[ Home | Contents | Next | Previous | ]
From: Osage Voter No. 448
Date: 3/20/2006
Time: 11:24:37 PM
Remote Name: 64.12.116.134
The actual case is quite long, so hear's the part you need to know (it comes from the last page of the opinion): "Akers nowhere involved the issue of whether the 1984 Act applied to limit a non-Indian from receiving more than a life estate when a headright was devised by the will of a non-Indian, who owned the full beneficial interest in the headright by virtue of having acquired it under laws prior to either the 1978 or 1984 Acts. Instead, the two issues in Akers were 1) whether the testator fell under the federal definition of an Osage or Pawnee Indian - the answer to which had an effect on whether the testator's will was subject to approval by the Osage Indian Agency or a separate federal administrative law judge, and 2) whether the testator suffered from an insane delusion as to his parentage of a certain child. As to whether he was an Osage Indian for purposes of having his will approved by the Osage Indian Agency, the issue concerned whether any quantum of Osage blood was sufficient or whether something more was necessary under pertinent federal law. Determination was made that something more than any quantum of Osage blood was necessary and that the testator was an Osage Indian. Akers simply does not intimate that §§ 7 or 8 of the 1978 or 1984 Acts would apply to the testamentary devise by the will of a non-Indian, like Mae. If anything, Akers supports our interpretation of the 1984 Act because in footnote 12 at 871 F.2d at 932, the Tenth Circuit says the following: "[s]ection 7, as amended [by the 1984 Act], prohibits any person who is not `an Osage Indian' from receiving more than a life estate in an Osage headright owned by an Osage Indian." (emphasis added) We do not, however, rely on this language of the Tenth Circuit because that court simply did not have before it the question of whether § 7 applied to the testamentary dispositions of headrights owned by non-Indians, like Mae.10 ¶55 The Eckelt case also provides no assistance to appellants' cause. It merely held that the 1984 provisions of subsection 8(a)(1) quoted above concerning rights of first purchase in situations involving transfers by non-Indian owners of headrights did not operate to [909 P.2d 59] prevent a creditor from garnishing headright proceeds paid to a non-Indian owner of headright interests and held by a bank. The case did not concern a testamentary devise by a non-Indian nor any holding that §§ 7 or 8 applied to a testamentary devise by a non-Indian, like Mae.11 CONCLUSION ¶56 In the final analysis, our view is that Congress intended by the 1984 Act to put in place provisions geared toward retention of Osage ownership in those headright interests already in Osage ownership, with an exception of allowing Osage Indians to grant life estates to non-Osage Indians in certain situations, and that after the death of a non-Osage Indian having been granted such a life estate, the headright would return to Osage ownership. This purpose is embodied in § 7. The 1984 Act further put in place a method to allow the opportunity for reacquisition of headright interests by individual Osages or by the Osage Tribe when a non-Indian lawfully owning a headright interest seeks to transfer that headright inter vivos. Such reacquisition is fostered by the rights of first purchase contained in § 8. We see no Congressional intent in the 1984 Act to prohibit a non-Indian from receiving more than a life estate when the headright interest involved is being devised by the will of a non-Indian, like Mae, who lawfully owned the full beneficial interest in the headright at the time of death, having acquired such interest long prior to passage of either the 1978 or 1984 Acts. The trial court's ruling approving distribution of the headright interest to the non-Indian nephews of Mae Little Bear was, thus, correct. ¶57 Accordingly, the Court of Appeals Memorandum Opinion is VACATED and the judgment of the trial court upholding the devise of 1.25 headright interest to appellees is AFFIRMED."