Tooahnippah v. Hickel

PETITIONER:Tooahnippah
RESPONDENT:Hickel
LOCATION:17th Judicial Circuit Green County Alabama Jury Commission

DOCKET NO.: 300
DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Tenth Circuit

CITATION: 397 US 598 (1970)
ARGUED: Jan 14, 1970
DECIDED: Apr 27, 1970

Facts of the case

Question

Audio Transcription for Oral Argument – January 14, 1970 in Tooahnippah v. Hickel

Warren E. Burger:

— Tooahnippah, Atewooftakewa Tate and others against Hickel.

Mr. Luellen, you may proceed whenever you’re ready.

Omer Luellen:

Thank you Mr. Chief Justice.

Chief Justice Burger and Associate Justices of this Honorable Court, this case 300 was a petition for writ of certiorari on the Tenth Circuit it pertains to the approval or none approval of the will of an Indian who owned first a restricted properties pursuant to our federal statutes governing the disposition of Indian lands upon the death of an Indian.

I feel certain that this Court is familiar with the fact that the governing statutes under which we are discussing this case are found in two sections commonly called 1910 Act, Section 1 of the 1910 Act which now has been codified as 25 U.S.C. 372 and Section 2 of the 1910 Act which has now been codified as 25 U.S.C. 373.

372 pertains to the determination of the heirs of a deceased Indian that has an allotment or who will in the future have an allotment upon his death dying without a will.

And Sections 1 or 372 proceeds to state that upon the death of the said Indian his heirs shall be determined by the Secretary of the Interior and his decision shall be final and conclusive.

Then we have Section 2 of the 1910 Act which is codified as 25 U.S.C. 373 which states that if an Indian dies owning an interest in trust and thus it really say an Indian assess any person die owning an interest in trust or restricted lands or funds that are restricted unless he shall have the right — this person shall have the right to make a will provided the will shall not have any force or effect until and unless — unless and until it is approved by the Secretary of the Interior.

Now, that is the general situation here, this Indian, George Chahsenah later will in — his last will of March 1963.

He was a member of the Comanche Tribe of Indians.

He lived at a little town of Apache, Oklahoma located about 20 miles north of Fort Sill or Lawton, Okalahoma.

Any of you gentlemen or any members of this Court have ever been to Fort Sill in World War I or World War II.

Actually, it’s about 25 miles north of Fort Sill.

George Chahsenah was a member of the Comanche tribe of Indians.

He made his will — his last will.

He made several wills.

I’m certain that will be brought out here later.

His last will is made in March 1963.

He died approximately five or six months later and the procedure for making wills where the Indians have restrictive trust lands, they go to the field officers of the Bureau of Indians Affairs which in this case of course was an (Inaudible) about 30 miles on north of Apache, Oklahoma.

He went there in March 1963 and made his last will in the office of the Field Solicitor and his will was properly drawn according to the procedures.

Then he died some six months later and his will of course was presented for probate and several hearings were held before the Examiner of Inheritance.

Can our blame who had the position of Examiner of Inheritance, it’s a position created by the Secretary of the Interior giving the Inheritance Examiners a general authority to make determinations concerning with the deceased heirs of Indians who died without wills and also in regard to the approval or non-approval of their wills.

They had four, I think around four hearings in this case and finally the Examiner of Inheritance made a — rendered an opinion or ruling or opinion in which he upheld the validity of this will of the George Chahsenah and he approved the will.

In his finding, which of course is contained on the appendix, he goes into certain findings about the fact of this Indian apparently was addicted to alcohol and perhaps I should’ve said prior to this time that in the hearings on his will there were — the devisees and legatees were represented by legal counsel.

The certain disinherited nieces and nephews were represented by Mr. Hill and also Dorita High Horse who it was found later by the court to be — who was found later by the court to be his natural daughter.

And the Court — the Examiner of Inheritance felt that — made a finding that although this Indian apparently was addicted to alcohol and it was an excessive drinker and he make some different wills at different times that the time he made his will, he was perfectly competent to make his will.

He was intoxicated.

In fact, some of the will was proper in respect and the Examiner of Inheritance has approved the will.

Warren E. Burger:

That’s not challenged by anyone, is it?

Omer Luellen:

No.

Omer Luellen:

Then an appeal by the contestants of the will, the appeal was taken to Secretary of the Interior as directed by the regulations and at that time the authority to approve or disapprove wills of Indians had been delegated to the Regional Solicitors.

Originally I’m up until short time prior to that the — what those appeals or appeal to the portion on office and usually the Solicitor or the Associate Solicitor of the Department of Interior made these determination but at this time it have been set down by delegation of authority to the Regional Solicitors.

And the Regional Solicitor for this region was, Tulsa, Oklahoma, Mr. Stanford Regional Solicitor is still a Regional Solicitor upon the hearing before the Regional Solicitor — upon review before the Regional Solicitor, the Regional Solicitor found that the factum of the will was proper as the Examiner of Inheritance had found.

He found that this Dorita High Horse was a natural daughter of deceased George Chahsenah and he found although the factum of the will was proper and have a respect, the fact George Chahsenah have apparently have not supported the Dorita High Horse during her minority that there had not been an equitable treatment of the heirs of law of George Chahsenah by his will.

And under his exam — the Regional Solicitor set up from his discretionary authority, he held that equity had not been achieved and he disapproved the will of George Chahsenah and directed that the estate be distributed to his natural daughter.

Now, he also in his order disapproved or disallowed, he said he would also make the same finding as to any other wills of George Chahsenah and now he had made several other wills prior to this time.

So, he made that same finding in regard to any other wills.

Potter Stewart:

There were what some five, at least five previous wills?

Omer Luellen:

Right, Your Honor.

Potter Stewart:

And normally, when a will is set aside for some reason or another you go back to the next previews will but that (Voice Overlap) he just set aside all of them.

Omer Luellen:

He set all of them.

That’s in the last paragraph of his — of the Regional Solicitor’s decision.

Who were the objects of his bounty on the will as written?

Omer Luellen:

In the will has written?(Voice Overlap)

It was his niece, Viola Atewooftakewa Tate and her three children.

He had lived with this niece of considerable portions of his lifetime and he was living where at the time of his death.

He had no children except this Dorita High Horse, he had no wife, he had no father and mother.

He had nieces and nephews of which Viola was one of them and then he gave his estate to Viola and her three children.

And she agreed under this decision as High Horse (Inaudible)?

Omer Luellen:

Yes the — under the decision of the Regional Solicitor acting and delegate authority of Secretary of Interior he held that equity was not achieved by this will.

The Indian did not achieve or make an equitable distribution of his estate.

Therefore, his will was disapproved which would be that the entire estate would go to Dorita High Horse because the Examiner of Inheritance had made a finding that she was his daughter and heir at law.

The findings of the Examiner’s compliments to the written statement by Mr. George?

Omer Luellen:

No.

On appeal, the Regional Solicitor specifically found the factum the way it was proper.

All the technicalities have been complied with.

Warren E. Burger:

Has the doctrine dependent relative revocation of wills been applied in this area of Indian wills?

Omer Luellen:

The regulations provide there shall be no implied revocation in the wills.

Warren E. Burger:

Well, that wouldn’t necessarily take care of that doctrine.

Omer Luellen:

Well, what was the doctrine, Your Honor?

Warren E. Burger:

Doctrine of dependent relative revocation, Mr. Justice Stewart was referring to indirect or directly.

Omer Luellen:

You mean change in conditions of the family?

Warren E. Burger:

Is the will fails — a given will fails for some reason it falls back on the trial.

Omer Luellen:

Oh yes.

I understand what you mean.

Well, the —

Warren E. Burger:

If the regulation is preclude the application of that (Voice Overlap).

Omer Luellen:

Well, there’s no — there’s no regulations precluded falling from that on a prior will.

Warren E. Burger:

Did the particular official that made this decision have before him the prior wills?

Omer Luellen:

He had the record and I believe they’re in the record, Your Honor.

At least the substance of the will — prior wills are in the record what they’ve provided it’s in his first will that he made to give his entire estate to this Viola Atewooftakewa Tate, the one that later on came in, in his last will practically his entire estate, then he gave some miscellaneous friends some properties at different times in his wills in between.

Hugo L. Black:

Would you mind if you declare prior for me if you were to disclaim simple words so that they’re easy to understand.

Say “to whom” he divides his properties and the will it was held there.

Describe them.

Omer Luellen:

He divides his will on – it’s found at appendix page 64 —

Hugo L. Black:

To whom was it?

Omer Luellen:

He gave it to his niece Viola Atewooftakewa Tate and her son Frankie Lee Tooahnippah in equal shares and interest in allotment of Rooker Roth (ph).

Hugo L. Black:

Well, who was there, his niece, and his children?

Omer Luellen:

Niece and her son.

Hugo L. Black:

His niece and her son.

Omer Luellen:

That’s his interest in one allotment.

Hugo L. Black:

Who’s fighting that?

Omer Luellen:

The natural daughter, the one that he does not mentioned in his will but who has been determined —

Hugo L. Black:

Do you mean natural daughter?

Do you mean by that an illegitimate or legitimate?

Omer Luellen:

Well, I call it an illegitimate Mr. Hill’s adversely he’s contesting me on my statement of illegitimacy.

She is his daughter born out of wedlock, at least.

Hugo L. Black:

Yes.

Omer Luellen:

He never lived with his mother except maybe for a short interlude —

Hugo L. Black:

Is that to all the fights between?

Omer Luellen:

Absolutely the fights between.

Hugo L. Black:

And if this is upheld, what would happen to the property?

Omer Luellen:

Do you mean if the will is upheld?

Hugo L. Black:

If the verdict is upheld — the judgment of the Court of Appeals?

Omer Luellen:

If the judgment of the Court of Appeals is upheld, well, it will go to the natural daughter who was not mentioned in his will.

Hugo L. Black:

Do you mean all of it or partly?

Omer Luellen:

All of it.

Hugo L. Black:

All of it?

Omer Luellen:

Yes, sir.

Hugo L. Black:

And what was the next prior will, to whom was it compelled?

Omer Luellen:

Well, I’m not certain who the next prior will.

I think it went to a nephew.

Now, it went to a cousin, Rose May Roth?

Omer Luellen:

Yes.

Okay, you have that there in the record, Your Honor.

Hugo L. Black:

But Mr. Luellen challenging the constitutionality of the law under which the Secretary acted?

Omer Luellen:

No, I’m not trying to challenge the constitutionality of the law in which the Secretary acts.

The Circuit Court held that the — the Tenth Circuit held that the action of the Secretary of Interior order recess about an Indian will either approves or disapproves an Indian will and that is final and conclusive and cannot be taken judicial review, it cannot be taken of the said will.

Hugo L. Black:

Are you attacking at holding on the ground that that’s not what the statute says?

Omer Luellen:

Not so far —

Hugo L. Black:

Or that such statute would be unconstitutional?

Omer Luellen:

Well, I can say the statute it doesn’t apply as to Indian will as to that term.

Section 1 applies to intestate succession says, it shall be final in (Inaudible) in this Court in two or three cases have held to several cases upheld that determination of heirs under the Section 1 is final and conclusive and I’m not settling to judicial review.

But Section 2 does not have the final and conclusive clause that the determination or the approval or non-t approval of an Indian’s will or the Secretary of the Interior is final and conclusive.

That’s all admitted from Section 2.

But the Tenth Circuit in two or three case of Heffelman case then the Attocknie case and these case have held that Sections 1 and 2 complement each other and not final and conclusive as it applies to Section 1 of the intestate succession.

It means that it also applies or complements Section 2.

Therefore, it’s final and conclusive and not subject to judicial review by the Court even though the —

Hugo L. Black:

Then it’s your argument based solely on the question of statutory construction or is it based on attack constitutionality of the law?

Omer Luellen:

On attacking constitutionality of the law, this — my position is that Section 2 does not have a final and conclusive clause and therefore —

William J. Brennan, Jr.:

Well, Mr. Luellen really your whole argument and the only issue for us to decide as I understand it of the briefs is whether or not the action of the Secretary of the Interior whether judicial review of that action is precluded by the statutes, that’s all, isn’t it?

Omer Luellen:

That — that sir, —

William J. Brennan, Jr.:

I must say you haven’t really got to that issue which as I understood is the only issue we have in the Court.

Omer Luellen:

Well, —

William J. Brennan, Jr.:

It’s really nothing to do with — we have nothing to do with the background of the wills or —

Omer Luellen:

It’s not in the statute Your Honor.

I mean that Section 2 —

William J. Brennan, Jr.:

I know it’s not but that’s the only issue for us to decide, isn’t it?

Omer Luellen:

I think that’s the primary issue, yes.

William J. Brennan, Jr.:

That’s right.

Omer Luellen:

Although, there must be —

Hugo L. Black:

But it’s not a statutory construction according to your judgment?

Omer Luellen:

What?

Hugo L. Black:

That is a matter of statutory construction of course in your judgment?

Omer Luellen:

Well, yes it will be a matter for this Court’s construction under Section 2.

It means it’s final and conclusive or rather it doesn’t mean —

Hugo L. Black:

Do you raise a constitutional question?

And if so, what is it?

Omer Luellen:

I don’t think they are raised on constitutional question.

Hugo L. Black:

Why?

Omer Luellen:

It’s my opinion I hold.

And everything, we got a subsidiary issue.

Let’s assume that you prevail in the ground of this review is not protruded?

Then don’t you have the question as to whether the Secretary in doing what he did is acting within the scope?

That’s true.

William J. Brennan, Jr.:

And that’s (Inaudible).

Omer Luellen:

Yes, we have that issue too.

We have to meet one issue then if you say it’s, you still have the right to review — we do have the right to review and he still have the alteration whether the Court — whether the District Court was proper in this case or whether the Secretary of Interior is proper.

William O. Douglas:

But Mr. Luellen, that’s not a question that you submitted to us if you prevail that it’s conditionally reviewable.

All you’re entitled to do is to remand that the Court of Appeals to have the Court of Appeals decide the merits, isn’t it?

William O. Douglas:

You’ve already raise with us as I understand that the question presented is whether the decision of the Secretary of the Interior approving or disapproving the will of an Indian is subject to judicial review, that’s the only question you presented here.

You have an —

Omer Luellen:

That’s the primary question because the Secretary —

William O. Douglas:

But you haven’t asked us to decide the merits.

Omer Luellen:

No, I —

William O. Douglas:

The Court of Appeals refused to decide the merits.

Omer Luellen:

That’s right, it did.

Byron R. White:

But the government seeks to sustain the judgment below on the ground that the discretion was properly exercised?

Omer Luellen:

They say that the decision of Secretary of the Interior was proper.

Of course we count instead on the District Court held it was improper.

Warren E. Burger:

Would your claim must of necessity can be as has been suggested that first and subject to judicial review and second that there must be some standards by which the Secretary of Interior exercises this authority, are you suggesting that the judicial review be based upon general standards of review of administrative action, it must not be arbitrary and capricious, that it must be based upon some rational?

Omer Luellen:

I think that’s to be our position, yes.

But we feel there’s no statutory preclusion of review that Section 1 does not complement Section 2.

Therefore, it’s on the general review abilities of the Courts to review that sometimes, some place there must be a question to have an action of administrative personal review unless statutes preclude review and we feel like Section 1 does not preclude review under Section 2.

Now, of course this was in — has been up in several cases, went up Homovich versus Chapman.

The circuit here of the District of Columbia Circuit raised that point in that case so it was not subject to the decision of Secretary of Interior was final and conclusive found and not subject to review.

And in Homovich versus Chapman, the decision of District of Columbia, they held it was subject to review.

Then later on you have a Hayes versus Seaton case which was discussed and here you have your dissenting opinion in Hayes versus Seaton which goes into that much in detail.

Then they come along with the Heffelman case in the Tenth Circuit, they say Section 1 and Section complement each other.

Therefore, you cannot review the Secretary of the Interior’s decision approving or not approving the will of an Indian.

Going back in saying Section 1 complements Section 2, of course then this the factum of this will while the District Court held that there was — that the Secretary acted in arbitrary and capricious manner direct to the approval of the will as it goes back to the facts of course.

But going on up on appeal, the Tenth Circuit rendered into the facts whatsoever.

They just had no jurisdiction direct effect – direct to the action be dismissed and that the state be distributed in accordance with the decision of the Secretary of the Interior.

Now, of course in the District Court the facts were going into and the District Court held that the — that in this case the Secretary of the Interior was acting in arbitrary and capricious manner without rational for his decision and directed that the state be distributed pursuant to the terms of the will.

But the question is going back to the facts in that particular face out which I think it’s in to this case and the way you heard it, it’s a question whether the Secretary of the Interior can setup there and determine whether this Indian did equity to his heirs and has he have not, this is discretionary authority go that far and be just to arbitrarily say to an Indian, well I won’t approve this will, this was unjust will, unnatural will or something like that and I think I don’t believe the prior cases and memorandum to the Secretary of the Interior of 1941 which is in my briefs two or three different several different places, at that time it was thought by Mr. Flanary who was the Chief of the Indian Section of the Interior that the will of an Indian — he had arrived to make his own will and but Secretary of the Interior didn’t have the right to come in and substitute his will for that of the Indian.

William J. Brennan, Jr.:

There is suggestion made that the Secretary should fix up a legacy sort of comparative rule of beneficiaries fixing up the legacy —

Omer Luellen:

There’s no —

William J. Brennan, Jr.:

Suggestion for that.

Omer Luellen:

No suggestion of that kind that I know of Your Honor.

Byron R. White:

I’m so sorry about that (Voice Overlap).

Omer Luellen:

No problem because I don’t know how to do that.

William J. Brennan, Jr.:

Was it because of the (Inaudible)?

Your relied on that act, did you?

Omer Luellen:

No I didn’t rely on that but they —

William J. Brennan, Jr.:

Or in the Secretary?

Omer Luellen:

The Secretary did.

I say that that’s not a valid disposition unless in his property does he say, we’re going to do equity or was worth the criteria, or could you ever say, in one sec.

We’ll be done.

Suppose the Secretary ought to say as I put it one of my briefs.

“Well, this Indian here is a member of Comanche Tribe of Indians.

Comanche have been notorious warriors, I read about the Comanche I just would never approve of a will of an Indian — of a Comanche.”

And then that would be arbitrary and capricious to be subject judicial review but it also be subject to mandamus I think on the 1361, I don’t know where the court —

Potter Stewart:

Can I ask you whether this provision covers all the property which is covered by the will and I suppose the Section 2 is triggered only when the Indian owns restricted property that is the property which United States is holding entrust for him.

Yes.

Potter Stewart:

If he doesn’t own any of that property but owns a lot of other property then the Secretary has no power?

Omer Luellen:

He has no power over the said property.

Byron R. White:

Well, now assuming he owns both kinds of property restricted and non-restricted, and he make a will covering both, does the Secretary’s invalidation of the will have validated as respects the other property too?

Omer Luellen:

It’s my opinion it will not affect the other property, the non-trust property and non-restricted property.

Byron R. White:

So, an Indian’s will as to non-trust property is not effective?

Omer Luellen:

Yes.

Now, first the whole setting have a different situation where you have to have the Secretary of the Interior has approved and also the courts, but you can probate an Indian’s will where he had two witnesses and the will was complied with Oklahoma statute.

In fact, the Secretary of the Interior did not approve his will.

I don’t think it would affect his non-trust property, that’s my opinion at least.

Now, this will gave all of his property to his race, I didn’t finish yet of course the next (Inaudible) gave to his — he gave to Viola Tooahnippah and Julia Tooahnippah, daughters of Viola in equal shares as the allotment of shares.

Then he made a residue clause and gave all of his residue to Viola and her three children — his entire state which was trust and restricted property was distributed and taking care on his will.

He never did mention Dorita High Horse in any of his will.

His first will, he gave it to Viola – that the niece that he lived with almost to this lifetime.

Then, in a period of some three or four years, he just — Justice Stewart I believe was noting that (Inaudible) the different ones, he gave his properties too and his will but then when he got — he knew he was in bad health when he got ready to really go on out into this other world.

He came in and made this will and he had spelled out.

He told certain allotments to certain persons and then he set the residue to these four.

Omer Luellen:

The factum of this will is never been disputed but the only this is the Secretary of the Interior acting through the Regional Solicitor said that he said he did not achieve an equitable purpose because he could’ve been held liable for the support of this Indian girl while she was a mother.

Therefore, using his — what the Secretary said, his discretionary part he withheld the approval of this will.

Now, District Court said that was arbitrary and capricious, there is no rational for this action that he direct the Secretary of the Interior to approve the will.

And then on an appeal to the Circuit Court that Circuit Court said, Section 2 is under Section 1 so far as final and conclusive it’s not subject to judicial review and they refuse to review it, directed the case to be dismissed and the state distributed pursuant to the judgment of the Secretary of the Interior.

Of course, I filed my petition for certiorari here which this Court seems fit to allow and a lot certain what the action he would take if it either — suppose direct the Circuit Court to go ahead and hear that case on the facts if they had jurisdiction, if you hold they had jurisdiction or you could direct to be distributed as directed by the District Trial Court.

Warren E. Burger:

If we send it back, assuming that you prevailed and we send it back to the Court of Appeals, what standard should the Court of Appeals apply?

I put that question even before but I’m not clear on your answer.

Should they apply general rules of review of administrative action?

Omer Luellen:

I think so.

Warren E. Burger:

To support the —

Omer Luellen:

I think they were to imply the general rules of reviews, it be my opinion.

I don’t want other the rules they would and I think it be the general rule, yes.

I believe I’ve taken most of my time.

I’ll (Voice Overlap).

Warren E. Burger:

Thank you Mr. Luellen.

Mr. Stone.

May I ask you at the outset Mr. Stone whether the power to review a will and grant or withhold approval is one which the Secretary, of course, the Secretary must have reasons or whether do you think it’s an absolute unreviewable power?

Richard B. Stone:

Now, the Government’s position Mr. Chief Justice is that this is an unreviewable power under Section 2 of the 1910 Act.

Of course, we are basically putting forth two contentions in this case.

One is that the Secretary’s determinations are in fact non-reviewable.

The other is that even if there is a limited standard of review which is to review whether the Secretary has exceeded the scope of his authority in rendering his discretionary decision.

Lewis F. Powell, Jr.:

Is that a question on merits, Mr. Stone?

That’s the merits of —

Richard B. Stone:

Yes, I believe it is.

Lewis F. Powell, Jr.:

And that’s just not reached by the Court of Appeals?

Richard B. Stone:

That question was not reached by —

Lewis F. Powell, Jr.:

Why does the Government has to reach?

If we should decide that has it’s a judicial review why should we send it back to the Court of Appeals to decide on that?

Why should be reach it?

Richard B. Stone:

Well, I think that is a possible disposition of the case and it would understandable if the Court chose to decide this way.

Richard B. Stone:

I think the question is sufficiently clear that the Court could — that it is sufficiently clear that the Secretary has the right to apply equitable considerations to the case that this Court could reach that decision quite easily and remand if necessary with instructions to apply that rule.

Warren E. Burger:

Would you think if the Court of Appeals having thought it had no jurisdiction at all?

Would you think that we’re to go back to them that they might need some guidance as to what standards to apply to the review?

Richard B. Stone:

I think it would be helpful Mr. Chief Justice if the Court of Appeals were given some standard of review and I think that the standard that they should be given is a very broad one that the Secretary has extremely wide powers in this area, and that a reversal would only be in order if the Secretary had grossly abused his scope of discretion.

I would like, with the Court’s permission, to discuss very briefly the historical context in which the General Allotment Act and the Act of 1910 appears because I think it bears — this historical context bears very heavily on both of them contentions that the Government is making in this case.

The contention that the Secretary is given absolute discretion, non-reviewable and the contention that the Congress intended for him to exercise a very wide range of considerations in deciding whether to approve or disapprove a will.

The General Allotment Act is — was one of the major aspects of Congress’ effort to make Reservation Indians economically integrated and self-sufficient members of the society.

Under the allotment system prior to 1934, the Government divided and allotted reservation properties that convey them to individual Indians and their families.

The properties were conveyed under an arrangement which this Court has characterized not as a technical trust arrangement but as a kind of special guardianship by which the Department of the Interior is entrusted with the duty of restricting alienation of the Indian’s interest in these lands and furtherance of a congressional policy which this Court has described as “the promotion of prudence to afford protection to dependent and natural heirs” and also “preserving restricted land for the Indians.”

This Court has recognized that the legal relationship is a very special one between the Government and reservation Indian tribes in communities and that special relationship has survived the break-up of certain reservations and the allotment to individual Indians of tribal lands at least that has survived with respect to the allotted land themselves and at least to the extent that the Government continues to guard against the improvident alienation of these properties by the Indian allottees.

It was Congress’ hope at the time when the Regional Allotment Act was passed that the Government’s guardianship and the time at which — from the time of which it would be deemed advisable to remove restrictions would be only about 25 years.

It was hoped that at the end of that time his lands could be conveyed to the Indians in fee simple.

In the majority of instances however, removal of the restrictions on alienation soon resulted in the acquisition of these properties by parties unrelated to the Indian allottees usually in fact by non-Indians.

In furtherance of the statutory purpose of the Allotment Act which was to preserve the value of the allotted properties for the benefit of the allotted Indians and their families in most cases the period of guardianship has been extended.

Warren E. Burger:

Mr. Stone, looking at the brief filed by the Solicitor General, he’s posed two narrow questions whether the Section 372, that was apparently with 373 is final and conclusive posture or status to his decision and whether he may take equitable considerations into account now.

I think most of the members of the Court are familiar with this historical background.

It will be very helpful I think if you’ll address yourself to those specific questions.

Richard B. Stone:

Well, I’m about to that Mr. Chief Justice.

I thought that a reminder of the historical background and particularly the historical purpose of the General Allotment Act which was to ensure that these conveyed Indian lands remain for the benefit of Indians and the Indian allottees and their families is rather helpful to an understanding of the statutory context.

It’s rather helpful to an understanding of range of the Secretary’s powers in approving or disapproving alienation of Indian wills.

The Secretary statutory duty to preserve these lands in the hands of the allottee during his lifetime is supplemented by a duty to supervise the disposition of allotted properties upon the death of the allottee pursuant to the Act of June 25, 1910 which is the Act under consideration of this case.

And Sections 1 and 2 of this Act taken together provide a complete enumeration of the Secretary’s powers over the disposition of allotted properties at the death of the allottee.

Section 1 as you know authorizes the Secretary to determine the legal heirs of the deceased and this determination or statute is to be made under state law in this case, the law of the State of Oklahoma.

Section 1, as this Court has dealt is aware provides that the Secretary’s determination of heirship is to be final and conclusive and requires only that the Secretary hold a hearing with notice.

This Court has explicitly held that the Secretary’s determinations of heirs are not reviewable by any court.

In other words, this Court has specifically held that Section 1 determinations are not reviewable even if errors of law are alleged.

This is the First Moon v. White Tail case cited in our brief at 270 U.S. 243.

The Court recognized in the First Moon case, the Secretary’s unique and pervasive role with respect to these restricted properties and found that “abundant reason for the provision precluding review become apparent upon considerations of the infinite difficulties which otherwise would arise in connection with the sundry duties of the Secretary of the Interior relative to Indian allotments.”

Now Section 2 of the Act of 1910 which is of course the key provision under consideration in this case requires the Secretary in a case in which the deceased Indian hast left a will to approve or disapprove that will.

If the will is disapproved, as it was in this case, the property passes and its entirety by the laws of intestacy, that is the restricted property (Inaudible) in the will.

Richard B. Stone:

A determination —

Potter Stewart:

How about the answer to — how about Mr. Justice White’s question?

What if they — if an Indians owns an addition to allotted lands what if he owns realty or personally of his own, does the Secretary have any right to disapprove any will with respect to that property?

Richard B. Stone:

No, the Secretary as far as I’m awareness no right to disapprove any disposition of that other property at all.

Potter Stewart:

So, if he owns both kinds of property —

Richard B. Stone:

The restrictions run only to the —

Potter Stewart:

Allotted?

Richard B. Stone:

Both inter vivos and testamentary restrictions run only to the restricted property and of course tied in to the conveyance of the restricted property at the time the allotment is made.

Thurgood Marshall:

Is that regardless of whether he’s on the reservation on that?

Richard B. Stone:

I believe that it is regardless of whether he’s on the reservation or not.

Thurgood Marshall:

Well, would I’d be correct in saying that Chief Judge — former Chief Judge the Court of Criminal Appeals of Oklahoma Judge Barefoot couldn’t make a will, because he was full-blooded Choctaw Indian?

Richard B. Stone:

I’m not aware of any reason why he couldn’t make a will Mr. Justice Marshall.

Thurgood Marshall:

Well, would it have to be approved by the Secretary?

Richard B. Stone:

Only with respect to restricted property that he held an allotted restricted property.

Thurgood Marshall:

He still would have to be approved by the Secretary?

Richard B. Stone:

Yes, I assume the Secretary in the case of such a testator would give great weight to the testator’s will and would assume that the disposition that he made of the property was improvident.

And I assume actually that by this time such a person would have been granted his restricted land fee simple which the Secretary also has the power to do.

But if by some chance, he still held land under a subject to restrictions then the Secretary would continue to have the power to approve the power to approve the will in so far as it disposed of those restricted territories.

Judgment is (Inaudible) attack?

Richard B. Stone:

Yes, that would propose a very naughty question.

If the will —

Potter Stewart:

Are there any rules or regulations or statements of administrative policy with respect to classes of beneficiaries who will be disapproved or who must be included or anything like that?

In other words, can an Indian will this property to a white man or a whiskey dealer or somebody to whom he owes?

Richard B. Stone:

There is no regulation or statutory provision prohibiting him from willing this land to a white man, but the purpose of the — and the mandate given to the Secretary by the Allotment Act by the Act of 1910 would subject the Secretary to very close scrutiny if he were to or would cause the Secretary to very closely scrutinized any will which gave restricted property to a white person.

I’ve known in this connection that there was in one time that at the moment the regulations are of the Secretary of the Interior are quite general and don’t refer to what specifically what types of considerations ought to be taken into account approving or disapproving the will.

Potter Stewart:

There are no such administrative standards?

Richard B. Stone:

But there was at one time, a set of regulations which the Secretary which have laid out in the numerate case which is cited in our brief.

That’s 24 F. 2d, I don’t have the cite for me.

Mr. Stone, as far as the regulation is concerned, is it fair to say or what is the fact, did they go the factum or factum of the will or whatever will that was executed?

Richard B. Stone:

Well there, Mr. Justice Harlan, the regulations are very silent with respect both to the factum and to the equitable considerations to be taken into account.

Richard B. Stone:

There are practically no technical requirements laid down at the regulation at all.

Simply that that testator should be of — have testimony capacity and that there should be two competent witnesses.

Unlike the Section 1 determination which is proscribed according to state law, that is the determination of heirship.

Approval of the will is subject to Secretary’s own standards all together.

There are no technical requirements and the Secretary has produced very few technical requirements.

The regulations in short like the statute leave the Secretary and his delegates with maximum flexibility in discretion and that is quite in harmony with the entire statutory scheme under which the Secretary supervises these restricted lands both during the lifetime of the allottees and after the death of allottees.

Are there any other instances that the administrative President or the Secretary (Inaudible)?

Richard B. Stone:

There are other instances in which the Secretary has applied equitable considerations.

Rewritten the wills or (Voice Overlap) the will be set aside regardless of the disposition?

Richard B. Stone:

No, there are — I’ve only been able to find cases in which the will has been approved though it’s clear that equitable considerations were taken into account.

Now, that I have been able to locate a decision that is cited in the decision of the Regional Solicitor, it appears to be unreported.

I’ve searched for it in the Interior Department cases and haven’t been able to find it.

The Regional Solicitor cited one case and which a will have been disapproved on equitable grounds.

Now, that case was not reviewed later by any court.

It wasn’t brought to any court and I have been able to find the decision.

Warren E. Burger:

Mr. Stone, we have observed that we don’t have the merits before us but the merits are not totally relevant, would you agree that a contest between a daughter who’d had a natural but illegitimate daughter who had relatively little contact with testator and a niece with whom he had lived and who had a relationship somewhat like that of a natural child, is it close question?

Richard B. Stone:

Mr. Justice Burger, I believe in view of the policy of the general — of the Allotment Act to preserve Indian lands — restricted lands in the hands of the allottees and their families and dependents.

It is not a close question in a case at which an Indian has totally an Indian allottee has totally neglected his only born child all through her childhood and thereafter.

However, I don’t think it’s important to know whether this a close question or not because it is a question that is been left to the discretion of the Secretary of the Interior and it is —

Warren E. Burger:

Well, then the question here isn’t it?

That’s the question that we have in the case but it’s been left entirely to his discretion.

Richard B. Stone:

Yes and that is — it is the Government’s view that the Secretary’s discretion at least applies to determining whether a property has been allocated under the purposes and consistently with the purposes of the Act.

I note in this regard if the Chief Justice is interested in the closeness of the question from an equitable point of view that the Regional Solicitor didn’t find to close at all the beside of the fact that the testator had made five or six wills and he changed his place of residence around in number of times, so that he seem to feel that there wasn’t that much weight to be given to the equitable considerations on the side of approving the testator’s will.

And he felt quite compelled by the fact that this man had never in his entire lifetime done anything to support his daughter which was — and never used any of his substantial income from his restricted properties in furtherance of her support.

And the Regional Solicitor government felt that this was quite contrary to the purpose of the Allotment Act under these conveyances.

Thurgood Marshall:

Am I correct that all of the parties in this case are Indians?

Richard B. Stone:

Yes, I believe that all of the parties in this case are Indians.

Thurgood Marshall:

So when you keep emphasizing the fact that Congress meant for this to stay with the Indians that’s irrelevant, isn’t it?

Richard B. Stone:

Well, no, I divide Mr. Justice Marshall.

I divide that point up into two.

Richard B. Stone:

I think that it is a part of Congress’ purposes was to make sure that these lands passed on to Indians as oppose to non-Indians.

Thurgood Marshall:

Well, what was the second?

Richard B. Stone:

But the other point which I think was really more central and it was born out by the statutory scheme is that the Congress intended for the specific Congress was looking not only to the interest of Indians in general but to specific allottees and their immediate families are dependents.

The Regional Allotment Act allotted land on the basis of the size of a family.

The head of the household got a certain amount in each dependent or board of a household will receive a smaller amount of allotted land which was held by the Secretary in trust for that individual.

Thurgood Marshall:

Is there anything that legislative history that said that the Secretary of the Interior should have the right to decide as to whether or not the testator distributed it fairly among his heirs?

Richard B. Stone:

Yes, sir.

Thurgood Marshall:

Providing they all are Indians?

Richard B. Stone:

They’re most certainly is Mr. Justice Marshall.

I would like to quote now from the congressional record which is laid down at pages 11 and 12 of our brief a conversation occurring in the debate on the floor the House of Representatives between Mr. — Representative Cox of Indiana and Mr. Burke who is the — who was the Chairman of the Indian Affairs Committee of the House of Representatives in discussing the reasons why the law of 1910 was passed Congressman Cox asked Congressman Burke what the purpose of Section 2 was from two points of views.

He was interested first of all in knowing why Indians were given the power to write wills with respect to restricted properties which they never had before.

And furthermore, what the Secretary of the Interior’s role was with respect to approving or disapproving those wills.

And the Mr. Burke cited the primary case to which he thought that Section 2 was directed, which is the case and which an Indian allottee has after-born children who are not covered in the original allotment.

And in the case to that kind, the Indian would frequently wish to have these after-born children provided for and one way to provide for them would be to give them a disproportionate share of his own allotment upon his death.

Now, as Chairman Burke says and I’m now on page 12 of my brief.

In a case of that kind, undoubtedly the Interior Department would okay it.

Whereas if it was a will-giving his estate to some person who ought not to have it then they would disapprove it.

Thurgood Marshall:

Well, what is there in this case to say these people ought not to have?

Richard B. Stone:

Well, there — is it necessarily —

Thurgood Marshall:

Was it not best equitable argument (Voice Overlap) that Ms. High Horse you have a part of it?

Richard B. Stone:

There’s no provision Mr. Justice Marshall for giving her part of it.

The only power that the Secretary has is to approve the will or disapprove the will and he must take into account which of those produces a disposition of the property that is more in harmony with the purpose of the Regional Allotment Act to preserve his land in the fellow’s hands and in harmony with the purpose to give some considerations at least to the testator’s will.

Thurgood Marshall:

Just from a technical standpoint, could he have let the fifth will stand or the fourth or the third?

Richard B. Stone:

From a technical point of view, I believe he could have let the fifth will stand if it will still an existence and were found to be properly executed, he could.

I’m not familiar with that and counsel for correspond Dorita High Horse, Mr. Hill I believe is better acquainted with that.

However, the Secretary is —

William J. Brennan, Jr.:

Mr. Stone, it seems to me — am I right about this what you’ve been saying about equitable consideration, it’s not that broad isn’t it?

I gather what you were saying is that.

But the Secretary decides if someone who should have been the object of his bounty was excluded by the will and the Secretary thinks that was unfair to exclude that person.

Then the Secretary may disapprove the will, is that it?

Richard B. Stone:

I’m not sure Mr. Justice Brennan.

I see the distinction between —

William J. Brennan, Jr.:

Well, I just put this for these words equitable considerations.

I don’t know what that means.

I gather what you’ve been saying is that really it comes down to whether he unfairly excluded someone who should’ve had some provision (Voice Overlap) will?

Richard B. Stone:

I don’t think it has to be posed that narrowly Mr. Justice Brennan and I think it’s better posed in terms of whether the disposition which he made of these lands is in harmony with the purpose of the Allotment Act which was to keep those lands in the hands of the testator and his family or more generally within the Indian community.

William J. Brennan, Jr.:

Well, I know but here what you have here is everyone involved is within the family, either nieces or his natural daughter, isn’t that right?

Richard B. Stone:

But there is certainly a distinction but necessarily a distinction however with respect to that and I think the laws of intestacy bear this distinction not altogether since they give all of the property to a daughter and none to the nieces and nephews.

There is a distinction —

William J. Brennan, Jr.:

Yes, but the place in consideration here was that he should not have excluded from his will — his natural daughter and the distribution or the divides rather these allotted lands?

Richard B. Stone:

That’s correct.

William J. Brennan, Jr.:

And that’s what the whole thing turned out.

The Secretary just thought it wasn’t fair not to have made provision for a share at least in both lands in the daughter, isn’t that right?

Richard B. Stone:

The Secretary made the decision that it was not in keeping with the purpose behind the allotment for this girl to be left out of her father’s will.

Now, —

Byron R. White:

But does it appear in the record Mr. Stone whether the nieces were also allottees or potential allottees from their parents?

Richard B. Stone:

To my knowledge it doesn’t Mr. Justice White.

It’s possible that Mr. Hill may be better acquainted with that.

I didn’t pick that up (Voice Overlap).

Byron R. White:

Well, it isn’t in the record?

Richard B. Stone:

Excuse me?

Byron R. White:

It isn’t in the record?

Richard B. Stone:

It certainly not in the printed record.

It may be in the transcript of the administrative hearing which was stipulated out of the printed record.

I don’t think this was a focus of the Hearing Examiner’s inquiries.

The selection from the congressional record which I’ve just read to this Court is illuminating.

I think not only because it shows that Congress intended to give the Secretary broad discretion with respect to whether restricted lands ought to be alienated by will from the immediate heirs of the allotment holders.

But also because it shows that the purpose Congress had in mind when it gave allottees the right to make wills was not to abrogate the prior policy of assuring that restricted lands remain in the family of the allottee, but rather to allow the allottee in certain situations greater flexibility in providing a more even distribution of assets to his own heirs.

It would certainly be rather startling development in the statutory context under which the Secretary maintains complete power both inter vivos and testamentary to determine whether these lands ought to be alienated to read the right of an Indian to make a will all of a sudden to mean that in this particular context.

In other words, the context of a death by will that —

William J. Brennan, Jr.:

Tell me Mr. Stone, is there any question of this petitioners being nieces and nephews?

(Inaudible)

Richard B. Stone:

That one was a niece and three other would be the grand nieces or nephews.

William J. Brennan, Jr.:

Well, now would they be executed the class of allottee?

Richard B. Stone:

I’m sorry Mr. Justice Brennan, I don’t understand.

William J. Brennan, Jr.:

The allottee here would be the deceased right?

Richard B. Stone:

That’s right.

William J. Brennan, Jr.:

Ant that this, well, the purposes of the Allotment Act would be his nieces and nephews whatever they are be included that the class?

Richard B. Stone:

No, they might have other if they were not his dependents living in their home.

They may be included in another allotment from another household but they wouldn’t —

William J. Brennan, Jr.:

I know, but in his allotment?

Richard B. Stone:

No, they would not be included in his allotment only his —

William J. Brennan, Jr.:

Well, in your, is the Government’s point that they have to lose because Congress never intended that any except his immediate family should be the beneficiary of these allotments?

Richard B. Stone:

I wouldn’t say it that flatly Mr. Justice Brennan.

I think Congress has left the Secretary greater discretion than that.

I think it depends to policy that they ought to generally be a disposition made to those within the immediate allotment.

William J. Brennan, Jr.:

Well, is that an answer to me that I think might have approved his will even though all of the allotted land went to nieces and nephews rather than the —

Richard B. Stone:

Yes, the Secretary might have conceivably found it.

Byron R. White:

Where was this that there hadn’t been any daughter?

Richard B. Stone:

Oh!

Yes, I think that’s true.

He certainly would have.

I believe at least I have not been able to ascertain any reason for the record — from the record why he would not.

Hugo L. Black:

If the court there to have jurisdiction, would it have to decide what if felt was fair?

Would that be the question?

Richard B. Stone:

I don’t believe Mr. Justice Black that the Court would decide whether what it thought was fair.

I think that the Regional Solicitor would decide what is for him is fair.

Hugo L. Black:

But I understand that the argument is —

Richard B. Stone:

Yes, I understand.

No, I think the Court would only have to take a look at the record and decide whether there was any substantial evidence to support the reason of Regional Solicitor’s reasoning.

Hugo L. Black:

So that in the final analysis he’d be overruled and he thought it was fair if you would go contrary, wouldn’t he?

Richard B. Stone:

If the Court would —

Hugo L. Black:

Yes, wouldn’t the Court be final passing on all the question of —

Richard B. Stone:

Under the very limited standard of review of a discretionary finding of Administrative Agency which is simply to determine whether there was a substantial reasons —

Hugo L. Black:

I’m not talking about the degree.

Richard B. Stone:

Uh-Huh.

Hugo L. Black:

But in the final analysis.

Richard B. Stone:

That’s right.

In the final analysis if the Secretary’s determination will reversed his discretion would be (Voice Overlap).

Hugo L. Black:

And your claim is that the Government was led by the Congress with complete and exclusive power; it’s up to decide this question without any judicial review?

Richard B. Stone:

Yes, that is the Government’s contention and I think that is — though it is not always the most appealing position for the Government to take to say that there is absolutely no review.

I think that all of these special provisions under which allotted properties are subject to the guardianship of the Secretary of the Interior must be viewed as this Court has viewed them in the historical context of the Government’s relationship to Indian tribes in tribal lands and —

Do you know if there’s any significance in the presence of non-reviewability clause?

Not that you will in the absence of this clause?

Richard B. Stone:

I think Mr. Justice Harlan that there is — it would certainly be better from the Government’s point of view if the words final and conclusive where cited again in Section 2.

But I think that —

How do you explain the difference of interests to provisions on that regard?

Richard B. Stone:

Well, it is our position that the final and conclusive language was not repeated in Section 2 because it wasn’t necessary.

It was so clear that Sections 1 and 2 were complementary provisions in which together encompass all of the Secretary’s powers with respect to reviewing disposition test — disposition in death of restricted lands.

And we have cited, I think considerable positive evidence to the effect that Congress intended for both Section 1 and 2 provisions to be non-reviewable.

I just read very, very briefly from page 11 of my brief from the same date which this Court on the basis of which this Court decided in Section 1 determinations were in fact non-reviewable.

And with Mr. Cox asked Mr. Burke under the provisos that now exist in Section 2, “Does it not place complete power in the hands of the Secretary of the Interior and Commissioner of Indian Affairs over the will of an Indian with absolute power to revoke the Indians will” and the answer is “yes, I think it does.”

At this point, I have must ask the Court’s permission to give the rostrum to correspondent Dorita High Horse’s attorney with whom I agreed to spit the time in this case.

Thank you.

Warren E. Burger:

Thank you Mr. Stone.

Mr. Hill.

Houston Bus Hill:

Mr. Chief Justice and Honorable Justices of this Court.

In order to enlighten Mr. Justice White and Justice Thurgood Marshall on one point, the inquiry was, as to what effect this will, would have if the Secretary of the Interior has disapproved that then there was unrestricted property which would be handled by the state courts in our state.

And the only thing about the unrestricted property in open the state of who we have a statute which make the surviving spouse a force heir to the one-third of the property.

So as to the — if it will set situation by then the surviving spouse of the entirely one-third regardless of the will.

Houston Bus Hill:

So, and the only thing that the county judge or probate judge might take into consideration the fact, that either the Secretary acting by and through his agents had either approved or disapproved their will.

They can take that in consideration, it might be persuasive to him.

But he wouldn’t have to be bound by that in determining whether or not the will should be probated in the county court of that county on the unrestricted property.

Warren E. Burger:

But the same statutory provisions in most states which give what is sometimes called the dower right to the surviving widow also give virtually unrestricted power of the testator to omit his children if he wants to, is that not true?

Houston Bus Hill:

Yes, sir.

Normally though they it’s required that they make some indication in the will that they intended to deprive that child.

Now if the Court please, I handle this case throughout the trial before the Examiner of Inheritance and I’m fairly familiar with the facts in the case and I want to say this —

Hugo L. Black:

Who did you represent?

Houston Bus Hill:

I represented Dorita High Horse and some of the other nieces and nephews.

Now, bear this in mind that here it is — this full-blood Comanche Indian was not allottee.

He inherited this land itself from his mother and some of the others on the General Allotment Act of February 7, 1887.

That was a General Allotment Act which only affect the wide tribes and it did not include the Five Civilized Tribes which a Justice have mentioned awhile ago by Justice Barefoot.

I remember the Choctaw tribe itself, but it didn’t have any effect upon the Five Civilized Tribes or the Osage tribes themselves.

But all of these wide tribe particularly the Kiowa, the Comanche, the Apache, the Otos, and Wichita and tribes like that.

Now, the first — after the legislation was enacted in 1910 giving the power and authority to the Secretary of the Interior to determine under Section 372 whether or not the certain heirs were entitled to be heirs of the decedents and holding that I am on that statute that is final and conclusive for then in Section 373 of that Act, they gave the power authority to the Indian to make a will if he is 21 years of age pursuant to the regulations proscribed by the Secretary of the Interior.

And then it was not valid unless and until it was approved by the Secretary of the Interior and then it could be approved or disapproved by and after the death of the Indian.

And normally that’s the way we handle those matters down there — they wait after the Indian dies and then his will is submitted to the Examiner of Inheritance and hears a hearing on this, and determine whether or not the Indian was competent to make the will.

And whether or not the will itself complied with all the statutory or the requirements made under the rules promulgated by the Secretary of the Interior.

Now, once having done that, then he determines whether or not there are any other causes by which reason by which he might say, well, I don’t this will is fair and equitable because it didn’t take care of the decedents or testator’s heirs themselves.

Now, Ms. Dorita High Horse, it is true that she didn’t live with her father who was George Chahsenah but the trial court or that is the Examiner of Inheritance found that she was the illegitimate child of George Chahsenah and that she didn’t get any benefits from his estate and he didn’t provide for all her during that period of time and even that she became of age then.

Now he made six wills down there.

And I want to say to the Court here that I’m fairly familiar.

The first will he made, he made and left the beneficiary this Viola Atewooftakewa which is her name and she was married to man by the name of James Tate who was also Comanche Indian.

Warren E. Burger:

Well, what relation if any — and was there between that beneficiary and the decedent?

Houston Bus Hill:

She was a niece.

Warren E. Burger:

A niece.

Houston Bus Hill:

And then he made a will to a white man and then next he made a will to Sammy Schweitzer who runs a grocery store there.

Sammy was a white man and Sam, he was the one that bail him out every time he got put in jail for being drunk and he did pay his fine, he did give loaning money and he testified that he didn’t think that this will had any consequences and after he found out about it.

He thought that the union didn’t even know what he was doing and that was part of the testimony of course that I tried to submit to the Examiner of Inheritance that the man wasn’t even competent to make a will in the first place because all of the evidence subs — all the evidence was to the effect that he didn’t know what he is doing.

He never transacts independence for himself.

Houston Bus Hill:

He’s been a habitual drunk in all of his life —

Byron R. White:

Of what period time he made the six wills?

Houston Bus Hill:

From 1956 to 1963.

He died — he made his last will in the early part of 1963 and he died on October of 1963.

Now, bear this in mind that up until 1954, he lived with his mother.

His father having died when he was young man but they were living there in Apache.

Byron R. White:

Well, isn’t that what the lawyer draws the last will?

Houston Bus Hill:

Yes that’s true and the Government lawyer draws all these wills Your Honor and he testified —

Byron R. White:

Draws six of them?

Houston Bus Hill:

Well, somebody in there drew all at six of them.

Yes sir and they — under the rules and regulations they are required to ascertain whether or not he has a child, perhaps, any surviving brothers and sisters or mother and father.

Now they didn’t ascertain that and yet it was on the record there and yet the Department of Interior Bureau and Affairs they all stand in the dark hole.

They did have this child Dorita High Horse.

She was on Chowan, Comanche, and Apache roles when they made the for cap the payment in 1958 as being his child.

And his nieces and nephews knew about that.

They knew that she was on the role as his daughter.

Warren E. Burger:

Who was Fred Benjie?

Houston Bus Hill:

Sir?

Warren E. Burger:

Who was Fred Benjie?

Houston Bus Hill:

Now that was a white man, I don’t know too much about him.

Warren E. Burger:

That’s another white man.

Houston Bus Hill:

Yes, sir.

Warren E. Burger:

And so was a forger?

Houston Bus Hill:

Alright, but all the evidence was if the Court please that this Indian was an alcoholic and he would do anything to get a drink —

Thurgood Marshall:

Well, if the Government lawyer who drew this will wasn’t he required to find out whether the man was capable?

Houston Bus Hill:

Yes, but normally —

Thurgood Marshall:

Did he raise the question at all?

Houston Bus Hill:

He didn’t raise the question at all, Your Honor.

Thurgood Marshall:

He drew six wills?

Houston Bus Hill:

Yes, sir.

Thurgood Marshall:

He talked to them at least six times —

Houston Bus Hill:

No, no.

I beg your pardon Your Honor.

He wouldn’t be the one that were be in there all that time —

Thurgood Marshall:

But he would be a government lawyer?

Houston Bus Hill:

At least the officials change from time to time in the office.

Thurgood Marshall:

Well, they’re all government lawyers?

Houston Bus Hill:

Yes sir, well it could be or it could have been somebody else down there.

They might have someone else in there.

It wasn’t a lawyer, but he knew how they drew this will.

Thurgood Marshall:

Well, did he represent the Government?

Houston Bus Hill:

Yes, sir.

Thurgood Marshall:

And the Government had the responsibility of finding out whether this man was apparently —

Houston Bus Hill:

Yes, sir.

Thurgood Marshall:

— capable?

Houston Bus Hill:

Yes sir, may I test —

Thurgood Marshall:

Obviously he was apparently capable?

Houston Bus Hill:

Obviously and as they testified that they had no independent recollection when he came in the office to execute this last will.

Warren E. Burger:

Well, that issue is not before us now?

Houston Bus Hill:

No sir, it really isn’t Your Honor.

Actually, —

Byron R. White:

Law forbids you —

Houston Bus Hill:

Sir?

Byron R. White:

Can this law fobid you by the solicitor or by the trial?

Houston Bus Hill:

Well the Trial Examiner did hold Your Honor.

Byron R. White:

They found his property?

Houston Bus Hill:

Yes sir, they have found his property —

Byron R. White:

(Inaudible)?

Houston Bus Hill:

That is right sir, yes sir.

And naturally, we don’t have to go into that but I thought it might be helpful for the Court to know that here was a man who was basically a drunkard and who would make a will on the slightest provocation.

Houston Bus Hill:

He had exchanged goods and property and meat and grocery and everything else to get some money to buy his liquor and he’s either drinking or drunk all the time.

Warren E. Burger:

But it’s not before us now?

Houston Bus Hill:

No, sir and as a matter of fact when he was with this last beneficiary on the will, this Viola Atewooftakewa and children and the family.

He was only there just a short time.

He’d been living with all these other nieces and nephews from time to time.

So, he wasn’t the one that was — was just living with them and they were taking care for anything like that.

They didn’t take care of him.

He was dependent his own way all the time.

As a matter —

Warren E. Burger:

But there’s no evidence he ever live with his daughter, is there?

Houston Bus Hill:

No sir, there is not sir.

No sir.

Now, in the first —

Hugo L. Black:

Is there certain evidence that she is his daughter?

Houston Bus Hill:

There is substantial evidence, Your Honor that she was his legitimate daughter and under Section 371, I think it is, that where the cohabit that the Indian’s cohabit and there are 0offsprings that for all intents and purposes that offspring is a legitimate child and the Examiner of Inheritance — I mean the Secretary of the Interior acting by and through the Solicitor General so held that Dorita High Horse was the natural daughter of George Chahsenah who was a testator of his will.

Hugo L. Black:

Suppose that there can be no doubt —

Houston Bus Hill:

That’s right and other —

Hugo L. Black:

There’s no doubt that she is his daughter.

Houston Bus Hill:

Yes sir and under Section 372 —

Hugo L. Black:

And part of the property (Voice Overlap) or all of it went to her —

Houston Bus Hill:

Sir?

Hugo L. Black:

Part of the property or all of it went to her —

Houston Bus Hill:

That’s right, yes sir.

Hugo L. Black:

An Indian?

Houston Bus Hill:

Yes, when this will was vacated and set aside.

All the property went to Dorita High Horse, the daughter.

Now, the Secretary of the Interior said, we don’t need to go in into these other wills because we’re familiar with them, we know what they held.

They didn’t even mentioned anything about Dorita High Horse or been take care of her in way and she was the beneficiary under any of.

So, we’re setting those aside too.

So, it isn’t like Justice that you were speaking of where you’d go back to the next will and if you’re going back to the next will, you’re going back to discuss them.

Potter Stewart:

But one thing at all these wills had in common was that they showed a very clear intention not to make Dorita High Horse the object to his bounty.

Is that correct?

Houston Bus Hill:

Well, at least she wasn’t mentioned.

I don’t think he didn’t attempt to care of him but he certainly did mention in any of those wills, Your Honor.

Potter Stewart:

And if he died and tested, I suppose she would’ve been sole heir.

Houston Bus Hill:

She would’ve been the sole heir, yes.

Potter Stewart:

And the so, probably no one conceive the sole purpose of making a will was to see to it that she did not inherit his property, is that right?

Houston Bus Hill:

Not necessarily though I think this all purpose of making a will was to going to get some money and buy some liquor, (Voice Overlap) Your Honor.

Potter Stewart:

If he hadn’t made any will she would’ve have —

Houston Bus Hill:

If he hadn’t made the will, she would’ve been the one to inherit all these property, yes sir.

Now, I handle this case that went before this Court, Homovich versus Chapman that went to the Circuit Court of Appeals to District of Columbia.

And that’s the case where he and I have taken the position and the Government to take the position that under Section 2 or 373 that — of course could refute the decision of the Secretary of the Interior or he had passed of owner, he’d approve or disapprove the will and that case he approved the will of Homovich.

Homovich was a full-blood Comanche and he had married a white woman who was a school teacher (Inaudible).

And she came in and wanted to set aside this will so that she can participate.

And then it was almost like the case of Blanset versus Cardin which came up from this side of the State of Oklahoma where the qualified Indian had married a white man and he was wanting to participate in her estate.

And that was the leading case in construing this particular statutes and they held there that the Congress under its plenary powers had given a great supervision over these Indians and their property and they placed that supervision in the hands of the Secretary of Interior although the discretionary power and authority necessary to take care of that without any interference from the outside by the Court or anybody else.

In order, we did we respect to that why that was it and it is more or less found.

Hugo L. Black:

If your argument is accepted, does that settle who will get his property?

Houston Bus Hill:

Yes it would Your Honor but I think here and I think the Court here —

Hugo L. Black:

Who will get it?

Warren E. Burger:

Justice Black has a question.

Hugo L. Black:

Who would get it?

Houston Bus Hill:

Who would get this?

Hugo L. Black:

Yes, the property?

Houston Bus Hill:

In the event —

Hugo L. Black:

If you say this is finally settled and in case your argument is accepted?

Houston Bus Hill:

Dorita High Horse, the daughter would get the property if my argument is accepted, Your Honor.

Hugo L. Black:

That’s the legitimate child?

Houston Bus Hill:

And I want to bring this out and since this case has been in litigation, this Viola Atewooftakewa who was the niece is deceased now and the one of the other beneficiary, one of the other nephews, your grant nephew is also deceased so that only two children left.

Hugo L. Black:

Does the record show how much of his property it would?

Houston Bus Hill:

Sir?

Hugo L. Black:

Does the record show how much this Indian have?

Houston Bus Hill:

Yes it does and it probably would in this — and the Court here but before it went to the Circuit Court of Appeals it did show.

Hugo L. Black:

If you could just tell us as an aside, couldn’t you?

Houston Bus Hill:

Well, I would say this property is worth in the neighborhood of $50,000.00 to $100,000.00 because he’s got some production on it if the Court please.

Lewis F. Powell, Jr.:

$34,000.00 —

Houston Bus Hill:

Yes, sir.

Lewis F. Powell, Jr.:

That’s the one, that’s the official value.

Houston Bus Hill:

That’s the official, yes sir.

Hugo L. Black:

That’s all he has?

Lewis F. Powell, Jr.:

He has worth $50,000.00?

Houston Bus Hill:

Well, I would say that worth a little more than that because I think this production is probably made a worth little more now and of course they had production on the time that they made this appraisal, Your Honor.

And I’m sure they were trying to get a minimum —

Lewis F. Powell, Jr.:

But that wasn’t the official appraisal, was it?

Houston Bus Hill:

Yes sir it was.

They have the official appraisal after any of these Indians die and it’s under the supervision of the area officer for and on behalf of the Secretary of the Interior.

They have to make an appraisal of these properties —

Hugo L. Black:

If your argument is accepted as I understand it, this property would go to the daughter even though she is illegitimate?

Houston Bus Hill:

Yes, sir.

Hugo L. Black:

And if it’s rejected, it would not.

It would go to his niece?

Houston Bus Hill:

No, it wouldn’t even go to his niece, Your Honor because she is deceased.

It would go to two of his grand nieces.

The two grand nieces, there are only one surviving now.

Hugo L. Black:

Just one grand niece?

Houston Bus Hill:

Yes, and that’s what the Congress had in mind, it has —

Hugo L. Black:

Great niece, two people?

Houston Bus Hill:

Yes, sir and that’s what the Secretary of the Interior had in mind when he asked Congress to pass this 1910 Act was to give him all this power and authority so he could determine these things himself rather than leave it to that United States Court.

And certainly that was the first time that they have any authority to make into will as under 1910 Act.

And now that it says there that —

Byron R. White:

Do you mean Indians didn’t have authority make the will of their ordinary —

Houston Bus Hill:

Not this type of thing, Your Honor.

Byron R. White:

Ordinary property, real or personal property, if they own a —

Houston Bus Hill:

Well, if they owned personal property independent of their — of this is restricted property which is being held entrust to the United States General Allotment Act.

They should’ve dispose to that property since if it’s unrestricted property, but restricted property could not be dispose off by the Indian until the 1910 Act.

And then in 1913, the minute Section 373 saw that the Secretary of the Interior then could either prove or disapprove this will after the death of the Indian.

I think they cited that sometimes that they might approve this will before the Indian died.

And then they would be caught with having permitted the estate of this Indian to go to somebody who is not entitled to receive it or they shouldn’t receive it and that’s the whole premise behind these things is to protect these Indians and protect the Indian areas of these testators and the Indians who took advantage with this Section to make a will.

So I think in this Court would determine that it didn’t have jurisdiction to hear this under this — they claim under the 28 U.S.C. Section 3061.

Warren E. Burger:

Your time is up.

Houston Bus Hill:

Thank you, sir.

Warren E. Burger:

Mr. Luellen, you have a few minutes left.

Do you have anything else?

I think we have the picture pretty clearly and you can be brief I think.

Omer Luellen:

Well, I just take few minutes Your Honor.

Justice Harlan made some inquiry about the regulations.

They are found in the brief from petitioner’s appendix A to judge most regulations.

There is nothing in the regulation whatsoever about an Indian must disperse equity when he makes his will.

Potter Stewart:

Apparently, where did you say they appear?

Omer Luellen:

It appeared in appendix A in the brief for petitioners, appendix A, brief for petitioners.

Potter Stewart:

Thank you.

Omer Luellen:

And here is what really says about what an Indian is making an approval as to inform an Indian of the age of 21 years and of testamentary capacity who has any right, title or interest in trust of restricted property may dispose of such property by a will executed in writing and attested by but two disinterested adult witnesses.

That’s the main of the regulations throughout there as to the fact of the will.

Potter Stewart:

Where are you reading from?

Omer Luellen:

That was Section — that was on page — the appendix A2, A3.

Potter Stewart:

A3.

Omer Luellen:

A3, the subsection — let’s see.

Potter Stewart:

15.28?

Omer Luellen:

Yes, 1528.

Potter Stewart:

Thank you.

Omer Luellen:

Now, in those will forms that the Department of Interior prepares who sends down to the various field officers for the government employees, the government attorneys to use.

It has instructions.

It’s in my reply brief.

It has instruction that says, to be sure and find out what the Indian wants to do when you make this will.

It’s right on — it’s printed right on the back of those forms.

If you look at the original record you’ll find in that original will that the instructions to the field officers telling them to find out what the Indian’s desire or nothing whatsoever about finding out who the — about dispersing equity between the heirs.

Now, the counsel, Mr. Stone he said there was no case.

He could find no case where they had disallowed a will of an Indian for equity and I agree with him.

There’s no case where they never drawn out any will and said, well we didn’t disperse equity, we didn’t do equity therefore we’re going to disallow this will.

This will be I think a new field in that respect to this — that comes of the law in this case.

I — Mr. Hill mentioned that about one more point and I’ll let the Court decide this case and which you’re going to anyway.

But Mr. Hill stated that this niece have died since his probated and since his hearing have been held before the Examiner of Inheritance and one of her children have died.

That’s immaterial to this in these matters.

It’s very well Dorita High Horse could’ve died the next day and that’s the descendants cast as of day of the death with the testator.

What happens after that is immaterial to the Secretary of the Interior who’s going to die, who’s going to live.

He could not make any determination about that.

The fact that one or two of these devisees or legatees has died since this matter came into the course.

That’s immaterial in this matter and the Secretary can’t sit back in and say, well, so and so is going to die so we don’t give it to them, we give it to someone else.

Thank you, Your Honors.

Warren E. Burger:

Thank you Mr. Luellen.

Thank you gentlemen.

The case is submitted.