Opposition Brief — Pahdopony v. Department of the Interior

Jn the Socaesnne outils Wale Shaker

OCTOBER TERM, 1993

2 DEBRA SUE PAHDOPONY, PETITIONER

v.

DEPARTMENT OF THE INTERIOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Drew S. Days, III

Solicitor General

Lots J. SCHIFFER

Acting Assistant Attorney General

oe EDWARD J. SHAWAKER

ee EVELYN S. YING

Department of Justice

&. Washington, D.C. 20530

HS (202) 514-2217

Take eee a Re a te peice See Eh eee? eee Cn ee et SO te thes Ree et ee eal ok gy

QUESTION PRESENTED

Whether the Interior Board of Indian Appeals properly

determined that the term “heirs of the body” in a 1965

will did not encompass an adopted child.

(I)

TABLE OF CONTENTS

Page

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ia sca eenateiniupnenennreny 1

EES SLA ES ree a en mR 2

IIIs ceisinincguannieuseubaicsessasonenbnintiabcoeenepenennecepetoue 5

eto cemneatnansentoneeseqcoonts 11

TABLE OF AUTHORITIES

Cases:

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

EE ER oe 10

Ducheneaux v. Secretary of the Interior, 837 F.2d 340

(8th Cir.), cert. denied, 486 U.S. 1055 (1988) ................ 10

Estate of Bruning v. Commissioner, 888 F.2d 657 (10th

a ccinnnianssonnttetes 5

Estate of Paul Wilford Hail, i3 1.B.1.A. 140 (1985) ......... 5

Estate of Dorothy Sheldon, 7 1.B.1.A. 11 (1978) ............. 5, 6, 10

Estate of Frank (Tate) Nevaquaya Tooahimpah, 21

RENEE oe 3, 6

Fisher v. District Court, 424 U.S. 382 (1976)................ 9

Johns v. Cobbs, 402 F.2d 636 (D.C. Cir. 1968), cert.

EE SIE MI, BI SII secccncccccceccvenccresevecsovevsrevovese ~

Moore v. McAlester, 428 P.2d 266 (Okla. 1967) ................ 6

Riggs Nat'l Bank v. Summerlin, 445 F.2d 201 (D.C.

Cir. cert. denied, 404 U.S. 851 (1971) .................ceceeeeee ~

Tooahnippah v. Hickel, 397 U.S. 598 (1970) ................++ 10

Statutes and regulations:

Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et

RE ial iicalddinatldateeienbbiawternsnnevennenevebarsaceioneqtnerseesesenesecsees 9

i ani gpnnenenuebeugnnvesene 6

EIS aR 9

(II1)

1V

Regulations—Continued:

43 C.F.R.:

RRS NR a a Re prod ao ren

I a

Miscellaneous:

2 Am. Jur. 2d, Adoption (1962) ..............:..2000

4 Page on the Law of Wills (Bowe-Parker rev.

In the Supreme Court of the Giuted States

OCTOBER TERM, 1993

No. 93-1672

DEBRA SUE PAHDOPONY, PETITIONER

Uv.

DEPARTMENT OF THE INTERIOR

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The order and judgment of the court of appeals (Pet.

App. X-X VIII) is unpublished, but the judgment is noted

at 16 F.3d 417 (Table). The order of the district court

(Pet. App. VI-IX) is unreported. The decision of the

Interior Board of Indian Appeals is reported at 21 I.B.L.A.

222.

JURISDICTION

The judgment of the court of appeals was entered on

January 20, 1994. The petition for a writ of certiorari

was filed on April 19, 1994. The jurisdiction of this Court

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

(1)

2

STATEMENT

This case involves the interpretation of a provision in

the 1965 will of a Comanche Indian concerning the

disposition of his trust property. Petitioner sought to

set aside the decision of the Department of the Interior

regarding the construction of the will. The district

court upheld the agency’s decision, and the court of

appeals affirmed.

1. The testator, Frank Nevaquaya Tooahimpah

(Tate), was a Comanche Indian living in Oklahoma. With

the assistance of a Department of the Interior attorney,

the testator in 1965 drafted a will in which he devised

specific tracts of Indian trust land to his seven children

and four of his grandchildren. Each child received a life

estate in certain tracts with a remainder to the “heirs of

the body” of that child. Pet. App. XI. The testator died

in 1966, and his will was admitted to probate by the

Department of the Interior in 1967. bid.

Under the terms of the will, Lois Tooahimpah

Pahdopony, one of the testator’s daughters, received a

life estate in the 40 acres of property at issue in this

litigation, with the “remainder to the heirs of her body.”

Pet. App. VII. Petitioner, Debra Sue Pahdopony, is the

testator’s biological great-granddaughter and Lois’s

grandniece.' Jd. at II. In 1970, four years after the

testator’s death, Lois adopted petitioner under Oklahoma

law. Jd. at XII. Lois died in 1988, survived by her

husband, who subsequently died, and by petitioner. /d. at

XIII.

1 Petitioner’s natural mother is Geneva Navarro, who in turn is

the daughter of Esther Tooahimpah Brace, Lois’s sister and

another one of the testator’s daughters. Pet. App. II & n.2.

3

2. After Lois’s death, the Department of the Interior

reopened the testator’s estate for the purpose of

allocating the remainder interest in the subject

property. After a hearing on the matter, the

administrative law judge held that petitioner, Lois’s

adopted daughter, was not an “heir of her body” and thus

could not claim the remainder interest. Pet. App. I-V.

The administrative law judge concluded that, at the time

of the will’s drafting and the testator’s death, the phrase

“heirs of the body” had a technical and legal meaning

excluding adopted children and spouses. /d. at II-III.

The administrative law judge also determined that the

literal meaning of the term excluded adopted children by

referring specifically only to those heirs who were “of

the body.” Jd. at III. The administrative law judge found

no evidence that the testator, who had no adopted

children in his family at the time of his death, had

intended “heirs of the body” to have a meaning contrary

to its common law construction, and ruled that the

remainder interest would pass through the residuary

clause of the will. Jd. at III-IV.

On appeal, the Interior Board of Indian Appeals (IBIA

or Board) affirmed the administrative law judge’s ruling

that petitioner was not an “heir of the body” of her

adopted mother. Estate of Frank (Tate) Nevaquaya

Tooahimpah, 21 1.B.1.A. 222 (1992). The IBIA rejected

2 The IBIA did reverse the administrative law judge’s deter-

mination as to the remainder interest under the residuary clause of

the testator’s will. 21 I.B.I.A. at 228-231. The Board held that

petitiuner could inherit a portion of the remainder interest in

Lois’s life estate through the residuary clause, which devised the

residue of the testator’s estate to “the devisees listed in this will in

equal shares.” Jd. at 228-229. The Board ruled that petitioner, as

Lois’s sole surviving heir at law, was entitled to the 1/11 share of

4

petitioner’s argument that the testator did not under-

stand the technical meaning of the phrase “heirs of the

body” as used in his will, which was drafted by an attor-

ney. The Board stated that although the construction of

Indian wills is a matter of federal law, the determination

of intestate heirs, and the remaindermen in this case,

requires reference to state law. /d. at 226-227. The

Board concluded that under Oklahoma law “heirs of the

body” excluded adopted children and that petitioner had

not presented any evidence showing that the testator in-

tended otherwise. /d. at 224-228.

3. a. Petitioner brought this suit challenging the

IBIA’s decision. The district court affirmed the Board’s

decision. Pet. App. VI-IX. The court rejected peti-

tioner’s assertion that absent any federal law construing

the phrase “heirs of the body,” the court should fashion a

federal rule mandating that the phrase include adopted

children. Jd. at VIII. The court reasoned that the ques-

tion in this case is not whether there is a need for such a

federal rule, but rather whether the testator, in using

the phrase in his 1965 will, intended to limit his devise to

biological descendants. Ibid. The district court held

that “[bJecause the prevailing position existing at the

time of the will’s execution and the testator’s death con-

strued the phrase to exclude adopted children,” the tes-

tator’s intent was “to limit the remainder interest in the

40 acres to the natural born children of Lois Pahdopony.”

Ibid. (citing cases). Finding no evidence to the contrary,

the district court stated that it “cannot rewrite the will

to obtain” the result desired by petitioner. /d. at IX.

b. The court of appeals affirmed in an unpublished or-

der. Pet. App. X-X VIII. The court recognized that the

the remainder interest that would otherwise pass to devisee Lois

under the terms of the clause.

5

intent of the testator, determined from the entire will

and as of the time the will was executed, governs the dis-

position of the testator’s estate. Jd. at XIV. The court

concluded that the phrase “heirs of the body” has a prac-

tical meaning that includes only natural born children,

and that by using that term in his will, the testator in-

tended to exclude adopted children such as petitioner

from the remainder interest in the subject property. /d.

at XVII.

ARGUMENT

The court of appeals correctly rejected petitioner’s

argument that the Department of the Interior erred in

construing the term “heirs of the body” in the particular

will at issue here to exclude adopted children. The

decision of the court of appeals does not conflict with any

decision of this Court or any other court of appeals.

Accordingly, further review is not warranted.

1. Petitioner acknowledges (Pet. 7) that the task of

the IBJA and reviewing courts in construing an Indian

will is to ascertain and give effect to the intent of the

testator at the time the will was executed. See Estate of

Bruning v. Commissioner, 888 F.2d 657, 659 (10th Cir.

1989) (per curiam); Estate of Paul Wilford Hail, 13

I.B.1.A. 140, 143 (1985); Estate of Dorothy Sheldon, 7

I.B.I.A. 11, 16-17 (1978); see also 4 Page on the Law of

Wills § 30.6, at 35 (Bowe-Parker rev. 1961) [hereinafter

Page). However, petitioner contends (Pet. 5-8, 11-13) that

the IBIA and reviewing courts erred in concluding that

the testator intended the phrase “heirs of the body” to

exclude adopted children.

Certain general principles govern the interpretation

of wills, whether Indian or otherwise. First, the testa-

tor’s intent is to be gathered whenever possible from the

words of the will, construed in their natural and obvious

6

sense. Estate of Dorothy Sheldon, 7 1.B.1.A. at 17.

Second, if the testator uses words that have a definite

and well understood meaning, it is presumed that the

testator intended to use them in that sense. 4 Page §

30.21, at 138. In addition, where, as here, the testator had

a will prepared and drafted by an attorney, there is a

strong presumption that technical terms in the will were

used intentionally and correctly. Jd. § 30.3, at 10. Such

presumptions concerning the testator’s intentions may

be contradicted by express statements in the will, or by

other facts and circumstances existing at the time the

will was drafted. /d. § 30.8, at 51-52; Estate of Dorothy

Sheldon, 7 1.B.1.A. at 16.

The Department of the Interior correctly applied

those principles in determining that the testator’s devise

of the remainder interest in the subject property to the

“heirs of [Lois’s] body” should not be understood to

include an adopted child. At the time of the drafting of

the testator’s will in 1965, the phrase “heirs of the body”

had a technical and practical meaning that did not

encompass adopted children.’ See Pet. App. VIII (district

% The construction of an Indian will is a matter of federal law.

See 21 I.B.1.A. at 226 (citing cases). However, the specific phrase

“heirs of the body” contained within the will requires reference to

some scheme of intestate succession, which is determined by

reference to state law. See id. at 225-227; 25 U.S.C. 348 (providing

that “the law of descent and partition in force in the State or

Territory where such lands are situate shall apply thereto”).

Thus, the Department of the Interior turned to the law of

Oklahoma, the State in which the subject property is located, to

determine the usual meaning of the phrase “heirs of the body.” As

the court of appeals found, under Oklahoma law in 1965, the

technical meaning of “heirs of the body” excluded adopted

children. Pet. App. XIV (citing Moore v. McAlester, 428 P.2d 266

(Okla. 1967)). That meaning was consistent with the prevailing

position in the States generally at the time the will was drafted.

7

court decision citing authority that the prevailing

position existing at the time of the will’s execution and

testator’s death construed the phrase to exclude adopted

children); see also 4 Page § 34.10, at 424-425 (noting that

“[t]he phrase, ‘heirs of the body,’ in the absence of

language indicating a contrary intent, has been

construed as not including adopted children”); 2 Am. Jur.

2d, Adoption § 98, at 939 (1962) (noting that “use of terms

such as bodily heirs, or ‘heirs of his body’ indicates

intention to exclude adopted children, for such phrases

ordinarily embrace only lineal blood descendants of the

designated person”).

Petitioner provides no evidence in support of her

contention that the testator would not have intended the

phrase to be given its prevailing technical and practical

meaning. At the time the will was originally probated,

the examiner concluded that the evidence was “clear and

convincing” that the will expressed the testator’s “true

individual testamentary desires.” See Pet. C.A. App. 51.

The interpreter who assisted the testator and the

departmental attorney in drafting the will testified at

the probate proceeding that the will “accurately

reflectied] what [the testator] wanted done.” See Pet.

App. XV. Nothing in the will or the facts and

circumstances surrounding its execution warrants

attributing a different meaning to the unambiguous

phrase “heirs of the body.” The IBIA therefore did not

err in determining that the testator intended the phrase

“heirs of the body” to exclude adopted children, and

Therefore, whether the meaning of the phrase turns on state law

or on a federal common law rule fashioned on the basis of the

prevailing interpretation of the phrase “heirs of the body,” the

result in this case is the same.

8

consequently in ruling that petitioner could not inherit

the entire remainder interest in the subject property.

2. Petitioner contends (Pet. 8-11) that the IBIA and

reviewing courts committed a fundamental error by

failing to adopt a “federal substantive rule of

construction” that mandates that the phrase “heirs of

the body” used in Indian wills encompasses adopted

children. No federal court has embraced such a rule, and

petitioner’s attempts to support her position by

reference to federal cases and statutes, as well as

regulations of the Department of the Interior, are

unavailing. Those authorities were enacted or issued

long after the testator’s will was executed. They

accordingly shed no light on the testator’s intent in 1965

in using the precise words “heirs of the body” in his will.

a. Petitioner concedes (Pet. 9) that no federal court

has “directly addressed the meaning of the exact term

‘heirs of the body.’” In support of her position that

adopted children should nevertheless be encompassed

within that phrase, petitioner cites two federal cases

construing a completely different term. See Johns v.

Cobb, 402 F.2d 636 (D.C. Cir. 1968), cert. denied, 393 U.S.

1087 (1969); Riggs Nat’l Bank v. Summerlin, 445 F.2d

201 (D.C. Cir.), cert. denied, 404 U.S. 851 (1971). Those

cases involved the interpretation of the term “issue” and

do not bear on the construction of the more precise term

“heirs of the body.” In Johns, the court noted that

because enough uncertainty surrounded usage of the

term “issue,” it doubted that “a competent draftsman

who wanted to exclude adopted children would rely on the

word ‘issue’ alone to express that purpose.” 402 F.2d at

637. In contrast, there was a uniform interpretation of

the term “heirs of the body” prevailing at the time that

the testator in this case drafted his will with the aid of

Se ng eee eee

9

an attorney. Under that interpretation, the term did not

encompass adopted children.

b. Petitioner is also mistaken in asserting (Pet. 10-

11) that her position is supported by various federal

statutes and regulations that became effective after the

testator’s death. The Indian Child Welfare Act of 1978

concerns only substantive issues such as the standards

governing removal of Indian children from their families

and their placement in foster or adoptive homes. See 25

U.S.C. 1901 et seg. Nowhere does the Act purport to gov-

ern testamentary construction of Indian wills. Nor does

it concern intestate succession regarding disposition of

Indian lands. Petitioner’s reliance upon 25 U.S.C. 372a

is similarly unavailing. “Th{at] statute is concerned

solely with the documentation necessary to prove adop-

tion by an Indian in proceedings before the Secretary of

the Interior.” Fisher v. District Court, 424 U.S. 382, 389

(1976). It has no bearing on the interpretation of Indian

wills.

The Department of the Interior’s regulations

concerning Indian probate matters, cited by petitioner,

are also inapposite. Section 4.201(k), 43 C.F.R., provides

only that the term “child” or “children” as used in

departmental regulations includes adopted children. The

regulation does not affect any principle of Indian will

construction and does not speak to the interpretation of

the phrase “heirs of the body” in a will. Section 4.261, 43

C.F.R., the “anti-lapse provision,” provides only that

adopted children can inherit from a named devisee who

predeceases the testator. The regulation does not affect

the interpretation of the term “heirs of the body” and

does not address the question here.‘

* Indeed, the IBIA actually applied the anti-lapse regulation in

petitioner’s favor by finding that she could inherit Lois’s 1/11 share

10

The Department of the Interior was obligated to

ascertain and give effect to the intent of the testator ex-

pressed some 30 years ago in his will. A public officer

reviewing an Indian will may not “substitute his prefer-

ence for that of an Indian testator.” Tooahnippah v.

Hickel, 397 U.S. 598, 608 (1970). “[Njothing * * * vests

* * * a governmental official [with] the power to revoke

or rewrite a will that reflects a rational testamentary

scheme * * * simply because of a subjective feeling that

the disposition of the estate was not ‘just and equi-

table.’” Id. at 610; see Ducheneauz v. Secretary of the

Interior, 837 F.2d 340, 345 (8th Cir.), cert. denied, 486

U.S. 1055 (1988); Akers v. Morton, 499 F.2d 44, 47 (9th

Cir. 1974), cert. denied, 423 U.S. 831 (1975); Estate of

Dorothy Sheldon, 7 1.B.1.A. at 15. The Department of the

Interior faithfully complied with that obligation in this

case. Its decision that the testator intended the phrase

“heirs of the body” in his will to exclude adopted children

was not arbitrary or capricious. There is no basis for

further review of that decision.

of the remainder interest in the subject property that passed

through the residuary clause of the testator’s will. See note 2,

supra.

11

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DrREw S. Days, III

Solicitor General

Lois J. SCHIFFER

Acting Assistant Attorney General

EDWARD J. SHAWAKER

EVELYN 8S. YING

Attorneys

JUNE 1994