Guo-La, a.k.a. Thomas Jones, Estate of, 7 IBIA 181 (1979)

Appeal from an order affirming heirship determination after reopening.

Affirmed.

1. Indian Probate: Marriage: Indian Custom: Generally

   A marriage contract between members of an Indian tribe in accordance with the customs of such tribe, where the tribal relations and government existed at the time of such marriage, and there is no Federal statute rendering the tribal customs invalid, will be recognized and upheld by the courts of this State (Oklahoma) as a regular and valid marriage for all purposes. Such marriages are not to be treated as common-law marriages, but as legal marriages, according to the custom of the tribe.

2. Indian Probate: Marriage: Common Law

   To enter into a valid common-law marriage there has to be an actual and mutual agreement to enter into marital relationship, permanent and exclusive of all others, between capable persons in law making such contract, consummated by their cohabitation as man and wife or their mutual assumption openly of the marital duties and obligations.

   IBIA 79-16

3. Indian Probate: Evidence: Newly Discovered Evidence

   Newly discovered evidence which is the same in nature as that previously considered does not present for consideration any new facts or evidence relative to petitioner's paternity and is merely cumulative of evidence already presented.

4. Indian Probate: Evidence: Hearsay Evidence

   It has long been recognized that though hearsay evidence lacks certain guarantees of trustworthiness such as amenability to cross-examination, it may yet be relevant and have probative value. At any rate, we do not think the hearsay rule is applicable to administrative proceedings so long as the evidence upon which an order is ultimately based is both substantial and has probative value.

5. Indian Probate: Evidence: Hearsay Evidence

   The requirement that the administrative findings accord with the substantial evidence does not forbid administrative utilization of probative hearsay in making such findings.

6. Indian Probate: Appeal: Administrative Law Judge as Trier of Facts

   The weight and credibility of evidence are matters properly considered by an Administrative Law Judge (In this matter, Examiner of Inheritance, Assistant Commissioner, Assistant Secretary of the Interior) in the first instance. His findings, when in accord with the preponderance of the substantial and probative evidence adduced, will not be disturbed.

   OPINION BY ADMINISTRATIVE JUDGE SABAGH

   Guo-la (aka Thomas Jones), hereinafter referred to as decedent, died intestate, February 11, 1973, leaving as his heirs at law, his wife, Tomah (Ella Two Hatchet), three daughters, Laura Jones, Hattie Jones, Helen Jones (posthumous), and a son, Frank W. Jones.

   IBIA 79-16

   At the hearing held at Anadarko, Oklahoma, January 19, 1914, to determine heirs, one Anna Konad, asserted that decedent was the father of two of her children by Indian custom marriage, one of whom, Alice Jones Littleman, born February 8, 1910, is the appellant herein. Anna Konad was afforded an opportunity to substantiate these allegations.

   E. B. Merritt, Assistant Commissioner, Office of Indian Affairs, found the evidence adduced at said hearing insufficient to warrant recognition of an Indian custom marriage or t hat decedent, Guo-la, was the father of Anna Konad's two children as alleged.

   On October 22, 1976, the appellant, Alice Jones Littleman, filed a petition to reopen the estate of the decedent for the purpose of determining her to be a daughter and heir of the decedent. The Superintendent forwarded appellant's petition to Administrative Law Judge Sam E. Taylor on July 25, 1977. Several affidavits were submitted to Judge Taylor in substantiation of appellant's position.

   The basic reason underlying the request of the appellant to be determined a daughter and heir of the decedent is to establish her to be a full blood Kiowa Indian, which would in turn favorably affect the rights and benefits to which her lineal descendants or grandchildren in this case would be entitled as enrolled members of the Kiowa Tribe. To be eligible for enrollment in the Kiowa Tribe an applicant is required to possess a minimum of one-fourth Kiowa blood.

   Administrative Law Judge Sam E. Taylor found that a manifest injustice may occur if the petitioner was denied the opportunity to prove her paternity. A hearing was held on June 23, 1978, and testimony taken. On December 1, 1978, the Judge issued an order affirming heirship determination by Assistant Secretary of the Interior dated February 7, 1914. In his order Judge Taylor stated the following:

   A review of the entire record of this matter discloses that evidence of petitioner's paternity was first introduced and considered by the Examiner of Inheritance, Assistant Commissioner of Indian Affairs and the Assistant Secretary of the Interior in 1914 at the time the decedent's estate was originally probated . . . . The Examiner of Inheritance, the Acting Commissioner of Indian Affairs and the Assistant Secretary of the Interior all found and determined that the decedent was not the father of the petitioner . . . .

   The petitioner has introduced affidavits and testimony of additional witnesses that the decedent was her father. All of such affidavits and...