Survey of Interior Board of Indian Appeals Probate Decisions 1980-2000
by PRISCILLA A. WILFAHRT, Esq.
[NOTE: The regulations relating to probate proceedings have been substantially amended since 2000. Some of the following discussion may no longer be applicable. Please consult the current edition of 25 C.F.R. Part 15 and 43 C.F.R. Part 4, Subpart D, to see if your issue was affected by the amendments.]
III. Practice Before the Board - Procedure
Constructive notice of an Indian probate hearing can be given through posting in the vicinity of the hearing. In order to prove constructive notice through posting, the record must show that the notice was properly posted in accordance with the regulation. Estate of Jack Kenworthy, 21 IBIA 4 (1991). Service of a copy of a notice of appeal on all interested parties is not a jurisdictional requisite and an appeal will not be dismissed for failure of service when interested parties have received actual notice of the pendency of an appeal. Estate of Wilma Florence First Youngman, 10 IBIA 3 (1982). Notice of a hearing is not defective when the notice was sent more than 30 days before the hearing to the party's last known address, the notice was not returned, testimony of other individuals at the hearing showed that the party knew of the hearing and the party's appeal showed that he knew of the hearing. Estate of Andrew Jackson, 12 IBIA 39 (1983). The failure of the ALJ to properly notice a hearing excuses a party's failure to attend and present evidence. Estate of Richard Evans Walker, 12 IBIA 44 (1983). Failure to serve parties with notice after being ordered to do so by the Board will result in a dismissal of the action for failure to prosecute. Estate of Vonsell Ann Eldridge, 31 IBIA 182 (1997).
The appellant bears the burden of proof to show that an appeal was timely filed. When the BIA's decision letter gives correct appeal instructions, it is not sufficient to file an appeal with the wrong office of the Department of the Interior which causes the appeal to be untimely received by the Board. The Board is an independent component of the office of the Secretary of the Interior. Aleta Speakthunder Cole v. Billings Area Director, Bureau of Indian Affairs, 28 IBIA 193 (1995); Estate of Frank Nelson Buffalomeat, 34 IBIA 120 (1999). Any procedural due process violations that might have been committed by a BIA Area Director by not insuring that interested parties were notified of the pendency of an appeal, or by not allowing all interested parties an opportunity to respond, are cured in an appeal to the Board, in which all parties are allowed a full opportunity to present their positions. Cherokee Nation v. Acting Muskogee Area Director, Bureau of Indian Affairs, 29 IBIA 17 (1995).
The Board has a well established practice of declining to consider issues raised for the first time on appeal. Estate of Rufus Ricker, Jr., 29 IBIA 56 (1996). It may do so however, when not doing so would only unnecessarily delay resolution of the matter and where the parties' failure to make the arguments earlier can be explained. Estate of George Dragswolf, Jr., 30 IBIA 188 (1997). While ordinarily the IBIA will not consider an issue raised for the first time on appeal, jurisdiction is a fundamental issue and may be raised at any time. Estate of James Wermy Pekah, 11 IBIA 237 (1983); Estate of Ella Dautobi, 15 IBIA 111 (1987); Estate of Alice Jackson (John), 17 IBIA 162 (1989). The Board may consider an issue raised for the first time on appeal in order to exercise its authority to correct a manifest injustice or error. Estate of George Dragswolf, Jr., 31 IBIA 228 (1997).
When one of the parties in interest is a minor, notice is properly served on the guardian ad litem. Estate of Katie Crossguns, 10 IBIA 141 (1982); Estate of Eugene Patrick Dupuis, 11 IBIA 11 (1982). Departmental regulations require that a guardian ad litem be appointed for a minor or incompetent who is a party in interest to a probate proceeding and such guardian may fully represent the minor or incompetent at a hearing. Estate of Jason Crane, 12 IBIA 165 (1984).
All claims against the estate of a deceased Indian held by creditors chargeable with notice of the hearing under 43 C.F.R. 4.250 must be filed prior to the conclusion of the first probate hearing or are forever barred. Estate of John Joseph Kipp, 8 IBIA 30 (1980). Failure to file a timely appeal in accordance with Departmental regulations precludes an appellant from obtaining review of an ALJ's initial decision as well as collateral orders. Estate of George Swift Bird, 10 IBIA 63 (1982). The timely filing of a notice of appeal is a jurisdictional prerequisite. Estate of Ralph James (Elmer) Hail, 12 IBIA 62 (1983). An individual who fails to file a proper petition for rehearing with the ALJ lacks standing to appeal to the IBIA. Estate of Richard Lip and Estate of Riley M. Glenn, 15 IBIA 97 (1987). An ALJ does not have the authority to limit or cut off appeal rights. Estate of Paul Widow, 17 IBIA 107 (1989); Estate of Henry Houle, 19 IBIA 222 (1991).
The Administrative Procedure Act (APA) is applicable to proceedings in Indian probates and requires that the fact finder develop a sufficient record to support his findings and conclusions. Where the record does not support the findings of the fact finder the IBIA will, on appeal, limit the conclusions of law to conclusions which are based on the record. Estate of Catalina Clifford, 9 IBIA 165 (1982). The weight and credibility of evidence are matters properly considered by the ALJ. Where testimony is conflicting, the ALJ's determination of witness credibility and findings of fact will not be disturbed because only he had the opportunity to hear and observe witnesses. Estate of Asmakt Yusquitat (Millie Sampson), 8 IBIA 1 (1980); Estate of Charles Running Bird, 24 IBIA 136 (1993). The IBIA will defer to the ALJ's determination of the credibility of evidence and testimony. Estate of Albin (Alvin) Shemamy, 13 IBIA 258 (1985); Estate of Ella Dautobi, 15 IBIA 111 (1987).
If the ALJ deciding the case is not the judge who held the hearing, the IBIA will review witness credibility determinations de novo. Estate of Emerson Eckiwaudah, 27 IBIA 245 (1995). The Board may review an evidence credibility finding of an ALJ if the ALJ did not hold a hearing in the matter and had no opportunity to observe the witness and provided no opportunity for the appellant to cross-examine the witness. Estate of Norman Steele (Steal), 31 IBIA 12 (1997). The IBIA is not required to consider evidence raised for the first time on appeal. Estate of Warren Lewis Lincoln, 19 IBIA 118 (1990); Estate of Evan Gillette, Sr., and Lizzie Gillette/YellowBird/Bellanger/Paint/Bedell, aka Elizabeth Burdell, 22 IBIA 133 (1992).
Parties to an Indian probate proceeding are entitled to notice of the taking of a deposition of the will scrivener and to the opportunity to cross-examine that person in accordance with 43 C.F.R. 4.221(e) and under the APA, 5 U.S.C. 556(d). Estate of Lucy Buffalo Little Coyote, aka Thyra Redbird, 17 IBIA 31 (1989). When a notice of appeal shows on its face or in conjunction with the materials submitted with it that under no set of circumstances can the appellant prevail, the notice may be addressed without briefing. Estates of Newton NcNeer and Nancy McNeer, 33 IBIA 318 (1999). When a notice of appeal shows on its face or in conjunction with the administrative or probate record that there is no set of facts under which the appellant can prevail, a decision may be issued without additional briefing. Estate of Elmer James Whipple, 16 IBIA 225 (1988).
The burden of proof to show that the decision in the probate of a trust estate was erroneous is on the person challenging the decision. Estate of Verena Gean Kitchell, 12 IBIA 258 (1984); Estate of Jason Crane, 12 IBIA 165 (1984); Estate of Paul Wilford Hail, 13 IBIA 140 (1985); Estate of Henry W. George, 15 IBIA 49 (1986); Estate of Mary Standing Bull Curtis, 15 IBIA 213 (1987); Estate of Glenn Begay, 16 IBIA 115 (1988). Federal precedent controls decisions in Indian probate decisions, including evidentiary standards. For purposes of determining paternity the standard of proof is a preponderance of the evidence. Estate of William Youpee, 28 IBIA 200 (1995). Hearsay evidence of deceased family members may be admissible as evidence of pedigree. Estate of Malcolm Muskrat, 29 IBIA 208 (1996). The Board has held that it does not have authority to order individuals to submit to DNA or blood testing to determine paternity. WELSA Heirship Determination of Leon M. Van Wert, 30 IBIA 177 (1997).
The ALJ may deny a petition for rehearing based on newly discovered evidence if that evidence is merely cumulative of evidence already presented. Estate of Asmakt Yumpquitat (Millie Sampson), 8 IBIA 1 (1980). An ALJ may certify interlocutory questions to the IBIA pursuant to 43 C.F.R. 4.28. Estate of James Largo, 12 IBIA 224 (1984). Interlocutory appeals should only be granted in those circumstances where prompt appellate consideration is essential, such as when the ALJ's decision threatens the party with immediate and serious irreparable harm which is not capable of correction on appeal. Estate of Neal Kay Manuel, 13 IBIA 58 (1984).
In determining whether its decisions should be applied retroactively the IBIA will consider four factors: 1) the nature of the reliance placed upon the prior applications of law by the parties; 2) the harm or prejudice to those who relied upon previous principles of law; 3) the purpose of the law in light of public policy; and 4) the harm to the administration of justice and public purpose. Estate of Nellie Brown, 11 IBIA 1 (1982); Estate of Ernestine M. Smith et al. v. Area Director, Muskogee Area Office, Bureau of Indian Affairs, 16 IBIA 153 (1988).
The ALJ may accept a compromise settlement of an estate if it meets the requirements of 43 C.F.R. 4.207 and acceptance of such a settlement constitutes a final determination of the heirs of the decedent. Estate of Dennis Gail Beaver, 11 IBIA 135 (1983); Estate of Eugene R. Trust v. Acting Aberdeen Area Director, Bureau of Indian Affairs, 11 IBIA 203 (1983).
In order to have standing to appeal a decision in an Indian probate case, an individual must be an actual or presumptive heir of the decedent, a beneficiary under a will executed by the decedent, or a person asserting a claim against the decedent's estate. Estate of Ethel Edith Wood Ring Janis, 15 IBIA 216 (1987); Estate of James Wermy Pekah, 34 IBIA 188 (1999); Estate of Frank Nelson Buffalomeat, 34 IBIA 120 (1999). An individual who participated in probate proceedings, or an individual whose interest is derived from a participant in probate proceedings lacks standing to seek reopening of the estate. Estates of Lean Woman (Sankey) and Old Woman (Murphy), 35 IBIA 60 (2000). A BIA ruling concerning an appellant's standing is a legal conclusion subject to full review by the IBIA even though it is part of an otherwise discretionary decision made by the BIA. Muskogee (Creek) Nation v. Muskogee Area Director, Bureau of Indian Affairs, 28 IBIA 24 (1995).
Links to Additional Topics in this Article
- Trust Responsibility
- General Rules of Construction
- Practice Before the Board - Procedure
- Status of Parties and Choice of Law
- Rehearings and Reopening Estates
- Will Formalities
- Property Inventories
- IBIA Jurisdiction
- The Rules
Finding IBIA Decisions
Indian Self-Determination Act
Procedural Regulations for Cases before the Interior Board of Indian Appeals
FAQs on Practice before IBIA
Articles about IBIA
Finding Pre-IBIA Decisions