Weiser, Yvonne v. Portland Area Director, 9 IBIA 76 (1981)

Appeal from decision by Area Director declaring that decedent was the father of two illegitimate children who were his heirs and entitled to his share of judgment funds awarded to the Klamath Tribe.

Affirmed.

1. Bureau of Indian Affairs: Administrative Appeals: Generally--Indian Probate: Klamath Tribe--Indian Tribes: Judgment Funds

Although the Klamath Termination Art of Aug. 13, 1954, 68 Stat. 718, 25 U.S.C. §§ 564-564x (1976), rendered the Secretary's usual probate jurisdiction inapplicable to Klamath Indians, the Act of Oct. 1, 1965, 79 Stat. 897, 25 U.S.C. §§ 565-565g (1976), gave the Secretary limited jurisdiction to determine the heirs of deceased Klamath enrollees pursuant to his duty to distribute judgment funds.

This appeal arises from a decision rendered on September 1, 1978, by the Area Director, Portland Area Office, Bureau of Indian Affairs, determining the heirs of Carlos Leyva Lugo, Jr., deceased Klamath enrollee No. 1331. This determination was made under authority

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delegated by the Secretary who is required by the Act of October 1, 1965, 25 U.S.C. § 565a(b) (1976), to determine the heirs of any deceased Klamath enrollee entitled to a share of certain judgment funds awarded to the Klamath Tribe. Those persons determined by the Secretary to be the heirs are considered the legal successors to the decedent's distributive share of the fund.

Background

Carlos Leyva Lugo, Jr., was born on February 1, 1934, and died intestate on December 18, 1973, in an automobile accident in Klamath County, Oregon. On November 15, 1974, the Klamath County, Oregon, Circuit Court found that decedent's heirs at law were his seven living brothers and sisters and the three children of a deceased brother. The court ordered the decedent's estate to be distributed one-eighth to each living brother and sister and onetwenty-fourth to each child of the deceased brother.

On February 20, 1976, Dorothy E. Lotches contacted the Portland Area Office of the Bureau of Indian Affairs (Tribal Operations) by letter seeking a determination on whether her daughters, Carlissa Fawn and Carla Dawn (appellees), could be shown to be the decedent's children. Ms. Lotches indicated that although she had originally intended to actively participate in the earlier State court proceeding that determined decedent's heirs, she did not pursue the matter then because the amount of the estate was too small to justify the expense involved in presenting her children's case.

The Bureau of Indian Affairs (Tribal Operations) referred the letter to the Portland Office of the Regional Solicitor for the Department of the Interior. After reviewing the file and the documents Ms. Lotches had submitted, the Regional Solicitor determined on May 25, 1976, that there was sufficient evidence for a finding that the girls were the children of the decedent. Based on this opinion, the Tribal Operations officer informed Ms. Lotches on July 19, 1976, that her daughters had been determined to be the decedent's heirs for the purpose of the distribution of future Klamath judgment funds.

The decedent's brothers and sisters, appellants in this case, requested an opportunity to submit evidence showing that decedent was not the father of the appellees. The time given for the submission of evidence expired on November 12, 1977. The Regional Solicitor reviewed all of the evidence submitted, and, on January 27, 1978, advised the Tribal Operations Office that there was insufficient evidence to reverse the earlier decision. Accordingly, on February 2, 1978, the Tribal Operations Officer informed interested parties that judgment funds accruing to the decedent would be distributed to appellees.

Appellants appealed this decision to the Portland Area Director who affirmed it on September 1, 1978. This decision was appealed to the Assistant Secretary for Indian Affairs on October 26, 1978. The appeal was referred to the Board of Indian Appeals pursuant to 25 CFR 2.19(a)(2) on October 1, 1979. The Board docketed the appeal and

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referred it to the...