Charbonneau, Robert Lee, WELSA Heirship Determination of, 33 IBIA 168 (1999)

• Court: Interior Board of Indian Appeals

Order Affirming Decision Docket No. IBIA 99-32 February 22, 1999

This is an appeal from a December 15, 1998, Final Order Determining Heirs issued by Administrative Judge Thomas K. Pfister in the heirship determination of Robert Lee Charbonneau (Decedent) under the White Earth Settlement Act (WELSA), 25 U.S.C. § 331 note. Appellants are James Charbonneau, Joyce LeCaine a.k.a. Joyce Charbonneau, Omer Charbonneau, Andrew Lawrence Charbonneau a.k.a. Joseph Charbonneau, Evelyn Charbonneau, Albert Charbonneau, and Robert Charbonneau. 1/ Appellants, who claim to be biological children of Decedent, were found by Judge Pfister not to be heirs of Decedent under WELSA. Appellants are all residents of Canada and are represented by counsel, Gregory Nakonechny, Esq., and Priscilla Kennedy, Esq., Edmonton, Alberta, Canada.

Albert Charbonneau, after filing his appeal with the Board, filed a petition for reconsideration with Judge Pfister. Because jurisdiction over Albert's appeal had vested in the Board by that time, Judge Pfister lacked jurisdiction over the matter, absent a remand by the Board. 2/ In accordance with an order issued by the Board on January 29, 1999, Judge Pfister transmitted Albert's petition for reconsideration to the Board, together with the remainder of the record in this matter.

Appellants filed a statement of reasons in accordance with 43 C.F.R. § 4.356(d). Their statement was received by the Board on February 11, 1999. Under 43 C.F.R. § 4.356(d), the Board must now determine whether Appellants have "set forth sufficient reasons for questioning the final order."

1/ The Board presumes that this last appellant is Robert U. Charbonneau, who was determined not to be an heir of Decedent, rather than Robert Lee Charbonneau, who was determined to be an heir.

2/ While the WELSA regulations seem to allow for simultaneous proceedings on reconsideration and on appeal, such an interpretation of the regulations would clearly be disruptive of an orderly review process, as well as unduly burdensome on the parties. Cf., e.g., Burlington Northern Railroad v. Acting Billings Area Director, 31 IBIA 180 (1997); Five Sandoval Indian Tribes, Inc. v. Deputy Commissioner of Indian Affairs, 21 IBIA 17, 18-19 (1991), explaining the reasons why the Board has consistently followed a rule requiring that only one forum at a time exercise jurisdiction over a particular matter.

Appellants do not argue that Judge Pfister erred in applying the requirements of WELSA to the facts of this case. They contend, however, that the definition of "heir" in WELSA, insofar as it incorporates Minn. Stat. § 525.172 (1984), violates the Fifth and Fourteenth Amendments to the Constitution of the United States and, in addition, violates the Constitution of Canada.

The Board has held on many occasions that it lacks authority to declare a Federal statute unconstitutional under the Constitution of the United States. E.g., Estate of Annie Greencrow Whitehorse, 27 IBIA 136 (1995), and cases cited therein. 3/ The Board now holds that it also lacks authority to declare a Federal statute violative of the Constitution of Canada.

Appellants also urge the Board to apply Canadian law, rather than WELSA, as a matter of comity. Just as it lacks authority to...