Trust Responsibility

[NOTE: The regulations relating to probate proceedings have been substantially amended since 2000. Some of the following discussion may no longer be applicable. Please consult the current edition of 25 C.F.R. Part 15 and 43 C.F.R. Part 4, Subpart D, to see if your issue was affected by the amendments.]

  1. Trust Responsibility
  2.  
    1. Probate Hearings
    2. Claims Against the Estate and Trust Assets
    3. Individuals and Tribes

A. Probate Hearings

When an individual participating in a probate proceeding is not represented by counsel, the Administrative Law Judge (ALJ) has a trust responsibility in conducting the proceeding to ensure that manifest injustice is not committed, or if committed, is corrected. An individual who is not represented by counsel is not entitled to special rights not enjoyed by individuals who are represented. The ALJ is generally not required to anticipate or discover additional legal arguments or evidence that might be beneficial to the individual's case. Estate of Wesley Emmett Anton, 12 IBIA 139 (1984). An individual proceeding without an attorney is still required to raise all issues and arguments at the hearing. Estate of Henry Beavert, 18 IBIA 73 (1989). The fact that a person appears in a probate proceeding without counsel does not mean that any decision rendered in that proceeding will not be binding upon that person or that the person need not raise all his or her arguments at that time. Estate of Rufus Ricker, Jr., 29 IBIA 56 (1996).

The ALJ has a duty to be more than a mere umpire, but to see that all relevant facts are developed, both favorable and unfavorable to the parties. Estate of Cecelia Hummingbird French, 8 IBIA 102 (1980); Estate of Charles Webster Hills, 13 IBIA 188 (1985); Estate of Thomas Tointigh, 17 IBIA 17 (1988). The agency superintendent and the ALJ are equally obligated to ensure that the Federal trust responsibility toward Indians is carried out in the administration of decedents' estates. Estate of Alice Senoya Luna, 33 IBIA 283 (1999). When an individual participates in a probate hearing without counsel the ALJ bears a greater burden to ensure that all relevant facts are brought out. Estate of Blanche Russell (Hosay), 18 IBIA 40 (1989). If necessary to ensure that all parties are fully heard and that the Department's trust responsibility is fully discharged the ALJ may use unorthodox methods of conducting hearings in probate proceedings. Estate of Jesse Pawnee, 12 IBIA 277 (1984). The Department is not required to appoint counsel for an Indian party in a probate proceeding. Estate of Blanche Russell (Hosay), 18 IBIA 40 (1989).

B. Claims Against the Estate and Trust Assets

The ALJ must ensure that all claims against the trust estate are legally allowable before approving them for payment. Estate of Wesley Emmett Anton, 12 IBIA 139 (1984); Estate of Thomas Tointigh, 17 IBIA 17 (1988). Attorney fees are an allowable charge against a trust estate. Estate of Howard Good Elk (or Pacer), 9 IBIA 38 (1981). An ALJ may approve the disbursement of funds from an IIM account for the payment of attorney fees arising from representation of an Indian client in a Departmental probate proceeding. In re Attorney Fees Request of Gosta E. Dagg, 12 IBIA 132 (1984). In reviewing a request for attorney fees in a probate proceeding the ALJ must review the itemized list of services provided and determine whether each item is allowable. In re Attorney Fees Request of Joanne Foster & In re Attorney Fees Request of P.J. Sferra, 12 IBIA 172 (1984).

The IBIA is not limited in its scope of review of the ALJ's disposition of claims and may exercise the inherent authority of the Secretary to correct a manifest injustice or clear error when appropriate. It was improper for the ALJ to allow the agency superintendent to determine the amount of an approved claim. Estate of John Joseph Kipp, 8 IBIA 30 (1980). Claims arising from alleged agreements affecting trust realty and presented by parol evidence may not be allowed. Id. Incomplete tribal claims against an estate may be disallowed. Estate of Elmer A. Olney, 8 IBIA 166 (1980). An undocumented claim by a Federal agency may be disallowed. Estate of Wesley Emmett Anton, 12 IBIA 139 (1984). BIA agency superintendents do not have the authority under 25 C.F.R. § 115.11(b) to authorize disbursements from IIM accounts of deceased Indians without the approval of an ALJ. In the Matter of the Estate of Madeline Bone Wells, 15 IBIA 165 (1987).

Trust assets may be utilized to pay general creditors claims only after other nontrust assets have been exhausted. Estate of John Joseph Kipp, 8 IBIA 30 (1980). Land remaining in trust status after inheritance is liable for the payment of claims against the estate of the decedent only to the extent of the income from its use. Trust funds accrued to the estate may be applied against claims regardless of whether that money remains in trust after inheritance. Estate of Eugene R. Trust v. Acting Aberdeen Area Director, Bureau of Indian Affairs, 11 IBIA 203 (1983). It is error for the BIA to lease land in the estate under 25 C.F.R. 162.2(a)(3) on the grounds that the heirs are undetermined after the ALJ has accepted a settlement agreement compromising the estate. Estate of Eugene R. Trust v. Acting Aberdeen Area Director, Bureau of Indian Affairs, 11 IBIA 203 (1983). An Indian probate ALJ's jurisdiction extends only to the probate of trust or restricted property that was owned by the decedent at the time of his death. It does not extend to subleases held by the decedent, which are not held in trust. Estate of Harry Dillon, 33 IBIA 33 (1998).

C. Individuals and Tribes

The Department of the Interior is not bound by state court decisions in determining the heirs of a deceased Indian, but rather has the authority and responsibility to make an independent determination of the decedent's heirs. Estate of James Howling Crane, Sr., 12 IBIA 209 (1984); Estate of James Wermy Pekah, 11 IBIA 237 (1983). The Department may not revoke or rewrite an otherwise valid will disposing of trust property simply because the disposition does not comport with the deciding official's concept of equity and fairness. Estate of Ronald Richard Saubel, 9 IBIA 94 (1981); Estate of Helen Ward Willey, 11 IBIA 43 (1983); Estate of Verena Gean Kitchell, 12 IBIA 258 (1984).

In accordance with the Federal trust responsibility and the inherent authority of the Secretary to correct a manifest injustice the IBIA may order a partial distribution of a trust estate to those heirs that can be determined and retain a portion of the estate in trust until the heir or heirs to that portion can be determined. Estate of Frances Ingeborg Conger (Ford), 13 IBIA 296 (1985). The Secretary of the Interior may waive the use of funds in IIM accounts to satisfy indebtedness of Indians to the United States resulting from error in recording Indian probate distributions. Ardis Robinson v. Acting Billings Area Director, Bureau of Indian Affairs, 20 IBIA 168 (1992). The BIA owes its trust responsibility to the owner of the trust land. When the land is held in trust for an individual, to that individual, when held by a tribe, to the tribe. Lois Candelaria v. Sacramento Area Director, Bureau of Indian Affairs, 27 IBIA 137 (1995); Cherokee Nation v. Acting Muskogee Area Director, Bureau of Indian Affairs, 29 IBIA 17 (1995). The trust responsibility does not require that the BIA act for the benefit of an individual or tribe when doing so would be detrimental to the interests of other Indian co-owners. Kenneth W. Davis v. Acting Aberdeen Area Director, 27 IBIA 281 (1995).

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