Courchene, David J., Jr., Estate of, 16 IBIA 210 (1988)

Appeal from an order modifying determination of heirs issued by Administrative Law Judge Vernon J. Rausch in Indian probate IP TC 592R 86, IP TC 592R 86-1.

Affirmed.

1. Indian Probate: Appeal: Generally

The appellant bears the burden of proving the error of the decision from which the appeal is taken.

On February 1, 1988, the Board of Indian Appeals (Board) received a notice of appeal from Kevin R. Courchene (appellant). Appellant sought review of a January 19, 1988, order modifying a determination of heirs issued by Administrative Law Judge Vernon J. Rausch in the estate of appellant's brother, David Jay Courchene, Jr. (decedent). For the reasons discussed below, the Board affirms that order.

Background

Decedent, Fort Peck Unallottee U04918, was born on September 20, 1940, and died intestate on May 13, 1985. A hearing to probate his trust or restricted estate was held by Judge Rausch on October 21, 1986. Evidence presented at that hearing suggested that decedent had been married seven times, had no natural children, but had adopted a child, Dajette Courchene, with his first wife. Divorce certificates from decedent's first and fourth wives were made part of the record of the hearing.

By order dated December 12, 1986, Judge Rausch found that there was no evidence of record that decedent was married at the time of his death. Accordingly, he determined that decedent's sole heir was his adopted daughter, Dajette. Judge Rausch further found that all of decedent's trust or restricted property was subject to escheat to the Assiniboine and Sioux Tribes of the Fort Peck Reservation under the Indian Land Consolidation Act, 25 U.S.C. § 2206, as amended (Supp. II 1984). 1/ __________________________ 1/ When Judge Rausch's decision was issued, the Supreme Court was reviewing Irving v. Clark, 758 F.2d 1260 (8th Cir. 1985). In Irving the Eighth Circuit Court of Appeals held that section 2206, both in its original form and

IBIA 88-15

By letter dated December 22, 1986, Winifred L. Courchene sought reopening of the estate, alleging that she and decedent were legally married at the time of his death. She enclosed copies of a Certificate of Marriage, showing that she and decedent were married in Lethbridge, Alberta, Canada, on June 5, 1984, and of decedent's death certificate showing that he was married. Winifred stated she had sent these documents to the Bureau of Indian Affairs and did not know why they had not been presented at the hearing.

By order dated April 24, 1987, Judge Rausch issued a notice to show cause why decedent's estate should not be reopened and Winifred found to be entitled to a 1/2 interest in his trust or restricted property as his surviving spouse. This notice was sent to all interested parties.

Present appellant objected to a finding that Winifred was decedent's surviving spouse. He alleged that decedent was not legally divorced from Jessica Jessepe Courchene (Rutherford), his sixth wife, and...