Eskra v. Morton

• Decision Date: 27 May 1975
• Docket Number: No. 74-1906,74-1906
• Citation: 524 F.2d 9
• Parties: Constance Jean Hollen ESKRA, Individually and on behalf of all other persons similarly situated, Plaintiff-Appellant. v. Rogers MORTON, Individually and as Secretary of the Interior, et al., Defendants-Appellees. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 9

524 F.2d 9

Constance Jean Hollen ESKRA, Individually and on behalf of all other persons similarly situated, Plaintiff-Appellant. v. Rogers MORTON, Individually and as Secretary of the

Interior, et al., Defendants-Appellees.

No. 74-1906.

United States Court of Appeals, Seventh Circuit.

Heard May 27, 1975.

Decided Sept. 29, 1975.

Peter J. Sferrazza, Wisconsin Judicare, Inc., Wausau, Wis., for plaintiff-appellant.

Wallace H. Johnson, Asst. Atty. Gen., Michael A. McCord, Atty., Dept. of Justice, Washington, D. C., David C. Mebane, U. S. Atty., Madison, Wis., for defendants-appellees.

Before TUTTLE, Senior Circuit Judge, ^* and CUMMINGS and STEVENS, Circuit Judges.

STEVENS, Circuit Judge.

The question presented by this case is whether the federal government may discriminate against an illegitimate Indian child when it is distributing intestate property left by a collateral heir of the plaintiff's deceased mother. More narrowly, does the holding in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, that the State of Louisiana may discriminate against an illegitimate when distributing her deceased father's property compel a like result when the distributor is the United States and the distributee claims through her mother? We hold that it does not.

Before addressing the principal issue, we first state the undisputed facts and note our agreement with the district court's disposition of the jurisdictional and class action issues.

I.

A Chippewa Indian named "Blue Sky" died intestate at Hayward, Wisconsin, on November 2, 1964. ¹ She held an interest in Indian Trust Land in Wisconsin which, by federal statute, passed to her heirs as determined by the laws of Wisconsin. ² She was not survived by any children, spouse, or parents. Her collateral relatives included three children of a predeceased niece, Florence. The eldest of the three, Constance, was the natural child of Florence and one Robert Kliebert, who did not marry her mother. After Constance was born, Florence married Knofel Hollen and gave birth to two more daughters.

The intestate estate of Constance's great aunt, Blue Sky, was probated by the Bureau of Indian Affairs. Applying the law of Wisconsin, as in effect on the date of Blue Sky's death, the Administrator found that Constance's two younger sisters were each entitled to a 1/30Th interest in their great aunt's estate, but that Constance was entitled to nothing. He found, however, that the claim of Constance raised a serious constitutional challenge to the Wisconsin statute which the Department was not authorized to consider. ³

Prior to its amendment in 1971, § 237.06 of the Wisconsin Heirship Statute allowed an illegitimate child to share equally with legitimate children in the estate of their mother, but excluded the illegitimate completely from any share in the estate of any relative of the mother. ⁴ Thus, the illegitimate could take from, but not through, the mother's estate. This exclusion was eliminated in 1971. ⁵ The statute itself contains no explanation of the reasons for the pre-1971 exclusion.

Constance brought this action in the district court on her own behalf and also on behalf of all illegitimate heirs who would inherit through their mother but for § 237.06 of the Wisconsin statutes. After carefully considering the jurisdictional issue, the district court concluded that § 10(a) of the Administrative Procedure Act authorized review of the challenge to the classification based on illegitimacy. ⁶ This conclusion is consistent with the rationale of the Supreme Court's subsequent decision in Weinberger v. Salfi, --- U.S. ---, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975), and this court's decision in Sanders v. Weinberger, 522 F.2d 1167 (7th Cir. 1975).

The district court held that the case could be maintained as a class action, but defined the class more narrowly than the description in plaintiff's complaint. Since the defendants are federal officials and plaintiff is barred by the federal statute's incorporation of Wisconsin law, the court limited the class to those persons "who are or will be (bound) by 25 U.S.C. §§ 348 (and) 464 from inheriting through their mothers Indian Trust property situated in Wisconsin, on the ground that they were born out of lawful wedlock." 380 F.Supp. at 213.

On the merits, with obvious reluctance, Judge Doyle concluded that the holding in Labine obliged him to sustain the constitutionality of the Wisconsin statute. He read Labine as allowing a state legislature extraordinary latitude in promulgating rules for the distribution of intestate property, and held that the presumed intent of a decedent to discriminate against illegitimate collateral heirs provided a sufficiently rational basis for the Wisconsin statute to withstand scrutiny under the Equal Protection Clause.

II.

Judge Doyle read the Labine opinion as requiring him to disregard his own judgment and to treat the interest plaintiff seeks to vindicate as simply an economic interest. ⁷ If we accepted that premise, and if we thought the discrimination against illegitimates was no different from discrimination in favor of descendants as opposed to ascendants, for example, the mere fact that the government must make Some choice among different potential claimants to intestate property might well be sufficient to justify almost any choice, even one made at random. But plaintiff's interest is not simply economic. Plaintiff has a separate, identifiable interest in not being treated by her government as a second-class person. In our judgment that separate interest is entitled to federal recognition and protection.

The United States, as well as each of the several States, must accord every person within its jurisdiction the equal protection of the laws. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884; Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 41 L.Ed.2d 363. From its inception, the Federal Government has been directed to treat all its citizens as having been "created equal" in the eyes of the law. ⁸

Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.

Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 87 L.Ed. 1774. More than an economic interest is at stake in this case.

As Judge Doyle noted, the Labine holding appeared to rest on the premise that a state statute regulating the descent and distribution of the property of intestate decedents is immune from attack on equal protection grounds. ⁹ Even if that premise were valid, it would be intolerable to apply like reasoning in connection with an Indian's claim to equal treatment by the federal government. ¹⁰ But, not surprisingly, that premise appears to have been abandoned by the Court's later explanation of the Labine holding in its opinion in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768. The Court there explained Labine as resting on (a) the state's interest in the prompt and definitive determination of the valid ownership of property left by decedents, ¹¹ and (b) the absence of any insurmountable barrier to the legitimation of Ezra Vincent's natural daughter. ¹² Nothing was said in either the Labine opinion itself, or in Weber, about the presumed intent of the decedent as a basis for sustaining the state's discrimination against illegitimates. ¹³

In our judgment, the presumed intent of intestate decedents is an unacceptable justification for a decision by the state which the state would otherwise be unable to justify. It is unacceptable, not because it is irrational to assume that there are a significant number of private citizens who would intentionally punish children for the transgressions of their parents, but rather because such motivation on the part of the state is offensive to our concept of due process. In some communities it would not be unrealistic to assume that most decedents would discriminate in favor of, or against, members of a particular religious sect, race, political party, or perhaps even sex. But surely the state may not, for that reason alone, make comparable discriminatory choices. Just as private schools or private hospitals may place some arbitrary limits on the classes of people they will serve, so may testators make irrational choices in the distribution of their property. But when the choice is made by the government, the obligation to afford all persons equal protection of the laws arises.

In this case, by hypothesis, neither the decedent Blue Sky, nor the class of intestate decedents of which she was a member, made any decision to discriminate against illegitimates. Had such a private decision been made, presumably we would honor it. ¹⁴ But in the absence of any such private decision, we are required either to accept, or to reject, a decision which has been made by the sovereign itself. ¹⁵

The primary reason given in Weber to explain the holding in Labine was that the state's interest in prompt and certain determinations of property ownership justified the exclusion of the plaintiff from a share of her natural father's estate. The state's interest in certainty is manifestly different in a case involving the right of an illegitimate to participate in her father's estate, than in one in which the right to share in the mother's estate, or to take through the mother, is involved. For, as Judge Doyle recognized, the problem of establishing the identity of an illegitimate child's father is, in many cases, vastly more difficult than identifying the mother.

The government does not dispute the plaintiff's observation that the serious problems in proving paternity in cases involving inheritance from the father are absent in cases involving inheritance through the mother. It points out, however, that no such problem existed in the Labine case itself, since Ezra Vincent had formally acknowledged that he was the...