IN THE MATTER OF THE ESTATE OF LORRAINE ISBURG FLAWS, DECEASED.
ON MARCH 22, 2016
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BRULE
COUNTY, SOUTH DAKOTA THE HONORABLE BRUCE V. ANDERSON Judge
R. SCHAUB of Schaub Law Office, PC Chamberlain, South Dakota
PAUL O. GODTLAND Chamberlain, South Dakota Attorneys for
appellants Audrey Isburg Courser and Clinton Baker.
R. SMITH Chamberlain, South Dakota Attorney for appellee
Decedent named heirs in her will, but all heirs predeceased
her, causing her estate to become subject to the laws of
intestate succession. Decedent's brother had two children
from his only marriage. These children were designated as
heirs. The circuit court determined that decedent's
brother's illegitimate daughter was also an heir entitled
to inherit equally from decedent's estate. Brother's
legitimate children appeal. We affirm.
On February 18, 2010, Lorraine Isburg Flaws, a member of the
Crow Creek Tribe, died testate. Lorraine's will
distributed her property to her husband and her only child,
both of whom predeceased her. Lorraine's parents and
Donald Isburg, her only sibling, also predeceased her. As
Lorraine's will did not designate contingent
beneficiaries, her estate was subject to the laws of
intestate succession. Donald had two children from his
marriage to Mavis Baker: Audrey Isburg Courser and Clinton
Baker (Appellants). Donald also purportedly had two
illegitimate daughters from other relationships: Yvette
Herman, born June 1, 1970, and Tamara Isburg Allen, born
October 11, 1965. Yvette and Tamara contend that in addition
to Appellants, they are entitled to a share of Lorraine's
estate. This appeal concerns Tamara. Tamara was not
judicially determined to be Donald's paternal child
during his lifetime. Tamara submits that Donald acknowledged
her in writing during his lifetime by a paternity affidavit
dated January 5, 1966. Therefore, the circumstances
surrounding the probate of Donald's estate are relevant.
Donald was also a member of the Crow Creek Tribe and owned
tribal land held in trust by the United States Government.
Donald died August 24, 1979. Thereafter, the United States
Department of the Interior, Bureau of Indian Affairs, Office
of Hearings and Appeals, Probate Hearings Division
(collectively the Interior Board of Indian Appeals or IBIA)
probated Donald's estate. In April 1981, a notice of
probate hearing was mailed to potential heirs, including his
sister, Lorraine, and his legitimate children, Audrey and
Clinton. Tamara did not receive notice. In a letter made
under oath, Lorraine reported to the IBIA that she was
Donald's sister and that Donald's only children were
Audrey and Clinton. In October 1980, the Crow Creek Bureau of
Indian Affairs (BIA) Superintendent filed a form entitled
Data for Heirship Finding and Family History. This form
disclosed Donald's assets and indicated that Audrey and
Clinton, also enrolled members of the Tribe, were
Donald's children. The IBIA completed the probate on June
8, 1981, and entered an order declaring Audrey and Clinton to
be the sole heirs of Donald's estate.
Audrey and Clinton inherited Donald's trust land in which
he shared an ownership interest with Lorraine. Audrey and
Clinton became tenants in common with Lorraine. In July 2003,
fee simple patents were issued to Lorraine, Audrey, and
Clinton removing their land from trust. At the time of
Lorraine's death in 2010, none of her land was held in
trust with the federal government.
In early March 2010, after Lorraine's death, Audrey filed
a petition for formal probate of Lorraine's estate in
state court as none of Lorraine's assets were in trust
with the federal government. Audrey petitioned for
appointment as personal representative and to have
Lorraine's heirs judicially determined. Tamara and Yvette
objected to Audrey's appointment and petitioned for
appointment as co-personal representatives. After a hearing,
the court appointed attorney Stan Whiting as special
administrator of the estate.
In June 2010, Tamara and Yvette filed separate petitions with
the IBIA to reopen Donald's probate to establish they
were Donald's daughters and heirs. These requests were
made 31 years after Donald died and 29 years after the
probate was closed. In June 2011, the IBIA issued a show
cause order, to which Audrey and Clinton responded. In April
2012, the Indian Probate Judge denied Tamara's and
Yvette's requests to reopen Donald's probate. The
probate court found that the real property had "passed
out of trust" and was "no longer subject to the
probate jurisdiction of the Department of Interior."
Tamara did not appeal this order.
In October 2014, Appellants moved for summary judgment in
state court against Tamara, alleging she lacked standing to
assert she was an heir. Appellants argued that the IBIA order
was controlling and Tamara's attempt to establish
paternity in state court violated the Supremacy Clause and
Separation of Powers Doctrine. Appellants further contended
that Tamara could not establish paternity pursuant to SDCL
29A-2-114(c). The court denied the motion for summary
judgment and set a court trial for February 17, 2015.
At the court trial, Tamara presented evidence of Donald's
paternity. The court took the matter under advisement. On
July 6, 2015, the court issued findings of fact and
conclusions of law. The court found that Tamara was born in
Mitchell, South Dakota to Barbara Allen on October 11, 1965.
The hospital prepared a certificate of live birth, which was
signed by the attending physician. The certificate recorded
her name as "Tamara Sue Thayer Isburg" and listed
her father as Donald Isburg. Other identifying information
provided that Donald Isburg was age 32, Indian, and a
carpenter by trade. Tamara's birth certificate was filed
on October 12, 1965 with the Registrar's Office. It
listed Donald Isburg as the father of Tamara Sue Isburg. Less
than three months later on January 5, 1966, Donald Isburg
executed a paternity affidavit acknowledging Tamara as his
child. The affidavit was sworn before a Notary Public and a
social worker for the Department of Public Welfare, the
precursor to the current Department of Social Services. The
affidavit was filed with the Department of Vital Statistics.
At the time of Donald's death in 1979, Tamara was
thirteen years old. She received social security survivor
benefits as his dependent until she turned eighteen. The
court also found that Donald publicly acknowledged Tamara as
his daughter by visiting her on occasion and giving her
money. Tamara's sisters and aunt believed Donald was her
On July 7, 2015, the court denied Appellants' motion for
summary judgment and issued a judgment declaring heirship,
finding Tamara "to be the biological child of Donald
Isburg, making her an equal heir with Audrey Courser and
Clinton Baker to the estate of Lorraine Flaws[.]"
Appellants appeal the denial of their motion for summary
judgment and the court's judgment declaring heirship.
We restate Appellants' issues as follows:
1. Whether the circuit court erred by denying Appellants'
motion for summary judgment.
2. Whether the circuit court erred in ruling Tamara was an
heir under ...