Akers v. Hodel
| Decision Date | 24 March 1989 |
| Docket Number | No. 86-2898,86-2898 |
| Citation | 871 F.2d 924 |
| Parties | Norman R. AKERS and Vicki Akers Pratt, Plaintiffs/Appellants, v. Donald HODEL, Secretary of the United States Department of the Interior, Defendant/Appellee. In the Matter of the WILL OF Victor AKERS, Unallotted Osage Indian Deceased. Mary Monette AKERS, Petitioner, v. UNITED STATES of America and Donald Hodel, Secretary of the United States Department of the Interior, Respondents. |
| Court | U.S. Court of Appeals — Tenth Circuit |
F. Browning Pipestem (Jess L. Burris on the briefs), Pipestem & Rice, Norman, Okl., for plaintiffs/appellants Norman R. Akers and Vicki Akers Pratt.
Robert E. Martin, Tulsa, Okl., for Mary Monette Akers.
Phil Pinnell, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty. with him on the brief), Tulsa, Okl., for defendant/appellee.
Before MOORE, ANDERSON and BALDOCK, Circuit Judges.
This case concerns the will of Victor N. Akers, a deceased Indian with both Osage and Pawnee property interests that he bequeathed to his wife and two grown children.
Because of his tribal affiliations and the nature of his holdings in Indian country, his will was subject to approval or disapproval by the Secretary of the Interior. If Akers fell within the Congressional definition of an Osage Indian, then under authority delegated by the Secretary, the Osage Agency Superintendent was to review the will. If, on the other hand, he fell within the Congressional definition of a Pawnee Indian, then an Interior Department administrative law judge was to review the will. In either event the will could not be probated without approval from the proper Interior Department authority. 1 If Akers' will were to be disapproved, then it would be invalid, and inheritance would proceed under the Oklahoma intestacy provisions
Akers filed his will with the Osage Agency in Pawhuska, Oklahoma. After Akers' death on January 22, 1984, the Osage Field Solicitor held a hearing on the will and thereafter recommended to the Osage Agency Superintendent that the will be disapproved. The Superintendent accepted the recommendation, finding that although Akers possessed testamentary capacity and the will had been properly executed, Akers' refusal therein to acknowledge an illegitimate son as his child was the result of an insane delusion that materially affected the terms of the will. This finding was upheld by the Southwest Regional Solicitor of the Interior Department, acting for the Secretary.
After completion of the Secretary's administrative review process, Akers' grown children, Norman and Vicki, sought reversal of the Secretary's decision in federal court. An action by Akers' widow, Mary Monette Akers, was consolidated with that of the two children, who were apparently from a former marriage. At this stage new attorneys were utilized by both sets of plaintiffs. At the status conference, agreement was reached that the district court would treat the case as an appeal to be decided after briefing and oral argument before a federal magistrate. In federal court the plaintiffs asserted for the first time that Akers did not meet the legal definition of an Osage Indian and had chosen to be enrolled as a Pawnee; therefore, they asserted that the Osage Agency did not have jurisdiction over the will. The plaintiffs sought to void the already exercised Osage Agency jurisdiction, urging a remand to the Secretary for reconsideration of Akers' will by the Pawnee Agency. Alternatively, the plaintiffs argued that if Osage Agency jurisdiction was correct, then the Secretary erred in finding that Akers was subject to an insane delusion The same challenges to the Osage Agency's jurisdiction and to the Secretary's disapproval of the will are raised on appeal. After careful review of the record and upon close consideration of the statutes governing the Osage and Pawnee Indians, plus the relevant legislative history, we uphold the Osage Agency finding that Akers was an Osage Indian and therefore affirm the Osage Agency jurisdiction for purposes of approving or disapproving Akers' will. We reverse, however, with respect to the Secretary's conclusion that Akers was subject to an insane delusion.
materially affecting the terms of his will. The district court accepted the magistrate's recommendation that the Secretary's actions be upheld.
Akers executed a will on June 15, 1983 and filed it with the Field Solicitor at the Osage Agency at Pawhuska. The will had been prepared by an attorney and its form had been approved by the Osage Field Solicitor. In his will Akers stated, "I have but two children and ... the names of such children are Norman Akers and Vicki Akers Pratt." Exh. 1 at Will Hearing before the Field Solicitor, June 19 and August 30, 1984. In two subsequent paragraphs he stated: Id. Akers' wife Mary and the two acknowledged children received equal life estate interests in the bulk of his estate, which included 3.06186 Osage headright (mineral) interests valued at more than $400,000, Pawnee oil royalties and rent payments, and 260 acres of federally restricted real estate. He also gave a life interest in his home at Grayhorse Indian Camp (an Osage Village) to his daughter. Id.
The Osage Superintendent, on the recommendation of the Field Solicitor, disapproved Akers' will for Akers' failure to acknowledge Lone Elk Monte Akers ("Lone Elk") as his child, finding that Akers had previously so recognized Lone Elk in a paternity affidavit bearing his signature. 2 At the will hearing before the Field Solicitor, Lone Elk's mother, Ella Robedeaux Ross ("Ross"), introduced photographs of Akers with Lone Elk, and testified that Akers gave Lone Elk occasional gifts and had acknowledged him as his son in the presence of friends. Copies of Lone Elk's birth certificate and certificate of degree of Indian blood were also introduced, both giving the father's name as Victor Akers. Copies of court documents were introduced, showing that in December 1977, approximately eleven months after Lone Elk's birth, Ross had filed suit against Akers for child support and obtained a temporary injunction and child support order. By April 21, 1978, Akers was shown on court records as having moved out of Oklahoma and unable to be served with a citation for failure to comply with the child support order. No further judicial action was taken. 3
The administrative record also contains copies of letters revealing that as early as April 20, 1978, Akers had written to the Osage Agency seeking information as to whether he could give life estates in his headrights to his "two children." Exh. 2 at Will Hearing of June 19 and August 30, 1984. He inquired twice more in succeeding weeks before receiving a response from the Agency. In other words, around the time he moved out of state and could not be served with a judicial citation, he was omitting in a series of letters to the Osage Agency any reference to a third child. The letters do not deny paternity of Lone Elk, but they do indicate that whether or not he viewed Lone Elk as his child, as far back as 1978 Akers had no interest in devising a share of his headright interests to any children other than Norman and Vicki.
With respect to Akers' Osage and Pawnee affiliations, the following information appears in the administrative record. At the agency hearing, Ross stated that Akers was both Osage and Pawnee. Will Hearing of August 30, 1984 at 7. She stated that she met him in 1967 at the Osage dances at Fairfax. Id. at 3. In a letter signed by Ross dated July 17, 1977, and received at the Osage Agency, Ross wrote that the attached copy of Lone Elk's birth certificate was to be filed in the "family history files of Victor N. Akers, unallotted Osage Indian." 4 R. Vol. III at tab 2. Bill Bigheart, a witness to Akers' will, testified that he had worked for a number of years at the Osage Agency and had known Akers because of his frequent visits to the Agency to pick up his "IIM funds" on deposit there. Will Hearing of June 19, 1984 at 29. Furthermore, no one denies that Akers himself filed his will with the Osage Agency. Additionally, in his application for approval of the will, the executor of Akers' estate stated that Akers was an adult member of the Osage Tribe. R. Vol. III at tab 1. Finally, on all documents related to the will hearing, Akers is referred to as unallotted Osage. 5
In his written disapproval of the will, the Superintendent found that Akers was an Osage Indian "with 3.06186 headright interests and real estate and personal property subject to jurisdiction of the Osage Agency." Although authenticated documentary evidence of Akers' enrollment on the census records of the Osage Agency was not entered in evidence, there was no challenge at the administrative level to the evidence that Akers was an Osage Indian. Evidence in Lone Elk's certificate of Indian blood that Akers was part Pawnee was not used to suggest that he was not an Osage Indian. 6
Norman, Vicki, and Mary Akers ("appellants") assert that the Secretary erred in finding that Victor Akers was an Osage Indian for purposes of will approval, and that, therefore, the Osage Agency exceeded the scope of its authority. They urge a remand to the Secretary for review of Akers' will by the Pawnee Agency. They make two arguments. The first argument is that, under the relevant federal statutes, Akers is not an Osage Indian because he was not enrolled as a member of the tribe when the statutory roll designating tribal members closed on July 1, 1907. The second argument is that Akers' Certificate of Degree of Indian Blood filed with the Pawnee Agency and submitted to the federal court (but not to the Secretary) is proof that Akers was...
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