Addressing the probate backlog in Bemidji

by Clara NiiSka

The eleventh “Status Report to the Court,” reporting on the DOI’s efforts to comply with court orders to reform its administration of Indian trust property, was released earlier this month.  “A problem a century in the making will not be solved quickly,” the DOI explained, “serious challenges remain.  For example, the unfortunate division of land ownership into tiny fractions continues at an exponential pace. … Also in this report are instances of additional challenges such as inadequate resources, inadequate training, insufficient policy guidance and inaccessibility to the Internet.” 

The BIA has a significant backlog of unprobated Indian trust “estate accounts.”  According to Trust Reform Specialist Marinus Heymering, Jr. in his agency’s report to the Court, “The Trust Funds Accounting System (TFAS), as of the end of September 2002, contains 25,404 open estate accounts.  Of these, 13,481 are classified as official deaths, where OTFM has confirmed the death but the case has not been recorded as sent to probate.  Another 7,617 of these accounts are classified as unofficial deaths, where OTFM has received some indication of death which has not yet been confirmed.”  Heymering notes that there may be “additional” unprobated estates, since there are “at least 10 known major defects” in the Case Location and Status (CLS) database system the DOI presently uses for locating and tracking probate cases, and further, the TFAS systems used for trust fund accounts not been “reconciled” with the incompletely compatible CLS computer systems.

DataCom, a privately owned company based in Albuquerque and Oklahoma City, is contracting with the BIA to help straighten out the government’s Indian trust administration systems.  DataCom did an “initial site assessment” in September and October of 2001 for the Bemidji Area Office of the BIA, according to an informed source.  “At this time, the Minnesota Agency of DataCom is trying to locate heirs for more than 500 pending probates on IIM accounts and individual trust inventories in the northcountry area.  In addition to probates in northern Minnesota, a lot of the probates spill over into Canada, Wisconsin, and Michigan.”  The probates handled by the BIA’s Bemidji Area Office mostly involve trust property initially held by members of the Minnesota Chippewa Tribe, and are separate from the DOI probates of settlement funds arising from the White Earth Reservation Land Settlement Act (WELSA).

“They are really backlogged” at the Bemidji Area Office, one source told Press/ON.  Most of the BIA’s backlog probates are “prior to the tribes taking over probates as a part of self-determination.”  The records in the Bemidji Area Office date back into the early 1800s, but most of the probates currently being researched by DataCom run from the 1940s to the 1980s.  Probate backlogs involving Indians who died after tribal courts started doing probates under self-determination contracts remain in the tribal court system, are not part of the Indian trust problems covered by the Cobell v. Norton lawsuit, and are currently separate from the BIA’s probate backlog.

“These people are deceased and have land or money in their accounts, and DataCom has to find all their heirs,” a DataCom spokesman explained to Press/ON.  “If the heir is still alive, then of course they will collect the money.  If they died before the decedent, then we have to find any of their children, it’s hard because a lot of times the decedents outlived most of their families.”  Although some of the trust accounts hold little more than “enough to go out to dinner,” some of the pending Indian trust probates involve “substantial amounts of money,” the spokesperson said.

Determining the proper heirs to that money is not always easy.  “A lot of times,” the person holding Indian trust property, “died without living children, so you have to delve into the complete history of that decedent. …  It depends a lot on the date that the decedent died, how far back you have to go.”

Backlog BIA probates, especially those involving trust property estates of Indians who died more than sixty years ago, can involve extensive research.  “You have to prove lineage, you have to show how these people are related.”  The DOI’s administrative law judges are supposed to make probate determinations based on a properly documented “paper trail: birth certificates death certificates,” and other official records.  Indians fairly regularly died without official state documentation well into the 1940s, and some of the earlier records are tainted by allotment and scrip frauds which proliferated in Minnesota in the late 1800s and early 1900s.

The ‘paper trail’ can also be obscured by the BIA’s use of several names to refer to the same person – English-language as well as “Indian names,” variable phonetic spellings of Indian names, and turn-of-the-century Indian Agents’ fairly common use of ‘generic names’ like “Ah-ke-wain-zee” [old man], “Que-we-zaince” [boy], and “Equay” [woman] in official records.

Skip-tracing the collateral heirs of someone who died without surviving children half a century ago is also made more complicated by the BIA’s policies of relocation and off-reservation adoption, both of which were at least in part intended to eradicate Indian community connections.

Because present day Indians’ tribal membership and ‘blood quantum’ rest, in part, on the sometimes-fraudulent genealogies and heirship determinations of yesteryear, some attempts to probate the trust property of a long-gone great-great-uncle can tap into vigorous and hotly-contested contemporary controversy, resurrecting almost-forgotten and sometimes bitter issues of lineage and paternity.

And, compiling and verifying official documentation of the sometimes-numerous heirs of IIM accounts and other Indian trust property can be time-consuming.  “You end up waiting a lot” for records, a DataCom spokesman said.

Disconnecting the BIA from the internet, also in consequence of the Cobell v. Norton case, has made compiling the information necessary for a probate case more difficult.  “Cobell v. Norton has really slowed up things: can’t get on the internet, can’t get into trust fund records.”  Instead of going online, both DataCom and BIA staffers “have to write by ‘snail-mail,’ and that slows everything up.  Things that would be updated immediately and shared over a wide area network, you can’t get access to anymore, so information that you have may be old, outdated, and incorrect … we can do so much more so much quicker with the internet, having a wide area network.  When something’s updated, the information can be shared with everybody, instead of sending letters via snail mail.  I think we get a lot more accomplished with computers.”

Tracking descendants across the generations can take real skill and knowledge.  “I think it’s important to find out the history of the person that you are researching.  You get to know the kind of life they had.”  The research that goes into the BIA’s probates encompasses crucial aspects of our history, “who we are as Indian people. … I think just learning who your ancestors are, if you don’t know,” is important.  “If they’re part of a probate, the BIA does do family histories for people — that’s another reason that they are backlogged.”

DataCom currently has four people working on the Bemidji Area Office’s probate backlog.  Some of the backlog cases are labor-intensive. “It takes a long time to get a probate done, it can take a year on the research part … how many descendants there are, and if you can find somebody.”  Staff at DataCom “completes two or three a week.”