SI DEN02220.045 Affidavit In Support Of Claims Against Estate Of Deceased Native American Indian

See SI 02220.045

The Regional Chief Counsel's office has prepared a form affidavit to be used to submit a claim to recover an overpayment from the Bureau of Indian Affairs (BIA) when they administer the estate of a deceased Native American Indian. The Administration has succeeded in obtaining payment from an estate by the use of this form. The BIA has a 60-day time frame for filing claims against the estates of deceased Native American Indians, and claims can be denied for failure to file the claim timely.

Exhibit 1 provides a form affidavit to be used in filing a claim with the BIA. The language in the parentheses states the legal basis for the claim and must always be included. When prepared by the field office (FO), the affidavit should be a simple narrative. Explain in paragraph 1 how the overpayment occurred, notice that was given, if any, determination as to fault, if any, and all other relevant facts pertaining to the overpayment. Of course, the amount, name of the FO manager, and city and State where the FO is located pertain to the actual claim involved.

The affidavit must be notarized.

As a result of filing, the BIA will notify your office of the date of the hearing. Attendance is not required. You may be notified that assets are inadequate to satisfy SSA's claim. The BIA is limited to assets administered by the BIA (e.g., trust lands, lease income, etc.). In that case, you should determine whether or not a personal estate also exists.

If a claim is denied, request a copy of the order of distribution of assets of the estate. This will assist you in deciding whether to attempt collection from the distributees of the estate.

Exhibit 1 - Affidavit

1. 1. 

   (Prior to the decendent's death, the decedent was the recipient of Supplemental Security Income in the amount of) $75.00 a month (under the provisions of Title XVI of the Social Security Act, 42 USCA 1381, et seq. As a result of excess income, the decendent was not entitled to any payments the decendent received for the) three (3) months of October 1977, totaling $225.00. (The excess income consisted of) lease payments of $800.00 which was received in November 1977, which brought the decendent's income above the maximal amount permitted for eligibility for those) three (3) months. (Prior to the decendent's death, the decedent admitted in writing the receipt of the lease payments.) *(These payments are not exempt from consideration as income or resources for purposes of the Social Security Act by Public Law 94-114 (1975), which grants such an exemption with respect to income and resources derived from certain submarginal land conveyed to 17 Native American Indian tribes because the tribe with which the decedent was a member, Three Affiliated Tribes, Fort Berthold Reservation, New Town, North Dakota, is not among the 17 tribes listed in the law.)**

2. 2. 

   (The deceased was, therefore, "overpaid" in the sum of) $225.00 (which represents a debt due the United States of America. Said indebtedness is chargeable against the estate of the decedent which was unjustly enriched by the overpayment of monthly payments under Title XVI of the Social Security Act, supra. Debts owing to the United States of America from estates of deceased debtors are accorded priority over claims of all other creditors. 31 USCA 191-192.

3. 3. 

   (The described claim is justly due and owing to the Social Security Administration of the United States of America, Department of Health and Human Services, and there are no offsets to that claim.) (Wherefore, it is respectfully submitted that the described claim be allowed and that repayment of the sum of) $225.00 (be made by check drawn payable to the Treasurer of the United States, Social Security Administration, Claim No. 999-00-9999.)

* Insert only if applicable.

** This section applies if overpayment caused by lease payments (insert correct name of tribe).

John Smith, (being duly sworn, deposes and acknowledges being the manager of the field office, Social Security Administration, Clear Creek, Montana, and as such, is authorized to execute, on behalf of the Social Security Administration, a creditor's claim in a manner consistent with Federal law for the purpose of effectuating recovery from the estate of a deceased debtor to whom an incorrect payment of Supplemental Security Income has been made and that there is knowledge of the foregoing claim and that the same is just and unpaid after allowing all just credits.)

UNITED STATES OF AMERICA

                                                      BY _______________________________

                                                      Manager, Field Office

                                                      Social Security Administration

                                                      Clear Creek, Montana

Subscribed and sworn to

before me this _____ day

of ____________ 198_.

My Commission Expires on ________________________.

THE PARENTHESES IN THE BODY OF THE AFFIDAVIT ARE TO SET OFF REQUIRED LANGUAGE. DO NOT INCLUDE THE PARENTHESES IN ACTUAL AFFIDAVITS.