November 19, 1971

4

Petitioner Grace McKibbon claims to be related to Charles Daniels 3 through her father, Jim Nalton, the son of Ann Nalton, who is alleged to be the sister of both Bob Tewis 5 and Pottis, the alleged father of Charles Daniels.

6

Dorothy Tardiff claims to be the "second cousin" of Grace McKibbon based on the allegation that her grandmother, Anne Nalton, was the sister of Jim Nalton (Grace McKibbon's father) and the daughter of Ann Nalton. Technically speaking, if petitioners' theory is correct, McKibbon is related to the decedent as first cousin once removed in the fifth degree of relationship and Tardiff is related to the decedent as first cousin twice removed in the sixth degree of relationship.

We must initially discuss the presumptions, general law, and rules relating to burden of proof, which should govern this matter.

LEGAL PRINCIPLES INVOLVED

It is a well-settled general rule that escheats are not favored by the law. 27 Am. Jur. 2d, Escheat, § 11 (1966). There is also a presumption, at least in actions initiated by states under specific statutes authorizing escheat proceedings, that a person dying intestate has left heirs or next of kin who will succeed to his estate upon his death. 27 Am. Jur. 2d, Escheat, § 34 (1966). While the presumption is rebuttable, proof in rebuttal must be of a high degree, 30A C.J.S. Escheat, § 16 (1965).

Escheat proceedings in state courts are generally provided for and regulated by statutes which prescribe the manner and procedures therefor. 30A C.J.S. Escheat, § 8 (1965). The common-law procedure for enforcing an escheat has been generally superseded by statutory provisions which provide an exclusive method of procedure. Such statutes usually provide for the bringing of an information by the state, whereupon the court issues and causes to be published an order requiring all persons interested to appear and show cause why title should not vest in the state. 27 Am. Jur. 2d Escheat, § 29 (1966). Consequently, it is not unusual that under such detailed statutes the bur

3 Sometimes referred to in the record as "Charley" Daniels.

4 Sometimes spelled "A-n-n-e" in the record. For clarity herein, we will refer to the alleged sister of Bob Tewis and Pottis as "Ann" and to Ann's daughter as "Anne."

5 The estate of Bob Tewis (who is sometimes referred to in the record as "Buckskin Bob") was the subject of Indian probate proceedings in 1923 and 1924. This file has a strong bearing on this case and is part of the record herein.

6 Thus, the key element in the primary theory advanced the petitioners herein is that Charles Daniels' father was Pottis, and that Pottis had a brother, Bob Tewis, and a sister, Ann. Ann is the common ancestor through whom both petitioners claim. McKibbon claims that Ann was the mother of her father, Jim Nalton. Tardiff claims that Ann was her greatgrandmother, i.e., the mother of Anne Nalton (Jim Nalton's sister) who was the mother of Sally George (Tardiff's mother).

By contrast, in Indian probate cases neither the controlling statute involved, 25 U.S.C. § 373b (1970), nor the applicable regulations, 25 CFR, Part 15, provide procedures for escheat cases. Nor does the Departmental Manual so provide.

den of proof should rest on the state initiating the action. 27 Am. Jur. 2d Escheat, § 34 (1966).

We are concerned, however, with the feasibility of applying such rule to Indian probate proceedings where, as here, such proceedings follow the issuance of an order of escheat and the filing of petitions for reconsideration filed by persons claiming to be heirs. To our knowledge, only one case, Estate of Jackson Searle, IA-S-2 (December 9, 1968), has dealt with the subject of escheats in Indian probate proceedings in a substantial way. In his opinion therein, the Regional Solicitor in effect applied the rule applicable in state courts to our proceedings holding that:

*** Where the case concerns the possibility of escheat, the presumption is even stronger, and the courts hold that the burden of proof shifts to the state to prove the failure of heirs * * *.

8

In disagreeing with the holding in the Searle case, we are of the opinion that because of vast differences between Indian probate matters and escheat actions brought by states the burden of proof should not be on the government in our proceedings to establish that the decedent died without heirs. To begin with the Department is not a party in Indian probate proceedings. Furthermore, the primary purpose of the hearings conducted by examiners employed by the Department is to ascertain the heirs of the decedents, 25 CFR 15.1, and to afford all interested parties the opportunity to establish their claims as either creditors or heirs. Experience has shown that these proceedings characteristically involve claimants whose ability to establish heirship have been blunted by time and the effects of their disadvantage. Consequently, the purpose and approach of the Department in carrying out the scheme of Congress has been, and is, to help them establish their claims, not to defeat such claims or to assert an adverse claim of title. As an example, we need only point to the numerous hearings held in the instant case over the last 30 years. While the relationship of the government to Indian claimants in these cases is not

8 In our proceedings, the nature of the property over which the Department has jurisdiction is trust or restricted property of which the Secretary is the trustee for the benefit of individual Indians. Thus, the General Allotment Act of February 8, 1887 (24 Stat. 388, as amended by Act of February 28, 1891, 26 Stat. 794, as amended by Act of June 25, 1910, 36 Stat. 855), 25 U.S.C. § 331 (1970), et seq., provides inter alia, for the allotment to individual Indians of specific tracts of land. Title to these lands is held by the United States in trust for the allottee, or his heirs, during the trust period or any extension thereof. Although the allottee and his heirs were given possessory rights to the land, their interest is not a fee simple. Rather, the land is held in trust by the United States for the allottee's benefit. 25 U.S.C. § 348 (1970). So long as the legal title to the land is held in trust, there are drastic restrictions on the alienability of these allotment interests. For example, it is only by securing the prior approval of the Secretary of the Interior that allottees can sell, mortgage, or give away their restricted allotments, or make a valid will disposing of same. Tooahnippah (Goombi) v. Hickel, 397 U.S. 598 (1970).

November 19, 1971

exactly that of guardian and ward, Department of the Interior, Federal Indian Law (1958), page 557 et seq., it is protective in the sense that the thrust of the proceeding is to ascertain heirs. Escheat orders are not the product of special proceedings. They result only where the Department has determined in ordinary probate proceedings that there are no heirs.

Because of the unique relationship existing between the federal government and Indians, the trust or restricted character of the lands normally involved in Indian probate proceedings, the nature of the proceedings, and the non-adversary role of the government therein, the difficult, if not sometimes impossible, burden of proving a negative fact, i.e., the nonexistence of heirs, should not fall upon the government. We take the view that in Indian probate hearings, there being no statute or regulation to the contrary, the "preponderance of the evidence" rule applicable to administrative tribunals as well in judicial proceedings should operate. That is, one claiming to be an heir of the decedent must establish his claim by a simple preponderance of the evidence. 2 Am. Jur. 2d Administrative Law, §§ 392, 393 (1962).

9

Furthermore, since our proceedings are governed by the provisions of the Administrative Procedure Act, Estate of Charles White, Nez Perce Allotter No. 66, 70 I.D. 102 (1963); Estate of Lucille Mathilda Callous Leg Ireland, 1 IBIA 67; 78 I.D. 66 (1971); Estate of William Cecil Robedeaux, 1 IBIA 106; 78 I.D. 234 (1971), section 7(c) thereof is applicable here. It provides that "Except as statutes otherwise provide, the proponent of a rule or order shall have the burden of proof." This language has been construed to mean that the party initiating the proceeding has the general burden of establishing a prima facie case but that other parties, who are proponents of some different result, also for that purpose have a burden to maintain. 2 Davis, Administrative Law Treatise, § 14.14 (1958); Department of Justice, Attorney General's Manual on the Administrative Procedure Act, p. 75, footnote 3 (1947).

Accordingly, to the extent of its inconsistency with this decision, Estate of Jackson Searle, supra, will not be followed. Let us now examine the facts of this case in light of the above principles."

10

In a similar if not analogous situation, where a deceased veteran left no heirs and the assets of his estate consisted of unexpended Veteran's Administration pension payments, it has been held that the federal government had no burden of proving, as a condition precedent to its right thereto, that the decedent left no distributees. In re Regan's Estate, 185 N.Y.S. 2d 350, 18 Misc. 2d 463 (1959).

10 The record herein consists not only of the transcript of hearing held on July 21, 1971, but also of transcripts of hearings previously held in 1950, 1951, 1952, 1956, 1961, and 1963, and the record of a related probate proceeding, Estate of Bob Tewis (Red-437), Probate No. 82056-24.

452-132-72—2

FACTUAL AND LEGAL ANALYSIS

The determinative issues herein are primarily factual, and turn largely upon the credibility of the testimony offered by the petitioner, Grace McKibbon.

At the hearing on July 21, 1971, McKibbon testified that she is a full-blood Wintun, born in 1900; that her parents were Sarah and Jim Nalton; that her grandparents on her father's side were George Nalton and Ann Nalton; that Ann Nalton was the sister of both Bob Tewis and Pottis; that Pottis had two sons, Charles Daniels and another son who died without issue prior to Charles Daniels; that Bob Tewis was therefore Charles Daniels' uncle, and her grandmother, Ann, was Charles Daniels' aunt; that her grandmother, Ann, had three children: Jim Nalton (her father), another son, Martin, and a daughter, Anne; that Anne married William George; that four children were born of this marriage one of which was a daughter, Sally George; that Sally George, had three children one of which was Dorothy Tardiff. McKibbon was unable to name the parents of Pottis, Bob Tewis, and Ann Nalton, thus leaving unresolved the question as to whether they were full-blood or half-blood brothers and sister.

McKibbon claims that her father told her that Pottis, Bob Tewis and Ann, were brothers and sisters but that he did not know the names of the parents of Pottis, Bob Tewis or Ann. She also testified that the decedent referred to her as "niece."

The significant portions of Dorothy Tardiff's brief testimony is that her mother's name was Sally George; that her mother married Thomas Burns; that her maternal grandfather and grandmother were Anne Nalton and Bill George; that she first met Charles Daniels when she was 12 or 13; that he referred to her as "cousin" and once told her, "I am your relative, cousin"; and that she has a sister, Ruth Morton, who is still living."

The petitioners presented two witnesses at the July 21, 1971, hearing in support of their allegations, J. B. Thomas and Wilma Olsen. Thomas, an eighty year old non-Indian, testified that he had "heard," from a source he was unable to recall, that Charles Daniels was related to the Thomas Burns family, and that Bob Tewis, Charles Daniels and Jim Nalton were all related.12

Thomas also testified, however, that although he was acquainted with McKibbon, he had never heard that she was related to Charles

11 Unlike McKibbon, Tardiff did not testify at the hearings previously held herein. McKibbon, on the other hand, gave testimony in 1951, 1956, 1961, and 1963.

12 This is in direct contradiction to Thomas' testimony in 1950 that only Bob Tewis, Ellen Hosendolly and Walter Loomis were related to Charles Daniels. As noted by the hearing examiner, Loomis, at the 1963 hearing, disclaimed any relationship to the decedent.

November 19, 1971

Daniels or Jim Nalton. He emphasized that the only relative Charles Daniels ever mentioned to him was Bob Tewis.

Wilma Olsen, approximately 71 years of age, testified that she is acquainted with both McKibbon and Tardiff; that the first time Charles Daniels visited her home, he came with Jim Nalton and introduced him to her mother and her folks as his cousin. Although she also testified that it was "common knowledge" that Charles Daniels and Jim Nalton were related, she did not specify the degree, or nature (blood or marriage) of the relationship.

Barbara Ferris, an assistant realty officer at the Hoopa area field office, testified that Sally George (Dorothy Tardiff's mother) was present at a hearing held on October 15, 1924, in the Bob Tewis estate matter, and that Sally George did not claim any interest in the Tewis estate.13

The theory advanced by the two petitioners is based almost entirely on McKibbon's testimony. It does not bear up under scrutiny. To begin with, McKibbon's conclusions that she and Tardiff are related to the decedent through her grandmother, Ann, is not based on any firsthand personal knowledge. Only when pressed by the examiner did she furnish the explanation that her father told her that Pottis, Tewis, and Ann were brothers and sister. There is no corroboration of this vital point from other witnesses, or by photographs, family documents, court records, church records, or other Indian probate files. McKibbon's testimony boils down to little more than a naked assertion on her part that "this was the way it was." Yet, at the 1951 hearing, after McKibbon had testified that her father's mother was the sister of Tewis and decedent's father, this exchange occurred:

Q. Is it not true that the old Indians called their cousins their brothers and sisters?

A. Yes.

13 This is confirmed by our review of the Tewis file. Sally George's testimony at the 1923 hearing therein is significant:

"Q. Do you know an Indian named Bob Tewis?

A. No, I did not know him.

Q. Did you ever hear of him?

A. I think I have, but I do not know him.

Q. Was Bob Tewis related to you?

A. Not that I know of.

Q. Are you a daughter of Ann (e) George?

A. Yes.

Q. When did Ann (e) George die?

A. About 10 years ago.

Q. Who was her father?

A. George Nalton. He is an old man, he is over hundred years old. He is feebleminded. He lives near Knob, Calif.

Q. Who was the mother of Ann (e) George?

A. I do not know her. She died years ago." (Emphasis supplied.)

Four other witnesses testified at this hearing. Two testified Tewis had no sisters. Of the two remaining witnesses, Charles Daniels testified that Tewis had 3 sisters, Little Ellen, Big Ellen and Broomhead; Jim Tye testified Tewis had 2 sisters, Little Ellen and Big Ellen.