May 21, 1971

on the basis of evidence of William Shaw's gradual acquisition of Indian lands as a result of devises to him in the wills of four other deceased Indians. This evidence led the Examiner to conclude that approval of the devises to the appellants would contribute to the allowance of a practice whereby a white man could deplete the Indian ownership of land contrary to the congressional legislation designed to prevent such occurrence. We affirm the decision of the Examiner.

Appellants contend that evidence introduced at the rehearing relating to the transactions and relationships between William Shaw and numerous Crow Indians was inadmissible in that such evidence is not relevant or material to the probate of Mary U. Rock Wellknown's will.

An Indian probate proceeding involves considerations, as discussed below, which go beyond the conventional issues of a state probate proceeding and therefore the Secretary in order to exercise appropriately his discretion as to the approval or disapproval of an Indian will, may consider evidence which would not be relevant in a state probate proceeding. We therefore turn to the evidence which warrants the exercise of discretion under 25 U.S.C. sec. 373 (1964) to disapprove the devises to the appellants in the will of Mary U. Rock Wellknown.

The appellant William Shaw has been the postmaster for over 30 years at Lodge Grass, Montana, an incorporated town located within the boundaries of the Crow Indian Reservation. The town has not been excluded from the reservation and is, therefore, in "Indian country." William Shaw became acquainted with the decedent in 1936, but it was not until the death of Mary Wellknown's son, Felix, in 1949 that William Shaw commenced a relationship with Mary Wellknown and her husband, John Wellknown, which involved supplying the Wellknowns with groceries, small amounts of cash, transportation, and other goods and services.

After the death of John Wellknown in 1951, William Shaw, on many occasions and over a period of many years, advanced money to Mary U. Rock Wellknown and her family for her care, furnished her or arranged for her to be furnished food and meals, and provided various other services for her benefit. William Shaw claimed that his basic expenditures toward the welfare of the decedent consisted of $2,635.84 in cash payments of amounts between $1 and $20 paid from the years 1948 through 1964; $1,237.37 in checks dated between 1948 and 1964 payable to the order of the deceased or her family; and payment of grocery bills for the deceased and her family in the sum

of $2,054.36 starting in 1960 until just prior to the decedent's death." William Shaw's testimony was conflicting as to whether these expenditures were considered by him as loans or gifts. He made no effort to collect for his expenditures on behalf of the decedent during her lifetime or to preserve his legal right as a creditor in Mary Wellknown's estate by filing a claim for reimbursement of his expenses.

Richard Shaw is the son of William Shaw. He transported the decedent several times during her lifetime to a medical clinic in Sheridan, to the burial place of her son, Felix, from the business area in Lodge Grass to her home, and to and from other places. On several occasions he delivered to Mary U. Rock Wellknown food and coal purchased by his father. Richard Shaw did not file any claim against the estate as a creditor.

In addition to his occupation as a postmaster, William Shaw engaged in numerous business transactions with Crow Indians relating to personal loans, the sale of their crop shares, and the lease and sale of Indian lands.

William Shaw made personal loans to Crow Indians, often accepting pawned goods as security. Etheline Hill pawned her personal goods with William Shaw to secure small loans at 25 percent interest. William Shaw admitted that he would withhold from mail delivery the per capita checks to an individual Crow Indian if such Indian owed him money.

William Shaw often prepared the contracts or deeds which formalized business transactions involving Crow Indians and, as a notary public, he often notarized such documents. On one occasion he prepared and notarized a document which Etheline Hill believed to be a mortgage on her $6,000 home to secure a $300 loan given to her by William Shaw as agent for a Mr. C. D. Moore. The document was, in fact, a warranty deed conveying Etheline Hill's house to C. D. Moore. Legal action was required in order for Mrs. Hill to clear her title upon repayment of the $300.

William Shaw provided business services to both Crow Indian land owners and non-Indian lessees. He represented all of the twenty to twenty-five small operators around Lodge Grass in their lease arrangements of allotted lands owned by competent Crow Indians, furnishing them advice and services in dealing with the Indian allottees. His non-Indian clients leased about one-half of the total leased land

2 The appellants introduced into evidence a ledger book which William Shaw claimed was used to record the cash payments as they were made. Appellants also introduced the canceled checks and grocery bill receipts.

May 21, 1971

in the Lodge Grass area. Mr. Shaw received a total fee of $1,000 in 1969 for the services he rendered his non-Indian clients, the principal service being the obtaining of leases from Crow Indian land owners. He represented both the non-Indian tenants and the Indian land owners in the same transactions and customarily gave the Indians "something" when they would sign leases (Tr. p. 68).

In exchange for loans to Crow Indians, William Shaw entered into transactions with them whereby he purchased their crop shares in the lands they owned and leased for crop raising. In 1956 a bank loaned money to Martin Spotted Horse only on the signature of William Shaw and on condition that Shaw would guarantee the crop as security for the loan. Subsequently, Shaw prepared leases between Martin Spotted Horse and non-Indian tenants of his land whereby Shaw purchased portions of Martin Spotted Horse's crop shares under a crop-share agreement.

In 1963 William Shaw, personally and through his attorney, made efforts to obtain a fee patent for lands held in trust for an enrolled Canadian tribeswoman, Ila Mae Bear All Time, who inherited approximately 3,000 acres from her husband. If it were established that Ila Mae Bear All Time was not a citizen of the United States, she would have been entitled to ownership of the land free of trust. William Shaw intended to purchase this land from her for approximately $40,000 in order to protect the interests of his white tenant clients using this land by insuring that their neighboring competitors would not obtain the land first. The Solicitor affirmed the ruling of the Crow Indian Agency Superintendent denying issuance of the fee patents to Ila Mae Bear All Time who was deemed to be a United States citizen.3 William Shaw received an aggregate of 840 acres of allotted Crow Indian land by devise under the wills of deceased Crow Indians in four previous instances. Eighty acres of land were received under the will, dated March 28, 1950, of John F. Wellknown, the deceased husband of Mary U. Rock Wellknown. His will contained the following provision:

The conveyance of the third devise to William T. Shaw, Jr., is made to him for the reason that he has helped my son, Felix F. Wellknown before his death, and he expressed the desire that I leave 80 acres of land to him, and I wish to carry out his wish. (Italics added.)

William Show inherited 520 acres from Clara White Hip by a will made in 1960. His relationship to her was of the same nature as his relationship to Mary Wellknown in that both regarded him as a son.

3 Letter decisions dated February 8, 1965, and April 19, 1965.

He rendered assistance to Clara White Hip in the form of groceries, coal, and other goods and services similar to that provided for Mary Wellknown.

William Shaw inherited 160 acres through the will, made in 1950, of Pup Plays With Himself with whom Shaw also had a relationship similar to his relationship with Mary Wellknown and Clara White Hip. William Shaw also rendered assistance to Mr. Bull Weasel who left him 80 acres in his will made in 1954.

4

William Shaw's aid to Crow Indians was thus directed to those Indians who were owners of real property. Moreover, in each case, while the recipients of his assistance owned some lands in which they owned only a fractional interest, the devises to William Shaw in these four prior wills were in lands in which the testator owned a full interest. This enabled Shaw to obtain a fee patent to these lands, thus passing the lands out of Indian ownership, and then to sell the lands without restriction. Similarly, in the case of Mary U. Rock Wellknown, her fractional interest in several allotments was devised to several of her heirs, but the devises to Richard E. Shaw and William T. Shaw, Jr. consisted of either her own allotment or a portion of land in which she owned the total interest.

We believe that William Shaw's role as a postmaster and a notary public placed him in a position of public trust.5 However, we find that his transactions with Crow Indians demonstrated a pattern of dealing with them for the undisclosed purpose of obtaining personal financial gain. This finding leads us to conclude that the devises to the appellants in the will of Mary U. Rock Wellknown were the result of the moneys, goods, and services advanced by William Shaw to the decedent during her lifetime for the purpose of acquiring her land by devise.

4 A non-Indian owner of a fractional interest in land jointly owned by Indians subject to trust would find himself restricted in dealing with the property. He cannot, as a practical matter, manage, use, or lease the land except with the consent and agreement of all his Indian co-owners. His own interest, although free of the trust, is virtually unsaleable unless the trust is lifted as to all of his Indian co-owners upon their request. 25 CFR 121.2. Partition is provided for by statute if requested by the Indian co-owners. 25 U.S.C. § 378 (1964); 25 CFR 121.8. Allotted lands devised to a non-Indian where the devise is approved are subject only to a dry and passive trust. The sole remaining power of the United States as trustee is to issue a fee patent to the non-Indian devisee. See Bailess v. Paukune, 344 U.S. 171 (1952).

5 The Code of Ethical Conduct for Postal Employees, Ch. 7, Postal Manual, Sec. 742.13 (1968) states:

"The postal service has the unique privilege of having daily contact with the majority of the citizens of the Nation, and is in many instances their most direct contact with the Federal Government. Thus, it is an especial opportunity and responsibility for each postal employee to act with honor and dignity worthy of the public trust **

May 21, 1971

The question is presented as to whether our findings warrant the exercise of the Secretary's discretion to disapprove the devises to William Shaw and his son under the authority of 25 U.S.C. sec. 373 (1964). The resolution of this question requires an examination of the statutory scheme designed for the protection of Indians.

Federal legislation relating to the allotment of restricted lands to Indians has been designed primarily for the protection and benefit of the Indians. See Poafpybitty v. Skelly Oil Co., 390 U.S. 365 (1968); Squire v. Capoeman et ux, 351 U.S. 1 (1956); United States v. Daney et al., 370 F.2d 791 (10th Cir. 1966); Hayes Big Eagle v. United States, 300 F.2d 765 (Ct. Cl. 1962).

The General Allotment Act of 1887, ch. 119, 24 Stat. 388 (codified in scattered sections of 25 U.S.C. (1964)), authorized the President to allot Indian reservation lands in severalty. Section 5 of the act provided that the allotted lands would be held in trust for the sole use and benefit of the Indian or, in case of his death, for his heirs. It was provided that conveyances of or contracts concerning the allotted lands made prior to expiration of the trust period would be “absolutely null and void" and there was no provision whereby an Indian could devise his trust allotment by will.

By series of enactments, Congress has gradually eased some of the restrictions of the General Allotment Act and has given the Indian more control over the utilization and disposition of his lands. These statutes, however, have always provided that transactions relating to Indian lands must be with the approval of the Secretary of the Interior.

The act of May 27, 1902 (32 Stat. 275), 25 U.S.C. sec. 379 (1964), permitted the adult heirs of any deceased Indian owning interest in a restricted allotment to sell and convey the lands inherited from such decedent, subject to the aproval of the Secretary. The act of May 29, 1908 (35 Stat. 444), 25 U.S.C. sec. 404 (1964), provided that the allotted lands of an Indian may be sold upon the petition of the allottee or his heirs, and the act of March 1, 1907 (34 Stat. 1018), 25 U.S.C., sec. 405 (1964), provided for the sale of the allotment of a noncompetent Indian. Both of these latter acts provided that the sale must be on such terms and conditions and under such regulations as the Secretary of the Interior may prescribe."

6 The Secretary's regulations relating to approval of petitions for the sale of Indian lands provide:

"*** Sales will be authorized only if, after careful examination of the circumstances in each case, a sale appears to be clearly justified in the light of the long-range best interests of the owner(s). * * * 25 CFR 121.11 (1970)."