French, Cecelia Hummingbird, Estate of, 8 IBIA 102 (1980)

• Court: Interior Board of Indian Appeals

Appeal from an order of Administrative Law Judge Robert C. Snashall denying petition for rehearing.

Reversed in part and remanded.

1. Administrative Procedure: Administrative Law Judges--Indian Probate: Hearing: Full and Complete

   When a party to an Indian probate proceeding appears without an attorney, the Administrative Law Judge has a duty not to be a mere umpire, but to see that all relevant facts are developed.

2. Administrative Procedure: Administrative Law Judges--Indian Probate: Hearing: Full and Complete

   Where a party to an Indian probate proceeding was not represented by counsel and was obviously unprepared for proper presentation of testimony and ignorant of significance of the facts, the Administrative Law Judge had the duty to see that all relevant facts and circumstances, both favorable and unfavorable to the parties, were brought out.

3. Indian Probate: State Law: Generally

   Under Oklahoma law, if the decedent shall have been married more than once, the spouse at the time of death shall inherit of the property not acquired during coverture with such spouse only an equal part with each of the living children of decedent.

   IBIA 80-4

   APPEARANCES: Vera Lou Pohlemann Billy and Raynelle French, appellants, pro sese.

   OPINION BY ADMINISTRATIVE JUDGE SABAGH

   Cecelia Hummingbird French, unallotted Kiowa Indian, died intestate on November 10, 1977, possessed of trust or restricted property on the Kiowa-Comanche-Apache Reservation.

   After hearing held at Anadarko, Oklahoma, on June 5, 1977, at which neither the appellants nor other children of decedent were represented by counsel, the Administrative Law Judge issued an order on June 22, 1979, determining in accordance with the laws of the State of Oklahoma the heirs of said decedent and their respective shares in decedent's estate to be

   Raymond Lewis French Husband 1/3 Ronald Gene Pohlemann Son 1/12 Vera Lou Pohlemann Billy Daughter 1/12 Gary Lynn Pohlemann Son 1/12 Brenda Gale French Daughter 1/12 Raynelle French Daughter 1/12 Bradley French Son 1/12 La Rue French Daughter 1/12 Brian French Son 1/12

   Vera Lou Pohlemann Billy and Raynelle French filed what was considered to be a timely petition for rehearing, alleging therein that Judge Snashall erred in his June 22, 1979, order by determining that Raymond Lewis French, surviving spouse, was entitled to an undivided one-third interest in the entire estate of the decedent. They contend that all the property interests that their mother inherited prior to her marriage to Raymond French should have been divided equally among all heirs as a matter of law.

   The record establishes the decedent had been married twice, first to Bill Ahdoah, a.k.a. Alfred Pohlemann, which ended in divorce in or about 1954; that decedent entered into a common law marriage with Raymond French in or about 1959; and that said marriage was still in effect when Cecelia Hummingbird French died.

   Judge Snashall denied said petition on August 10, 1979, holding that the purported petition failed to...