Ponina v. Leland

• Decision Date: 30 April 1969
• Docket Number: No. 5660,5660
• Citation: 454 P.2d 16,85 Nev. 263
• Parties: Allie PONINA, also known as Allie Paulina, Appellant, v. Robert LELAND, Administrator of the Estate of Paul Ponina, also known as Paul Paulina, Deceased; Nemsina DeGarmo, Frank John, and Mamie Gibbs, heirs, Respondents.
• Court: Nevada Supreme Court

Page 16

454 P.2d 16

85 Nev. 263

Allie PONINA, also known as Allie Paulina, Appellant, v. Robert LELAND, Administrator of the Estate of Paul Ponina also known as Paul Paulina, Deceased; Nemsina DeGarmo, Frank John, and Mamie Gibbs heirs, Respondents.

No. 5660.

Supreme Court of Nevada.

April 30, 1969.

Bouvier & Harper, Reno, for appellant.

Lohse & Lohse, Leslie B. Gray, Bradley & Drendel, William N. Dunseath, Reno, McKay, Panner, Johnson & Marceau, Bend, Or., for respondents.

OPINION

COLLINS, Chief Justice.

This appeal is from an order determining heirship and a holding that Allie Ponina was not the wife and hence not the widow of Paul Ponina, deceased. We reverse that ruling and declare that Allie and Paul were husband and wife at the time of his death. She is therefore entitled to share in his estate as his widow.

Allie Ponina is an aged (71 years) fullblooded Paiute Indian and a member of the Pyramid Lake-Nixon Tribe. She was formerly married to a man named Lowery who died in 1950 or 1951.

Paul Ponina was also an aged full-blooded Paiute Indian but a member of the Klamath Tribe in Southern Oregon. He also had been married to an Indian lady by the name of Mabel, but when she threw his clothes and blanket outside their house, not liking that treatment he left her permanently.

Sometime in 1951 Allie and Paul commenced living together at the reservation in Nixon, Nevada. Shortly thereafter they moved off the reservation and continued living together in Smith Valley, Nevada, which is not a part of any Indian reservation. In 1954 Paul obtained a formal decree of divorce from Mabel in the First Judicial District Court of Nevada. Thereafter, Paul and Allie continued to live together in Smith Valley until his death in 1960.

During all this time, Allie and Paul openly cohabited and held themselves out to be husband and wife. They were known among their Indian friends and family at the Reno Indian Colony and Pyramid Lake reservation and their neighbors in Smith Valley as husband and wife. They executed a mutual, inter vivos trust agreement in that capacity. At Paul's death, Allie, in accordance with Indian custom, provided the burial clothes and bought and cooked the burial feast.

During their life together, however, they neither sought any license to marry from a state or Indian agency, engaged in any solemnization ceremony before a minister, state or Indian judge, nor recorded any certificate or evidence of their marriage with either a state or Indian agency.

They did, however, comply with all the requirements of a Piaute Indian custom marriage as established by witnesses at the trial and by the stipulation as to the expected testimony of Dr. Warren L. D'Azevedo, head of the Anthropology Department, University of Nevada. Those elements are: (1) living together as man and wife; (2) a potentially mating couple, i.e., no close blood relationship; (3) a division of labor and responsibility; (4) recognition by each other as being husband and wife; (5) recognition by the community as being a married couple; (6) no form of ceremony required.

Paul left a substantial estate, consisting, mainly of an undivided interest in the Klamath Indian Management Trust, valued at $42,413.34. During administration of his affairs, the status of Allie as his wife and widow arose. It was contended that Paul and Allie never became husband and wife under federal law, state law, tribal law or Indian custom, though they lived together for nearly 10 years. Accordingly, the lower court declared her not to be his widow and heir, and the right of inheritance to his property was decreed to three first cousins, Nemsini DeGarmo, Frank John and Mamie Gibbs.

Appellant, in seeking reversal of the decree as to Allie, contends that under state law, NRS 122.170, ¹ Allie and Paul achieved a valid Indian marriage, notwithstanding their failure to secure a signed certificate specified by subsection 2 and their failure to file the certificate of marriage provided for by subsection 3 of that statute.

Respondents, on the other hand, contend the lower court was correct in ruling as it did under any one of several authorities, including federal, tribal, and state law.

Specifically, they say Allie and Paul were not married under federal law. Pursuant to the authority granted by 25 U.S.C. Sec. 2, certain federal regulations relevant to this issue were enacted. ² However, these regulations apply to law and order, marriage and divorce on a reservation only. See the title of Part 11 of C.F.R.--Law and Order on Indian Reservations; see also 25 C.F.R. Sec. 11.1(a) and 11.28(a). Also, these regulations apply only 'until a law and order code has been adopted by a tribe.' 25 C.F.R. Sec. 11.1(d). Since the Pyramid Lake Paiute Tribe has adopted its own law nd order code, we must look to that code and not the federal regulations in an inquiry into the marital status of Paul and Allie while living at Nixon, a part of that reservation.

Respondents next contend the law and order code of the Pyramid Lake Paiute Council enacted March 25, 1941, pursuant to the foregoing federal regulations are controlling in determining the marriage status of Paul and Allie. Only certain portions of that code are relevant to the issue presented here. ³

By this code, tribal custom marriages were abolished and, even though there was evidence that custom marriages and divorces were still being practiced on the reservation on a large scale, still the marriage of Paul and Allie could not have come into effect during the short period of time they lived together at Nixon before moving to Smith Valley, because Paul was still married to Mabel.

Next, respondents contend that because Paul and Allie did not enter into a marriage performed in accordance with tribal customs within a closed Indian colony as permitted by NRS 122.160 ⁴ they never became husband and wife although they did live together outside the reservation for a protracted period after all disabilities to the marriage were removed.

In Nevada, throughout the United States, and in those parts of the world having their roots in the English Common Law, there is a strong public policy favoring marriage. That public policy is clearly stated in 35 Am.Jur., Marriage, Sec. 3, p. 181:

'PUBLIC POLICY AS TO MARRIAGE--In view of the importance of marriage as a social institution, and the benefits accruing therefrom, it is favored by public policy and the law. It follows that a marriage will, if possible, be upheld as valid and that its validity will be presumed unless disproved. A statute will not be construed to make a marriage void unless the legislative intent to such effect is clear and unequivocal.

'A marriage that the law sanctions cannot be against public policy in a legal sense.'

Our law even clothes the relationship between a man and a woman deporting themselves as husband and wife with a rebuttable presumption they have entered into a lawful contract of marriage. NRS 52.070(24). As early as 1896, this court held that a marriage by mutual consent per verba de praesenti was valid in the face of a statute which required certain formal preliminaries, even though not complied with, when the statute did not contain an express clause of nullity. State v. Zichfeld, 23 Nev. 304, 46 P. 802 (1896); 61 A.L.R.2d 847, 849. See also Clark v. Clark, 80 Nev. 52, 389 P.2d 69 (1964).

The presumption in favor of the validity of marriages has been extended to marriage by Indian custom. Chancey v. Whinnery, 47 Okl. 272, 147 P. 1036 (1915). It is true that Indians living off an Indian Reservation are subject to the laws of the state in which they reside to the same extent that a non-Indian citizen or alien would be subject to those laws. In re Wo-Gin-Up's Estate, 57 Utah 29, 192 P. 267 (1920); In re Paquet's Estate, 101 Or. 393, 200 P. 911 (1921). Thus, absent special statutory authorization, neither Paul and Allie, nor any other non-Indian or alien citizen of Nevada could have achieved a valid marriage by simply living together in Smith Valley, off an Indian Reservation, for 6 or 60 years. NRS 122.010. Still, the legislature has provided that Indians living off a reservation are permitted to consummate a marriage in accordance with tribal customs which shall have the same validity as marriages performed in any other manner in Nevada. NRS 122.170.

Respondents argue, however, that because they did not obtain a certificate from one of the officials named in the statute nor file such certificate in the office of the recorder of the county where the marriage took place, there is and can be no marriage. But that contention has already been answered by this court in State v. Zichfeld, supra. There, as here, unless the statute declares such a marriage relationship a nullity, which it does not, we hold Sections 2, 3, 4, and 5 directory only. Nor does the fact that Paul may have been still married to Mabel ⁵ when he commenced living with Allie in Smith Valley in 1951 prevent a valid marriage. All parties concede he was lawfully divorced from Mabel in 1954, and any disability he suffered as to a future marriage was removed. Ormachea v. Ormachea, 67 Nev. 273, 217 P.2d 355 (1950).

We thus hold Paul and Allie consummated a valid marriage in accordance with tribal customs while living in Smith Valley from 1954 to Paul's death in 1960. At his death, Allie became his widow and is entitled to that part of his estate permitted by law.

The judgment of the lower court is reversed and the matter remanded for proceeding consistent with this decision.

ZENOFF, BATJER, MOWBRAY and THOMPSON, JJ., concur.

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