Opposition Brief — Ducheneaux v. Secretary of the Interior

In The

Supreme Court of the Unit

October Term, 1987

MARIE DUCHENEAUX,

Vv. Petitioner,

SECRETARY OF THE INTERIOR

OF THE UNITED STATES,

Respondent.

JUNE ELLEN DUCHENEAUX LEDBETTER, LILLIAN

LYNN DUCHENEAUX, RIA ELAINE DUCHENEAUX SEA-

BOY, ORVILLE ROLLAND DUCHENEAUX, LARRY DOUG-

LAS DUCHENEAUX, DEANNE DUCHENEAUX MULLOY,

ALLEN THEODORE DUCHENEAUX, MARLENE KAY

DUCHENEAUX, SUPERINTENDENT OF CHEYENNE

RIVER AGENCY AND UNITED STATES BUREAU OF

INDIAN AFFAIRS,

Respondents.

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ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

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BRIEF IN OPPOSITION FOR RESPONDENTS

JUNE ELLEN DUCHENEAUX LEDBETTER, LILLIAN

LYNN DUCHENEAUX, RIA ELAINE DUCHENEAUX

SEABOY, ORVILLE ROLLAND DUCHENEAUX, LARRY

DOUGLAS DUCHENEAUX, DEANNE DUCHENEAUX

MULLOY, ALLEN THEODORE DUCHENEAUX, AND

MARLENE KAY DUCHENEAUX

a

v

Krista H. CLarK

Bitty JoE JONES

Dakota Plains Legal Services

P.O. Box 727

Mission, S.D. 57555

(605) 856-4444

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the court of appeals erred in holding

that the district court did not have jurisdiction under

the Administrative Procedure Act, (APA) 5 U.S.C. §702,

to divest the United States of title to land held in trust

for Indians because the APA is preempted by the Quiet

Title Act, 28 U.S.C. §2409(a)?

2. Whether the court of appeals erred in holding

that the district court could not override the provisions

of an Indian’s validly executed will which had been

approved by the Secretary of the Interior?

li

TABLE OF CONTENTS

Page

Questions Pragented ...... «.40405%<ssa.000 ee ae -f

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TABLE OF AUTHORITIES

Page

CASES:

Akers v. Morton, 499 F.2d 44 (9th Cir. 1974) cert.

denied, 423 U.S. 831 (1975)........... 7,44. 16,137

Bailess v. Paukune, 344 U.S. 171 (1952)....... 17,18

Blanset v. Cardin, 256 U.S. 319 (1921)

ee ed wna & © s'4.4 0 6698 8 6, 7, 14, 15, 16

Biock v. North Dakota ex rel. Board of University

and School Lands, 461 U.S. 273 (1983)....6, 7, 8, 10

Conroy v. Conroy, 575 F.2d 175 (8th Cir. 1978) .6, 12

Conroy v. Frizzell, 429 F.Supp. 918 (D.S.D.)

affirmed, 575 F.2d 175 (8th Cir. 1978)............ 5

Craig v. United States, 451 F.Supp. 373 (D.S.D.

EOE a 5

Metropolitan Water District of Southern Califor-

nia v. United States, 830 F.2d 139 (9th Cir.

ek beh mesa eausves 9, 10

Morton v. Mancari, 417 U.S. 535 (1974) ........... 13

Regents of University of se alan v. Bakke, 438

US. 265 I A A 12, 13

Spaeth v. United States Secretary of the Interior,

wae oe ee Cee Gar, POSS)... . 0.222. ccc seae 6, 9

State of Florida v. United States Department of

Interior, 768 F.2d 1248 (11th Cir. 1985), cert-

emeee, Gre wo. F0Le (1986) ...........200605. 6, 9

Tooahnippah v. Hickel, 397 U.S. 598 (1970)

(LS eR A Oe 3, 6, 7, 14, 15, 16

United States v. Mottaz, __ U.S. __, 106 S.Ct.

Sane, OO b.ta.2a 641 (1986)................ 5. 7, 8

Wildman v. United States, 827 F.2d 1306 (9th

ee phi enedesucerenava 9, 10

lv

TABLE OF AUTHORITIES-—Continued

Page

STATUTES AND REGULATIONS:

BR Fe re Or re re rere eee 4,9

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Be A ok kn cevsvacacedigescs 6, 14, 15, 16, 18

ec cnn cals bnew haa ka seen ceed 5, 7

ee Ts aes ci cai sis ike densecreneaes 4,11

H.R. Report No. 92-1559, (1972) U.S. p. 13 Code

Cong. and Admin.News 1972, p. 4547............. 9

No. 87-1732

,™

In The

Supreme Court of the United States

October Term, 1987

MARIE DUCHENEAUX,

v. Petitioner,

SECRETARY OF THE INTERIOR

OF THE UNITED STATES,

Respondent.

JUNE ELLEN DUCHENEAUX LEDBETTER, LILLIAN

LYNN DUCHENEAUX, RIA ELAINE DUCHENEAUX SEA-

BOY, ORVILLE ROLLAND DUCHENEAUDX, LARRY DOUG-

LAS DUCHENEAUX, DEANNE DUCHENEAUX MULLOY,

ALLEN THEODORE DUCHENEAUX, MARLENE KAY

DUCHENEAUX, SUPERINTENDENT OF CHEYENNE

RIVER AGENCY AND UNITED STATES BUREAU OF

INDIAN AFFAIRS,

Respondents.

,%

vr

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

&

if

BRIEF IN OPPOSITION FOR RESPONDENTS

JUNE ELLEN DUCHENEAUX LEDBETTER, LILLIAN

LYNN DUCHENEAUX, RIA ELAINE DUCHENEAUX

SEABOY, ORVILLE ROLLAND DUCHENEAUX, LARRY

DOUGLAS DUCHENEAUX, DEANNE DUCHENEAUX

MULLOY, ALLEN THEODORE DUCHENEAUX, AND

MARLENE KAY DUCHENEAUX

a

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OPINIONS BELOW

The opinion of the court of appeals’ panel (Pet.App.

la-12a) is reported at 837 F.2d 340. The opinion of the

district court (Pet. App. 13a-27a) is reported at 645

F.Supp. 930.

sé.

A

JURISDICTION

The judgment of the court of appeals was entered

on January 26, 1988. The petition for a writ of cer-

tiorari was filed on April 18, 1988. The jurisdiction of

this Court is invoked under 28 U.S.C. §1254(1).

s.

-

STATEMENT

Douglas Ducheneaux, hereinafter Ducheneaux, a

member of the Cheyenne River Sioux Tribe of South

Dakota, married Petitioner, Marie Snoble, a non-

Indian, in 1948. The couple spent most of their married

life on the Cheyenne River Reservation where Duch-

eneaux owned, before the marriage, 160 acres of allot-

ted land which was held in trust for him by the United

States government. Ducheneaux and Petitioner lived as

man and wife until 1971 when they separated and

Petitioner moved off the reservation. During the mar-

riage Ducheneaux acquired five quarter sections of

Indian trust land from other members of the Cheyenne

River Sioux Tribe and these interests were held in trust

for him by the United States. Pet. App. 28a, 3la.

After Ducheneaux and Petitioner separated Duch-

eneaux began a divorce proceeding in the circuit court

of South Dakota. The divorce was never finalized

because Petitioner claimed she had a right to one-half

of Ducheneaux’s interest in the five quarter sections of

trust land on the reservation and he refused to

acknowledge this claim. Jd. at 15a. Petitioner later

sued Ducheneaux in the federal district court in South

Dakota, seeking to have the land divided, but the case

was dismissed when the court held it did not have

jurisdiction to partition the land. Jd. at 16a.

Ducheneaux and Petitioner remained separated

until Ducheneaux’s death in 1980. At his death Duch-

eneaux left a will in which he designated that his entire

trust estate should be divided between seven neices

and nephews, the children of his half brother, all

enrolled members of the Cheyenne River Sioux Tribe.

When Ducheneaux’s trust estate was probated by

the Secretary of the Interior, Petitioner filed a claim to

one-half of the land Ducheneaux had acquired while

the couple were married. She claimed a right to one-

half of the property because, she alleged, she had con-

tributed equally in the ranching operation during the

marriage. She characterized this interest as a resulting

or constructive trust. Jd. at 3a. Ducheneaux’s heirs

disputed Petitioner’s claim that she had contributed

equally in the acquisition of the trust property pur-

chased during the marriage.

The Administrative Law Judge (ALJ) of the

Department of the Interior approved Ducheneaux’s

will, citing Tooahnippah v. Hickel, 397 U.S. 598 (1970),

and held that Ducheneaux had executed the will volun-

tarily, without duress, undue influence or mistake. The

ALJ also found that Ducheneaux intended to disinherit

his estranged wife. Finally, the ALJ held that the

United States owed no trust responsibility to Petitioner

because she is a non-Indian and could not, therefore,

claim any interest in Ducheneax’s trust estate. Pet.

App. 28a-33a. -

Petitioner appealed the ALJ’s decision to the Inter-

ior Board of Indian Appeals (IBIA). The IBIA upheld

the decision of the ALJ, finding that “a resulting pur-

chase money trust in Indian trust land cannot be

claimed by persons to whom the federal government

owes no trust responsibility” (id. at 47a). The IBIA also

held that “as part of the Department’s trust respon-

sibility to those Jndians who are involved in disputes

over a decedent’s trust estate” (id. at 45a, emphasis

added), under 43 C.F.R 4.273(a), the ALJ possessed the

authority to consider “alleged legal error in the BIA’s

inventory of estate assets during a probate proceeding”

(ibid.).

Petitioner then filed suit in the district court, alleg-

ing jurisdiction under 5 U.S.C. §702, the Administra-

tive Procedure Act (APA). Applying the scope of review

set out at 5 U.S.C. §706, the district court reversed the

decision of the Secretary of the Interior, holding that

the decision was “contrary to law, unsupported by any

substantial evidence, and is arbitrary and capricious”

(Pet. App. 26a). The district court based its decision on

a theory of “spousal contribution” (id. at 22a-26a), find-

ing that the evidence in the record supported Peti-

tioner’s claim that she had contributed equally to the

acquisition of the property during the marriage. The

district court’s decision was based primarily on its

reading of an estate taxation case, Craig v. United

States, 451 F.Supp. 373 (D.S.D. 1978), involving non-

Indians, and on a case involving an Indian couple

divorced in a tribal court where the court divided the

trust land acquired during the marriage between the

parties, Conroy v. Frizzell, 429 F.Supp. 918 (D.S.D.)

affirmed, 575 F.2d 175 (8th Cir. 1978). Pet. App.

23a-24a. The district court found that because one-half

of the property acquired during the marriage was Peti-

tioner’s, Ducheneaux had no authority to will it to

other family members. /d. at 25a.

A panel of the court of appeals, without dissent,

reversed the district court’s decision, noting that

although the district court had “persuasive equitable

reasons” for ruling as it did, that the court erred by not

applying the Quiet Title Act (QTA), 28 U.S.C. §2409(a),

and the cases interpreting the QTA, and by substitut-

ing its wishes for Ducheneaux’s in overriding his valid

will. Pet. App. at 2a-12a. Citing United States v. Mot-

taz, 106 S.Ct. 2224 (1986), the court of appeals

observed that “The QTA prohibits a party from suing

the United States when the purpose of the suit is to

challenge the goverment’s title to land held in trust for

Indians” (Pet. App. 4a). The panel found that the pur-

pose of Petitioner’s suit against the United States was

to challenge the government’s title to Indian trust land

and, therefore, the QTA prohibited the district court

from having jurisdiction in the case. Jd. at 5a.

The panel also found that Petitioner’s claim that

the district court had jurisdiction to hear her appeal

under the APA was invalid, following the reasoning in

Block v. North Dakota ex rel. Board of University and

School Lands, 461 U.S. 273 (1983). In Block, the court

said, “the Supreme Court held that the QTA is the only

means by which adverse claimants can challenge the

United States’ title to real property” (Pet. App. 5a). The

reasoning in Block, the panel observed, had been fol-

lowed by the Eighth Circuit in Spaeth v. United States

Secretary of the Interior, 757 F.2d 937 (8th Cir. 1985)

and by the Eleventh Circuit in State of Florida uv.

United States Department of Interior, 768 F.2d 1248

(11th Cir. 1985) cert. denied, 475 U.S. 1011 (1986). Pet.

App. 5a-7a. The Court also found that Petitioner’s

claim that Conroy v. Conroy, 575 F.2d 175 (8th Cir.

1978), mandated that the Eighth Circuit uphold the

district court’s decision to divide the trust land

acquired during the marriage was distinguishable

because in Conroy, where both husband and wife were

enrolled Indians, the issue of whether a party could sue

the United States in order to divest the government of

its title to trust land had not arisen. Pet. App. 8a-9a.

The district court’s holding that it had the author-

ity to overrule Ducheneaux’s will, which had been

found to be a rational testamentary disposition by the

Secretary, was held by the panel to be contrary to two

decisions of this Court, Blanset v. Cardin, 256 U.S. 319

(1921), and Tooahnippah v. Hickel, 397 U.S. 598 (1970).

Pet. App. 9a-lla. Both Blanset and Tooahnippah, the

panel observed, dealt with the power of an Indian to

dispose of his or her trust estate by will under 25

U.S.C. $373. Unless the testator’s will is irrational, this

Court said in Tooahnippah, the Secretary does not have

the authority to “substitute his preference for that of an

Indian testator” (379 U.S. at 608). The panel pointed

out that the Ninth Circuit in Akers v. Morton, 499 F.2d

44 (9th Cir. 1974), cert. denied, 423 U.S. 831 (1975),

had followed Blanset and Tooahnippah in holding that

state dower law is not applicable when the Secretary

had found the decedent’s will to be rational and not

technically deficient. Pet. App. 11a.

.

4

ARGUMENT

Petitioner argues to this Court that the court of

appeals erroneously applied the QTA to the facts of this

case and, second, that the court of appeals misun-

derstood the district court’s opinion in holding that the

lower court could not override Ducheneaux’s valid will.

Because Petitioner’s arguments and authority do not

show that the court of appeals’ decision is in conflict

with any decision of this Court or any other court of

appeals, review by this court is not appropriate.

1. The QTA provides, in relevant part, that:

The United States may be named as a party defen-

dant in a civil action under this section to adjudi-

cate a disputed title to real property in which the

United States claims an interest, other than a secu-

rity interest or water rights. This section does not

apply to trust or restricted Indian lands .. .

28 U.S.C. §2409a (emphasis added).

This Court has said in two decisions, United States

v. Mottaz, 106 S.Ct. 2224 (1986), and Block v. North

Dakota ex rel. Board of University and School Lands,

—

416 U.S. 273 (1983), that the QTA does not waive the

United States immunity from suit when the land in

question is trust or restricted Indian lands. Pet. App.

5a. In Mottaz this Court found that:

“(The QTA] operates solely to retain the United

States immunity from suit by third parties chal-

lenging the United States’ title to land held in trust

_for Indians. Thus, when the United States claims

an interest in real property based on that prop-

erty’s status as trust or restricted Indian lands, the

Quiet Title Act does not waive the Government’s

immunity.”

106 S.Ct. at 2230.

In Block this Court addressed the exact issue

raised by Petitioner here: does the APA waiver of sover-

eign immunity of the United States allow parties to sue

the government when the dispute concerns the title to

Indian trust land? This Court, unequiviocally, said

“ »”

no.

“We hold that Congress intended the QTA to pro-

vide the exclusive means by which adverse claim-

ants could challenge the United States’ title to real

property.” 416 U.S. at 286.

In explaining why the language in the QTA does

not waive the government’s immunity from suit when

the challenge is to the United States title to land held

in trust for Indians, this Court observed in Mottaz that:

“In urging that such an exemption be included in

the Quiet Title Act, the Solicitor for the Depart-

ment of the Interior noted that excluding suits

against the United States seeking title to lands

held by the United States in trust for Indians was

necessary to prevent abridgement of ‘solemn oblig-

ations’ and ‘specific commitments’ that the Federal

9

Government had made to the Indians regarding

Indian lands. A unilateral waiver of the Federal

Government’s immunity would subject those lands

to suit without the Indians’ consent. See H.R.

Report No. 92-1559, p. 13 (1972) U.S. Code Cong.

and Admin. News 1972, p. 4547.”

106 S.Ct. at 2230 n. 6.

This Court’s holding that the QTA does not waive

the United States’ immunity from suit when a third

party seeks to divest the United States of its title to

Indian trust land was followed by the Eighth Circuit

both in this case and in Spaeth v. United States Secre-

tary of the Interior, 757 F.2d 937 (8th Cir. 1985); by the

Eleventh Circuit in State of Florida v. United States

Department of the Interior, 768 F.2d 1248 (11th Cir.

1985), cert. denied, 475 U.S. 1011 (1986), and by the

Ninth Circuit in Wildman v. United States, 827 F.2d

1306 (9th Cir. 1987) and in Metropolitan Water District

of Southern California v. United States, 830 F.2d 139

(9th Cir. 1987).

In Spaeth, as the panel noted, the Eighth Circuit

held that the QTA barred an action to adjudicate a

disputed title to Indian real property in which the

United States did not claim an interest. The court

found that §702 of the APA did not waive the United

States’ immunity from suit because the language of

$702 indicated it was preempted by the QTA’s express

provisions which forbid attempts to divest the United

States of its title to trust land. 957 F.2d at 942.

In State of Florida, also relied upon by the court of

appeals, Florida, too, was trying to utilize the APA to

circumvent the government’s immunity from suit under

10

the QTA when title to Indian land was being chal-

lenged. Relying on Block, the Eleventh Circuit rejected

the state’s argument, holding that “[T]he QTA is the

exclusive means by which adverse claimants can chal-

lenge the United States’ title to real property.” 768 F.2d

at 1254.

In the Ninth Circuit, in Wildman, the owners of

property which adjoined a river tried to quiet title to

land located in a riverstream bed. Even though the

United States had only a colorable claim to the land as

Indian trust land, the court held that that was suffi-

cient to invoke the government’s immunity from suit

under the QTA. 827 F.2d at 1309.

Most recently, in Metropolitan Water District of

Southern California v. United States, the United States

was again sued under the APA when the plaintiffs

sought a decree establishing reservation boundaries.

The court held that even though the suit was not one

where a third party was attempting to quiet title to

Indian land for itself, the QTA still applied because the

effect of a successful action would be to quiet title in

others. 830 F.2d at 143.

This Court and the Eighth, Ninth and Eleventh

Circuits have uniformly held that the QTA preempts

application of the APA in suits challenging the United

States’ title to Indian trust land and, further, that the

QTA itself expressly forbids suits seeking to divest the

United States or its title to Indian trust land. Thus,

when Petitioner sued the United States in the district

court seeking an order which would have deprived the

government of its title to the land it held in trust for

11

Ducheneaux, the court of appeals was correct in hold-

ing that the district court was without jurisdiction to

hear her complaint.

Petitioner argues, without citing any authority to

support her claim, that the QTA is not applicable to

this case and that the cases cited by the circuit court

are distinguishable because the facts and parties are

different. Pet. 6. Petitioner’s unsupported assertion

that the QTA does not apply in this case, when the

facts, cited supra, clearly show that she seeks to divest

the United States of its title to Indian trust land, has

no merit.

Petitioner also argues, relying on a brief filed by

the Department of the Interior, Office of the Solicitor,

to the IBIA, that the Secretary had a duty to modify the

inventory in Ducheneaux’s estate, under 43 C.F.R.

§4.273, based on the evidence she submitted showing

her contribution to the acquisition of trust lands during

the marriage. Pet. 5-6. The IBIA did in fact incorporate

the Solicitor’s views regarding challenges to the inven-

tory in a decedent’s trust estate in its opinion, provid-

ing for such challenges under 43 C.F.R. §4.273. Pet.

App. 45a. The IBIA, however, made clear that the kinds

of challenge it would consider concerned “those Indians

who are involved in disputes over a decedent’s trust

estate” (Pet. App. 45a), and not challenges by non-

Indians, “to whom the government owes no trust

responsibility” (Pet. App. 47a). The IBIA view regard-

ing challenges to estate inventories, although not spe-

cifically mentioned by the court of appeals, is entirely

consistent with the opinions of this Court and other

courts of appeals in that it allows the Secretary to

12

settle disputes between Indians over title to Indian

trust land but does not purport to allow non-Indians to

challenge the United States’ title to Indian trust land,

which is forbidden by the QTA.

Petitioner also argues that the Eighth Circuit’s

decision in Conroy v. Conroy, 575 F.2d 175 (8th Cir.

1978), requires that she be awarded one-half of the

trust land acquired during the marriage, because in

Conroy the court upheld a tribal court decision which

ordered a division of marital property, including Indian

trust land, between Indian spouses. Pet. 7. The court of

appeals’ response to Petitioner’s reliance on Conroy

was correct. The significant distinction between Conroy

and the facts of this case, as the panel noted, is that in

Conroy the Eighth Circuit was recognizing the validity

of a decree of divorce from a tribal court of competent

jurisdiction where both parties were members of the

Oglala Sioux Tribe, whereas here Petitioner is asking

the court to award her, a non-Indian, one-half of the

trust land acquired during the marriage. Pet. App.

8a-9a. What Petitioner asks the Court to do is exactly

what is prohibited by the QTA, divesting the govern-

ment of its title to Indian trust land.

Petitioner also alleges that she is being discrimi-

nated against on the basis of race, citing Regents of

University of California v. Bakke, 438 U.S. 265 (1978),

because the Eighth Circuit has held that Indians are

allowed to have trust land divided in tribal court based

on a spouse’s showing that he or she contributed to the

acquisition of the property, while Petitioner is not

allowed to challenge the title to Indian trust property

in Ducheneaux’s estate, which she alleges was acquired

- 13

jointly during their marriage. Pet. 7. Bakke and this

case are distinguishable. In Bakke this Court invali-

dated a medical school special admission program

because it was found to be inconsistent with Title VII of

the Civil Rights Act of 1964 which prohibits discrimina-

tion on racial or ethnic grounds in federally assisted

programs. The discrimination prohibited by this Court

in Bakke is not analogous to the Secretary’s refusal to

award Petitioner a share of Ducheneaux’s trust estate,

even assuming Petitioner had in fact shown that she

contributed equally to the acquisition of the land pur-

chased during the marriage, which the non-federal

Respondents do not concede. This Court has held that

there are permissible distinctions which may be drawn

between Indians and non-Indians, which distinctions

include the rules applicable to Indian trust property. In

Morton v. Mancari, 417 U.S. 535 (1974), this Court said

that:

“On numerous occasions this Court has specifically

upheld legislation that singles out Indians for par-

ticular and special treatment.

This unique legal status is of long standing, (cita-

tions omitted) and its sources are diverse.

As long as the special treatment can be tied ration-

ally to the fulfillment of Congress’ unique legal

obligation towards Indians, such legislative judg-

ments will not be disturbed.”

Id. at 554-555.

Morton v. Mancari is, in fact, specifically distinguished

in Bakke, 438 U.S. 304 n. 47.

ee _ : _

14

2. Petitioner also argues that the court of appeals

erred when it held that the district court was without

authority to override Ducheneaux’s validly executed

will. Petitioner’s argument, essentially, is that the

appeals panel should not have characterized the dis-

trict court’s decision as overruling the decedent’s intent

in his will but, rather, should have described the lower

court ruling as simply removing improperly included

property from Ducheneaux’s estate inventory. Pet. 8.

Petitioner’s claim is without merit and, as shown by the

authority cited supra, the district court did not have

the authority to order the Secretary to remove Indian

trust property from Ducheneaux’s estate for the benefit

of Petitioner, a non-Indian, because the QTA forbids

any attempt to divest the United States of its title to

Indian trust land.

The appeals panel was correct in holding that the

district court did not have the power to substitute its

preference for that of the decedent in the distribution of

his trust estate once the Secretary had found that the

will was neither technically deficient or irrational,

based on this Court’s decision in Blanset v. Cardin, 256

U.S. 319 (1921), and Tooahnippah v. Hickel, 397 U.S.

598 (1970), and on the Ninth Circuit’s decision in Akers

v. Morton, 499 F.2d 44 (9th Cir. 1974), cert. denied, 423

U.S. 831 (1975). Pet. App. 9a-1la.

As the court of appeals noted, the facts of Blanset

are very similar to those in this case. In Blanset a non-

Indian spouse sought one-third of his deceased Indian

wife’s trust estate, when she had specifically disin-

herited him and had left her estate to her children and

grandchildren. This Court held that 25 U.S.C. §378,

15

which governs the disposition of Indian trust property

by will, controlled, thus allowing Indians to dispose of

their property free from the law of the state in which

they resided.

“(I]t was the intention of Congress that this class of

Indians should have the right to dispose of property

by will under this act of Congress (25 U.S.C. §373),

free from restrictions on the part of the State as to

the portions to be conveyed or as to the objects of

the testator’s bounty, provided such wills are in

accordance with the regulations and meet the

approval of the Secretary of the Interior.”

326 U.S. at 326-27.

In 1970, in Tooahnippah v. Hickel, (1970), this

Court again addressed the question of the extent of an

Indian testator’s right to disinherit a close relative in

faver of more distant relatives. In Tooahnippah this

Court had to decide whether the Secretary had the

authority under 25 U.S.C. §373 to substitute his wishes

for that of the testator, when the Secretary felt the

decedent had not treated his closest heir fairly. This

Court found that:

“«

. . . .LNJothing in the statute or its history or

purpose ... vests in a governmental official the

power to revoke or rewrite a will that reflects a

rational testamentary scheme with a provision for

a relative who befrierded the testator and omission

of one who did not, simply because of a subjective

feeling that the disposition of the estate was not

‘just and equitable’.” (Footnote omitted)

397 U.S. at 610.

The Blanset and Tooahnippah decisions have been

followed by the Ninth Circuit, the only other court of

16

appeals to have been faced with the question of the

extent of an Indian testator’s authority to dispose of his

trust property by will under 25 U.S.C. §373. In Akers v.

Morton, discussed by the appeals panel in this case, the

Ninth Circuit said it was bound to follow this Court's

rulings in Blanset and Tooahniopah and to abide by the

requirements of 25 U.S.C. §373, even though it felt the

result to be inequitable. 499 F.2d at 47-48. In Akers an

Indian disinherited his Indian wife of all his interest in

trust land in favor of a more distant relative, even

though the facts showed her money had been used to

purchase the property which had been placed in trust

in his name, with the legal title held by the United

States. Citing Tooahnippah, 397 U.S. at 410, the court

said that “The Secretary may disapprove a will only if

it is technically deficient or if it is irrational. Where, as

in this case, it is rational . . . the Supreme Court has

indicated that the Secretary is not free to disapprove

the will merely on notions of fairness or equity.” Akers,

499 F.2d at 47.

Contrary to Petitioner’s assertions, Akers does not

support her claim that she should be awarded one-half

of the trust property acquired during the marriage.

Petitioner alleges that “Petitioner’s claim to an interest

in the property was established in the course of the

probate of her husband’s estate .. . ” (Pet. 8). In Akers

the facts were clear that the disinherited spouse’s funds

were used to purchase the decedent’s trust land,

whereas in this case neither the ALJ or the IBIA made

such a finding (Pet. App. 3la and 39a-40a), nor did the

court of appeals. Pet. App. 3a.

17

Petitioner also claims that the Ninth Circuit’s

observation, made in a footnote, that a resulting trust

theory was not raised in Akers, thus preventing that

court from considering whether the restricted land was

properly included in Mr. Akers’ estate, should have

been addressed in this case by the court of appeals. 499

F.2d at 46 n. 1. What is critical to remember about

Akers, and what Petitioner refuses to acknowledge, is

that the disinherited spouse in Akers was an Indian,

while Petitioner is not. Thus, even if a resulting trust

theory had been considered in Akers, and if the court

had ultimately decided the restricted land should not

have been included in Mr. Akers’ trust estate, the out-

come in Akers would have had no effect on the legal

title to the land, since it would have remained in trust

for Mrs. Akers. Here, as noted supra, acquiescence to

Petitioner’s claim would divest the United States of its

title to a portion of Ducheneaux’s trust estate. The QTA

prohibits this and both the ALJ and the IBIA found

that Petitioner’s claim to a resulting trust interest in

the decedent’s trust estate was not permissible because

the United States cannot hold restricted property for

persons to whom the government owes no trust respon-

sibility. Pet. App. 30a and 47a.

Finally, Petitioner relies on this Court’s decision in

Bailess v. Paukune, 344 U.S. 171 (1952), to support her

assertion that the interest in trust land she claims is

“dry and passive” and that all the Secretary needs to do

is perform the ministerial act of issuing her a fee pat-

ent. Pet. 7. Petitioner completely misreads Bailess v.

Paukune. In Bailess, as Petitioner notes, the non-

18

Indian widow inherited a portion of her Indian hus-

band’s estate under his will. Thus, although she had a

legal right to title to the land, “the United States had

no interest of hers in the land to protect .. . she is not

within the class whom Congress sought to protect...”

(344 U.S. at 173), and a fee patent had to be issued to

her. Here, of course, Ducheneaux specifically disin-

herited Petitioner (Pet. App. 3a, 16) and 25 U.S.C. §373

and this Court’s decisions, discussed supra, allowed

him to do that. Because the decedent in Bailess wanted

his spouse to have a portion of his trust estate, this

Court’s discussion about the nature of the United

States’ duty to a non-Indian spouse and the method of

removing land from trust status has nothing to do with

this case. The intent of Ducheneaux, which is totally

ignored by Petitioner, is the critical distinguishing

factor.

4

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CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

Krista H. CLark

Bitty JoE JONES

Dakota Plains Legal Services

P.O_ Box 727

Mission, SD 57555

(605) 856-4444

Attorneys for Respondents

June Ellen Ducheneaux

Ledbetter

Lillian Lynn Ducheneaux

Ria Elaine Ducheneaux Seaboy

Orville Rolland Ducheneaux

Larry Douglas Ducheneaux

Deanne Ducheneaux Mulloy

Allen Theodore Ducheneaux

Marlene Kay Ducheneaux