# Tooahnippah v. Hickel/Concurrence Harlan

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
United States Supreme Court
397 U.S. 598
Tooahnippah v. Hickel
Argued: Jan. 14, 1970. --- Decided: April 27, 1970
Mr. Justice HARLAN, concurring.
The Court's opinion has two aspects: First, that the Secretary of the Interior's approval or disapproval of a will disposing of restricted Indian property is subject to judicial review in a federal court. Second, that the Secretary's action disapproving the decedent's will in the circumstances of this case was not a valid exercise of the authority vested in him by the first proviso of 25 U.S.C. § 373. I join the Court's opinion in both respects; but I deem it appropriate to amplify the reasons given by the Court for its second conclusion.
From the facts stated in the Court's opinion, I think the issue presented by the merits of this case can fairly be characterized as follows: When there is no evidence of fraud, duress, or undue influence, when the decedent is of sound and disposing mind, when there is a rational basis for the decedent's disposition, and when the will meets all the technical requirements of the Secretary's regulations, does the proviso of 25 U.S.C. § 373 authorize the Secretary of the Interior or his delegate to withhold approval of an Indian will simply because he concludes, in the absence of any standards of general applicability, that the distribution pursuant to the will does not 'most nearly achieve just and equitable treatment of the beneficiaries thereunder and the decedent's heirs-at-law'?
As the Court's opinion suggests, the petitioners would have us decide this issue by holding that the Secretary can do no more under § 373 than see to it that the various technical requirements of a valid testamentary instrument have been met. Nothing in the language of the statute would prevent such a construction, and as a way of preventing any possibility of arbitrary bureaucratic action to be undertaken in the name of paternalism there is much to commend it. I think the petitioners' claim must be rejected, however, because both the statutory network relating to the restrictions on allotted lands (of which § 373 is only a part) and the legislative history of § 373 itself, suggest the Secretary's role was not to be that limited. Nevertheless, like the Court, I conclude that the Secretary is not empowered to disapprove a will simply on the basis of an ad hoc determination that it is unfair. In reaching this conclusion although the Court's reasoning and my own are parallel in significant respects, I think it helpful for purposes of analysis to elaborate in somewhat greater detail than the Court finds necessary the background of the allotment system, the legislative history of § 373, and the administrative practice of the Department of the Interior in administering Indian wills.
Section 373 relates to the testamentary disposition of what is known as restricted Indian property. This property consists primarily of beneficial interests in land allotments held in trust by the Government for individual Indians. Under the allotment system established by the Dawes Act in 1887, 24 Stat. 388, an eligible Indian was given a property interest in a specific tract of land. Although the allottee was ordinarily given possessory rights to the land, his interest was not a fee simple. Instead, the land is held in trust by the United States for the benefit of the particular Indian, 25 U.S.C. § 348. See 25 U.S.C. §§ 331-358.
As long as the legal title to the land is held in trust, there are drastic restrictions on the alienability of these allotment interests. In fact, 25 U.S.C. § 348 broadly states that any 'conveyance' of an allotment held in trust, or any 'contract' affecting that land, 'shall be absolutely null and avoid.' Moreover, it is a crime for 'any person to induce any Indian to execute any contract, deed, mortgage * * * purporting to convey any land * * * held by the United States in trust for such Indian,' 25 U.S.C. § 202. Under an elaborate regulatory scheme, it is only by securing the prior approval of the Secretary of the Interior that someone like George Chahsenah, the decedent here, could sell, mortgage, or give away his restricted allotments. These substantial restrictions on the free alienability of allotted lands suggest that, in making the Secretary's approval a condition for the validity of a will disposing of these lands, Congress did not mean to foreclose the possibility that the Secretary might do more than simply see that the will had the requisite number of witnesses, and that the testator had the capacity to make a will.
What little legislative history there is for § 373-and there is very little-also suggests that the Secretary was given broader powers than a state probate judge. Section 373 has its origins in a 1910 'omnibus' Indian bill, 36 Stat. 855-863. This bill was a potpourri or provisions, for the most part unrelated to the devolution of allotted lands. However, § 2 of the bill, 36 Stat. 856, gave to the Indian, for the first time, the power to dispose of his restricted allotments by will, rather than simply having the allotments descend to his heirs by the operations of law. The origins of § 2 are rather obscure, and only the House Committee Report on omnibus bill even refers to § 2 and then only in descriptive terms.
Even though the Committee Reports provide no indication of the Secretary's powers under the proviso of § 373, there was one exchange on the floor of the House in which Congressman Burke, the sponsor of the omnibus bill, does strongly suggest that he at least envisioned the role of the Secretary under § 373 to extend beyond simply seeing that the will met all the formal requirements of a valid testamentary instrument. This exchange between Congressman Burke and Congressman Cox of Indiana went as follows:
'MR. COX of Indiana. Mr. Chairman, what is the gentleman's opinion as to whether or not the proviso contained in section 2 (now 25 U.S.C. § 373) does not place the complete power of the will in the hands of the Commissioner of Indian Affairs?
'MR. BURKE of South Dakota. The Commissioner of Indian Affairs and the Secretary of the Interior, of course, would not favor the provision permitting Indians to make wills unless the making of them were subject to the approval of the department.
'MR. COX of Indiana. Under the proviso as it now exists in section 2, does it not place complete power in the hands of the Secretary of the Interior and the Commissioner of Indian Affairs over the will of an Indian with absolute power to revoke the Indian's will?
'MR. BURKE of South Dakota. I think so.
'MR. COX of Indiana. Then after all it simply imposes the entire power of making the will in the hands of the Commissioner of Indian Affairs.
'MR. BURKE of South Dakota. I will say the purpose was this: It frequently happened-and I will speak of that in connection with sections 3 and 7 at the same time-it frequently happened an Indian has three or four children. He was allotted land at the time he had only two children, and the father and the mother have allotments and the two children who were living at the time allotments were made have allotments, but the other children have no land at all.
'Now, the Indian is just as human as a white man, and it frequently happens that he desires to have permission to give his allotment to the children who have no land, and in a case of that kind undoubtedly the Interior Department would O.K. it, whereas if it was a will giving his estate to some person who ought not to have it, then they would disapprove it.
'MR. COX of Indiana. I suppose the purpose of this proviso is an equitable purpose, reserving in the Department of the Interior the power to compel the Indian to make a proper will
'MR. BURKE of South Dakota. Not compel him at all.
MR. COX of Indiana. Or else revoke the will if he did not make a proper will.
'MR. BURKE of South Dakota. If the Indian makes a will, and it is not satisfactory to the commissioner and the Secretary, and I put both in to safeguard it, it will be disapproved of, and of course will be of no effect.' 45 Cong.Rec. 5812.
It is primarily on the basis of the colloquy on the floor that the United States argues that we should uphold the Secretary's action in this case. According to the Government, this exchange shows that the Secretary was empowered to take 'equitable considerations' into account in approving or disapproving a will. However, to affirm the administrative action in this instance, it would be necessary to hold that an otherwise valid will reflecting a rational testamentary disposition of the decedent's property can be disapproved simply because a government official decides that had he been the testator he would have written a different, and, to his way of thinking, a 'fairer' will.
Without attempting to define with precision the outer limits of the Secretary's authority under the proviso of § 373, I think it clear that it cannot be construed this broadly. First, it must be remembered that the primary purpose of § 373 is to give to the testator, not to the Secretary, the power to dispose of restricted property by a will. In accordance to the Indian testamentary capacity over restricted property Congress could have only intended to give him the power to dispose of restricted property according to personal preference rather than the predetermined dictates of intestate succession. Such is the essence of the power to make a will. The notion that the Secretary can disapprove a will on the basis of a subjective appraisal-governed by no standards of general applicability-that the disposition is unfair to a person who would otherwise inherit as a legal heir simply cuts too deeply into the primary objective of the statutory grant.
This conclusion that there must be limits to the Secretary's power under the proviso of § 373 if the primary purpose of the statute is to be accomplished, finds explicit support in the Department of the Interior's own earlier construction of § 373. In response to a letter suggesting that the Secretary disapprove a will that both disinherited certain legal heirs and left part of the estate to a white person not related to the Indian decedent, the Office of the Solicitor stated in a written memorandum, after quoting the statute:
'The right to make a will is thus conferred on the Indian not on the Secretary. Whatever discretion the Secretary may have in the matter of approving or disapproving the will, it is clear that this discretion should not be exercised to the extent of substituting his will for that of the testator. Such would clearly be the effect of disapproval in the present case. The naming of a non-Indian as one of the beneficiaries obviously is not a valid objection to approval of the will in the absence of fraud or other imposition, which is clearly not present.'
This statement reflects what appears to have been the consistent practice of the Secretary from 1910 up to the time of the administrative action taken in this case. For, apart from the case now before us, no other instance has been called to our attention in which an Indian's will was disapproved under circumstances requiring the broad discretionary authority claimed here.
In summary, I think the statutory framework and legislative history of § 373 do indicate that the Secretary of the Interior is not foreclosed from going beyond the technical requirements in deciding whether to approve a will. A will that disinherits the natural object of the testator's bounty should be scrutinized closely. If such a will was the result of overreaching by a beneficiary, or fraud; if the will is inconsistent with the decedent's existing legal obligation of support, or in some other way clearly offends a similar public policy; on if the disinheritance can be fairly said to be the product of inadvertence-as might be the case if the testator married or became a parent after the will was executed-the Secretary might properly disapprove it. However, I do not think the Secretary can withhold approval simply because he concludes it was unfair of the testator to disinherit a legal heir in circumstances where as here there is a perfectly understandable and rational basis for the testator's decision.

## Notes

* ↑ The text of 25 U.S.C. § 373 is quoted in relevant part in n. 3, at 600, of the Court's opinion.
* ↑ At the end of the trust period-not yet expired because the initial 25-year period has been extended-the allottee was to receive a fee simple interest in the land. See 25 U.S.C. § 391. Before the termination of the trust period, the Secretary is now authorized, for a particular Indian, to remove the restrictions on alienation, see 25 U.S.C. § 372; 25 CFR § 121.49.
* ↑ See 25 CFR §§ 121.9-121.20, 121.61, 121.18(b), promulgated under the authority of 25 U.S.C. § 379. There are also restrictions on the allottee's ability to lease the land, see 25 U.S.C. §§ 393, 403, 415a; 25 CFR subchs. P and Q.
* ↑ Section 2, 36 Stat. 856 provided:
* ↑ See 25 U.S.C. § 348.
* ↑ See H.R.Rep. No. 1135, 61st Cong., 2d Sess., 2 (April 26, 1910); S.Rep.No.868, 61st Cong., 2d Sess. (June 17, 1910); H.R.Conf.Rep. No. 1727, 61st Cong., 2d Sess. (June 23, 1910).
* ↑ See n. 10, infra.
* ↑ Memorandum dated May 10, 1941, from the Solicitor's Office to the Assistant Secretary of the Interior.
* ↑ At oral argument, the government attorney was asked whether there were any other instances where the Secretary had disapproved a will in circumstances such as those here. He replied, 'No; I have only been able to find cases in which the wills have been approved, though it is clear that equitable considerations were taken into account.' Transcript of Oral Argument 30. The opinion of the Regional Solicitor in the present case cites three unreported decisions to support his broad claim of the right to determine whether the 'will most nearly achieve(s) just and equitable treatment.' Although there is language in these opinions claiming for the Secretary 'discretionary' authority to disapprove wills, all three involved wills that disinherited minor children for whom the decedent had an obligation of support at the time of his death. Moreover, in two of the three cases the disinherited child was born after the execution of the will, thus creating the possibility that the disinheritance was inadvertent. See Estate of Oliver Maynahonah, IA-T-1 (June 30, 1966); Estate of Kosope (Richard Maynahonah, IA-141 141 (Oct. 28, 1954); Estate of Frank (Oren F.) Simpkins (will disapproved Dec. 1, 1943). In this case, on the other hand, the decedent's daughter was an adult, who was married, and who was completely estranged from her father both when his will was executed and at the time of his death. On the facts shown here there is no basis for concluding that the decedent's will reflects an uninformed or irrational disposition, or one that is contrary to public policy. Any notion that the Secretary has a regular policy of disapproving wills that disinherit illegitimate offspring is belief by Attocknie v. Udall, 261 F.Supp. 876 (D.C.W.D.Okl.1966), where the Secretary approved a will that disinherited a son born out of wedlock.
* ↑ I do not mean to suggest that the Secretary might not promulgate a regulation that, like certain state statutes, provides that a testator cannot completely disinherit any of his offspring. A general standard like this would, of course, eliminate the dangers inherent in ad hoc determinations of whether the will is in some vague sense fair to an heir.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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