Estate of Little Bear, Matter of

• Decision Date: 05 December 1995
• Docket Number: No. 77005,77005
• Citation: 909 P.2d 42,1995 OK 134
• Parties: In the Matter of the ESTATE OF Mae LITTLE BEAR, Deceased. Sophia Little Bear OVERTON, now Dahlberg and Hayesenne Little Bear Dunlap, now Haskins, Appellants, v. Bruce GAMBILL, Executor of the Estate of Mae Little Bear, Deceased; Leon Edward Stansifer and Lonnie Calvin Stansifer, Appellees.
• Court: Oklahoma Supreme Court

Page 42

909 P.2d 42

1995 OK 134

In the Matter of the ESTATE OF Mae LITTLE BEAR, Deceased.

Sophia Little Bear OVERTON, now Dahlberg and Hayesenne

Little Bear Dunlap, now Haskins, Appellants, v. Bruce GAMBILL, Executor of the Estate of Mae Little Bear,

Deceased; Leon Edward Stansifer and Lonnie Calvin

Stansifer, Appellees.

No. 77005.

Supreme Court of Oklahoma.

Dec. 5, 1995.

Certiorari to the Court of Appeals, Division No. 1.

Appeal from the District Court of Osage County; William H. Mattingly, Trial Judge.

Appellants, part Osage Indian and daughters of an original Osage Indian allottee, challenged the will of Mae Little Bear, a non-Indian, contesting the devise of 1.25 headright interest to Mae's non-Indian nephews. The trial court approved distribution to the nephews, ruling restrictions on the ability of non-Osage Indians to receive more than a life estate in a headright interest contained in the Osage Tribe of Indians Technical Corrections Act of 1984, Pub.L. No. 98-605, 98 Stat. 3163, did not apply when the devisor was a non-Indian, like Mae, who owned the full beneficial interest in the headright at the time of death. The Court of Appeals affirmed. Held: Distribution to the nephews was correct. The 1984 Act does not prohibit a non-Indian devisee from receiving more than a life estate when the devisor is also a non-Indian, who owned the full beneficial interest in the headright at the time of death.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS' OPINION VACATED; TRIAL COURT JUDGMENT AFFIRMED.

Kent P. Sullivan, Leach, Sullivan, Sullivan, & Green, Duncan, for Appellants.

Bruce W. Gambill, Gambill & Associates, Pawhuska, for Appellees.

LAVENDER, Justice.

We decide whether the Osage Tribe of Indians Technical Corrections Act of 1984, Pub.L. No. 98-605, 98 Stat. 3163 (1984 Act), was intended by Congress to prohibit a non-Indian devisee from receiving more than a life estate in a headright devised to such devisee by the will of a non-Indian devisor, who owned the full beneficial interest in the headright at the time of death? We hold the 1984 Act, which amended the Act of October 21, 1978, Pub.L. No. 95-496, 92 Stat. 1660 (1978 Act), was not so intended and the devise of the full beneficial interest in a headright interest to two non-Indian nephews by a non-Indian who owned the full beneficial interest in the headright at the time of death was valid.

FACTS AND PROCEDURAL HISTORY

In 1906 Congress passed the Osage Allotment Act of June 28, 1906, 34 Stat. 539 (1906 Act), which in part, divided about one and a half million acres of land among the 2,229 individual members of the Osage Tribe of Indians with certain restrictions. Matter of Estate of Tayrien, 609 P.2d 752, 754 (Okla.1980). Essentially, the land consisted of the Osage reservation in Oklahoma, which had been purchased from the Cherokees. Id. The 1906 Act also placed in trust for the benefit and use of the Osage Tribe the mineral interest for these lands. Id. The trust period was originally set at twenty-five years, it was extended several times and by the Act of October 6, 1964, Pub.L. No. 88-632, 78 Stat. 1008, the minerals were reserved for an indefinite period. Matter of Estate of Tayrien, 609 P.2d at 754. Subsection 2(a) of the 1978 Act extended the trust period "in perpetuity". FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 788-789 f.n. 174 (1982 ed.) (hereafter COHEN).

In addition to mineral income, the trust set up by the 1906 Act contained monies which the United States held in trust for the Osage which had been received under various treaties as compensation for the relinquishment This case concerns answering the question, in light of the 1984 Act, who is currently entitled to the headright interests that were at one time owned by Hayes Little Bear (Hayes), an original Osage allottee under the 1906 Act? Specifically, the appeal is from the probate of the estate of Mae Little Bear (Mae). Appellants, Sophia Little Bear Overton, now Dahlberg and Hayesenne Little Bear Dunlap, now Haskins, objected to the petition to approve final account, determine heirship and the order distributing the assets of Mae's estate arguing Mae's devise of headright interest owned by her to two non-Indian nephews was violative of federal law. The objection was presented to the trial court based on the parties' written stipulation of facts and the testimony of one witness, Cecil O. Wood, Jr., a former Field Solicitor for the Bureau of Indian Affairs, United States Department of the Interior, stationed at the Osage Indian Agency. ¹ Except where indicated the following is taken from the stipulated facts.

                of certain Osage lands.  Matter of Estate of Tayrien, 609 P.2d at 754.   The 1906 Act further provided that all funds due the Osage Tribe would be credited to the individual members of the Tribe on the basis of a pro rata division among the members or their heirs.  Eckelt v. Herrell, 783 P.2d 1, 1-2 f.n. 1 (Okla.Ct.App.Div. 1, 1989) (Approved for Publication by Order of the Supreme Court).  This pro rata interest in the trust fund came to be known as a headright.  Id.  A headright has been defined several times, but basically consists of (1) the right to receive at the end of the trust period trust funds arising largely from the mineral income, and (2) the right to participate during the trust period in the distribution of bonuses and royalties arising from the mineral estate plus accrued interest on the trust fund.  Id.; Matter of Estate of Tayrien, 609 P.2d at 754-755.   The 1984 Act contains a specific definition of the term "headright" for purposes of the 1984 Act, which is as follows:  "any right of any person to share in any royalties, rents, sales, or bonuses arising from the Osage mineral estate."   1984 Act, subsection 11(2).  As set out by COHEN, supra, at 791, "[m]ost persons of Osage Indian ancestry own no headrights and thus receive no tribal income....  Some persons own more than one headright, or own fractional shares of headrights, and some headrights are owned by non-Osages."   This state of affairs is a result of succession to headrights by inheritance and devise.  Id. at 791 f.n. 196
                

Hayes, an allotted Osage Indian, of 5/8ths Osage Indian blood married Mae in November 1934. Hayes and Mae had no children together, but Hayes had three children from previous wives-appellants and a son, Harold Little Bear. Hayes died testate in 1946. His estate included 2.666 (2 2/3rds) Osage headrights. By virtue of his will the headright interests were distributed as follows: 1.666 (1 2/3rds) to Mae and .50 ( 1/2) each to appellants, Hayes' two daughters. Mae had no Indian blood and was caucasian. Appellants are Osage Indians of 5/16ths Osage Indian blood. The Last Will and Testament of Hayes, containing the above distribution of Hayes' headright interests, was approved by the Secretary of Interior. The record also shows the above distribution of Hayes' headright interest to Mae and appellants was approved by the County Court of Osage County, Oklahoma by an Order Approving Final Account, Determination of Heirs and Distribution of Estate filed March 18, 1948 in Case No. 5293, In the Matter of the Estate of Hayes Little Bear, Osage Allottee No. 433, Deceased. ²

At the time of his death the above County Court, in the same Order, also determined Mae died testate in July 1988, while a resident of Pawhuska, Oklahoma, owning the full beneficial interest in 1.25 (1 1/4th) Osage Headrights, having previously transferred .4166 headright during her lifetime, which is not involved in this case. By her will, Mae devised the 1.25 headrights to appellees, Leon Edward Stansifer and Lonnie Calvin Stansifer--her nephews and brother's children. ³ Each nephew is caucasian, with no Indian blood. Mae died with no heirs at law of any Osage Indian blood or any Indian blood. Appellants received $5.00 each under Mae's will, an explanatory clause stating: "no greater provision for them [was made] because their father [Hayes] made ample provision for them at his death." Mae's will has not been approved by the Secretary of the Interior. No first right of purchase was offered to appellants of the headright owned by Mae at her death.

the heirs at law of Hayes to be: Mae, his surviving wife; Harold, his surviving son; and the appellants, his surviving daughters. The only heirs at law of Hayes currently alive who are of Osage Indian blood are appellants and Bena Little Bear Broussard and Patricia Little Bear Kinney, children of Hayes' son Harold, who died in 1981. Bena and Patricia are 13/32nd Osage Indian blood.

As noted, Cecil O. Wood, Jr. testified at the hearing on appellants' contest of Mae's will. Prior to his retirement in December of 1989, Mr. Wood was the Field Solicitor for the United States Bureau of Indian Affairs, a part of the United States Department of Interior, stationed at the Osage Indian Agency. He had been stationed at the Osage Agency for thirty (30) years prior to his retirement and had been Field Solicitor there for almost twenty (20) years. He testified that in this capacity he assisted in drafting the 1978 and 1984 Acts. In substance, Mr. Wood testified that the departmental interpretation of the Acts was that neither limited a non-Indian to only a life estate when the headright interest was devised to such devisee by the will of a non-Indian who, like Mae, owned the full headright interest. He also testified, in substance, that although the 1984 Act did require approval of the Secretary of Interior for an inter vivos transfer of a headright owned by a non-Indian and, in the case of an inter vivos transfer by a non-Indian, a right of first purchase was given to certain Osage Indian heirs (here including appellants), neither Act required Secretary approval or afforded a right of first purchase when a non-Indian owner, like Mae, who lawfully owned the full headright interest, devised the headright to a non-Indian by will.

Based on the parties'...