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ROBERT W. SCHULTZ, APPELLEE

July 24, 1973 could be consolidated to create an interest owned by Marathon Oil interest larger than that held by Company. It is therefore our opinSchultz. It further appears that the ion that Schultz never had sufficient appellants are engaged in an at- interest and tenure in the land to tempt to attain a majority interest control it, and certainly not since in the grazing privileges on the land he lost the 29+% interest withoffered by Schultz as base. In addi- drawn by Marathon. tion to the interest which Marathon With reference to land, the courts Oil Company has transferred from have held that, in general, to have Schultz to the Grabberts, the Grab- “control” of a place is to have the berts have recently submitted letter authority to manage, direct, superagreements whereby several other intend, restrict, or regulate. “Conpurported owners of undivided trol” does not import absolute or fractional interests in Schultz's base even qualified ownership, but means land have given their permission to the power or authority to direct, graze that land to the Grabberts. govern, administer, or oversee. The The extent of the interest held by word applied to real property imthese owners is not given. The ap- plies possession. See cases collected pellants advise that they are secur- in 9A Words and Phrases (1960). ing similar permissions from other The word "control” has no legal owners of fractional interests.

or technical meaning, and, where We regard the acquisition and ex- used in a statute, must be given such tent of grazing privileges by the an interpretation as the legislature Grabberts on Schultz's base land as intended it to have, to be ascerimmaterial, except to demonstrate tained from the connection in which that one who does not have an un- it is used, the Act in which it is divided interest in excess of 50 per- found, and the legislation of which cent of the alleged preference land

it forms a part. Gulf Refining Co. may not be said to “control” that

v. Fox, 11 F. Supp. 425, 430 (D. W. land within the meaning and intent

Va. 1935). Although the word is not of the statute.

used in the statute, it is used in the Moreover, where the where the grazier

implementing regulation, infra. whose grazing privileges on a given

The Taylor Grazing Act, supra, tract are merely permissive, so that he is a tenant at will, he may not be provides in its preamble that among

a said to control the land, because

its purposes are to provide for the "he hath no certain nor sure estate, orderly use of public grazing land

and to stabilize the livestock indusfor the lessor may put him out at what time it pleaseth him.” Black's try. In pursuit of these objectives Law Dictionary 1635 (4th ed. 1951). the Act provides mandatory preferThis apparently was the relation- ence for these applicants who are ship of Schultz with respect to the owners, homesteaders, lessees, or other lawful occupants of contigu- Therefore, pursuant to the auous or cornering lands. To hold thority delegated to the Board of that this preference extends to oc- Land Appeals by the Secretary of cupants who are without tenure or the Interior, 43 CFR 4.1, the dehold only minor fractional inter- cision is reversed. ests, whose privileges can be terminated at any time without notice, EDWARD W. STUEBING, Member. would be to frustrate the intent of the law to achieve order and sta

WE CONCUR: bility. Schultz does not control the land

Douglas E. HENRIQUES, Member. on which he bases his claim of pref

FREDERICK FISHMAN, Member. erence, and one who does not control his preference land can not be considered "a lawful occupant of

ESTATE OF JOSEPH RED EAGLE contiguous land," as that term is used in 43 U.S.C. $ 315m (1970).

2 IBIA 43 Laurence A. Andren, 7 IBLA 14

Decided July 30, 1973 (1972), and cases cited therein.

43 CFR 4125.1-1(i) (4) requires: Appeal from the Judge's decision deny

The grazing lease will be terminated ing the validity of Last Will and Testain whole or in part because of loss of ment leaving decedent's entire estate control by the lessee of non-Federal lands

to the appellant. that have been recognized as the basis for a grazing lease.

Reversed and remanded. As between conflicting applicants for a section 15 lease, if only one of

105.1 Indian Probate: Administrathe applicants owns adjoining land, tive Procedure: Applicability to Indian an award must be made to him if he Probate needs the public land for proper

The requirement of the Administrative use of his contiguous land, even

Procedure Act, that all decisions of a though the applicant who does not Judge shall include a statement of findown contiguous land may have a ings and conclusions, and the reasons or

basis therefor, on all the material issues greater need for the public land. E. W. Davis, A-29889 (March 25,

of fact, law, or discretion presented on

the record, is mandatory and applicable 1964).

to all decisions of Judges in Indian proBecause Schultz does not control

bate proceedings. his preference land and in light of the requirements of the regulation

105.2 Indian Probate: Administraset out above, we hold that the lease tive Procedure: Official Notice, Record must be awarded to the Grabberts,

Official notice of documents and records who are the only remaining prefer

will not be taken unless they are introence applicants for the disputed duced in evidence or unless an order or area.

stipulation provides to the contrary.

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July 30, 1973 370.0 Indian Probate: Rehearing: Bowlby appealed on July 11, 1972, Generally

for the following reasons: A rehearing will be granted where the 1) Erroneous findings that Joseph Red original hearing did not conform with the

Eagle was incompetent prior to and at standards of a full opportunity to be the date of the Last Will and Testament heard embodied in the Administrative dated August 21, 1957 ; Procedure Act (5 U.S.C. 88 554 and 556 2) The finding that the relationship of (1970) ).

Hobart Bowlby to Joseph Red Eagle was

of a confidential and fiduciary nature so APPEARANCES: Walter B. Dauber,

as to raise a presumption of undue Esq., of Tonkoff, Dauber & Shaw, for influence; appellant; Joseph A. Esposito, Esq., of 3) Placing the burden upon Hobart Dellwo, Rudolf & Grant, for appellee.

Bowlby to produce evidence that the will

represented the uncontrolled acts of the OPINION BY MESSRS. MCKEE

testator;

On the basis of the record we are AND SABAGH

unable to determine if appellant's INTERIOR BOARD OF

contentions are correct. INDIAN APPEALS

In this case there appears to have The probate of the estate of Jo

been a complete breakdown in adseph Red Eagle, an unenrolled and ministrative due process. A hearing unallotted Osage Indian of the State was held on September 3, 1971. The of Oklahoma, was the subject of a appellant, Hobart B. Bowlby, aphearing, held on September 3, 1971. peared in person and by counsel beThe Administrative Law Judge, ing fully aware of the existence of Indian Probate, denied the validity the will dated August 21, 1957, of a purported last will and testa- wherein he was named as sole dement dated August 21, 1957, leaving visee. Felix Aripa appeared without decedent's entire estate to Hobart B. counsel, and apparently both parBowlby, a non-Indian, because of ties were completely unaware of the legal incompetency of the de- the existence of the will dated Sepcedent and because the relationship tember 2, 1952, wherein Felix Aripa of the devisee to the decedent was was named as sole devisee. The only of such a confidential and fiduciary two witnesses who appeared and nature as to raise a presumption of were examined were the will deundue influence, which was not suffi- visees. The examination was conciently rebutted. Consequently, the ducted solely by the Judge who conJudge ordered that a previous will cluded the hearing with: dated September 2, 1952, be ap- This matter will be continued to Portproved as a “self-proved" will leay- land without renotice for further inforing the entire trust estate to Felix mation and hearing. (Tr. 32.) A. Aripa, “nephew" of the decedent. During the hearing the examina

A petition for rehearing was de- tion of Mr. Bowlby touched briefly nied on June 1, 1972, and Hobart upon his appointment as guardian

.

of the testator, but there was no or other facts which would bring the mention made of a pre-existing in- will within the provisions of 43 debtedness to Mr. Bowlby or a num- CFR 4.233(a). This section contains ber of other matters which are enu- the following provision: merated by the Judge in his Memo

If uncontested, a self-proved will may randum Opinion and his Order On

be approved and distribution ordered Wills issued March 10, 1972. In ad- thereunder with or without the testi. dition to the transcript of the Sep- mony of any attesting witnesses. (Italics

supplied.) tember 3, 1971 hearing, the record now includes: copies of certain tes- The Judge ruled by inference that timony received in the probate of the existence of a later will, i.e., the the Estate of Mary Magdeline Dav- will dated August 21, 1957, does not enport Red Eagle; a great number constitute a contest against the of documents purportedly pertain- earlier 1952 will. We cannot ignore ing to the guardianship proceedings the fact that there are two contend- . conducted over the years by Mr. ing proponents of separate wills Bowlby as guardian for the testa- which is an inappropriate situation tor; and certain documents from the for the application of the permissive Bureau of Indian Affairs pertain- portion of the regulation. Nothing to the testator's income and ing in the record suggests that management of his trust funds dur- the will witnesses or others are ing the guardianship. No further unavailable. hearing had been held, and there Moreover, the record does suggest was no indication that the docu- that if both wills were to be disments in question have ever been approved, a possibility may exist presented to or considered by either that the estate will escheat to the of the interested parties or their tribe under 25 U.S.C. § 373a (1970).

$ counsel. No single one of these doc

It is conceivable that the tribe may uments was marked for identifica- be a party in interest entitled to tion at any hearing or admitted in notice of further proceedings. evidence. See Estate of Julius Ben- A rehearing should have been ter, 1 IBIA 59 (January 12, 1971) granted in any event to complete the and in Estate of Greybull, IA-D-2 record, and to examine in depth, far (September 7, 1966).

beyond the extent of the examinaThe will dated September 2, 1952,

tion conducted on September 3, was approved without supporting 1971, as to the actual circumstances testimony. Attached to the will are surrounding the execution of the three affidavits, one by the testator,

wills and the testamentary capacity a joint affidavit of the two will wit- etc. of the testator at the time each nesses and the affidavit of the will was executed. scrivener all dated the same day as The Judge made no findings of the will. The Judge makes no find- fact, as such. This proceeding is for ing of the adequacy of the affidavits the “determination of adjudicatory

July 30, 1973

facts" as they are defined and dis- made concerning the testator's poscussed in Wood County Bank v. sible ownership of inherited reCamp, 348 F. Supp. 1321 (D.C.D.C. stricted interests in Osage land in 1972). In that case the Comptroller Oklahoma, or of his possible inof Currency issued an order in herited interests in an Osage headwhich there were no findings of fact, right or a fractional part thereof. and the case was remanded to him If it is established that the testator by the court for further proceedings was of Osage blood, but unenrolled, including the issuance of an order then the interests which he owned on which would conform to the require the Coeur d'Alene Reservation and ment set forth by Mr. Justice Car- any head-right interest which he dozo in United States v. Chicago, might have shall be regarded as Milwaukee, St. Paul and Pacific R. trust property over which the Judge Co., 294 U.S. 499, 511 (1935). has probate jurisdiction in this • We must know what a decision

estate. means before the duty becomes ours to On the basis of the record before say whether it is right or wrong.

us the finding that Felix A. Aripa This Board took a like view in the and Lucy Sanchez are the deceEstate of Lucille Mathilda Callous dent's nephew and niece and the Leg Ireland, 78 I.D. 66 (1971), is- conclusion that they are heirs at law sued prior to Wood County Bank, are both patently in error. The supra, where we said:

Judge said in his decision, "DeceFindings of fact and conclusions of law

dent * * * died * * * on the 29th should be clearly and succinctly incor- day of August 1969 * * * leaving porated in every examiner's decision in surviving certain heirs at law * * * order to show the factual and legal sup

Felix Aripa, nephew, Lucy Sanchez, port for the result reached. Our regula

niece * * *" entitled to a one-half tion, 25 CFR 15.15, not only requires this,

of the estate each. However, the but it was held in Estate of Charles White, 70 I.D. 102, that Indian probate transcript refutes that relationship adjudications fall within the provisions attributed to the parties. of the Administrative Procedure Act.

Q. Mr. Aripa, you were, were you not, The pertinent part of that act, 5 U.S.C.A. sec. 557, provides :

the nephew of Joseph Red Eagle's wife (c) * * * All decisions, including

Magdoline Davenport Red Eagle?

A. Correct. initial, recommended, and tentative decisions, are a part of the record and shall

(Tr. 1) include a statement of (A) findings and conclusions, and the

Q. * * * What relationship did you reasons or basis therefore, on all material bear to Mrs. Red Eagle? issues of fact, law, or discretion presented

A. Well, she'd be my aunt, that is on the record; and

my father's youngest sister. (B) the appropriate rule, order, sanc

(Tr. 2) tion relief, or denial thereof. There is no indication in the rec

Q. Your father

the brother ord that any investigation had been

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