Estate of George W. Mackey, 54 IBIA 221 (2012)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS Estate of George W. Mackey 54 IBIA 221 (01/20/2012)

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

ESTATE OF GEORGE W. MACKEY

Order Vacating Decisions, Referring Inventory Dispute to Bureau of Indian Affairs, and Remanding as to Other Issues Docket No. IBIA 09-132 January 20, 2012

We vacate the Order Denying Reopening issued on May 22, 2009, by Indian Probate Judge M. J. Stancampiano (IPJ) in the estate of George W. Mackey (Decedent), deceased Rosebud Sioux Indian, Probate No. P000004741IP, and we vacate the underlying probate decision (Decision), entered July 23, 2007, by Administrative Law Judge Marcel Greenia (ALJ).1 The Superintendent of the Bureau of Indian Affairs’ (BIA) Rosebud Agency (Superintendent) sought to reopen Decedent’s estate, arguing that he could not, as a matter of law, comply with the probate decision issued by the ALJ in which the ALJ directed BIA to complete the processing of a gift deed application submitted by Decedent just prior to his death. We conclude that the IPJ erred in finding that he did not have authority to grant BIA’s petition to reopen, which he believed would allow BIA to do an “end run” around the procedures governing petitions for rehearing. Order Denying Reopening at 2 (unnumbered). Assuming, as the IPJ did, that BIA knew during the (then) 60-day period for rehearing2 that the ALJ’s order was construed to require BIA to do something it either could not – or was unwilling to – do, we nevertheless find that the applicable regulations did not, as a matter of law, require BIA to seek rehearing, rather than reopening. Therefore, we conclude that the IPJ erred in finding that he lacked jurisdiction to reopen Decedent’s estate.1

These errors are significant and grounds for vacating the Order Denying Reopening and the Decision; we strike any suggestion in the IPJ’s denial of Lavina’s petition that BIA is required to comply with the Decision. However, we do not remand this matter because a new regulation now directs inventory disputes to be referred to BIA for resolution. See 43 C.F.R. § 30.128. Therefore, pursuant to the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the Board vacates the Order Denying Reopening, and vacates the Decision; we strike any language in the denial of Lavina’s petition that may be construed to require BIA to comply with the Decision. We refer the inventory dispute to the Superintendent of BIA’s Rosebud Agency for a decision with appropriate appeal rights, and we remand this matter to the Probate Hearings Division for the entry of an appropriate order to dispose of property in Decedent’s trust estate that is not subject to the inventory dispute. I concur:

// original signed Debora G. Luther Administrative Judge

// original signed Steven K. Linscheid Chief Administrative Judge

[1]. To the extent that the IPJ’s denial of the petition filed by Lavina Mackey (Lavina) can be construed as an order to BIA to comply with the ALJ’s probate decision, we strike such language.

2

The period for rehearing is now 30 days. See 43 C.F.R. § 30.238(a) (2011). 54 IBIA 221

We conclude that the ALJ erred as a matter of law in failing to follow the Board’s standing order, then in effect, for resolving inventory disputes arising in probate. Therefore, we also vacate the Decision. See Estate of Leonard Douglas Ducheneaux, 13 IBIA 169 (1985), rev’d on other grounds sub nom., Ducheneaux v. Secretary of the Interior, 645 F. Supp. 930 (D.S.D. 1986), rev’d, 837 F.2d 340 (8th Cir. 1988). However, because the Board’s standing order has been superseded and dissolved by operation of law, see 43 C.F.R. § 30.128 (2011), we do not remand the inventory dispute, but instead refer this matter, in accordance with § 30.128, to BIA for the exercise of its discretionary authority over this issue. In addition, we remand this probate matter to the Probate Hearings Division to decide the distribution of Decedent’s Individual Indian Money (IIM) account and certain real property interests newly added to Decedent’s estate. Facts On April 17, 2001, and in the presence of his attorney, Decedent executed a gift deed application in favor of Decedent’s fellow Rosebud tribal member, David Keester, “for all land on the Rosebud Reservation in which I have an interest [as reflected on the attached listing].” Gift Deed Application at 1 (unnumbered), Probate Record (PR) Tab 17. Decedent explained in his application, “I am dying and I do not want my children to inherit this land as they do not care about me and have never helped me. David Keester always takes care of me.” Id. at 2 (unnumbered). Decedent’s attorney, Jane Colhoff, testified that she met with Decedent at least twice, and discussed with him in detail why he wanted his land to go to Keester and not to his children. In particular, Colhoff testified that she “made sure [on] each occasion and in several different ways that [Decedent] understood what he was doing.” Hearing Transcript (Tr.), 3:3-6 (PR Tab 1); see also Affidavit of Jane Colhoff, Oct. 6, 2008 (PR Tab 12), at 1 (“I had a deep and serious discussion with [Decedent] to be absolutely sure he knew what he was doing.”). Colhoff notarized Decedent’s signature, and presented the application to BIA for further action with a cover letter dated April 18, 2001 (April 18 Letter). PR Tab 71. Apparently attached to the gift deed application was a BIA Title Status Report (TSR) for Decedent’s mother, Roberta Guerue His Blue Horse, which listed mineral and surface interests in 12 trust allotments all located on the Rosebud Reservation in South Dakota. According to the September 30, 1998, probate decision in Estate of Roberta Guerue His Blue Horse, Probate No. P000024949IP, IP TC 122T 97, Decedent inherited all of his mother’s trust interests. The collective value of the interests shown on the TSR was $16,016.48.3

3

The TSR included estimates of value for each property interest. The largest interest was a 38 percent interest in Allotment No. 22475. None of the remaining interests was greater than 6.2 percent. 54 IBIA 222

The April 18 Letter included the following plea to BIA: Due to [Decedent’s] extremely poor health, I respectfully request that you take action on this application immediately. [Decedent] needs to be assured that his land will pass to David Keester prior to his death, as he is very worried about his children getting the land against his wishes. Please let me know as soon as possible if this application is approved. I am leaving on April 25, 2001[,] and will not return until May 6, 2001. I would very much appreciate it if this application could be approved prior to the 25th so I can advise [Decedent] before I leave that he no longer has to worry about it. PR Tabs 53, 71. BIA did not respond to Colhoff’s...