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
Media for Tooahnippah v. Hickel
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.
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?