's Reservation. Defendant Leota Standing Bear then sold the grader to her brother, defendant Gerald Belcourt, for $125, who in turn sold it for $70,000 to an unknown party.

The District Court found that out of the proceeds, Belcourt gave Leota Standing Bear the sum of $22,000; kept $6,000 for himself; and deposited the sum of $42,000 in the Montana Bank of Browning, Montana, in his name and that of his wife, Jean Belcourt. All defendants in this action are enrolled members of the Chippewa-Cree Tribe.

Corrine Billy, as personal representative of the estate, brought a claim and delivery action to recover the grader or the proceeds of its sale. On March 26, 1980, the District Court granted plaintiff a preliminary injunction which restrained transfer of the grader or its proceeds. Defendants filed a motion to dismiss the action and also a motion to quash the preliminary injunction. The court continued the hearing on those motions to May 28, 1980, combining the hearing with the "parent" case, Probate Cause No. 5158, Estate of Douglas J. Standing Bear, Deceased.

On July 24, 1980, the District Court held that it had jurisdiction over the probate proceeding but that it lacked jurisdiction over the claim and delivery action. In denying jurisdiction, the court noted that the sale of the grader took place on the reservation, that a substantial part of the proceeds are deposited in a bank on an Indian reservation, and that the Chippewa-Cree Tribal Code claims jurisdiction of all civil suits whenever the defendant is a tribal member. The District Court concluded that state jurisdiction would interfere with tribal government and that plaintiff's remedy was to sue in the Tribal Court.

Plaintiff appeals the final judgment of the District Court.

The sole issue presented to this Court on appeal concerns the subject matter jurisdiction of the claim and delivery action by the state District Court.

Plaintiff contends that the District Court erred when it held it did not have subject matter jurisdiction of the claim and delivery action against defendants. In Crawford et al. v. Roy (1978), 176 Mont. 227, 577 P.2d 392, this Court, using the transactional analysis test, held that there were sufficient activities occurring outside the reservation to invest the state court with jurisdiction and, as such, state jurisdiction could not be held to infringe on the rights of the reservation Indians to make their own laws and to be ruled by their own laws.

In the instant case, Leota Standing Bear invoked state court jurisdiction when she petitioned for the probate of her deceased husband's estate. At the time of decedent's death, the grader was not located on the Rocky Boy's Reservation; and further, defendants Gerald and Jean Belcourt are residents of the State of Montana. These facts, according to appellant, are sufficient to meet the transactional analysis test and therefore, confer jurisdiction on the state court.

There is no federal treaty or statute that has preempted jurisdiction in the District Court. Furthermore, the Tribal Court has not, and is not, exercising jurisdiction in this case. Therefore, the Tribal Court has not preempted District Court jurisdiction but, in fact, has conceded that jurisdiction lies with the state District Court and will support and enforce the state court's final order.

Appellant argues that, by entering into a sale of the grader, respondents committed the torts of fraud and conversion against appellant. Since such tortious acts were directed against an estate being administered in state court, and since such deliberate action was taken to deprive the state court of its lawful jurisdiction, it would be plain error to hold that remedial action does not lie in state court.

Respondents did not appear in this Court at the time set for oral arguments. The brief filed by respondents indicates the following general position. The state is precluded by federal preemption and the exercise of plenary power of the United States over Indian tribes from exercising jurisdiction in Indian estate and probate matters. Exclusive jurisdiction over estate and probate proceedings respecting descent and distribution of assets of an Indian is vested in the Secretary of the Interior by federal law. See, 25 U.S.C. § 372 et seq.; 25 C.F.R. §§ 1.2 et seq.; and 43 C.F.R. §§ 4.200 et seq.; see also Pub.L.No. 83-280, 67 Stat. 588; 28 U.S.C. § 1360(b); and State ex rel. Three...