DECISIONS OF THE ESTATE OF GLADYS MARIE BELL- 7 IBIA 111 Decided December 29, 1978 Appeal from an administrative law judge's order dismissing probate. Affirmed and dismissed. missing probate proceedings involving the above-captioned estate. Gladys Marie Bellmard (Randall, Preston, Harris) Wilson, hereinafter referred to as the decedent, died Sept. 22, 1976, at the age of 73. A hearing was duly held and concluded at Pawnee, Okla., on May 19, 1977. Thereafter, on Jan. 27, 1978, Judge Taylor issued an order disapproving will, determining heirs and 1. Indian Probate: Secretary's Author- decreeing distribution. ity: Generally Proceedings for the determination of a deceased Indian's heirs in a case over which the Department had no jurisdiction must be dismissed. Thereafter, by letter dated Mar. 6, 1978, the Acting Superintendent, Pawnee Agency, Okla., submitted the original last will and testament of the decedent dated May 1, 1972, which the agency had overlooked in APPEARANCES: Evelyn Allen, the preparation of the probate file appellant, pro se. OPINION BY CHIEF ADMIN- INTERIOR BOARD OF IN DIAN APPEALS Evelyn Allen, hereinafter referred to as appellant, has appealed Administrative Law Judge Sam E. Taylor's order of Oct. 6, 1978, dis *Not in Chronological Order. This is a 1978 decision. used in the hearing of May 19, 1977. The letter was accepted as a petition for a rehearing by Judge Taylor. Thereafter, the matter was scheduled for rehearing at the Pawnee Agency on May 15, 1978, with all interested parties, including appellant, being advised thereof. At the rehearing, with appellant and Theodore Roosevelt Bellmard present, the judge advised them that on May 1, 1978, he had received a 1 86 I.D. No. 1 memorandum from Acting Rights Protection Officer David E. Harrison, Bureau of Indian Affairs, Washington, D.C., indicating that all of the decedent's property was unrestricted, the restrictions having been removed on Apr. 7, 1950, by the Department at decedent's request. The judge further advised the parties that he would subsequently issue a dismissal order regarding the proceedings. From the evidence adduced at the rehearing the judge on Oct. 6, 1978, among other things, revoked and canceled the order disapproving will, determining heirs and decreeing distribution dated Jan. 27, 1978, and dismissed the proceedings for lack of jurisdiction. It is from the foregoing order that the appellant has appealed. In support of her appeal the appellant alleges that decedent was never notified of the removal of restrictions on the property in question; that the Bureau of Indian Affairs failed to carry out the Indian-United States Government Trust Responsibility and that the decedent had always considered the property as restricted and tax exempt. Moreover, the appellant, because of the BIA's alleged negligence in failing to advise the decedent of the removal of restrictions, urges the Office of Hearings and Appeals to handle the probate of the decedent's estate. including certified Bureau of In An examination of the record, dian Affairs' documents regarding the removal of restrictions on the decedent's property, clearly supports the judge's order dismissing probate. In view of the actual removal of restrictions by the Department at the decedent's request or application, the allegations given in support of appellant's appeal are to no avail. [1] Proceedings for the determination of a deceased Indian's heirs in a case over which the Department had no jurisdiction must be dismissed. Estate of Oh-ste-wattah, IA-34 (Nov. 7, 1950). Clearly, the decedent's unrestricted estate falls within the probate jurisdiction of the proper State or Tribal court and not with the Department. Accordingly, the administrative law judge's order of Oct. 6, 1978, should be affirmed and the appeal herein dismissed. NOW, THEREFORE, by virture of the authority delegated to the Board of Indian Appeals by the Secretary of the Interior, 43 CFR 4.1, the order dismissing probate dated Oct. 6, 1978, issued by Administrative Law Judge Sam E. Taylor is hereby affirmed and the appeal herein is dismissed. This decision is final for the Department. ALEXANDER H. WILSON, I CONCUR: WM. PHILIP HORTON, Administrative Judge. FORT YUMA (NOW CALLED QUECHAN) INDIAN RESERVATION January 2, 1979 TITLE TO CERTAIN LANDS WITHIN THE BOUNDARIES OF THE FORT YUMA (NOW CALLED QUECHAN) INDIAN RESERVATION M-36908 January 2, 1979 Lands 1. Indian Lands: Ceded Statutory Construction: Generally When interpreting Federal agreements and statutes pertaining to Indian Affairs, one must consider the legislative history, as well as surrounding circumstances and subsequent administrative practices to determine what the parties intended, and in particular, what the Indians understood the agreement to mean. Doubtful expressions are to be resolved in the Indians' favor. 2. Indian Lands: Ceded LandsStatutory Construction: Generally Congressional intent to modify or abrogate Indian property rights must be clear and cannot be lightly inferred. 3. Act of Aug. 15, 1894 Indian Lands: Ceded Lands The Agreement of Dec. 4, 1893, between the Yuma (now Quechan) Indians and the United States, ratified in the Act of Aug. 15, 1894 (28 Stat. 286, 332) provided for a conditional cession of the nonirrigable land of the Fort Yuma Reservation. The conditions which included allotment and sale of surplus irrigable land and the opening of nonirrigable lands to settlement and entry, did not occur during the decade following the agreement and ratifying statute. 4. Act of Apr. 21, 1904 Indian Lands: Irrigation Statutory Construction: Generally Sec. 25 of the Act of April 21, 1904 (33 Stat. 189, 244), which authorized the application of the 1902 Reclamation Act to the Fort Yuma and Colorado River Reservations, and which provided for the allotment and sale of surplus irrigable lands on those reservations, was unrelated to and was not intended to effect the conditional cession provided for in the 1893 agreement and the 1894 ratifying statute. This opinion overrules two previous Solicitor's Opinions on the same subject: M-28198 (Jan. 8, 1936), finding, inter alia, that the Indian title to certain lands within the Fort Yuma Indian Reservation has been extinguished; and M-36886, 84 I.D. 1 (1977), Title to Certain Land Within the Boundaries of the Fort Yuma Indian Reservation as Established by the Executive Order of Jan. 9, 1884. OPINION BY OFFICE OF THE SOLICITOR December 20, 1978 To: SECRETARY FROM: SOLICITOR SUBJECT: TITLE TO CERTAIN LANDS WITHIN THE BOUNDARIES OF THE FORT YUMA (NOW CALLED QUECHAN) INDIAN RESERVA TION The Quechan Indian Tribe, the Bureau of Indian Affairs,1 and the 1 Memo of Nov. 15, 1977, from Acting Assistant Secretary for Indian Affairs to Associate Solicitor for Indian Affairs. Chairman of the Senate Committee on Interior and Insular Affairs,2 have requested this Department to reconsider the legal question of whether the Quechan Tribe retains ownership of approximately 25,000 acres of nonirrigable land within the boundaries of their 1884 Executive Order Reservation. This question has been considered on two previous occasions by the Solicitor, resulting in the issuance of opinions in 1936 (M-28198), and 1977 (M36886, 84 I.D. 1), which have conIcluded that title to this land was unconditionally ceded to the United States by virtue of a negotiated 1893 cession agreement and an 1894 statute, ratifying such agreement. (28 Stat. 286, 332). Prior to the issuance of the 1977 Solicitor's Opinion, a draft Solicitor's Opinion to the opposite effect was widely circulated. That Opinion concluded that the 1893 agreement and 1894 ratifying statute provided for a conditional cession of the nonirrigable lands, that the conditions were not fulfilled, and that the cession of the nonirrigable lands had therefore not been effected. Department files on this subject reveal that the draft opinion was seriously considered, and that extensive preparations were made for the issuance of a decision in favor of the tribe. The February 1976 decision by the Solicitor upholding the 1936 opinion was an unexpected event. The Senate Subcommittee on Indian Affairs held Letter of Feb. 8, 1977, from Senator Henry Jackson to Honorable Cecil Andrus, Secretary of the Dept. of the Interior. hearings in May and June of 1976, to air the controversy and learn the legal basis of the 1976 decision by the Solicitor. In those hearings, the Secretary agreed to direct the Solicitor to prepare a written legal opinion supporting the 1976 decision. A written opinion, M-36886, was published on Jan. 17, 1977. The sharp and continuing divergence in legal views with respect to this issue have persuaded me that the matter merits reconsideration. Accordingly, I directed review of the Department's files and all previously prepared legal opinions to provide an independent evaluation of the Quechan claim to the 25,000 nonirrigable acres. Having reviewed that evaluation, I conclude that the 1893 agreement and 1894 ratifying statute provided for a conditional cession of the nonirrigable acreage. The conditions articulated in the agreement, which included the allotment and irrigation of irrigable land to the Indians, the sale of surplus to settlers under strictly prescribed conditions, the construction of an irrigation canal, and the opening of nonirrigable lands to settlement, were not met by the United States. No lump sum, or other form of compensation, was provided for the land cession. Allotment and irrigation did not occur on the reservation until Congress passed a 1904 statute (33 Stat. 189) which applied the Reclamation Act to the Ft. Yuma and Colorado River Reservation. The 1904 Act appears to be totally unrelated to the 1893 cession agreement, ex |