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.]
IV. Status of Parties and Choice of Law
- A. Application of Federal/State/Tribal Law
- B. Heirship
- C. Adoption and Marriage
- D. Intestacy
- E. Paternity
- F. Indian Status
The construction of Indian wills under the jurisdiction of the Department of the Interior is a question of federal, not state, law. Estate of Reuben Mesteth, 16 IBIA 148 (1988). The Department is not required to give full faith and credit to a state probate court determination of the validity of an Indian will devising trust property. In the Matter of the Will of Mural W. Barnes, 30 IBIA 7 (1996). However, while the Secretary is not bound by the decision of a state or tribal probate court, those proceedings might be relevant as evidence in a Departmental probate proceeding. Estate of Harold Frank Pickernel, 32 IBIA 1 (1998). The principle criterion in the construction of an Indian will is always the intent of the testator, if that intention can be reasonably ascertained and is not contrary to an established rule of law or in violation of public policy. Estate of Paul Wilford Hail, 13 IBIA 140 (1985); Estate of Margaret Fisher Leader Molina, 27 IBIA 254 (1995).
Congress placed the approval of Indian wills in the hands of the Secretary of the Interior for the protection of Native Americans and the courts have not imposed a rigid rule of law on that approval. While the rules of the various states are not applicable, the exercise of that discretion is not unrestrained. The Secretary cannot disapprove a will based on a personal concept of equity. See Tooahnippah v. Hickel, 397 U.S. 598 (1970). In the absence of substantive probate regulations, the Department of the Interior lacks authority to disapprove an Indian will on the basis of its failure to provide for a pretermitted heir. Estate of Archie Blackowl, Sr., 29 IBIA 195 (1996).
The Department is not bound by state or tribal court decisions in making heirship determinations. It has the responsibility and authority to make independent determinations of heirs. Estate of Malcolm Muskrat, 29 IBIA 208 (1996). The Secretary of the Interior is not bound by tribal court decisions in determining the heirs of a deceased Indian, but has the authority and responsibility to make an independent determination of the decedent's heirs. A tribal court decision may be accepted as evidence of heirship. Estate of Lois Marie (Francis) Pete (Sanchez), 22 IBIA 249 (1992); Estate of Matthew Pumpkinseed, 25 IBIA 98 (1994). The IBIA follows the rule that the status of an individual is determined by the law of the jurisdiction having the most significant contacts with the individual or in which the relationship at issue was created. Laws governing the status of an individual must be distinguished from laws governing inheritance. Estate of Richard Doyle Two Bulls, 11 IBIA 77 (1983); Estate of Wilma Florence First Youngman, 12 IBIA 219 (1984).
Proof of adoption for purposes of Indian probate proceedings is governed by federal law. Estate of Frances Alfred Graham, 34 IBIA 276 (2000); Estate of Mary Martin Mataes Andrew Caye, 9 IBIA 196 (1982). The inheritance rights of an adopted child are determined by the law of the state in which the trust real property is located. Estate of Mary Martin Mataes Andrew Caye, 9 IBIA 196 (1982); Estate of Victor Blackeagle, 16 IBIA 100 (1988). Marital status is determined by the laws of the jurisdiction in which the relationship was created. Estate of Henry Frank Racine, 13 IBIA 69 (1985). Where all relevant facts have arisen within a single jurisdiction, the law of that jurisdiction will be used to determine whether alimony or support payments required by a divorce decree survive the payor's death. Estate of Leonard Ducheneaux, 13 IBIA 169 (1985).
When an Indian owning land in trust dies without a will, the trust property passes to his or her heirs as determined by state laws of intestate succession. Estate of Sam A. Simeon, Estate of Stephen (Steven Aloysius) Simeon, 15 IBIA 135 (1987); Estate of Victor Blackeagle, 16 IBIA 100 (1988); Estate of Rueben Mesteth, 16 IBIA 148 (1988). While the construction of Indian wills is a question of Federal, not state law, when an Indian testator devises a life estate to a named individual with the remainder interest in the heirs of that individual's body, the remaindermen are determined with reference to state laws of intestate succession. Estate of Frank (Tate) Nevaquaya Tooahimpah, 21 IBIA 222 (1992). In accordance with the 25 U.S.C. 348 those persons who may inherit from a deceased Indian are determined in accordance with the appropriate state law. Whether the property will stay in trust does not affect whether the person is eligible to inherit. Estate of Walter A. Abraham, 24 IBIA 86 (1993).
Paternity in an Indian probate proceeding is a question of Federal, not state law, and the standard of proof is a preponderance of the evidence. Estate of Emerson Eckiwaudah, 27 IBIA 245 (1995); Estate of Malcolm Muskrat, 29 IBIA 208 (1996). The status of an Indian child as illegitimate and the required proof of paternity are questions of Federal law. Larry E. Ruff v. Area Director, Portland Area Office, Bureau of Indian Affairs, 11 IBIA 267 (1983); Estate of James Howling Crane, Sr., 12 IBIA 209 (1984). While state law is not binding on the Department for determining paternity, the ALJ may review it as persuasive authority. Reference to state law is appropriate when there is no federal law, including IBIA precedent, on a particular issue. Estate of Emerson Eckiwaudah, 27 IBIA 245 (1995). The right of illegitimate children to inherit from a trust estate is controlled by the provisions of 25 U.S.C. 371, notwithstanding the inconsistent provisions of any state statute. Estate of Willis Attocknie, 9 IBIA 249 (1982). Under 25 U.S.C. 371 an illegitimate child can inherit from the person shown to be the father. Estate of Robert R. Monroe, 9 IBIA 67 (1981); Estate of Richard Doyle Two Bulls, 11 IBIA 77 (1983); Estate of James Howling Crane, Sr., 12 IBIA 209 (1984).
The Department of Interior has no authority to hold land in trust for non-Indians. When non- Indians acquire trust land through inheritance or devise, a fee patent title should be transferred immediately to such individuals in accordance with 25 C.F.R. 152.6. Estate of Eugene R. Trust v. Acting Aberdeen Area Director, Bureau of Indian Affairs, 11 IBIA 203 (1983). Interests inherited by non-Indians pass out of trust status and remain out of trust status even if later inherited by an Indian. Estate of Pansy Jeanette (Sparkman) Oyler, 16 IBIA 45 (1988). The Department of the Interior has no authority to probate non-trust assets held by an Indian at the time of death. Such property must be probated by the appropriate state or tribal court. Estates of Edwin (Edward) J. Scarborough and Nora Scarborough Brignone, 11 IBIA 179 (1983); Estate of Pansy Jeanette (Sparkman) Oyler, 16 IBIA 45 (1988).
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