Bigheart, William, Jr., Estate of (Reprinted Osage Will Decision issued by Tulsa Regional Solicitor), 3 IBIA 293 (1969)

Indian Probate: Secretary's Authority: Generally--Indian Probate: State Law: Applicability to Indian Probate, Testate

The Secretary of the Interior has by express terms reserved to himself the power to waive and make exceptions to his regulations affecting Indian matters and, further, has the inherent power, notwithstanding the absence of specific regulations so providing, to reopen and review administrative determinations purporting to be final.

OFFICE OF THE SOLICITOR

TULSA REGION

P.O. BOX 3156

TULSA, OKLAHOMA 74101

IA-T-21 (Supp.) September 4, 1969 Estate of William Bigheart, Jr. : Request for Reopening deceased Unallotted Osage :

: Denied

On August 19, 1969, Velma Rose Bigheart, widow of William Bigheart, Jr., deceased Osage Unallottee, acting through her attorney, Shockley T. Shoemake, Pawhuska, Oklahoma, filed with the Regional Solicitor a pleading designated "Petition For Rehearing And Notice Of Intent To Appeal," bearing a certificate that a copy thereof was mailed to opposing counsel, the Superintendent of the Osage Agency, the Secretary of the Interior, the Under Secretary of the Interior, and the Commissioner of Indian Affairs. By this petition the appellant seeks a rehearing on the decision of the Regional Solicitor (IA-T-21, August 8, 1969) which affirmed the decision of the Superintendent Osage Agency, Bureau of Indian Affairs, Pawhuska, Oklahoma, approving the will of the decedent, dated June 27, 1967, and a codicil thereto dated July 7, 1967. In addition, petitioner requests that the Regional Solicitor, in the event a rehearing is denied, or the decision on rehearing is adverse to her, fix the time within which an appeal may be taken under the provisions of 25 U.S.C. 1.

Inasmuch as said decision of August 8, 1969, was the decision of the Secretary, made for him under existing delegations of authority from him to the Solicitor 1/ and redelegation of that authority from the Solicitor to the Regional Solicitor, 2/ the only relief available to the petitioner is to consider the petition as a request for reopening the administrative proceedings. 3/ The regulations pertaining to Osage will approval proceedings 4/ do not provide for such reopening. However,

_____________________ 1/ 210 DM 2.2 (24 F.R. 1348): "Authority in Specified Matters. A. The Solicitor is authorized to exercise the authority of the Secretary:

. . . . (3) Relating to Indian probate proceedings as follows: (a) Disposition of appeals to the Secretary in proceedings for the determination of heirs or the approval of wills of deceased Indians. (b) Extension of time or waiver of time limitations with respect to rehearings, reopenings, or appeals in proceedings for the determination of heirs or the approval of wills of deceased Indians."

210 DM 2.3 (24 F.R. 1349): "Authority to redelegate. The Solicitor may, in writing, redelegate or authorize written redelegation of any authority delegated to him in this chapter." 2/ Solicitor's Regulation 23 (31 F.R. 4631): "The . . . Regional Solicitors may exercise all the authority vested in the Solicitor of the Department of the Interior by 210 DM 2.2A(3), relating to Indian probate proceedings . . ." 3/ Estate of Joseph Cannon, IA-T-19 (Supp.), March 7, 1969. 4/ 25 CFR 17.1 - 17.14.

2 3 IBIA 295

as was observed in the Estate of Ellen Fitzpatrick, 5/ the Secretary has by express terms reserved to himself the power to waive and make exceptions to his regulations affecting Indian matters, 6/ and further has the inherent power, notwithstanding the absence of specific regulation so providing, to reopen and review...