|
A. APPLICATION OF FEDERAL/STATE/TRIBAL LAW 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).
|