ROBERT W. SCHULTZ, APPELLEE could be consolidated to create an We regard the acquisition and extent of grazing privileges by the Grabberts on Schultz's base land as immaterial, except to demonstrate that one who does not have an undivided interest in excess of 50 percent of the alleged preference land may not be said to "control" that land within the meaning and intent of the statute. Moreover, where the grazier whose grazing privileges on a given tract are merely permissive, so that he is a tenant at will, he may not be said to control the land, because “he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him." Black's Law Dictionary 1635 (4th ed. 1951). This apparently was the relationship of Schultz with respect to the interest owned by Marathon Oil Company. It is therefore our opinion that Schultz never had sufficient interest and tenure in the land to control it, and certainly not since he lost the 29+% interest withdrawn by Marathon. With reference to land, the courts have held that, in general, to have "control" of a place is to have the authority to manage, direct, superintend, restrict, or regulate. "Control" does not import absolute or even qualified ownership, but means the power or authority to direct, govern, administer, or oversee. The word applied to real property implies possession. See cases collected in 9A Words and Phrases (1960). The word "control" has no legal or technical meaning, and, where used in a statute, must be given such an interpretation as the legislature intended it to have, to be ascertained from the connection in which it is used, the Act in which it is found, and the legislation of which it forms a part. Gulf Refining Co. v. Fox, 11 F. Supp. 425, 430 (D. W. Va. 1935). Although the word is not used in the statute, it is used in the implementing regulation, infra. The Taylor Grazing Act, supra, provides in its preamble that among its purposes are to provide for the orderly use of public grazing land and to stabilize the livestock indus try. In pursuit of these objectives the Act provides mandatory preference for these applicants who are owners, homesteaders, lessees, or other lawful occupants of contiguous or cornering lands. To hold that this preference extends to occupants who are without tenure or hold only minor fractional interests, whose privileges can be terminated at any time without notice, would be to frustrate the intent of the law to achieve order and stability. Schultz does not control the land on which he bases his claim of preference, and one who does not control his preference land can not be considered "a lawful occupant of contiguous land," as that term is used in 43 U.S.C. § 315m (1970). Laurence A. Andren, 7 IBLA 14 (1972), and cases cited therein. 43 CFR 4125.1–1(i) (4) requires: The grazing lease will be terminated in whole or in part because of loss of control by the lessee of non-Federal lands that have been recognized as the basis for a grazing lease. As between conflicting applicants for a section 15 lease, if only one of the applicants owns adjoining land, an award must be made to him if he needs the public land for proper use of his contiguous land, even though the applicant who does not own contiguous land may have a greater need for the public land. E. W. Davis, A-29889 (March 25, 1964). Because Schultz does not control his preference land and in light of the requirements of the regulation set out above, we hold that the lease must be awarded to the Grabberts, who are the only remaining preference applicants for the disputed area. Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decision is reversed. EDWARD W. STUEBING, Member. WE CONCUR: DOUGLAS E. HENRIQUES, Member. FREDERICK FISHMAN, Member. ESTATE OF JOSEPH RED EAGLE 2 IBIA 43 Decided July 30, 1973 Appeal from the Judge's decision denying the validity of Last Will and Testament leaving decedent's entire estate to the appellant. Reversed and remanded. 105.1 Indian Probate: Administrative Procedure: Applicability to Indian Probate The requirement of the Administrative Procedure Act, that all decisions of a Judge shall include a statement of findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record, is mandatory and applicable to all decisions of Judges in Indian probate proceedings. 105.2 Indian Probate: Administrative Procedure: Official Notice, Record Official notice of documents and records will not be taken unless they are introduced in evidence or unless an order or stipulation provides to the contrary. July 30, 1973 370.0 Indian Probate: Rehearing: Generally A rehearing will be granted where the original hearing did not conform with the standards of a full opportunity to be heard embodied in the Administrative Procedure Act (5 U.S.C. §§ 554 and 556 (1970)). APPEARANCES: Walter B. Dauber, Esq., of Tonkoff, Dauber & Shaw, for appellant; Joseph A. Esposito, Esq., of Dellwo, Rudolf & Grant, for appellee. OPINION BY MESSRS. MCKEE AND SABAGH INDIAN APPEALS The probate of the estate of Joseph Red Eagle, an unenrolled and unallotted Osage Indian of the State of Oklahoma, was the subject of a hearing, held on September 3, 1971. The Administrative Law Judge, Indian Probate, denied the validity of a purported last will and testament dated August 21, 1957, leaving decedent's entire estate to Hobart B. Bowlby, a non-Indian, because of the legal incompetency of the decedent and because the relationship of the devisee to the decedent was of such a confidential and fiduciary nature as to raise a presumption of undue influence, which was not sufficiently rebutted. Consequently, the Judge ordered that a previous will dated September 2, 1952, be approved as a "self-proved" will leaving the entire trust estate to Felix A. Aripa, "nephew" of the decedent. A petition for rehearing was denied on June 1, 1972, and Hobart Bowlby appealed on July 11, 1972, for the following reasons: 1) Erroneous findings that Joseph Red Eagle was incompetent prior to and at the date of the Last Will and Testament dated August 21, 1957; 2) The finding that the relationship of Hobart Bowlby to Joseph Red Eagle was of a confidential and fiduciary nature so as to raise a presumption of undue influence; 3) Placing the burden upon Hobart Bowlby to produce evidence that the will represented the uncontrolled acts of the testator; On the basis of the record we are unable to determine if appellant's contentions are correct. In this case there appears to have been a complete breakdown in administrative due process. A hearing was held on September 3, 1971. The appellant, Hobart B. Bowlby, appeared in person and by counsel being fully aware of the existence of the will dated August 21, 1957, wherein he was named as sole devisee. Felix Aripa appeared without counsel, and apparently both parties were completely unaware of the existence of the will dated September 2, 1952, wherein Felix Aripa was named as sole devisee. The only two witnesses who appeared and were examined were the will devisees. The examination was conducted solely by the Judge who concluded the hearing with: This matter will be continued to Portland without renotice for further information and hearing. (Tr. 32.) During the hearing the examination of Mr. Bowlby touched briefly upon his appointment as guardian of the testator, but there was no mention made of a pre-existing indebtedness to Mr. Bowlby or a number of other matters which are enumerated by the Judge in his Memorandum Opinion and his Order On Wills issued March 10, 1972. In addition to the transcript of the September 3, 1971 hearing, the record now includes: copies of certain testimony received in the probate of the Estate of Mary Magdeline Davenport Red Eagle; a great number of documents purportedly pertaining to the guardianship proceedings conducted over the years by Mr. Bowlby as guardian for the testator; and certain documents from the Bureau of Indian Affairs pertaining to the testator's income and management of his trust funds during the guardianship. No further hearing had been held, and there was no indication that the documents in question have ever been presented to or considered by either of the interested parties or their counsel. No single one of these documents was marked for identification at any hearing or admitted in evidence. See Estate of Julius Benter, 1 IBIA 59 (January 12, 1971) and in Estate of Greybull, IA-D-2 (September 7, 1966). The will dated September 2, 1952, was approved without supporting testimony. Attached to the will are three affidavits, one by the testator, a joint affidavit of the two will witnesses and the affidavit of the scrivener all dated the same day as the will. The Judge makes no finding of the adequacy of the affidavits or other facts which would bring the will within the provisions of 43 CFR 4.233 (a). This section contains the following provision: If uncontested, a self-proved will may be approved and distribution ordered thereunder with or without the testimony of any attesting witnesses. (Italics supplied.) The Judge ruled by inference that the existence of a later will, i.e., the will dated August 21, 1957, does not constitute a contest against the earlier 1952 will. We cannot ignore the fact that there are two contending proponents of separate wills which is an inappropriate situation for the application of the permissive portion of the regulation. Nothing in the record suggests that the will witnesses or others are unavailable. Moreover, the record does suggest that if both wills were to be disapproved, a possibility may exist that the estate will escheat to the tribe under 25 U.S.C. § 373a (1970). It is conceivable that the tribe may be a party in interest entitled to notice of further proceedings. A rehearing should have been granted in any event to complete the record, and to examine in depth, far beyond the extent of the examination conducted on September 3, 1971, as to the actual circumstances surrounding the execution of the wills and the testamentary capacity etc. of the testator at the time each will was executed. The Judge made no findings of fact, as such. This proceeding is for the "determination of adjudicatory July 30, 1973 facts" as they are defined and discussed in Wood County Bank v. Camp, 348 F. Supp. 1321 (D.C. D.C. 1972). In that case the Comptroller of Currency issued an order in which there were no findings of fact, and the case was remanded to him by the court for further proceedings including the issuance of an order which would conform to the requirement set forth by Mr. Justice Cardozo in United States v. Chicago, Milwaukee, St. Paul and Pacific R. Co., 294 U.S. 499, 511 (1935). * We must know what a decision means before the duty becomes ours to say whether it is right or wrong. This Board took a like view in the Estate of Lucille Mathilda Callous Leg Ireland, 78 I.D. 66 (1971), issued prior to Wood County Bank, supra, where we said: Findings of fact and conclusions of law should be clearly and succinctly incorporated in every examiner's decision in order to show the factual and legal support for the result reached. Our regulation, 25 CFR 15.15, not only requires this, but it was held in Estate of Charles White, 70 I.D. 102, that Indian probate adjudications fall within the provisions of the Administrative Procedure Act. The pertinent part of that act, 5 U.S.C.A. sec. 557, provides : (c) *** All decisions, including initial, recommended, and tentative decisions, are a part of the record and shall include a statement of (A) findings and conclusions, and the reasons or basis therefore, on all material issues of fact, law, or discretion presented on the record; and (B) the appropriate rule, order, sanction relief, or denial thereof. There is no indication in the record that any investigation had been made concerning the testator's possible ownership of inherited restricted interests in Osage land in Oklahoma, or of his possible inherited interests in an Osage headright or a fractional part thereof. If it is established that the testator was of Osage blood, but unenrolled, then the interests which he owned on the Coeur d'Alene Reservation and any head-right interest which he might have shall be regarded as trust property over which the Judge has probate jurisdiction in this estate. On the basis of the record before us the finding that Felix A. Aripa and Lucy Sanchez are the decedent's nephew and niece and the conclusion that they are heirs at law are both patently in error. The Judge said in his decision, "Decedent *** died *** on the 29th day of August 1969 *** leaving surviving certain heirs at law *** Felix Aripa, nephew, Lucy Sanchez, niece ***" entitled to a one-half of the estate each. However, the transcript refutes that relationship attributed to the parties. Q. Mr. Aripa, you were, were you not, the nephew of Joseph Red Eagle's wife Magdoline Davenport Red Eagle? A. Correct. |