Eskra v. Morton, 72-C-428.

CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin
Citation380 F. Supp. 205
Docket NumberNo. 72-C-428.,72-C-428.
PartiesConstance Jean Hollen ESKRA, Individually and on behalf of all others similarly situated, Plaintiff, v. Rogers C. B. MORTON, Individually and as Secretary of the Interior, et al., Defendants.
Decision Date01 August 1974


Peter J. Sferrazza, Wisconsin Judicare, Wausau, Wis., for plaintiff.

James M. Bablitch, Asst. U. S. Atty., Madison, Wis., for defendants.


JAMES E. DOYLE, District Judge.

Plaintiff seeks review of a probate decision of the Board of Indian Appeals of the Department of the Interior entered September 27, 1972. Jurisdiction is claimed under the Administrative Procedure Act, 5 U.S.C. §§ 701-706; 25 U.S. C. § 345; and 28 U.S.C. § 1361. Presently before the court are cross motions for summary judgment. Both parties agree to the material facts as found in the administrative decision, Estate of Florence Bluesky Vessel, 1 IBIA 312, 79 I.D. (Sept. 27, 1972).

On the basis of the entire record herein, I find that there is no genuine dispute as to the material facts set forth hereinafter in this opinion under the heading "Facts."


Florence Bluesky Vessel was an unallotted member of the Lac Courte Oreilles Chippewa Indian Tribe who died intestate at Hayward, Wisconsin, on November 2, 1964. At death, she possessed trust or restricted real property1 in the State of Wisconsin. She was not survived by children, spouse, or parents. Her surviving collateral relatives included the daughters of her predeceased niece Florence Thayer Hollen. These grandnieces were Faye Elizabeth Hollen Gable, Ilene Loretta Hollen, and the plaintiff, Constance Jean Hollen Eskra. Constance was an illegitimate child of Florence Thayer and Robert Kliebert born prior to Florence Thayer's marriage to Knofel Hollen. Florence Thayer was never married to Robert Kliebert. Faye and Ilene were the legitimate children of Knofel Hollen and Florence Thayer Hollen.

There are between 300 and 500 estates involving interests in Indian Trust property located in Wisconsin which have not been administered or probated by the Department of the Interior, and in which the decedents died before April 1, 1971. Of the said estates, a number involve illegitimate heirs who would inherit through their mothers, but for the effect of Wis.Stat. § 237.06 (1969); however, what this number is cannot be determined presently.


Faye and Ilene each received a 1/30th share of their great-aunt's estate. Constance Eskra was barred from any share in the estate because of 25 U.S.C. §§ 348, 464 which incorporate by reference Wisconsin's Heirship of Illegitimates Statute, Wis.Stat. § 237.06 (1969).2 Though § 237.06 has been repealed,3 it governs plaintiff's claim to a share of her great aunt's estate since it was the law in effect at Florence Vessel's death in 1964. § 237.06 allowed an illegitimate child to share equally with legitimate children in the estate of her mother or acknowledged father but barred her from any claim through her parents in the estates of lineal or collateral relatives of her mother or acknowledged father. This section was made applicable to the Vessel estate by 25 U.S.C. §§ 348, 464 which govern descent and partition of Indian trust land and which incorporate by reference the inheritance laws of the state where the land is situated.4

Plaintiff claims that the failure to treat her equally with her half sisters in the distribution of the estate because of her illegitimate birth denies her the equal protection of the laws. Since Wis.Stat. § 237.06 applied to Constance only as incorporated by reference in 25 U.S.C. §§ 348, 464, it must be viewed in the present context as federal law. Joines v. Patterson, 274 U.S. 544, 549, 47 S.Ct. 706, 71 L.Ed. 1194 (1927). Although the equal protection clause of the Fourteenth Amendment is not applicable to federal law, the concept of equal protection is encompassed in the due process clause of the Fifth Amendment. Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L.Ed.2d 389 (1974); Shapiro v. Thompson, 394 U.S. 618, 642, 89 S. Ct. 1322, 22 L.Ed.2d 600 (1969); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).


The determination of the heirs to the Vessel estate was made under the authority granted the Secretary of the Interior by § 1 of the Act of June 25, 1910, 25 U.S.C. § 372.5 The material portion of § 372 provides:

"When any Indian to whom an allotment of land has been made, or may hereafter be made, dies before the expiration of the trust period and before the issuance of a fee simple patent, without having made a will disposing of said allotment as hereinafter provided, the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive."

Plaintiff contends that the finality clause of § 372 does not preclude this court's jurisdiction under 25 U.S.C. § 345; 28 U.S.C. § 1361 (mandamus); or 5 U.S.C. §§ 701-706 (the Administrative Procedure Act). Defendants concede that jurisdiction is present. However, subject matter jurisdiction cannot be conferred by waiver. I must determine whether Congress has given this court power to review the decision of the Secretary.

Read literally, 25 U.S.C. § 345 appears to grant the district courts jurisdiction over every action by an Indian which seeks to establish a claim to land under any federal law.6 § 345 has been construed, however, as limited to challenges to original allotments of Indian trust land. It does not govern "disputes concerning the heirs of one who held a valid and unquestioned allotment." First Moon v. White Tail, 270 U.S. 243, 245, 46 S.Ct. 246, 70 L.Ed. 565 (1926). Thus, it does not provide jurisdiction in the present matter.7

Mandamus under 28 U.S.C. § 1361 is an extraordinary remedy employed only where no other adequate remedy is available. Accordingly, I will first inquire whether jurisdiction is present under the Administrative Procedure Act (hereinafter the "APA").

5 U.S.C. §§ 701, 702 (§ 10 of the APA) provide:

". . . Except to the extent that — (1) statutes preclude judicial review. . . .
. . . . . .
"A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof."

Plaintiff is entitled to review under these provisions unless the finality clause of § 372 precludes judicial review to the extent of barring examination of the constitutionality of the statutes on which the Secretary relied.

Simmons v. Eagle Seelatsee, 244 F. Supp. 808 (E.D.Wash.1965) (three-judge court), aff'd mem. 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480 (1968), held that the finality clause did not bar review of the constitutionality of a federal statute on which the Secretary had relied in denying certain claimants shares in the estate of a Yakima Indian. The claimants sought to challenge the constitutionality of 25 U.S.C. § 607, which limits inheritance of trust property of the Yakima Tribes to enrolled members who are at least "one-fourth blood" Yakima Indians. The court held that a bar on review of the constitutional question (244 F.Supp. at 812):

". . . can neither be thought to be within the intent of Congress nor can it be consistent with due process. A provision requiring such a construction would be wanting in due process. citing Ng Fund Ho v. White, 259 U. S. 276, 284-285, 42 S.Ct. 492, 66 L.Ed. 938 (1922)"

The court upheld the constitutionality of the challenged statute and dismissed the action. The summary affirmance by the Supreme Court signifies only agreement with the result and is not authority for the construction given the finality clause by the three-judge court.8

The recent decision of Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L. Ed.2d 389 (1974), suggests that the Supreme Court would construe § 372 to allow review of the constitutionality of Wis.Stat. § 237.06 as incorporated in 25 U.S.C. §§ 348, 464. The plaintiff in Johnson sought to challenge on First and Fifth Amendment grounds the denial of veterans' educational benefits to conscientious objectors who had performed alternative service. The defendants claimed that the federal courts were barred from deciding the constitutional question by 38 U.S.C. § 211(a), which provides:

". . . The decisions of the Administrator on any question of law or fact under any law administered by the Veterans' Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise."

The Court first noted that the construction urged by defendants would raise "serious questions concerning the constitutionality of § 211(a) footnote omitted," and that in such circumstances "`it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the constitutional questions may be avoided.'" 42 U.S.L.W. at 4315, quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). The Court achieved such a saving construction by reading § 211(a) in light of the presumption in favor of judicial review, the administrative practice of the Veterans Administration, and the principle that only the courts can determine the constitutionality of federal statutes. Johnson found that neither the text nor the legislative history of § 211(a) provided "the `clear and convincing' evidence of congressional intent required by this Court before a statute will be construed to restrict access to judicial review. citation omitted" 94 S.Ct. at 1169. It also pointed out that the administrative practice of the Veterans'...

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    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
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    ...inheriting through their mothers Indian Trust property situated in Wisconsin, on the ground that they were born out of lawful wedlock." 380 F.Supp. at 213. On the merits, with obvious reluctance, Judge Doyle concluded that the holding in Labine obliged him to sustain the constitutionality o......
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    ...not intend courts to apply Chapter 767 retroactively in determining intestate succession, as opposed to paternity. See Eskra v. Morton, 380 F.Supp. 205, 208 (W.D.Wis.1974) (change in Wisconsin inheritance law given prospective application only), rev'd on other grounds, 524 F.2d 9 (7th Cir.1......
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