the notice even had he received one; that during his lifetime, and until he reached the age of eighteen, he was not aware of his father's name; that shortly after his birth, his parents separated and his mother left California with one Melvin Peterson, taking him and part of the Pickernell family to Idaho; that he went by the name Peterson until he was eighteen years of age, at which time his mother told him that his real name was Pickernell so that he might register with Selective Service; that in his youth, he did not live with his mother at all times but spent periods of time with relatives.

The petitioner does not explain why he permitted eight years to pass before filing his petition for reopening. Nor is his petition supported by affidavits from persons who would be in a position to give testimony in his behalf should his reopening petition be granted.3 Furthermore, he makes no allegations or showing that any previous efforts have been made to procure reopening.

At the 1951 hearing, petitioner's mother testified that seven children were born of her union with decedent, but the petitioner was not one of the seven she named. We quote verbatim pertinent portions of her testimony:

Q. Were you acquainted with the decedent?

A. I was his wife. We got married about 1930, according to state law, in South Bend. We started divorce proceedings but I don't know how it came out. We separated and then went back together again. We separated for good in 1939.

Q. What are their names, living and dead, and did any of the dead ones have children?

A. Tessie Marie Pickernell, age 20, living, Nampa, Idaho, William Clarence Pickernell, age 19, living, Taholah, Wash., % Frank Pickernell, Taholah, Wash., Winifred Pickernell, age 16, living, Nampa, Idaho, Emma Jean Pickernell, age 15, living, Nampa, Idaho, Edward Alexander Pickernell, age 13, living, legally adopted by Daisy Wiley, 308 W. King St., Aberdeen, Washington, Nathan Pickernell, age 12, living, % Mrs. Mattie Howeattle, Taholah, Wash., Florence Violet (now Myrtle Lee Sigo), % Florence Sigo, Shelton, Wash., legally adopted about 1941, in Port Orchard. That is all.

The decedent's brother, Frank Pickernell, also testified at the 1951 hearing. His testimony corroborated that of petitioner's mother.

Since the petition for reopening was filed more than 3 years after the issuance of the examiner's Order Determining Heirs, and since the applicable regulation, 25 CFR 15.18, permits an examiner to reopen petitions filed within the three-year period "but not thereafter," we

3 For example, in Estate of Alvin Hudson, IA-P-17 (May 29, 1969), reopening was allowed where the petition was promptly filed and supported by affidavits from petitioner's mother and first cousin.

November 1, 1971

must determine if this is a proper case for the exercise of Secretarial discretion to waive the three-year limitation and permit reopening.* The question as to whether a proper basis for reopening exists has arisen with particular frequency with respect to minors who were not given the opportunity to be heard during the original probate proceedings. Estate of Betty May Black Garcia, IA-P-3 (July 21, 1967); Estate of Jesse Swan, IA-1268 (April 28, 1966); Estate of Alvin Hudson, supra; Estate of George Minkey, 1 IBIA 1 (1970), aff'd on reconsideration, 1 IBIA 56 (1970).

Generally speaking, requests for reopening filed beyond the threeyear period will be denied unless it appears that the original decision was procured by or resulted from fraud, mistake or accident. Estate of Betty May Black Garcia, supra; Estate of George Squawlie (Squally), IA-1231 (April 5, 1966). Over the years the Department of the Interior has adopted a strict policy of refusing to entertain appeals not timely filed. Estate of Ralyen or Rabyea Voorhees, 1 IBIA 62 (1971). This same policy will be applied to petitions for reopening filed beyond the three-year limitation provided in the regulations, Estate of George Minkey, supra, and the power of the Secretary to waive and make exceptions to his regulations in Indian probate matters will be exercised only in cases where the most compelling reasons are present. Estate of Charles Ellis, IA-1242 (April 15, 1966); Estate of George Minkey, supra. Reopening will be permitted only where it appears that the petitioner has not been dilatory in seeking his remedy. Estate of Alvin Hudson, supra; Estate of George Squawlie (Squally), supra; Estate of George Minkey, supra.

In summary, then, as prerequisites to the exercise of Secretarial discretion to grant petitions for reopening filed beyond the three-year limitation, it must appear from the record, including the petition and any supporting affidavits or documentation, that:

(1) the petitioner has been diligent in asserting his claim;

(2) the original probate determination resulted from fraud, accident or mistake of such a compelling nature that a manifest injustice will occur unless reopening is granted; and

4 The Department's regulations setting forth procedural rules for Indian probate proceedings, including hearings, reopenings, and appeals in such matters, were formerly codified in Subchapter C, Part 15, Title 25 of the Code of Federal Regulations. The regulations contained therein were the subject of recent modification and renumbering. Such amendments became effective as of April 15, 1971, the date of their publication in the Federal Register (36 F.R. 7185 et seq.), and will appear in Title 43, Code of Federal Regulations. However, since the petition herein was filed on April 7, 1971, it precedes the new regulations and will be governed by the old procedural rules contained in Subchapter C, Part 15, 25 CFR. Accordingly, the power of this Board to determine the matter is derived from discretionary power retained by the Secretary to waive or make exceptions to his regulations, 25 CFR § 1.2, as delegated to the Board of Indian Appeals in 211 DM 13.7; 35 F.R. 12081. See Estate of Eliza Shield Him, 1 IBIA 80 (1971).

(3) there exists the strong possibility that the petitioner, upon reopening, will be able to carry his burden of proof and establish his claim by a preponderance of the evidence.

In Hudson, supra, reopening was allowed where the petitioner alleged he did not learn of his relationship to the decedent until he was 24 years of age, at which time he promptly initiated proceedings to establish his claim. In Squawlie, supra, Secretarial discretion was exercised to permit reopening where, within fourteen months after expiration of the three-year period, petitioners sought to reopen on the basis of newly discovered evidence showing that they were related to the decedent. Such newly discovered evidence consisted of earlier probate determinations of the Department reflecting that the petitioners were related to the decedent in the sixth degree. As in Hudson, supra, a specific finding was made that there was no indication that petitioners were "dilatory or neglectful in their submission of their petition, or that they could have been more diligent in their pursuit of their rights."

By contrast, the petitioner here alleges that he first learned of his father's identity from his mother when he was 18 years of age, yet he fails to explain why he waited over ten years to seek reopening.

The public interest requires that Indian probate proceedings be concluded within some reasonable time in order that the property rights of legitimate heirs or devisees be stabilized. Estate of Abel Gravelle, IA-75 (April 11, 1952). To hold that the property rights of heirs in the allotted lands be forever open to challenges such as that made by the petitioner here would, in our opinion, not only constitute an abuse, but would seriously erode the property rights of those whose heirship in the lands has already been determined. See Estate of Jesse Swan, supra. The grounds for reopening must be truly compelling. On the record before us we are unable to find such grounds. There is no showing of fraud, accident, or mistake such as would warrant reopening. Petitioner alleges he was born on March 9, 1942, yet his mother testified that she and decedent "separated for good in 1939." Furthermore, not only has the petitioner failed to diligently prosecute his claim, but the record developed at the 1951 hearing constitutes strong and substantial evidence of the correctness of the original decision herein as well as the invalidity of petitioner's contentions. Thus, the person best qualified to resolve petitioner's paternity by virtue of having both a unique and exclusive knowledge thereof, his mother, has already testified adversely to him. In these circumstances, we are unable to find that a manifest injustice has occurred since it is unlikely that petitioner would prevail if reopening were permitted. The original probate determination will not be disturbed.

November 19, 1971

Accordingly, pursuant to the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 211 DM 13.7; 35 F.R. 12081, the Petition for Reopening filed herein on April 7, 1971, is denied, and the Order Determining Heirs entered herein on October 23, 1952, by D. H. Bruce, Examiner of Inheritance, is affirmed. This decision is final for the Department.

After a final order of escheat has been entered in Indian probate proceedings, one petitioning for reconsideration thereof has the burden of proof to establish his claim by a preponderance of the evidence.

INTERIOR BOARD OF INDIAN APPEALS

This matter is before the Board for reconsideration of an order of escheat entered March 20, 1967, by the Associate Solicitor in the exercise of authority vested in the Secretary of the Interior which was delegated to the Solicitor by the Secretary.1 The delegations of authority from the Secretary to the Solicitor, relating to the disposition of restricted or trust estates of Indians who have died intestate and without heirs, were superseded by the Secretary's delegation of authority to the Board of Indian Appeals. 35 F.R. 12081 (July 28, 1970).

FACTUAL AND PROCEDURAL BACKGROUND

The decedent, Charles Daniels, died intestate on December 27, 1941, at the age of 84 years (approximately). At the time of his death he was possessed of trust or restricted interests in five public domain allotments totaling some 560 acres located in the State of California. Several hearings were held during the years between 1946 and 1963, the result of which was the failure of all parties so claiming to establish any relationship to the decedent.

1210 DM 2.2a (3) (c), 24 F.R. 1348 (February 21, 1959), redelegated to the Associate Solicitor by Solicitor's regulation 23, 31 F.R. 4631.

On March 20, 1967, an order of escheat was entered by the Associate Solicitor, Indian Affairs, finding, inter alia, that decedent's estate consisted of cash and trust or restricted allotments on the public domain exceeding $17,000 in value; that none of the tracts of land involved lie within or adjacent to an Indian community; and that the evidence adduced at the hearings failed to establish any heirs of decedent. It was ordered that the assets of decedent's estate escheat to the United States to become part of the public domain. Thereafter, on January 13, 1969, the petitioners, Grace McKibbon and Dorothy Tardiff, petitioned the hearing examiner to vacate the order of escheat. On January 22, 1969, Hearing Examiner Alexander H. Wilson entered an order dismissing their petition for the reason that he no longer had probate jurisdiction of the matter. Petitioners appealed Examiner Wilson's order dismissing their petition by letter to the Regional Solicitor dated March 20, 1969. Following the creation of the Office of Hearings and Appeals in the Department of the Interior, and the Board of Indian Appeals thereunder, the Acting Regional Solicitor, transferred this matter to the Director, Office of Hearings and Appeals on July 6, 1970, pursuant to 111 DM 13.

The Board of Indian Appeals has jurisdiction to determine this matter under 35 F.R. 12081. On February 17, 1971, by Procedural Order and Delegation of Authority, the matter was referred to Examiner Wilson to take and receive testimony and other evidence tendered by the petitioners in support of their allegations.

On July 21, 1971, a special hearing was held at Weaverville, California, at which the testimony of the two petitioners and other witnesses was received. On August 20, 1971, Examiner Wilson issued Findings and Recommendations in which he held that petitioners had failed to satisfactorily establish their alleged relationship to the decedent, and recommended that the escheat order of March 20, 1967, be affirmed. On September 1, 1971, the petitioners filed objections to the Findings and Recommendations of the examiner.

2 Since the lands involved here are on the public domain, and are not within or adjacent to an Indian community, under the controlling statute, 25 U.S.C. § 373b (1970), such lands become part of the public domain upon escheat and are not subject to the proviso of section 373b permitting such lands to be held in trust for such Indians as might be designated by the Secretary of the Interior or by Congress. In view of our subsequent holding herein as to burden of proof we note that trust or restricted estates which do not lie on the public domain, regardless of value will escheat to the tribe owning the land at the time of the allotment, or its successor. 25 U.S.C. § 373a (1970). If such tribe is no longer in existence, the land is held in trust for the benefit of such Indians as the Secretary may designate. Pursuant to the proviso to section 373b, lands on the public domain which are within or adjacent to an Indian community and exceed $2,000 in value are held in trust for such Indians as Congress may designate, and those valued less than $2,000 are held in trust for such "needy" Indians as may be designated by the Secretary. Thus, in most instances where there is a failure of heirs, the lands will either escheat to a tribe, or be held in trust for the benefit of designated Indians.