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A. REQUIREMENT FOR PETITION FOR REHEARING A person contesting an ALJ's determination of heirs must first seek rehearing by the ALJ before appealing to the Board. Estate of Thomas Nicholas Black Elk, 34 IBIA 212 (2000); Estate of Emma Coffee/Spotted Bear/Smells, 31 IBIA 253 (1997); Estate of Charles C. Jackson, 31 IBIA 178 (1997); Estate of Albert Cobe, 28 IBIA 282 (1995). A properly and timely filed petition for rehearing is mandatory. Estate of Albert William Cobe, 32 IBIA 13 (1998). "It is well established that a rehearing for the purpose of presenting additional evidence is appropriate only in a case where the evidence could not, with reasonable effort, have been presented at the original hearing. Estate of Howard Little Charley, 18 IBIA 335 (1990)...," Estate of George Asepermy, Sr., 28 IBIA 50, 51 (1995).
An ALJ has authority under 43 C.F.R. § 4.242(h). to reopen an estate closed for more than three years. Estate of Jason Crane, 12 IBIA 165 (1984). The BIA may seek reopening of an estate to correct manifest error. Estate of John Yazza Antonio, 12 IBIA 177 (1984); Estate of Paul Widow, 17 IBIA 107 (1989). The Board has held that the BIA has a responsibility to seek reopening when it has information indicating some likelihood that a probate decision is incorrect and that it is manifest injustice for the BIA to have such information and not act on it. Estate of Alice Senoya Luna, 33 IBIA 283 (1999). An agency superintendent has standing to seek reopening of an estate when the decision conflicts with the decision in another estate or the ALJ's decision creates a conflict in the law by being contrary to a decision issued in another estate. Estate of Walter A. Abraham, 24 IBIA 86 (1993). An ALJ may reopen an estate closed for less than three years on his own motion to prevent manifest error. Estate of Thomas Tointigh, 17 IBIA 17 (1988). The Secretary of the Interior, acting through the IBIA and ALJ pursuant to authority delegated in 43 C.F.R. § 4.242(h) has discretionary authority to reopen a closed Indian probate at any time under appropriate circumstances. Estate of Woody Albert, 14 IBIA 223 (1986). Reopening an estate closed for 45 or 66 years is properly denied when there is no evidence to show that there was probable error in the determination of heirs. Estate of Katie Ross Stephens, 10 IBIA 9 (1982); Estate of Frank Pays, 10 IBIA 61 (1982). "The extraordinary, and unique, authority of the Secretary to reopen estates notwithstanding the passage of time, must be tempered by a showing that the petitioner took reasonable measures to seek reopening at the earliest possible time. Persons seeking to reopen an estate closed for more than three years must show by compelling evidence that they acted with due diligence in pursuing their claims." Estate of Louise (Louisa) Mike Sampson, 29 IBIA 86 (1996). An estate closed for 50 years will not be reopened except in extraordinary circumstances to correct a manifest injustice. Estate of John (Pete) Pixley and Emma Pixley, 8 IBIA 70 (1980). Persons seeking to reopen estates closed for more than three years must present compelling evidence that they have acted with due diligence. Estate of Little Snake (John Smith), 24 IBIA 121 (1993). The purpose of rehearings in probate proceedings is to allow consideration of alleged errors made by the ALJ and to permit the introduction of evidence that could not, with diligent effort, have been discovered prior to the original hearing. They are not a means for presenting evidence and arguments that were known and could have been presented at the original hearing. Estate of Alice Mae Sasse, 12 IBIA 281 (1984); Estate of Benjamin Kent, Sr. (Ben Nawanoway), 13 IBIA 21 (1984); Estate of Howard Little Charley, 18 IBIA 335 (1990). An appellant who fails to make any allegation concerning how a decision is in error, let alone make an argument in support of such an allegation, has not carried his burden of proof. WELSA Heirship Determination of John B. Smith (Maynwaywaybe), 33 IBIA 174 (1999). An estate
should not be reopened based on new evidence which would not change the
result of the heirship determination. Estate
of Howard Good Elk (or Pacer), 9 IBIA 38 (1981). An estate may be
reopened to prevent a miscarriage of justice based on a showing that the
evidence presented at the original hearing was incorrect, incomplete,
or otherwise inadequate. Estate
of Wilma Florence First Youngman, 10 IBIA 3 (1982). An estate may
be reopened if facts support a conclusion that the prior decision constitutes
a manifest injustice that can be administratively corrected. Estate
of Joseph Wyatt, 11 IBIA 244 (1983); Estate
of Walter George and Minnie Racehorse George Snipe, 9 IBIA 20 (1981).
The omission of an heir is the type of manifest injustice contemplated
in the reopening provisions of 43 C.F.R. § 4.242(h). Estate
of Woody Albert, 14 IBIA 223 (1986); Estate
of Paul Widow, 17 IBIA 107 (1989). A party petitioning for reopening
of an estate closed for more than three years must show compelling proof
that any delay in the request for reopening was not occasioned by a lack
of diligence on the part of the petitioner. Estate
of Nellie Brown, 11 IBIA 1 (1982); Estate
of Katie Crossguns, 10 IBIA 141 (1982); Estate
of Louise (Louisa) Mike Sampson, 29 IBIA 86 (1996).
The Board
has reversed itself on the issue of whether an estate may be reopened
for the sole purpose of determining an individual's Indian status. It
had previously held that an estate may be reopened for the sole purpose
of determining the petitioner's nationality or Indian status without regard
to the restrictions of 43 C.F.R. § 4.206 if no change to the distribution
of the estate is sought. Estate
of Edward (Agopetah) Bert, 12 IBIA 253 (1984); Estate
of Joseph Dupoint, 13 IBIA 6 (1984); In
re Gladys Rose Charles Whims, Thelma Charles Dick, August Charles, and
Joseph Charles, 13 IBIA 94 (1985). Its most current decisions hold
that an estate should not be reopened for the sole purpose of determining
eligibility for tribal membership. The ALJ should reopen an estate to
determine Indian status when it needs to do so to determine the right
and duty of the Government to hold property in trust. The Board expressly
clarified and overruled its prior decisions in Bert
and Dupoint, supra.
"The Board recognizes that tribes may rely on paternity determinations
made in the course of Departmental probate proceedings for the purpose
of determining eligibility for tribal membership. This is certainly a
legitimate secondary use of a Departmental probate determination. But
an individual's or a tribe's need for such a determination does not vest
jurisdiction in the Department that it would not otherwise have." Estate
of Duke Hawley Tsoodle, Sr., 32 IBIA 108 (1998); Estates
of Russell Edward Whitewolf and Annie Topappy Blackstar, 35 IBIA 53
(2000).
The burden
of proof to show that the initial decision was incorrect is on the party
seeking reopening. Estate
of Wilma Florence First Youngman, 12 IBIA 219 (1984); Estate
of Fred Redstone, Sr., 13 IBIA 44 (1984); Estate
of Pearl Asepermy Werqueyah, 13 IBIA 49 (1984). A party who has received
actual notice of a probate hearing lacks standing to file a petition to
reopen. Estate of Katie
Crossguns, 10 IBIA 141 (1982); Estate
of Rebecca B. Coe, 8 IBIA 164 (1980). A procedurally deficient petition
for rehearing may be denied. Estate
of John Bear Shield, 9 IBIA 1 (1981). A petition to reopen an estate
must present some legal theory under which the petitioner could make some
claim against the estate and contain sufficient facts to support that
theory. Estate of Mary
Martin Mataes Andrew Caye, 9 IBIA 196 (1982); Estate
of Clara Whitehip, 10 IBIA 107 (1982). Where a petition for reopening
a closed estate is based on a claimed interest which derives entirely
from the petitioner's predecessor in interest, the petitioner has only
the standing that his or her predecessor would have had. Estate
of Little Snake (John Smith), 24 IBIA 121 (1993).
In its decision in Estate of George Dragswolf, Jr., 30 IBIA 188 (1997) the Board issued a fairly comprehensive analysis of the equitable factors that should be taken into consideration by the ALJ when making a determination whether to reopen an estate. Although lack of due diligence is the factor cited most often in decisions denying reopening, other factors have also been cited. These include: (1) the insubstantial nature of the interest the petitioner would receive. E.g., Estate of Basil Blackburn, 1 IBIA 261, 79 I.D. 422 (1972); Estates of Kate Bitner and Rae Bitner, 1 IBIA 277, 79 I.D. 437 (1972); (2) the fact that some of the trust property in the estate has been conveyed by the original heirs, particularly when there has been a sale to a tribe or where fee patents have been issued. E.g., Blackburn; Estate of Stella Dawson, Fort Peck Allottee 1284, June 30, 1955; and (3) the fact that some or all of the trust property in the estate is or has been subject to a lease, in particular, an oil and gas lease. E.g., Dawson; Estate of Belle Cozad, A-25428 (May 2, 1949). Conversely, in cases where reopening has been granted, the absence of some or all of these factors has been cited in support of the decision. For instance, in Estate of Fred Kearney, IA-S-4 (Jan. 26, 1970), reopening was allowed after 18 years, upon consideration of the facts that (a) the entire estate was still held in trust; (b) there had been no conveyances, exchanges, or partitionments between the heirs; (c) no long-term leases had been approved in reliance on the original order determining heirs; and (d) the other heirs did not object to the reopening. See also Estate of George Mortimer Cummings, 2 IBIA 112, 80 I.D. 789 (1973), allowing reopening after 6 years, based in part upon the lack of intervening rights and/or conveyances. Dragswolf, at 197. "Many of the decisions denying reopening of old estates are grounded, at least in part, upon the premise that the public interest requires that proceedings relative to the probate of estates be brought to a final conclusion sometime, in order that the property rights of the heirs or devisees may be stabilized." Estates of Newton McNeer and Nancy McNeer, 33 IBIA 318, 319 (1999), citing Estate of George Dragswolf, Jr., 17 IBIA 10 (1988).
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