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In re Estate of Flaws

Supreme Court of South Dakota

August 31, 2016


          ARGUED ON MARCH 22, 2016


          ROBERT 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.

          STEVEN R. SMITH Chamberlain, South Dakota Attorney for appellee Tamara Allen.

          KERN, Justice

         [¶1.] 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.


         [¶2.] 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.

         [¶3.] 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.

         [¶4.] 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.

         [¶5.] 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.

         [¶6.] 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.

         [¶7.] 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.

         [¶8.] 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.

         [¶9.] 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 father.

         [¶10.] 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.

         [¶11.] 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 ...

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