DocketNumber: No. 108,894
Citation Numbers: 290 P.3d 278, 2012 OK CIV APP 88
Judges: Bell, Hetherington, Mitchell
Filed Date: 8/31/2012
Status: Precedential
Modified Date: 1/2/2022
¶ 1 Appellant Susan Hamilton ("Daughter") is the former personal representative of
¶ 2 The deceased, an Osage Indian, died testate on December 28, 2008. The deceased had seven children, The will expressly identifies three children, who pre-deceased the decedent. One of those pre-deceased sons was survived by his two children (the Grandchildren at issue herein), although they were not specifically referenced in the will. By its terms, the will expressly bequeathed equal shares of the estate to Daughter and to his surviving son, Otto Eugene Hamilton.
¶ 3 At the time of his death, Decedent owned Osage property subject to restriction and supervision of the U.S. Department of the Interior-Burean of Indian Affairs ("BIA"). Federal law requires the Secretary of the Interior's prior approval of the will before its probate in the Oklahoma courts.
¶ 4 Although this matter was initially presented for pre-probate approval in the BIA, the record demonstrates the Grandchildren were not afforded notice and an opportunity to appear and participate in the proceedings there.
¶ 6 Almost three years later, Grandchildren filed their Petition to Vacate the September 17, 2007 Order Approving Final Account, Determining Heirs, and Directing Distribution of the Estate on the basis that despite the children's knowledge of the Grandchildren's existence, they were never provided notice of the will approval proceedings before the BIA, nor were they provided notice or opportunity to be heard in the subsequent probate proceeding despite the fact they are heirs-at-law to the estate. The Grandchildren further contend they were denied notice and/or an opportunity to participate in the family settlement negotiations, which resulted in an alteration of estate distribution from that specified in the terms of the will (including distribution to a preter-mitted child heir).
¶ 7 After a hearing on the matter, the trial court entered its September 22, 2010 Order Vacating the Decree Approving Final Account, Determining Heirship and Distributing Assets of the Estate upon a finding that Grandchildren were denied the opportunity to participate in the actions of the estate and in the distribution thereof due to the Daughter's failure to issue them notice of same. Additionally, the trial court found "that it erred when approving the family settlement agreement as presented based upon incorrect information presented by the personal representative and her counsel." The trial court thereafter re-distributed the estate with the four children receiving a 1/5 share and each of the Grandchildren receiving a 1/10 share. The trial court thereafter entered its October 6, 2010 Order Approving Final Account, Determining Heirship and Distributing the Assets of the Estate from which Daughter appeals, which reiterated the re-distribution determination in Grandchildren's favor.
¶ 8 On appeal, Daughter primarily argues the various infirmities of the family settlement agreement upon which the BIA's approval (and the trial court's reliance) was based. She further challenges two of the children's inheritance (the will challengers at the BIA) on the basis of the express disinheritance terms of the will.
¶ 9 We do not address the merits of this appeal due to a fatal jurisdictional issue, which we raise sua sponte.
¶ 10 Further, under the Osage Indian statutory and regulatory scheme, the Secretary's determinations can be reviewed in federal court after administrative remedies have been exhausted. See 25 C.F.R. § 17.14.
¶ 11 REVERSED AND REMANDED.
. There were four surviving children of the deceased.
. The Osage Indian Act of 1978, Pub.L. 95-496, 92 Stat. 1660, § 5(a) (amending Section 8 of the Act of April 18, 1912 (37 Stat. 86, 88)) provides in pertinent part as follows:
That the will of any Osage Indian shall not be admitted to probate or have any validity unless approved after the death of the testator by the Secretary of the Interior. The Secretary shall conduct a hearing as to the validity of such will at the Osage Indian Agency in Pawhuska, Oklahoma. Notice of such hearing shall be given by publication at least ten days before the hearing in a newspaper of general circulation in Osage County, Oklahoma, and by mailing notice of such hearing to the last known address of all known heirs, legatees, and devi-sees.
. Federal regulation requires service by mail of notice of a hearing on a petition for approval of a will of a deceased Osage Indian on each presumptive heir, beneficiary under the will offered for consideration and attesting witness. 25 C.F.R.§ 17.4.
. By the authority delegated by the Secretary of the Interior, the Osage Agency Superintendent reviewed the will and the written transcript of the hearing before the BIA. This order of a superintendent of the Osage Indian Agency approving a will is final unless an appeal is filed pursuant to 25 C.F.R. § 17.14. That regulation further provides that "any appeal from the action of the superintendent of approving or disapproving a will shall be taken to the Secretary" of the Interi- or by providing notice of intent to appeal within 15 days after the date of the mailing of notice of the superintendent's decision. Id. at § 17.14(a). The Secretary's actions can be reviewed in federal court after administrative remedies have been exhausted. See, e.g., Akers v. Hodel, 871 F.2d 924 (10th Cir.1989)(holding Osage Agency had
. The Notice of Hearing on the Amended Petition for Probate of Will and for Determination of Identity of Heirs, Devisees and Legatees was published in the Pawhuska Journal Capital on July 12, 2006 pursuant to 25 0.S.2001 § 106. Additionally, although no notice was mailed directly to Grandchildren, notice of hearing prior to entry of the trial court's September 17,2007 Order Approving the Final Account, Determining Heirs and Directing Distribution of the estate was published twice in the Pawhuska Journal Capital on August 15, 2007 and August 22, 2007.
. - Jurisdictional inquiries into judicial cognizance may be considered and examined at any stage of the proceedings, either on motion or sua sponte. Lincoln Bank & Trust Co. v. Oklahoma Tax Comm'n, 1992 OK 22, 827 P.2d 1314, 1318.
. "No court except a Federal court shall have jurisdiction to hear a contest of a probate of a will that has been approved by the Secretary." The Osage Indian Act of 1978, Pub.L. 95-496, 92 Stat. 1660, sec. 5.(a). "Where relief is available from an administrative agency, a plaintiff is ordinarily required to pursue that avenue of redress a before proceeding to the courts." Waste Connections, Inc. v. Oklahoma Dep't of Envtl. Quality, 2002 OK 94, ¶ 7, 61 P.3d 219, 222. This "allows the agency to apply its expertise and discretion under the statutory scheme the agency itself is charged with administering." Id.