# Opposition Brief — Ducheneaux v. Secretary of the Interior

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1055

## Text

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.

&
~

ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

%
a al

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
Cpteboms BONO oo oe 6 5c éincsesekcasawe eee 2
PURIOMIOUIOR., 2 6.5 ooo ss t0ssnacesaddbeun eee 2
DEMCOMOME 2c cncccsecsedevandaeeeneeee 2
Prgumeent...... 6 ic cccsccuesvdes eens 7
CORCHMMIOR . 6 osc ack cadeasvaedeeass pete ee 19

ill

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
oF ee eer re rr rr rrr ere 4
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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1638%3A2. Public record. Not legal advice.