The Rules

[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.]

IX. The Rules

• The trust responsibility applies to probate proceedings and requires ALJs to ensure that participants receive a full and fair hearing, that all relevant facts are brought out, and that any claims paid from the trust estate are legally allowable.   
• The trust responsibility is owed to the owner of the trust land, whether individual or tribal and the Bureau of Indian Affairs should not act for the benefit of an individual or tribe when doing so would be detrimental to the interests of other Indian co-owners.
• A non-Indian lacks standing to raise an alleged violation of the trust responsibility.
• The Department of the Interior has no authority to probate the non-trust assets held by an Indian at the time of death.
• The Secretary of the Interior has the inherent authority and trust responsibility to correct manifest injustice during or arising out of probate proceedings or decisions.
• The Secretary of the Interior may not revoke or rewrite an Indian will because the disposition does not comport with the deciding official's notions of equity and fairness.
• Statutes written for the benefit of Indians should be interpreted in favor of the Indians
• General rules of statutory construction also apply to statutes and regulations enacted for the benefit of Indians.
• Due process requires a federal agency to explain the rationale and factual basis for decisions affecting persons dealing with the agency.
• Proper service of pleadings and timeliness is required to proceed before an ALJ or the IBIA.
• The appellant bears the burden of proof to prove his claim.
• The trust responsibility and regulations in Titles 25 and 43 of C.F.R. require the BIA to assist appellants not represented by counsel - this assistance consists of serving the appellant's filings on interested parties, allowing access to Government records or other documents. It does not include obtaining an attorney for the appellant or acting as the appellant's attorney by preparing appeal documents or otherwise advising the appellant on the merits of the appeal.
• The IBIA will not hear facts or legal issues raised for the first time on appeal.
• Federal law controls decisions in Indian probate proceedings, including construction of wills, validity of wills, determinations of heirship, proof of adoption, questions of paternity, Indian status, and evidentiary standards.   
• State law will be used to determine inheritance rights of adopted children, marital status, and laws of intestate succession. (The real rule for this rule and the one above is that sometimes federal law applies and sometimes state law applies - it depends on the subject. Pay close attention to the precise facts of each case.)
• In order to have standing to appeal a decision in an Indian probate case, an individual must be an actual or presumptive heir of the decedent, a beneficiary under a will executed by the decedent, or a person asserting a claim against the decedent's state.
• A person contesting an ALJ's probate determination must first seek rehearing before the ALJ before going to the IBIA.
• The BIA may seek to reopen an estate closed for more than three years to correct manifest injustice.
• Individuals seeking to reopen an estate closed for more than three years must show by compelling evidence that they diligently pursued their claim.
• An estate should not be reopened for the sole purpose of determining an individual's Indian status or eligibility for tribal membership. An estate should be opened to determine Indian status when the Department needs to do so to determine the right and duty of the Government to hold property in trust.
• The burden of proof to show testamentary incapacity is on the person challenging the will and he or she must show:
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  • that the decedent did not know the natural objects of his or her bounty
  • did not know the extent of his or her property
  • did not know the desired distribution of that property
  • AND this condition existed at the time of the execution of the will.
• The burden of proof to show undue influence is on the person challenging the will and he or she must show:
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  • that the testator was susceptible of being dominated by another
  • that the person allegedly influencing him in the execution of his will was capable of controlling his mind and actions
  • that such person did exert influence upon the decedent of a nature calculated to induce or coerce him to make a will contrary to his own desires
  • AND that the will is contrary to the decedent's own desires.
• Questions regarding BIA's inventory of the estate property may be raised during probate proceedings and when a challenge to an inventory is received the BIA should be notified and requested to fully participate in the proceeding.
• The IBIA serves to provide independent, objective administrative review of decisions of BIA officials and Indian probate ALJ's. Its decisions are final administrative decisions for the Department.
• It does not have authority to:
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  • declare a federal statute unconstitutional
  • declare a duly promulgated Departmental regulation invalid
  • declare a state statute unconstitutional
  • declare a federal statute in violation of the Canadian constitution
  • review acts of the Secretary of the Interior or the Assistant Secretary-Indian Affairs (although it may hear such matters by special delegation or request)
  • hear BIA personnel matters
  • award money damages against the BIA
  • award money damages or equitable relief against an Indian tribe
  • determine tort claims
  • determine aboriginal title to Indian land
  • determine whether title to land is properly in the United States in trust as opposed to being held in fee
  • review decisions of other federal agencies
  • review decisions made by duly constituted tribal officials or governing bodies
  • hear matters raised under the qui tam provisions of 25 U.S.C. 81
  • issue advisory opinions
  • substitute its judgment for that of the BIA in matters committed to the discretion of the BIA.
• Once an appeal is filed with the IBIA the BIA loses jurisdiction over the matter except to participate in the appeal as a party.
• If during the course of an appeal the BIA decides its decision was incorrect, it can:         
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  • request that the decision be vacated and the matter remanded in order to grant the relief the appellant requests
  • confess error and ask the IBIA to reverse the decision
  • enter into a settlement with the appellant.
• Neither an Area (now Regional) Director nor a Superintendent has the authority to make his or her own decision final for the Department.

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
• Rehearings and Reopening Estates
• Will Formalities
• Property Inventories
• IBIA Jurisdiction