In re Estate of Miller, (2022)

• Docket Number: AV2020-0054
• Decision Date: 31 May 2022
• Citation: In re Estate of Miller, 4 TOR3d 134, AV2020-0054 (Jud. Ct. of the Tohono O'odham Nation Adult Civil Division May 31, 2022)
• Parties: IN THE MATTER OF THE ESTATE OF Cecelia Mae Miller, DOB: 06/25/1938, DOD: 05/06/2020, Decedent.
• Court: Judicial Court of the Tohono O'odham Nation Adult Civil Division

4 TOR3d 134

IN THE MATTER OF THE ESTATE OF Cecelia Mae Miller, DOB: 06/25/1938, DOD: 05/06/2020, Decedent.

No. AV2020-0054

Judicial Court of the Tohono O'odham Nation Adult Civil Division

May 31, 2022

ORDER

Rene Alcoverde Jr. Judge

Richard Perry and Jennifer Miller, the Co-Personal Representatives ask this Court to dismiss the probate action on the basis that this Court lacks subject matter jurisdiction.The Court reviews whether the subject of this action, i.e., the administration of the estate of a deceased O'odham Member, is appropriately before this Court.

On a motion to dismiss for lack of subject matter jurisdictionthe plaintiff generally bears the burden of establishing subject matter jurisdiction because it is the plaintiff who is seeking to invoke the Court's jurisdiction, Juan v.Juan et al., 2 TOR3d 62, 63, (Case No 96-T-6510, 2000), appeal dism'dJuan v. Juan, 3 TOR3d 1(Jan. 4, 2005).Here, it was the Co-Personal Representatives as the Co-Petitioners who chose to invoke the Court's jurisdiction by filing the Decedent's probate case with this Court.They knew that the Decedent was a resident of Maricopa County.They now attack the Court's subject matter jurisdiction while at same time, asking through Alisa Gray, to hold off on dismissing the action in order to maintain the Letters of Appointment at least until the next hearing, so that Estate matters can be administered.

4 TOR3d 135

As to the timeliness of the Motion to Dismiss, the Court agrees that a motion to dismiss for lack of subject matter jurisdiction can be raised at any time.The Court reviewed the Co-Personal Representative's initial Petition, which alleges that the Court has subject matter jurisdiction based on the Decedent being a member of the Tohono O'odham Nation.Although they now take an inconsistent and contrary position, they do not contest that the Decedent was a member of the Tohono O'odham Nation.They neither contest that the Estate and the Miller Trust are indebted to Community Development Financial Institute, which is an Enterprise of the Tohono O'odham Nation established pursuant to Article VI, Section 1(e) of the Nation's Constitution.The record also establishes that Sandra Miller and Jennifer Miller heirs of the Estate, are members of the Tohono O'odham Nation.The other heirs of the Estate who are named as beneficiaries in the copy of the Will filed with the Court are not members of the Nation, but they are the surviving children of the Decedent and they are members of another federally recognized tribe.None of them challenged the Court exercising jurisdiction when the Initial Petition was filed.

To ascertain whether this Court has subject-matter jurisdiction to continue the probate action over the estate of Cecelia Mae Miller, the Court must look to the Tohono O'odham Nation's Constitution and applicable Code sections.The fact that this matter could have been brought in a state forum is not dispositive.See for example, In re Estate of Gopher,372 Mont. 9, ¶ 14, 310 P.3d 521(2013)(holding that the District Court did not unlawfully infringe on the Blackfeet Tribe's right of tribal self-government when the Tribal Court expressly declined to assert jurisdiction over the Estate Property), United Linings, Ic. V.Vi-Ikam Doag Industries, Inc., 2TOR3d 39, 44(Case No. 98-C-7354, 1998) (recognizing

4 TOR3d 136

that the U.S. Supreme Court has consistently refrained from instructing tribal legal systems and courts on how to interpret their own constitutions, customs and traditions, or how to treat defenses under tribal law in the absence of congressional legislation), State v. Zaman,190 Ariz. 208, 212(1997)(recognizing that Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members), and Iowa Mut. Ins. Co.v. LaPlante, 80 U.S. 9, 15-16(1987)(recognizing that tribal court jurisdiction must first be addressed and exhausted by the tribal appellate court before being challenged in a federal district court).The Court finds and decrees as follows:

1.Article 1, § 3 of the Nation's Constitution specifies that the sovereign powers, authority and jurisdiction of the Tohono O'odham Nation and its government over members of the Tohono O'odham Nation shall extend beyond the geographical boundaries of the Tohono O'odham Nation.

2.Article 8, § 1 of the Constitution specifies that the power of the Tohono O'odham Nation shall be vested in the Tohono O'odham Judiciary, which shall consist of the Tohono O'odham Courts and such inferior courts as the Tohono O'odham Council may from time to time ordain and establish.

3.Article 8, § 2 specifies that the judicial power of the Tohono O'odham Judiciary shall extend to all cases and matters in law and equity arising under this constitution, the laws and ordinances of or applicable to the Tohono O'odham Nation, and the customs of the Tohono O'odham Nation.

4 TOR3d 137

4. 4 T.O.C. § 1-101(a) specifies that the Tohono O'odham Courts are courts of record and of general jurisdiction and are empowered to hear all actions in law and equity arising under the Tohono O'odham Constitution, the laws ordinances or customs of the Tohono O'odham Nation, actions arising under the Indian ...