For the reasons discussed below, we believe you would be justified in determining
that Valeen was Raphael's child.
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).
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
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.
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
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
[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).
Deana R. E~-L~
Regional Chief Counsel
Michele M. K~
Assistant Regional Counsel