The Office of the Special Trustee for American Indians maintains a list of tribal members whose whereabouts are unknown, known as the Whereabouts Unknown list. These missing tribal members have Individual Indian Money ("IIM") accounts accruing value and interest gained from land held in trust by the United States Government. The "top 100" individuals on the Whereabouts Unknown list have IIM accounts valued at more than $100,000. Several of the individuals on the Whereabouts Unknown list, especially those in the "top 100, " are more than likely dead. For these missing tribal members, a presumption of death hearing in either state or tribal court is required before the Bureau of Indian Affairs will open a probate file. A probate file is required in order to distribute the missing tribal member's trust estate, which includes the IIM account, to their heirs. Legal practitioners must consider several factors prior to petitioning a court to declare a tribal member dead, including applicable standards of due diligence in investigating the disappearance, forum selection, burden of proof and the Office of the Special Trustee's role as trustee during the process. Failure to consider all factors can sharply reduce the value of an IIM account and delay the distribution of the trust assets to the heirs of the missing tribal members.
On the day that Ida Blacksmith was declared dead, she was not visited by a doctor, nurse, paramedic, or anyone from the medical profession. (1) Her body was not examined by a pathologist or prepared by a mortician. (2) In fact, her body was not even physically present. (3) Ida Blacksmith officially died in a courtroom before a judge, lawyers, court staff, two legal interns, a bailiff, and Howard D. Valandra, a Fiduciary Trust Officer ("FTO") from the Office of the Special Trustee for American Indians ("OST"). (4) Her children also appeared via conference call along with a South Dakota State's Attorney. (5) On July 20, 2011, all of these people joined together, in one form or another, in the Charles Mix County Court House, located in Lake Andes, South Dakota. (6) The hearing before Judge Bruce Anderson lasted about forty minutes. (7) Once Judge Anderson issued the order presuming Ida Blacksmith dead, the attorneys for Ida's children walked to the Clerk of Courts, who stamped an order, thus ending a three year long process for Valandra. (8) Valandra had been searching for Ida Blacksmith because she was on the Whereabouts Unknown ("WAU") list's "top 100." (9) Ida had been on the list for an extended period of time, and she had an Individual Indian Money ("IIM") account that was accumulating income and interest. (10) Valandra found Ida's family, introduced them to each other, and convinced them to begin the process to presume her death. (11) At the conclusion, Ida's IIM account and trust estate could be distributed to her heirs through probate. (12)
One month later and less than an hour drive away, a similar proceeding took place in the Santee Tribal Courthouse, located in Santee, Nebraska, on the Santee Sioux Reservation. (13) Dorothy Whipple, as power of attorney for her mother Virginia Whipple, petitioned for the presumption of death of her uncle, David Goodteacher. (14) David Goodteacher disappeared from the Santee Sioux Reservation in (1930). (15) He would have been six years old. (16) Virginia had no recollection of her brother, but he was on the WAU list and had an IIM account receiving income. (17)
This comment is a guide for practitioners representing heirs of tribal members on the WAU list. (18) It will review the OST's efforts in locating people on the WAU list, specifically focusing on the cases of Ida Blacksmith and David Goodteaeher, as well as the procedure for presumption of death hearings. (19) When the OST exhausts all of its leads, a presumption of death arises, requiring a hearing in a "court of competent jurisdiction." (20) After this hearing, the trust estate of a person on the WAU list can be distributed to the heirs through probate. (21)
To clarify this process, this comment will provide an overview of the legislation establishing the OST, the development of the WAU list, and the federal government's trust responsibility. (22) This comment will also discuss the basic framework for presumption of death hearings as a method for removing individuals from the WAU list. (23) The case illustrations of Ida Blacksmith and David Goodteacher will illuminate issues that commonly arise in the process, such as due diligence in investigating the disappearance, forum selection, burden of proof, and the OST's role as trustee during the process. (24) Finally, the role of the OST in the broader scheme of trust reform will be discussed, highlighting the existing problems and current solutions for resolving cases on the WAU list. (25)
THE OFFICE OF THE SPECIAL TRUSTEE FOR AMERICAN INDIANS
The Office of the Special Trustee for American Indians ("OST") was established by the American Indian Trust Fund Management Reform Act of 1994. (26) The OST's purpose is to:
(1) to provide for more effective management of, and accountability for the proper discharge of, the Secretary's trust responsibilities to Indian tribes and individual Indians ... to oversee and coordinate reforms within the Department [of the Interior] practices relating to the management and discharge of such responsibilities;
(2) to ensure that reform of such practices in the Department is carried out in a unified manner and that reforms of the policies, practices, procedures and systems of the Bureau [of Indian Affairs], Minerals Management Service, and the Bureau of Land Management, which carry out such trust responsibilities, are effective, consistent, and integrated; and
(3) to ensure the implementation of all reforms necessary for the proper discharge of the Secretary's trust responsibilities to Indian tribes and individual Indians. (27)
The OST is headed by the Special Trustee, who is appointed by the President of the United States, subject to Senate confirmation, and reports directly to the Secretary of the Interior ("the Secretary"). (28) The Act requires the development and implementation of a "comprehensive strategic plan." (29) This plan is to include:
(A) Identification of all reforms to the policies, procedures, practices and systems of the Department [of the Interior] ... necessary to ensure the proper and efficient discharge of the Secretary's trust responsibilities....
(B) Provisions for opportunities for Indian tribes to assist in the management of their trust accounts and to identify for the Secretary options for the investment of their trust account... in ways that will help promote economic development in their communities.
(C) A timetable for implementing the reforms identified in the plan, including a date for the proposed termination of the Office. (30)
The OST is not intended to be a permanent office within the Department of the Interior ("DOI") and will terminate upon the implementation of "all reforms identified in the strategic plan ... to the satisfaction of the Special Trustee." (31)
The OST has a visible presence on reservations through its Fiduciary Trust Officers ("FTO"). (32) These FTO's regularly engage with tribal members through the more than fifty OST field offices located on reservations throughout the country. (33) The general responsibility of an FTO is:
to properly collect, account for, and disburse to the [BIA] all royalties and other revenues generated by the production from leases on Indian lands; and ... provide Indian landholders with accurate and timely reports on a periodic basis that cover all transactions related to leases of Indian resources. (34) The OST's function has been implemented through Chapter 11 of the DOI's Departmental Manual, which explains the OST's daily trust operations. (35) The daily operations of the OST include "providing fiduciary guidance and beneficiary services, performing financial trust fund management (investment, receipt and disbursement), performing real estate appraisals on Indian trust lands and planning, organizing, directing and executing the historical accounting of tribal trust accounts and Individual Indian Money accounts." (36) The Department Manual also reaffirms the DOI's trust responsibility. (37) B. INDIAN TRUST FUND MANAGEMENT PROGRAM
The federal trust responsibility is largely focused on trust land, which is defined as "lands, title to which is held by the United States in trust for an Indian tribe or individual, or which is held by an Indian tribe or individual subject to a restriction by the United States against alienation...." (38) These trust lands were created primarily through the General Allotment Act of 1877, commonly referred to as the Dawes Act. (39) The intent behind the Dawes Act was to assimilate Indians into Euro-American culture and to open Indian lands to private ownership. (40) The Dawes Act divided tribal lands into 80 and 160 acre allotments, which were then given to an individual tribal member and temporarily held in trust by the government. (41) After a period of twenty-five years, the United States would issue a fee patent. (42) This policy ultimately failed, resulting in the extension of the federal trust land program to the present day. (43)
Another unforeseen circumstance of the Dawes Act was "fractionation," caused by the intestate distribution of original allotment through state intestacy laws, typically as tenancies in common. (44) Fractionated land is created when there are:
50 or more but less than 100 co-owners of undivided trust or restricted interests, and no 1 of such co-owners holds a total undivided trust or restricted interest in the parcel that is greater than 10 percent of the entire undivided ownership of the parcel; or 100 or more co-owners of the undivided trust or restricted interests. (45) The process of probating Indian trust estates has undergone many...