Presumed Dead: Laying to Rest the Whereabouts Unknown

Article excerpt

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.

1. INTRODUCTION

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. …