PR 01115.037 North Dakota

A. PR 02-013 Whether a Decision of the United States Department of the Interior, Office of Hearings and Appeals, Determining Valeen M. O~ H~ Was an Heir of Raphael G. F~ Was Sufficient Evidence that Valeen Was the "Child" of Deceased Wage-Earner Raphael Under Section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. ' 416(h)(2)(A)

DATE: December 3, 2001

1. SYLLABUS

A North Dakota State court and the Spirit Lake Tribal Court would find the Department of Interior's Order of Determination of Heirs sufficient to establish the NH's paternity of the child claimant. Thus, SSA would be justified in determining that the child was the NH's child under the laws of intestate succession of the Spirit Lake Tribal Court and the State of North Dakota for purposes of section 216(h)(2)(A) of the Act.

2. OPINION

CONCLUSION

For the reasons discussed below, we believe you would be justified in determining that Valeen was Raphael's child.

QUESTION

You requested a legal opinion regarding whether Valeen M. O~ H~ (Valeen) could be considered the "child" of deceased wage-earner Raphael G. F~ (Raphael) under section 216(h)(2)(A) of the Social Security Act (the Act), 42 U.S.C.A. ' 416(h)(2)(A).

FACTS

The evidence is minimal. Valeen was born on February 7, 1989. On her birth certificate, Doris A. O~ H~ was listed as her mother and no father was listed. On April 24, 1989, Raphael wrote a letter to Doris from which one could infer Doris and Raphael had a personal relationship. Raphael mentioned his concern for Valeen several times in this letter. Raphael died on June 9, 1989.

Apparently, in or around June 1989, Doris inquired with the Social Security Administration about the possibility of Valeen's entitlement to child's insurance benefits on Raphael's wage-earnings. In a June 22, 1989 Report of Contact, "Cynthia C~" informed "Connie L~ (or Lien)," apparently a Social Security Claims Representative, that "Valeen F~" was not Raphael's natural child; Valeen and her mother, Doris, lived with Raphael; Doris and Raphael were planning to marry; and Raphael did not admit to be being Valeen's father nor adopt Valeen. The documents do not indicate who Cynthia C~ was or whether she had any relationship to the parties. Ms. L~ decided the inquiry on behalf of Valeen did not warrant a denial determination.

On September 20, 1990, after notice to all interested parties and an administrative hearing, an Administrative Law Judge of the Office of Hearings and Appeals for the United States Department of the Interior issued, pursuant to the authority vested in the Secretary of Interior under 25 U.S.C.A. ' 372, an "Order Determining Heirs." Based on this order, the Department of Interior determined Valeen was Raphael's daughter and found her entitled to one-fourth of Raphael's interest in Indian Trust Lands. See Order Determining Heirs. The Order applied 25 U.S.C. ' 371 which states:

whenever any male and female Indian shall have cohabited together as husband and wife according to the custom and manner of Indian life the issue of such cohabitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together, and every Indian child, otherwise illegitimate, shall for such purpose be taken and deemed to be the legitimate issue of the father of such child. Id. The Order noted that "[t]he only question [wa]s whether the decedent begot the child." Order Determining Heirs at 1-2 (citing Estate of Crawford R~, 1 BIA 326 (September 28, 1972)). The Order ultimately concluded "the great weight of the evidence presented in this matter support[ed] a finding that the decedent was the father of . . . Valeen O. H~ F~ . . ." Order Determining Heirs at 2. "Cynthia C~" was listed as a party in interest "for information purposes," who was notified of the Department of Interior proceedings. See Notice To All Persons Having An Interest In The Subject Matter Of This Proceeding at 1. Thus, it is safe to assume that if she provided any information it was properly considered.

The September 1990 Department of Interior Order Determining Heirs stated Valeen is an enrolled member of the Standing Rock Sioux Tribe. See Order Determining Heirs at 3. We assume her mother, Doris, is an enrolled member of the Standing Rock Sioux Tribe, as well. The Order Determining Heirs stated Raphael was an enrolled member of the Spirit Lake Sioux Tribe, of the Fort Totten Indian Agency, formerly known as the Devils Lake Sioux Tribe. See Order Determining Heirs at 1.

On May 2, 2001, Doris filed an application for child's insurance benefits for Valeen on Raphael's wage earnings.

DISCUSSION

Section 216(h)(2)(A) of the Act, 42 U.S.C. ' 416(h)(2)(A), provides that a child will be deemed to be the child of a deceased wage earner if she would be entitled to inherit under the intestacy laws of the State in which the wage earner was domiciled at the time of his death. Raphael was living in North Dakota and may or may not have been living on or had property on the Spirit Lake Reservation. If he had property on the Spirit Lake Reservation,

[e]xcept as to trust or restricted land subject to the jurisdiction of the United States, the Tribal Court shall have jurisdiction to determine heirs, to determine the validity of wills and to probate the estates and wills of any member of the tribe with respect to property located on the Reservation.

Devils Lake Sioux Law and Order Code (DLSL&OC) ' 5-1-101 (1988). "The determination of heirs shall be governed by the law of North Dakota unless the custom of the Tribe is clearly to the contrary." DLSL&OC ' 5-2-104 (1988). Thus, even if Raphael was living on the Spirit Lake Reservation in North Dakota, North Dakota intestacy law would apply. See DLSL&OC ' 5-2-104 (1988); 20 C.F.R. ' 404.354(b) (2001); see also Memorandum, Legitimacy of Child - North Dakota, CC VIII (E~-L~) to RC VIII, SSA, May 18, 1994; Memorandum, Questionable Child Relationship - North Dakota, CC VIII (P~) to RC, SSA, July 27, 1992.

As pertinent here, North Dakota law of intestate succession provides:

If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession, by, through, or from a person:

3. . . . a person is the child of its parents regardless of the marital status of its parents. The parent and child relationship may be established under [the Uniform Parentage Act].

N.D.CENT. CODE ' 30.1-04-09 (2001).

Under the Uniform Parentage Act (UPA), a North Dakota State court may consider "all [] evidence relevant to the issue of paternity of the child." N.D.CENT. CODE ' 14-17-11(6) (2001). "'Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of an action more probable or less probable than it would be without the evidence."' State v. Unterseher, 255 N.W.2d 882, 889 (N.D. 1977) (quoting syllabus from State v. Hendrickson, 240 N.W.2d 846 (N.D. 1976)).

However, the determination of the parentage of a child of Indian tribal members is a matter that is intimately connected with the tribe's right of self-government and, where an appropriate tribal forum exists, the tribe has jurisdiction over such a paternity action. M.L.M. v. L.P.M., 529 N.W.2d 184 (N.D. 1995). While the Spirit Lake Tribe has a forum for determining a paternity action, i.e., the Spirit Lake Tribal Court, the DLSL&OC does not contain any specific laws for determining paternity. Concerning paternity, the DLSL&OC merely mandates:

[i]n actions brought for determination of the paternity of a child, the judgment of the Tribal Court establishing the identity of the father of the child shall be conclusive in all subsequent proceedings in the Department of the Interior relating to the determination of heirs and rights of inheritance.

DLSL&OC ' 9-1-102 (1988). However, as previously noted, the DLSL&OC directs the application of North Dakota law in the determination of heirs. See DLSL&OC ' 5-2-104 (1988). If paternity were to be determined in the Spirit Lake Tribal Court, considering the DLSL&OC's deference to the jurisdiction of the United States in matters of trust or restricted land, see DLSL&OC '5-1-101 (1988); application of North Dakota law in matters of determination of heirs; and requirement that the Spirit Lake Tribal Court's establishment of paternity be conclusive on the Department of the Interior, we believe the Department of the Interior's Order of Determination of Heirs would be relevant evidence of Raphael's parentage of Valeen.

If paternity were being determined in the Standing Rock Tribal Court, we believe this court also would give great weight to the Department of Interior's Order determining Valeen was Raphael's heir because the term children, as used in Title XIV of Standing Rock Law and Order Code, includes children of unwed parents where the Secretary of the Interior has determined that paternity has been established. See Standing Rock Law and Order Code (SRL&OC) ' 14-106(b). Here again, we believe the Department of the Interior's Order of Determination of Heirs would be relevant evidence of Raphael's parenternity as pertaining to Valeen.

Under the facts as they exist here we believe a North Dakota State court and the Spirit Lake Tribal Court would find the Order of Determination of Heirs sufficient to establish Raphael's paternity of Valeen. In fact, we have previously advised we believe a State court would give conclusive effect to the Department of Interior's uncontested determination of heirship. See Memorandum, Legitimacy of Child - North Dakota, . . ., supra; Memorandum, Questionable Child Relationship - South Dakota, CC VIII (P~) to RC, SSA, March 22, 1993. Indeed, "[t]he conclusiveness of such a determination of heirship has been upheld by the United States Supreme Court in several cases[.]" Id. (citing First M~ v. White T~, 270 U.S. 243, 244 (1926)). Thus, you would be justified in determining that Valeen was the Raphael's child under the laws of intestate succession of the Spirit Lake Tribal Court and the State of North Dakota for purposes of section 216(h)(2)(A) of the Act, 42 U.S.C.A. ' 416(h)(2)(A).

Sincerely,

Deana R. E~-L~
Regional Chief Counsel

By_________________________
Michele M. K~
Assistant Regional Counsel

B. PR 01-094 Retroactive Effect of Grandparent DNA Testing to Establish Paternity in North Dakota

DATE: November 29, 2000

1. SYLLABUS

After the NH's death, based on genetic testing of the NH's parents* indicating a 99.83 percent probability that they were the child's paternal grandparents, a North Dakota District Court issued an order finding that the NH was the child's father, and ordered the BC to be amended accordingly. Based on the court's order and the pertinent North Dakota statutes, the child's status as child of the NH dates back to her birth. The Long Beach Genetics, Inc., laboratory is properly accredited for paternity testing and the test results may be accepted as reliable.

*Note: Although the NH had three living brothers, there was no reason to believe that any of them might have fathered the child.

2. OPINION

You have requested our opinion as to when Tamika M. N~ (Tamika) acquired the status of being the "child" of deceased number holder (NH) Greg K. R~, SSN ~, for purposes of an award of child's insurance and lump-sum death benefits under Title II of the Social Security Act. For the reasons stated below, we believe Tamika would be considered the NH's child as of the date of her birth.

Facts. Based on your memorandum and the copies of documents you have provided, we find the relevant facts of this matter to be as follows. The NH died on August 10, 1999, while domiciled in North Dakota. Subsequently, on January 16, 2000, Tamika was born to Carrie A. N~ (Carrie), who was unmarried. The original birth certificate did not name a father.

In March 2000, the North Dakota Child Support Enforcement Division began actions to determine paternity of Tamika. The NH's parents, Sharon M. and Larry L. R~, voluntarily submitted samples. The Long Beach Genetics, Inc., laboratory testing report dated April 20, 2000, indicated a 99.83 percent probability the NH's parents, Sharon and Larry R~, were the paternal grandparents of Tamika. Although the NH had three living brothers, Carrie never dated them. Based on the test results, the District Court in Stutsman County, North Dakota, issued a "Findings of Fact, Conclusions of Law and Order for Judgment" on July 6, 2000, finding that the NH was Tamika's father and ordered the amendment of the birth certificate to show such. The birth certificate was amended per the court's order on July 10, 2000.

Discussion. As pertinent here, section 216(h)(2)(A) of the Social Security Act, 42 U.S.C. § 416(h) (2)(A), provides that an applicant for child's insurance benefits will be deemed a child of the deceased wage earner if she would be entitled to inherit under the intestacy laws of the state in which the wage earner was domiciled at the time of his death. Since the NH was living in North Dakota when he died, on August 10, 1999, North Dakota intestacy law applies.

North Dakota law of intestate succession prov