Atewooftakewa v. Udall, 67-323.

• Court: United States District Courts. 10th Circuit. Western District of Oklahoma
• Citation: 277 F. Supp. 464
• Docket Number: No. 67-323.,67-323.
• Parties: Viola ATEWOOFTAKEWA (Tate), Frankie Lee Tooahnippah, Vila Tooahnippah, and Julia Tooahnippah (Goombi), Plaintiffs, v. Stewart L. UDALL, Secretary of the Interior for the United States of America, Defendant, Dorita High Horse, Intervenor.
• Decision Date: 18 December 1967

277 F. Supp. 464

Viola ATEWOOFTAKEWA (Tate), Frankie Lee Tooahnippah, Vila Tooahnippah, and Julia Tooahnippah (Goombi), Plaintiffs,
v.
Stewart L. UDALL, Secretary of the Interior for the United States of America, Defendant,
Dorita High Horse, Intervenor.

No. 67-323.

United States District Court W. D. Oklahoma.

December 18, 1967.

277 F. Supp. 465

Omer Luellen, Hinton, Okl., for plaintiffs.

Robert L. Berry, Asst. U. S. Atty., United States Department of Justice, Oklahoma City, Okl., for defendant.

Houston Bus Hill, Oklahoma City, Okl., for intervenor.

MEMORANDUM OPINION

EUBANKS, District Judge.

The plaintiffs are Comanche Indians who were named as beneficiaries under their deceased Comanche uncle's last will and testament which the Secretary of the Interior has declined to approve, and seek by this action to set aside the administrative decision which denied approval of the will, alleging it to be arbitrary, capricious, in excess of authority, without reasonable basis, and that it amounts to an abuse of discretion.¹ The sole basis for denying approval is that the will failed to make provision for the intervenor, who was determined by the Secretary to be the decedent's daughter born out of wedlock,

277 F. Supp. 466

and as such to be entitled to inherit the entire estate as decedent's sole heir in the absence of an approved will, by virtue of the provisions of 25 U.S.C. § 371

Congress has granted to Indians the right to make wills, subject only to the approval of the Secretary of the Interior.² Such approval is requisite to validity. Lacking such approval an Indian will is totally without force and effect to dispose of the trust estate. The will which is the subject of this review has never received the required Secretarial approval and, therefore, is not a valid will; nor can it achieve the status of a valid will until such time as the approval required by the statute has been conferred. The question with which this court is concerned in the present action is whether the Secretary, in the circumstances presented, can properly withhold his approval of this will, which otherwise meets all of the requirements of a valid testamentary instrument, without such action amounting to an arbitrary denial of the decedent's statutory right to predetermine those persons to whom his trust estate shall devolve.

The will which is the subject of the administrative decision under review in this action was made by George Chahsenah, an unallotted Comanche Indian, approximately seven months prior to his death. He died without having ever been married, and without leaving a surviving father, mother, brother or sister. He was the owner by inheritance of certain Indian property allotted in accordance with the provisions of the General Allotment Act of February 8, 1887³ which, under the provisions of his will, was devised to a niece and her children with whom, the record indicates, he resided for a considerable portion of the later years of his life. The hearing examiner found no lack of testamentary capacity, and that the will was not the product of fraud, duress, coercion, or undue influence.⁴ In accordance with the applicable regulations⁵ the examiner entered an order which approved the will and decreed distribution of the estate in accordance with its provisions. A petition

277 F. Supp. 467

for rehearing was subsequently filed and denied by the examiner

The hearing examiner found the decedent to have been survived by an adult daughter, Dorita High Horse, born out of wedlock,⁶ and that her mother and the decedent had cohabited together in the custom and manner of Indian life sufficiently to entitle the daughter to inherit from the decedent under 25 U.S.C. § 371. The effect of those findings is to make Dorita High Horse the decedent's sole heir at law, and thus entitled to inherit the decedent's entire estate in the absence of an approved will.

The evidence in the administrative record indicates that the decedent and Dorita High Horse never maintained the usual father-daughter relationship. Their relationship can best be described as being that of casual acquaintances. The Regional Solicitor, in his administrative decision which rescinded the examiner's approval of the decedent's will, noted that fact. He stated: "* * * The record reflects that during his lifetime the decedent's only contribution toward the welfare of his daughter was to participate in her conception, to acknowledge her status as his daughter, and to visit briefly with her on rare occasions when they would by accident meet on public streets. * * *"

Having been denied their petition for rehearing, the plaintiffs appealed to the Secretary of the Interior. Pursuant to authority delegated to the Solicitor of the Department of the Interior and redelegated to the Regional Solicitor, the latter reviewed the record and thereupon issued his decision which reversed the hearing examiner's order and withdrew the approval of the will which had been granted by the examiner. The Regional Solicitor's action constituted a final administrative decision which exhausted the administrative remedy and led to the filing of this action for review.

The Regional Solicitor, in support of his conclusion that approval was to be denied, stated in his decision that "When a purported will is submitted for approval and it has been determined that it meets the technical requirements for a valid will, further consideration must be given before...