Ignace, John, Estate of, 5 IBIA 50 (1976)

Appeal from an Administrative Law Judge's order denying petition for rehearing.

Dismissed.

1. Indian Probate: Divorce: Generally

   The issue of divorce in this case is not controlled by the laws of the State of Washington. The evidence establishes that the separation between the decedent and appellant commenced in 1958, 5 years before the Act of August 15, 1953, 67 Stat. 589 (Public Law 280) was invoked by Washington in its assumption of civil jurisdiction over Indians.

2. Indian Probate: Divorce: Indian Custom

   Assuming that a resolution adopted by the Business Committee of the Kalispel Tribe on May 8, 1975, which disavows the validity of Indian-custom divorces between Kalispel Indians married by the Catholic Church represents a formally approved ordinance or by-law of the tribe, it cannot be given the retroactive effect of invalidating previous divorces which were consummated in accordance with recognized Indian custom.

   IBIA 76-6

3. Indian Probate: Divorce: Indian Custom

   Since it is well established that an Indian-custom divorce dissolves a ceremonial marriage as well as an Indian-custom marriage, the relevant fact in this case is whether the custom of the tribe permits divorce by a permanent separation of the parties. The church custom of particular members of the tribe, whether Catholic or some other religious order, has no bearing unless it can be shown that the tribe adopted specific laws or customs of the church as its own.

   APPEARANCES: Roger Coombs, Spokane Legal Services, Spokane, Washington, for appellant.

   OPINION BY BOARD MEMBER HORTON

   This case involves the determination of the rightful widow of the decedent, John Ignace, unallotted Kalispel 103-N1007, who died intestate September 15, 1973, possessed of interests in trust lands situated in Washington.

   The original probate hearing was conducted by Administrative Law Judge Robert C. Snashall on April 24, 1974. An Order Determining Heirs was entered May 2, 1974, in which Judge Snashall found Mary Andrews Sherwood Ignace, a Flathead Indian, to be the decedent's lawful surviving spouse by virtue of a common-law marriage. Accordingly, the decedent's estate was divided equally between Mary Ignace and Jacqueline Ignace, daughter of the decedent by a prior marriage, in accordance with the heirship laws of the State of Washington.

   Josephine Andrews Ignace Harold sought a rehearing in this case on grounds that she should have been declared decedent's widow. It is uncontroverted that she was lawfully married to the decedent in the 1950's, by both civil and Catholic ceremony, and that she gave birth to Jacqueline Ignace in 1957 while married to the decedent. On September 19, 1974, Judge Snashall entered an Order Denying Petition for Rehearing in which he upheld his original finding that an Indian-custom divorce was effected between the decedent and Josephine Ignace Harold according to recognized customs of the Kalispel Tribe.

   Josephine Ignace Harold filed a notice of appeal of the above order on November 18, 1974. Prior to any consideration of the appeal by the Board, a written request was received by the Board from the Administrative Law Judge, dated January 3, 1975, in which it was

   IBIA 76-6

   requested that the case be remanded for a determination at the hearing level of the applicability of the Act of August 15, 1953, 67 Stat. 589, commonly known as "P.L. 280", to the disposition of the John Ignace estate. Remand was ordered on January 20, 1975, and Judge Snashall held a second hearing in this case on March 10, 1975.

   The State of Washington assumed civil jurisdiction over Indian affairs pursuant to the Act of August 15, 1953, to the extent permitted by statute, on March 13, 1963. 1/ The March 10, 1975, hearing was primarily concerned with pinpointing events occurring before or after 1963 so that the applicability of Washington state law could be conclusively decided. Precedent for this procedure was established by the Board in the Estate of Theodore Shockto, 2 IBIA 224, 81 I.D. 177 (1974), an heirship case in which the...