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.]
VII. Property Inventories
Questions of alleged legal errors in BIA's inventory of Indian trust assets may be raised during an Indian probate proceeding. Estates of Evan Gillette, Sr. & Lizzie Gillette/YellowBird/ Bellanger/Paint/Bedell, aka Elizabeth Burdell, 22 IBIA 133 (1992). Corrections to inventories in Indian estates may not be pursued through administrative appeals of related BIA decisions. Georgianna L. Danks v Aberdeen Area Director, Bureau of Indian Affairs, 20 IBIA 79 (1991). Department of the Interior Indian probate regulations provide a procedure under which property which was improperly included in an estate inventory may be eliminated from the inventory, even though the probated proceedings have been concluded. Severo Leon et al. v. Albuquerque Area Director, Bureau of Indian Affairs, 23 IBIA 248 (1993). The procedure for handling a challenge to a property inventory was established and described in Estate of Douglas Leonard Ducheneaux, 13 IBIA 169 (1985), and was further discussed in Estate of Clayton Daniel Prairie Chief, Sr., 24 IBIA 131 (1993) and Estate of George Levi, 26 IBIA 50 (1994).
When a challenge is received, the ALJ is to notify the Superintendent, Area Director, and the Director, Office of Trust Responsibilities, that a challenge to the estate inventory has been raised and to allow full participation in the case by these officials. At the end of all proceedings the ALJ should issue an order setting out the distribution of the estate and a recommended decision on the inventory question, which shall be final unless appealed to the Board. Estate of Donna Gottschalk, 30 IBIA 82 (1996); Estate of Mary Dorcas Gooday, 35 IBIA 79 (2000). It is ultimately a decision within the discretion of the BIA as to whether any conveyance of trust property, including one presented after the death of the grantor, should be approved. Estate of George Levi, 26 IBIA 50 (1994). Decisions to approve or disapprove gift deeds of Indian trust land are normally made by BIA officials in the exercise of their discretionary authority, although, in the instance of a challenge to a property inventory, they are also subject to the special Ducheneaux procedures. The ALJ may specifically request the BIA officials to consider whether a gift deed should be approved retroactively. Estate of Mary Dorcas Gooday, 35 IBIA 79 (2000). Absent a showing of fraud or undue influence, neither the IBIA nor an ALJ has the authority to void a deed of Indian trust property. Estate of George Dragswolf, Jr., 30 IBIA 188 (1997). The Board noted in Dragswolf that it has not reached the question of whether there were any circumstances under which it could void a deed.
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