Lincoln, Warren Lewis, Estate of, 19 IBIA 118 (1990)

Appeal from an order denying rehearing issued by Administrative Law Judge William E. Hammett in Indian Probate IP PH 70I 89.

Affirmed.

  1. Indian Probate: Appeals: Generally

    The appellant bears the burden of proving the error of the decision from which the appeal is taken.

  2. Indian Probate: Appeals: Matters Considered on Appeal

    The Board of Indian Appeals is not required to consider evidence raised for the first time on appeal.

    Appellant James Emmett Lincoln seeks review of a January 25, 1990, order denying rehearing issued by Administrative law Judge William E. Hammett in the estate of Warren Lewis Lincoln (decedent). For the reasons discussed below, the Board of Indian Appeals (Board) affirms that decision.

    Background

    Decedent, a Pomo/Wailaki/Concow Indian of California, ID #540U00196, died intestate on July 8, 1987. Judge Hammett held a hearing to probate his trust estate on February 22, 1989. Following the taking of an additional deposition, Judge Hammett issued an order determining decedent's heirs on November 16, 1989. Those heirs were found to be decedent's wife and his six children by a previous Indian custom marriage to Marie Arnold Lincoln. 1/ ____________________________ 1/ Decedent's children are Sharon L. Gonzales, Lewis Lincoln, Ronald Lincoln, Wanda L. Bigpond, Shirley Lincoln, and Michael C. Lincoln. Lewis, Wanda, and Shirley filed a statement with the Board.

    IBIA 90-67

    Judge Hammett discussed appellant's claim to be decedent's son, stating at page 2 of his order determining heirs:

    [T]he decedent's children testified that the decedent had never admitted orally or in writing that he was the father of [appellant]. This was corroborated by the testimony of [appellant] and Margaret Lorene Mitchell [appellant's mother]. In fact, Margaret testified that shortly after [appellant's] birth, she sought to have the decedent sign a document admitting paternity so that she could get public assistance but he refused to do so. Other than the testimony of [appellant] and Margaret Lorene Mitchell, the only additional proof offered that [appellant] is the decedent's son is a birth certificate on which the decedent is designated as the father of [appellant]. However, since Margaret Lorene Mitchell is the informant shown on the birth certificate, such statement is self-serving. I find that [appellant] has failed to establish that he is the decedent's son.

    Appellant filed a petition for rehearing with Judge Hammett. Appellant alleged that the Judge had incorrectly found that the testimony of his mother was self-serving, her testimony as to paternity was uncontradicted, her testimony was not inadmissible even if it could properly be considered self-serving, and the testimony of decedent's other children was even more selfserving. In support of the petition, appellant submitted his birth certificate, baptism certificate, and affidavit to amend record. Appellant asserts that a further search of the records was made after the issuance of Judge Hammett's initial order when it became evident that the birth certificate and his mother's testimony were not sufficient proof that decedent was his father. 2/

    By order dated January 25, 1990, Judge Hammett denied appellant's petition for rehearing, stating:

    [T]here is no evidence of record to establish that [appellant's] mother ever confronted the decedent with the fact that she had named the decedent as [appellant's] father on [appellant's] birth certificate; or that she had had [appellant] named as the decedent's son at [appellant's] christening; and no evidence was introduced showing that [appellant's] mother had ever named the decedent as [appellant's] father on any record of the Bureau of Indian Affairs or any other official record besides his birth record.

    __________________________ 2/ Rehearing was also sought by Wanda Bigpond and Lewis Lincoln on the grounds that their mother, Marie Arnold Lincoln, should have been found to be decedent's surviving spouse. Marie...

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