Attocknie v. Udall, Civ. No. 66-316.

• Court: United States District Courts. 10th Circuit. Western District of Oklahoma
• Citation: 261 F. Supp. 876
• Docket Number: Civ. No. 66-316.
• Parties: Willis ATTOCKNIE, Plaintiff, v. Stewart L. UDALL, Secretary of the Interior, Defendant.
• Decision Date: 24 December 1966

261 F. Supp. 876

Willis ATTOCKNIE, Plaintiff,
v.
Stewart L. UDALL, Secretary of the Interior, Defendant.

Civ. No. 66-316.

United States District Court W. D. Oklahoma.

December 24, 1966.

261 F. Supp. 877

Durward K. McDaniel, Oklahoma City, Okl., David Cobb, Washington, D. C., Darrell Winings, Oklahoma City, Okl., for plaintiff.

Herbert Pittle, Dept. of Justice, Washington, D. C., Robert L. Berry, Asst. U. S. Dist. Atty., Oklahoma City, Okl., for defendant.

MEMORANDUM OPINION

EUBANKS, District Judge.

The plaintiff, a Comanche Indian who alleges himself to be an illegitimate son, was disinherited by the last will and testament of Albert Attocknie, deceased Comanche Indian Allottee No. 532, by the following testamentary provision: "I leave nothing to Willis Attocknie because he is not my son." The Secretary of the Interior approved the will. Plaintiff brought this action for judicial review

261 F. Supp. 878

under Section 10 of the Administrative Procedure Act¹ seeking to have the decision of the Secretary set aside

The averments of the complaint assign the customary reasons for the setting aside of an agency determination, namely that the Secretary's decision was arbitrary and capricious, that it represented an abuse of administrative discretion, that it was made in excess of statutory authority, is contrary to the evidence and law, and is violative of the due process provisions of the United States Constitution. The actual basis asserted for this action, however, is according to the clear import of the complaint, that the decision complained of was contrary to the evidence and the law relating to the decedent's testamentary capacity at the time of the making of the will in that he was at that time suffering from an insane delusion as to the existence of his natural child and was thereby mentally incapable of making an effective will disposing of his property, and by reason thereof the will is void and the estate should be distributed according to the law of descent and distribution of the State of Oklahoma.

The decedent was the recipient of a Comanche Indian allotment made in accordance with the provisions of the General Allotment Act of February 8, 1887.² During his lifetime his allotted lands were, and continue at this time to be, held in trust by the United States in accordance with the provisions of that act. Additionally, he was the beneficial owner of other Indian lands, similarly allotted and held in trust, which he had acquired by inheritance. He died on December 5, 1962, leaving a will by which he devised all of his trust estate to his four legitimate children.

A hearing was held by a hearing examiner of the Department of the Interior on April 11, 1963, after due notice in accordance with the regulations of the Secretary,³ for the purpose of ascertaining the heirs at law of the decedent and the facts and circumstances surrounding the execution of the last will and testament.⁴ The complaint does not allege the existence of any procedural defects.

On May 3, 1963, the examiner, acting pursuant to delegated authority, entered his order approving the will and decreeing distribution of the estate in accordance with its provisions. In that order the examiner determined and found that: "The evidence shows that the will was prepared by a private attorney in or near Oklahoma City, at the home of the decedent's son, Francis Joseph Attocknie, and appears to meet all the requirements of the Department for a valid instrument. Both attesting witnesses testified that the will was properly made and executed

261 F. Supp. 879

by the decedent when he was of sound and disposing mind and memory and not acting under undue influence, fraud, duress or coercion. Willis Attocknie objected to the will on grounds of lack of mental capacity and possible undue influence. However, his evidence is insufficient to overcome the evidence offered in support of the will."

On July 2, 1963, the plaintiff filed a petition for rehearing, asserting as a basis therefor that the decedent was not of sufficient testamentary capacity on August 1, 1961, to make a valid last will and testament because he was at that time suffering from an "insane delusion" that the petitioner was not his son. Plaintiff's petition was granted and a rehearing was held on June 29, 1964. On January 29, 1965, the hearing examiner entered an additional order which affirmed his original decision approving the will.

Thereafter, in accordance with the applicable regulations, the plaintiff appealed from the orders of the hearing examiner to the Secretary of the Interior. Faith Attocknie Blackowl and Paul Attocknie, children of the decedent and beneficiaries under the will, similarly appealed to the Secretary from those parts of the examiner's orders of May 3, 1963 and January 29, 1965 which found that the plaintiff, Willis Attocknie, was the decedent's illegitimate son. On February 7, 1966, pursuant to authority delegated to the Solicitor of the Department of the Interior and redelegated to the Associate Solicitor, a Departmental determination was made which affirmed the examiner's decisions approving the will and which dismissed the appeals. Plaintiff thereupon filed this action.

Both the defendant and the plaintiff appeared by motions for summary judgment. Both have presented supporting briefs. The defendant's motion is predicated primarily upon the proposition that this Court is without jurisdiction to set aside the decision of the Secretary for the reason that the actions taken were within the scope of his authority and are therefore final and conclusive. Plaintiff's motion is, in essence, based upon the contention that the evidence presented at the hearings required a finding that the decedent lacked testamentary capacity by reason of the existence of an insane delusion and, there being a lack of the requisite mental capacity to make a valid will, the Secretary is without power to grant it approval, and this Court must therefore set aside such approval. The contentions of the parties are in direct conflict with respect to whether or not the evidence adduced by the hearing examiner supported a finding that the decedent, on the date he made his will, was in fact suffering under the insane delusion which the plaintiff asserts existed.

A review of the hearing record compels the conclusion that the decedent and plaintiff's mother were never married. While there was conflicting testimony upon the question of plaintiff's paternity, the record contains considerable evidence to the effect that the decedent and plaintiff's mother consorted together frequently during the period of conception, and there is little in the record to indicate that plaintiff's mother consorted with any other man during that time. Based upon the record, the conclusion can be reached that the decedent was probably the plaintiff's father. The hearing examiner so found him to be. The record reflects that the proponents of the will highly disputed such finding. No issue has been raised in this action, however, as to the correctness or incorrectness of that finding. The examiner's conclusion, in which the Secretary's decision concurred, was that there was insufficient evidence in the record upon which to base a finding of the existence of the alleged insane delusion, and that, therefore, there was no lack of testamentary capacity.

This Court is not in agreement with the defendant's contention that the Secretary of the Interior's approval of an Indian will, when acting within the scope of his statutory authority, is final and conclusive so as to preclude judicial review. Admittedly there is authority

261 F. Supp. 880

for that view, as has been cited. In support of that position the defendant relies upon the rule enunciated in Hanson v. Hoffman, 113 F.2d 780, 789 (10th Cir. 1940), and the decisions cited therein. This Court prefers the view expressed in the later decision of Homovich v. Chapman, 89 U.S.App.D.C. 150, 191 F. 2d 761 (1951), wherein it was stated

"* * * The Secretary argues that, because Section 1 of the 1910 Act, dealing with the determination of the heirs of an Indian who dies without a will, provides that his determination `shall be final and conclusive' therefore Section 2 of that Act, dealing with wills, must be read as though it contained a similar provision, although in fact it does not. We think

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