You requested an opinion on whether Calista M. S~ (Claimant) can qualify as the child
of the Number Holder (NH), and whether that decision can be based on an Order issued
by the Department of the Interior that Claimant is an heir of the NH. If so, you have
also asked if the Order controls the effective date of the parent-child relationship,
or whether the relationship would be established as of the child's birth date.
Based on the evidence currently before the Agency, we believe that Claimant qualifies
as the child of the NH, and that the parent-child relationship can be established
as of Claimant's birth date. 1
According to information you provided, Claimant was born in Winner, South Dakota,
on May 24, 1999. The birth certificate that Claimant's mother initially submitted
with Claimant's application for a Social Security card identified Nadine S~ as her
birth mother. 2 The birth certificate did not identify Claimant's father. Claimant's mother was never
married to the NH. A new birth certificate, which Claimant's mother submitted in support
of her second application for benefits, lists the NH as Claimant's father, and the
claimant and the NH have the same surname.
On June 5, 2003, the NH, a domiciliary of South Dakota who had received an allotment
of Indian land, died intestate. Claimant's mother thereafter filed an application
for surviving child benefits for Claimant. The application showed an alleged child
relationship of "other." The Agency denied Claimant's application for the following
reasons: "Child illegitimate - cannot inherit - no ceremonial marriage - not deemed
child." Claimant did not appeal the denial of her claim.
Meanwhile, in July 2003, the Agency received an application for disability benefits
on the NH's behalf filed by three of his surviving children. The application, which
the Agency granted, did not identify Claimant as the NH's child.
On June 2, 2004, after an evidentiary hearing, the United States Department of Interior
issued an "Order Determining Heirs and Decree of Distribution" (Order) to settle the
NH's Indian land allotments, which included property located on the Lower Brule, Rosebud,
and Santee Reservations in South Dakota. The Order included the following findings
of fact and conclusions of law:
Decedent [NH] never married, but he was the father of five (5) children;
No Last Will and Testament was submitted for probate in this [NH's] estate, and there
is no substantial evidence to conclude that the decedent [NH] executed a Will;
At death, the decedent [NH] was survived by heirs at law . . . under the statutes
of descent of the State of South Dakota [S.D. Codified Laws Ann 29A-2-103(1) (1995)].
. . .
For the purpose of determining the descent of land to the heirs of any deceased Indian,
every Indian child, shall for such purpose be deemed the legitimate issue of his or
The Order identified Claimant as one of NH's daughters, and thus a surviving heir
entitled to a share of NH's Indian land allotments.
On June 12, 2006, the South Dakota Department of Health, through the Brule County
Register of Deeds, issued a new "Certificate of Birth" that identified NH as Claimant's
father and a file date of June 1, 1999 (seven days after Claimant's date of birth).
On July 20, 2007, Claimant's mother filed a new application for survivor benefits
On August 15, 2007, Claimant's mother completed a "Child Relationship Statement,"
in which she stated that:
NH listed Claimant as a dependent on a tax return 3;
written evidence (probate papers and statements from NH's mother and a social worker
"used to get father's name on birth certificate through Lower Brule Tribal Court")
showed that Claimant was NH's daughter; and
NH admitted orally to his mother than he was Claimant's parent.
On August 17, 2007, Wilma W~, NH's mother, signed a memorandum "To Whom It May Concern,"
in which she stated that:
My son [NH] orally informed [me] that he is the biological father of Calista M. S~-W~
[Claimant]. [NH] did assist with care for Calista by means of financial support, caring
for her, keeping her at my home for periods of time, he did take responsibility as
her father when it was possible. Other family members are willing to attest to this,
if needed. Calista did make her permanent home with her mother Nadine S~.
To support Claimant's second application for survivor benefits, Claimant's mother
submitted to the Agency the Order from the Department of Interior, the new Certificate
of Birth, and the statement from NH's mother.
Section 216(h)(2)(A) of the Social Security 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 he or she
would be entitled to inherit under the laws of the state in which the wage earner
was domiciled at the time of his or her death.
The facts presented establish that NH was domiciled in South Dakota at the time of
South Dakota laws of intestate succession provide that "an individual born out of
wedlock is the child of that individual's birth parents," and that "[t]he identity
of the father may be established . . . by a presentation of clear and convincing proof
in the proceeding to settle the father's estate." S.D. Codified Laws § 29A-2-114(c)
(2007); see also SSA POMS GN 00306.010 & 00306.630 (a child born out of wedlock may be entitled to child benefits based
on either parent's record if the child is an heir to the parent's estate under relevant
State law). "Clear and convincing evidence is evidence so clear, direct, weighty,
and convincing as to allow the trier of fact [here, the Agency] to reach a clear conviction
of the precise facts at issue, without hesitancy as to the truth." POMS GN
00306.630. The "clear and convincing," standard of proof, described as "highly probable," is
a "more exacting measure of persuasion" than preponderance of evidence, the traditional
measure of persuasion in civil cases. McCormick on Evidence, Title 12, Ch. 36, § 340 (6th ed.) (2006).
Here, a Department of Interior Administrative Law Judge (ALJ) held an evidentiary
hearing to determine the NH's heirs for purposes of distributing the NH's Indian land
allotments. In a decision dated June 2, 2004, the ALJ found that Claimant was the
NH's daughter; an heir to those portions of the NH's estate containing Indian land
allotments in South Dakota; and the legitimate issue of the NH. See 25 U.S.C.A. § 372 (2007). Generally, to establish paternity in Indian probate proceedings
before the Secretary of the Interior, the standard of proof is less than that required
by the South Dakota intestacy statute: Indian probate proceedings use a "preponderance
of the evidence,"4 and any proceeding applying a "clear and convincing" standard is merely an "anomalous
decision." See Estate of R~, 44 IBIA at 121 (citing Estate of William Y~, 28 IBIA 200, 202 (1995)); and Estate of E~, 27 IBIA at 250.
The ALJ did not state whether she was using the "preponderance of the evidence" or
the "clear and convincing" standard of proof. However, the ALJ stated that her decision
on surviving heirs was in accordance with the laws of descent of South Dakota, which
require clear and convincing proof. And, as in a prior OGC opinion related to this
issue, notice was given to all interested parties and there is no evidence that the
decision was administratively appealed. See Memorandum from Regional Chief Counsel, Denver (L~ and P~), to Regional Commissioner,
Denver, Questionable Child Relationship - South Dakota (March 22, 1993). Moreover,
the State of South Dakota presumably accepted the order to establish "legitimation,"
as it issued a "new" as opposed to an "amended" birth certificate for Claimant. See S.D. Codified Laws §§ 34-25-13.1(1) (2007) (indicating that a new birth certificate
will issue where a "court of competent jurisdiction" determines paternity) and 34-25-15
(indicating a new birth certificate is issued "upon receipt of a court order . . .
determining paternity of a child").
Thus, based upon relevant law and the facts presented, we believe that the Claimant
is eligible to receive Title II child's benefits on the NH account.
Based on the evidence provided, Claimant qualifies as the child of the NH, and that
relationship can be established as of Claimant's date of birth.
Deana R. E~-L~
Regional Chief Counsel, Region VIII
Debra J. M~
Assistant Regional Counsel
1 OGC's opinion is based upon the unique facts presented in this case. Decisions issued
by the Department of Interior in South Dakota may not always satisfy the requirements
for determining parent-child relationships under the Social Security Act. Each of
these decisions must be made on a case-by-case basis.
2 The file does not contain a copy of the original birth certificate.
3 The file does not contain the tax return or other written corroboration of this statement.
4 "Under the preponderance of the evidence standard, the moving party has the burden
of showing that the existence of a fact is more probable than its non-existence."
Estate of Ross, 44 IBIA at 120.