Rehearings and Reopening Estates

[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.]

V. Rehearings and Reopening Estates

1. Requirement for Petition for Rehearing
2. Authority To Reopen Estates
   1. Reopening for the Sole Purpose of Determining Indian Status
   2. Burden of Proof To Reopen
   3. Factors to Consider for Reopening

A. Requirement for Petition for Rehearing

A person contesting an ALJ's determination of heirs must first seek rehearing by the ALJ before appealing to the Board. Estate of Thomas Nicholas Black Elk, 34 IBIA 212 (2000); Estate of Emma Coffee/Spotted Bear/Smells, 31 IBIA 253 (1997); Estate of Charles C. Jackson, 31 IBIA 178 (1997); Estate of Albert Cobe, 28 IBIA 282 (1995). A properly and timely filed petition for rehearing is mandatory. Estate of Albert William Cobe, 32 IBIA 13 (1998). "It is well established that a rehearing for the purpose of presenting additional evidence is appropriate only in a case where the evidence could not, with reasonable effort, have been presented at the original hearing. Estate of Howard Little Charley, 18 IBIA 335 (1990)...," Estate of George Asepermy, Sr., 28 IBIA 50, 51 (1995).
 

B. Authority To Reopen Estates

An ALJ has authority under 43 C.F.R. 4.242(h) to reopen an estate closed for more than three years. Estate of Jason Crane, 12 IBIA 165 (1984). The BIA may seek reopening of an estate to correct manifest error. Estate of John Yazza Antonio, 12 IBIA 177 (1984); Estate of Paul Widow, 17 IBIA 107 (1989). The Board has held that the BIA has a responsibility to seek reopening when it has information indicating some likelihood that a probate decision is incorrect and that it is manifest injustice for the BIA to have such information and not act on it. Estate of Alice Senoya Luna, 33 IBIA 283 (1999). An agency superintendent has standing to seek reopening of an estate when the decision conflicts with the decision in another estate or the ALJ's decision creates a conflict in the law by being contrary to a decision issued in another estate. Estate of Walter A. Abraham, 24 IBIA 86 (1993). An ALJ may reopen an estate closed for less than three years on his own motion to prevent manifest error. Estate of Thomas Tointigh, 17 IBIA 17 (1988). The Secretary of the Interior, acting through the IBIA and ALJ pursuant to authority delegated in 43 C.F.R. 4.242(h) has discretionary authority to reopen a closed Indian probate at any time under appropriate circumstances. Estate of Woody Albert, 14 IBIA 223 (1986).

Reopening an estate closed for 45 or 66 years is properly denied when there is no evidence to show that there was probable error in the determination of heirs. Estate of Katie Ross Stephens, 10 IBIA 9 (1982); Estate of Frank Pays, 10 IBIA 61 (1982). "The extraordinary, and unique, authority of the Secretary to reopen estates notwithstanding the passage of time, must be tempered by a showing that the petitioner took reasonable measures to seek reopening at the earliest possible time. Persons seeking to reopen an estate closed for more than three years must show by compelling evidence that they acted with due diligence in pursuing their claims." Estate of Louise (Louisa) Mike Sampson, 29 IBIA 86 (1996). An estate closed for 50 years will not be reopened except in extraordinary circumstances to correct a manifest injustice. Estate of John (Pete) Pixley and Emma Pixley, 8 IBIA 70 (1980). Persons seeking to reopen estates closed for more than three years must present compelling evidence that they have acted with due diligence. Estate of Little Snake (John Smith), 24 IBIA 121 (1993).

The purpose of rehearings in probate proceedings is to allow consideration of alleged errors made by the ALJ and to permit the introduction of evidence that could not, with diligent effort, have been discovered prior to the original hearing. They are not a means for presenting evidence and arguments that were known and could have been presented at the original hearing. Estate of Alice Mae Sasse, 12 IBIA 281 (1984); Estate of Benjamin Kent, Sr. (Ben Nawanoway), 13 IBIA 21 (1984); Estate of Howard Little Charley, 18 IBIA 335 (1990). An appellant who fails to make any allegation concerning how a decision is in error, let alone make an argument in support of such an allegation, has not carried his burden of proof. WELSA Heirship Determination of John B. Smith (Maynwaywaybe), 33 IBIA 174 (1999).

An estate should not be reopened based on new evidence which would not change the result of the heirship determination. Estate of Howard Good Elk (or Pacer), 9 IBIA 38 (1981). An estate may be reopened to prevent a miscarriage of justice based on a showing that the evidence presented at the original hearing was incorrect, incomplete, or otherwise inadequate. Estate of Wilma Florence First Youngman, 10 IBIA 3 (1982). An estate may be reopened if facts support a conclusion that the prior decision constitutes a manifest injustice that can be administratively corrected. Estate of Joseph Wyatt, 11 IBIA 244 (1983); Estate of Walter George and Minnie Racehorse George Snipe, 9 IBIA 20 (1981). The omission of an heir is the type of manifest injustice contemplated in the reopening provisions of 43 C.F.R. 4.242(h). Estate of Woody Albert, 14 IBIA 223 (1986); Estate of Paul Widow, 17 IBIA 107 (1989). A party petitioning for reopening of an estate closed for more than three years must show compelling proof that any delay in the request for reopening was not occasioned by a lack of diligence on the part of the petitioner. Estate of Nellie Brown, 11 IBIA 1 (1982); Estate of Katie Crossguns, 10 IBIA 141 (1982); Estate of Louise (Louisa) Mike Sampson, 29 IBIA 86 (1996).
 

1. Reopening for the Sole Purpose of Determining Indian Status

The Board has reversed itself on the issue of whether an estate may be reopened for the sole purpose of determining an individual's Indian status. It had previously held that an estate may be reopened for the sole purpose of determining the petitioner's nationality or Indian status without regard to the restrictions of 43 C.F.R. 4.206 if no change to the distribution of the estate is sought. Estate of Edward (Agopetah) Bert, 12 IBIA 253 (1984); Estate of Joseph Dupoint, 13 IBIA 6 (1984); In re Gladys Rose Charles Whims, Thelma Charles Dick, August Charles, and Joseph Charles, 13 IBIA 94 (1985). Its most current decisions hold that an estate should not be reopened for the sole purpose of determining eligibility for tribal membership. The ALJ should reopen an estate to determine Indian status when it needs to do so to determine the right and duty of the Government to hold property in trust. The Board expressly clarified and overruled its prior decisions in Bert and Dupoint, supra. "The Board recognizes that tribes may rely on paternity determinations made in the course of Departmental probate proceedings for the purpose of determining eligibility for tribal membership. This is certainly a legitimate secondary use of a Departmental probate determination. But an individual's or a tribe's need for such a determination does not vest jurisdiction in the Department that it would not otherwise have." Estate of Duke Hawley Tsoodle, Sr., 32 IBIA 108 (1998); Estates of Russell Edward Whitewolf and Annie Topappy Blackstar, 35 IBIA 53 (2000).

2. Burden of Proof To Reopen

The burden of proof to show that the initial decision was incorrect is on the party seeking reopening. Estate of Wilma Florence First Youngman, 12 IBIA 219 (1984); Estate of Fred Redstone, Sr., 13 IBIA 44 (1984); Estate of Pearl Asepermy Werqueyah, 13 IBIA 49 (1984). A party who has received actual notice of a probate hearing lacks standing to file a petition to reopen. Estate of Katie Crossguns, 10 IBIA 141 (1982); Estate of Rebecca B. Coe, 8 IBIA 164 (1980). A procedurally deficient petition for rehearing may be denied. Estate of John Bear Shield, 9 IBIA 1 (1981). A petition to reopen an estate must present some legal theory under which the petitioner could make some claim against the estate and contain sufficient facts to support that theory. Estate of Mary Martin Mataes Andrew Caye, 9 IBIA 196 (1982); Estate of Clara Whitehip, 10 IBIA 107 (1982). Where a petition for reopening a closed estate is based on a claimed interest which derives entirely from the petitioner's predecessor in interest, the petitioner has only the standing that his or her predecessor would have had. Estate of Little Snake (John Smith), 24 IBIA 121 (1993).

3. Factors to Consider for Reopening

In its decision in Estate of George Dragswolf, Jr., 30 IBIA 188 (1997) the Board issued a fairly comprehensive analysis of the equitable factors that should be taken into consideration by the ALJ when making a determination whether to reopen an estate.

Although lack of due diligence is the factor cited most often in decisions denying reopening, other factors have also been cited. These include: (1) the insubstantial nature of the interest the petitioner would receive. E.g., Estate of Basil Blackburn, 1 IBIA 261, 79 I.D. 422 (1972); Estates of Kate Bitner and Rae Bitner, 1 IBIA 277, 79 I.D. 437 (1972); (2) the fact that some of the trust property in the estate has been conveyed by the original heirs, particularly when there has been a sale to a tribe or where fee patents have been issued. E.g., Blackburn; Estate of Stella Dawson, Fort Peck Allottee 1284, June 30, 1955; and (3) the fact that some or all of the trust property in the estate is or has been subject to a lease, in particular, an oil and gas lease. E.g., Dawson; Estate of Belle Cozad, A-25428 (May 2, 1949). Conversely, in cases where reopening has been granted, the absence of some or all of these factors has been cited in support of the decision. For instance, in Estate of Fred Kearney, IA-S-4 (Jan. 26, 1970), reopening was allowed after 18 years, upon consideration of the facts that (a) the entire estate was still held in trust; (b) there had been no conveyances, exchanges, or partitionments between the heirs; (c) no long-term leases had been approved in reliance on the original order determining heirs; and (d) the other heirs did not object to the reopening. See also Estate of George Mortimer Cummings, 2 IBIA 112, 80 I.D. 789 (1973), allowing reopening after 6 years, based in part upon the lack of intervening rights and/or conveyances.

Dragswolf, at 197.

"Many of the decisions denying reopening of old estates are grounded, at least in part, upon the premise that the public interest requires that proceedings relative to the probate of estates be brought to a final conclusion sometime, in order that the property rights of the heirs or devisees may be stabilized." Estates of Newton McNeer and Nancy McNeer, 33 IBIA 318, 319 (1999), citing Estate of George Dragswolf, Jr., 17 IBIA 10 (1988).

Links to Additional Topics in this Article

• Trust Responsibility
• General Rules of Construction
• Practice Before the Board - Procedure
• Status of Parties and Choice of Law
• Will Formalities
• Property Inventories
• IBIA Jurisdiction
• The Rules