PR 05905.034 New Mexico
A. PR 05-010 New Mexico State Law Involving Zuni Tribal Marriage and Widow's Insurance Benefits (DNH Philip O. B~, SSN ~) - REPLY
DATE: October 13, 2004
Notwithstanding a posthumously issued tribal marriage license and certificate, there is sufficient evidence to conclude that since 1960, the claimant for widow's benefits was married to the NH under Zuni tribal custom. New Mexico would recognize this marriage. Consequently, the claimant qualifies as the NH's widow under the Social Security Act.
The purpose of this memorandum is to respond to your request for our opinion regarding the possible entitlement of Carnalee Q~ B~ to Social Security benefits as the widow of Philip O. B~. Specifically, you asked whether, under New Mexico law, the Social Security Administration (SSA) can accept a posthumous marriage license and certificate issued by a tribal judge on November 9, 1988, which stated on the left hand corner of the certificate, "Marriage backdated - November 1960." If not, you asked whether the customs of the Zuni Indian Tribe are sufficient to establish a marital relationship, and result in Ms. B~ entitlement to widow's insurance benefits under the Social Security Act (the Act). After reviewing the facts and relevant law, we believe that, notwithstanding the posthumously issued 1988 tribal marriage license and certificate, there is sufficient evidence to conclude that since 1960, Carnalee Q~ B~ was married to Philip B~ under Zuni tribal custom. Consequently, Ms. B~ qualifies as Mr. B~ widow under the Act.
According to the information supplied with your request, Mr. B~ died on October 23, 1988, while domiciled on the Zuni Indian Reservation in New Mexico. Survivor benefits were paid to a child, Daphne B~, who was born on May 12, 1972. According to the master beneficiary record, a lump sum death benefit was paid to Ms. B~, but her 1988 application for mother's benefits was denied. Unfortunately, the claims folder housing the 1988 application has been destroyed. On June 26, 2003, Ms. B~ filed a claim for widow's insurance benefits. After that claim was denied, Ms. B~ requested reconsideration of the denial on August 26, 2003, which resulted in this request for a legal opinion as to whether she is Philip B~ legal widow for Social Security benefit purposes.
Evidence submitted with the request for a legal opinion consists of: (1) an undated "Statement of Claimant or Other Person" (SSA Form 795) from Ms. B~ stating that she had a common-law marriage with Mr. B~ and, after his death in 1988, went to the Zuni tribal judge with two witnesses to have the marriage recorded; (2) a certified copy of a posthumous Zuni tribal marriage license and certificate both dated November 9, 1988; (3) affidavits submitted in support of the 1988 marriage license and certificate from Ms. B~, Fannie Q~ (Ms. B~ sister), and Lela Mae C~ (Philip B~ sister); (4) a copy of Ms. B~ Zuni tribal membership card and New Mexico driver's license; and (5) a "marriage report" dated April 5, 2004, from the Zuni tribal census coordinator and signed by the Governor of the Zuni tribe with attached census report from April 1, 1963, purporting to show that Carnalee and Philip B~ were listed as husband and wife with three children at that time. Additionally, our office has been provided certified copies pertaining to the relevant sections from the Zuni tribal domestic relations code.
As you know, sections 202(e) and 216(h)(1)(A)(i) of the Act provides that widow's benefits are payable if the claimant was validly married to the wage earner at the time of his death and the other requirements for eligibility are met. 42 U.S.C. §§ 402(e), 416(h)(1)(A)(i); 20 C.F.R. § 404.345 (2004).
It is clear from the information provided with the request for our legal opinion that Carnalee and Philip B~ were enrolled members of the Zuni Tribe. Native Americans are entitled to marry according to the customs of their tribe if they are living in a tribal relation/ and if the tribe's right to internal self-government has not been superseded by federal law or state law under Federal authorization. See Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, 476 U.S. 877, 889-90 (1986) (citing to U.S. v. Quiver, 241 U.S. 602, 605-06 (1916)); see also LaFramboise v. Day, 136 Minn. 239, 244, 161 N.W. 529, 531 (Minn. 1917) (although the state has the power to regulate marriages within the state, Congress has power and control over marriages between members of certain Indian tribes). There is a long line of cases holding that these marriages will be recognized as valid in state and Federal courts. See Marris v. Sockey, 170 F.2d 599, 603 (10th Cir. 1948); Hallowell v. Commons, 210 F. 793, 799-800 (8th Cir. 1914); Ponina v. Leland, 85 Nev. 263, 268-69, 454 P.2d 16, 19-20 (Nev. 1969); Unussee v. McKinney, 270 P. 1096, 1097 (Okla. 1928).
The Act directs that SSA look to the law of the state where the wage earner was domiciled when he died to determine whether the relationship requirement for entitlement to survivor's benefits is met. 42 U.S.C. § 416(h)(1)(A)(i); 20 C.F.R. §§ 404.344-45. According to SSA's master beneficiary record and documentation submitted with this request for a legal opinion, Philip B~ was domiciled in Zuni, New Mexico, when he died on October 23, 1988. Therefore, we will look to the laws of the State of New Mexico for guidance to determine whether the relationship requirement for entitlement to survivor's benefits is met. Id.
New Mexico law states that for a marriage to be valid, it must be formally entered into by contract and solemnized before an appropriate official. N.M. Stat. Ann. §§ 40-1-1, 40-1-2 (1978, current through the end of the 2004 Spec. Sess.). State law is clear that a marriage contract may be solemnized, in part, by an authorized representative of a federally recognized Indian tribe "without regard to the sect to which he may belong or the rites and customs he may practice." N.M. Stat. Ann. § 40-1-2 (1978). Additionally, New Mexico law allows federally recognized Indian tribes to celebrate marriage in conformity with their rites and customs, and the secretary of such tribe "shall make and transmit a transcript/ to the county clerk certifying to the marriage solemnized." N.M. Stat. Ann. § 40-1-3 (1978). Finally, although New Mexico State law does not authorize common-law marriages, it will recognize such a marriage, if valid, in the jurisdiction where consummated. See N.M. Stat. Ann.§ 40-1-4 (1978); Matter of Lamb's Estate, 99 N.M. 157, 159, 655 P.2d 1001, 1003 (N.M 1982).
The Zuni tribal code was formally adopted on December 20, 1976, with an effective date of November 15, 1976. See Zuni Tribal Ordinance No. 22 (1976). The Zuni tribal code has a domestic relations subpart. The Zuni domestic relations code states that no marriage shall be performed under the authority of the code unless the parties first obtain a marriage license from the clerk of the Zuni tribal court and pay a nominal fee. See Zuni Domestic Relations Code, Title XI, Chapter 1, § 11-1-1. Additionally, after a marriage ceremony is completed, the marriage license must be endorsed by the person performing the marriage and returned back to the clerk who will then issue the final marriage certificate. Id. The tribal clerk is required to keep a record of all marriage licenses and certificates issued. Id.
The Zuni domestic relations code also provides a mechanism to record existing marriages, including those performed under tribal custom:
(1) All marriages performed other than as provided for in this Domestic Relations Code, which are valid under the laws of the jurisdiction where and when performed, are valid within the jurisdiction of the Zuni Tribe;
(2) All marriages performed on the Reservation prior to the effective date of this code, including those perfected according to tribal custom, are declared valid for all purposes under this code. Parties to such marriages may obtain a marriage certificate upon proof to the Clerk by affidavit or otherwise of the validity of their marriage, and payment of a $5.00 [currently $10.00] fee [emphasis ours].
See Zuni Domestic Relations Code, Title XI, Chapter 1, § 11-1-2.
You asked whether, under New Mexico law, SSA can accept a posthumous marriage license and certificate issued by a tribal judge on November 9, 1988, which stated on the left hand corner of the certificate, "Marriage backdated - November 1960." If not, you asked whether the customs of the Zuni Indian Tribe are sufficient to establish a marital relationship and, thus, entitle Ms. B~ to widow's insurance benefits under the Act.
Tribal law contemplates that the parties seeking to have their existing marriage recorded by a tribal certificate must have either performed a ceremony, which was not done in this case, or have had their marriage perfected under Zuni tribal custom. See Zuni Domestic Relations Code, Title XI, Chapter 1, § 11-1-2. After reviewing the relevant sections of the Zuni domestic relations code as noted above, it appears that the method for obtaining a marriage certificate for an existing marriage requires that documentation of the marriage relationship be made by both parties to the marriage, which is contrary to using this process posthumously as Carnalee B~ has done. See Zuni Domestic Relations Code, Title XI, Chapter 1, § 11-1-2 (2). However, we view this particular requirement as negating only the posthumously issued marriage certificate and license submitted in this case, and not whether Carnalee and Philip B~ were validly married according to tribal custom.
Our view is further supported by the fact that, under the Zuni domestic relations code, obtaining a marriage certificate to document a tribal marriage that was performed prior to the adoption of the code in 1976 is a discretionary act, and does not contravene the previously discussed tribal declaration that all existing marriages on the Zuni reservation, including those perfected according to tribal custom, were valid for all purposes. Id. Since Ms. B~ has admitted that there was never a tribal marriage ceremony, the only other avenue permitted under the statute would be a marriage perfected under tribal custom. Id. However, it is not clear what the Zuni domestic relations code means by marriages "perfected according to tribal custom." Id.
Ms. B~ indicated in her undated (presumably 1988) affidavit submitted in support of her Zuni marriage license and certificate, as well as in her undated statement to SSA, that her marriage to Mr. B~ was based upon common-law status. Additionally, the Zuni tribal census from April 1, 1963, listed Carnalee and Philip B~ as husband and wife based upon a common-law marriage./ As previously noted, although New Mexico State law does not authorize common-law marriages, it will recognize such marriages, if valid, in the jurisdiction where consummated. See N.M. Stat. Ann.§ 40-1-4; Matter of Lamb's Estate, 99 N.M. at 159. However, we do not believe the phrase "common-law marriage," as used by Ms. B~ and found in the Zuni tribal census, refers to the legal concept of common-law marriage as permitted by a minority of the States and the District of Columbia/ given that the Zuni domestic relations code clearly references tribal marriages perfected according to some form of undefined internal tribal custom. No credible evidence of Zuni tribal marriage custom, or how to perfect such a tribal marriage custom, was initially submitted with this request for legal opinion.
SSA contacted members of the Zuni tribal government as well as claimant's counsel to resolve this issue. On May 27, 2004, SSA sent by certified mail a letter to the Zuni Tribal Governor asking him for an official interpretation as to what is meant by tribal marriages "perfected according to tribal custom" under Title XI, § 11-1-2 of the Zuni Domestic Relations Code. We also had several conversations with the claimant's attorneys regarding the need to have this issue resolved with objective tribal guidance.
On September 10, 2004, Ms. Carmelita S~, the Lieutenant Governor of the Zuni Tribe, contacted the undersigned and discussed the tribal custom of marriage requirements that were in effect prior to the adoption of the domestic code in 1976. According to Lieutenant Governor S~, tribal members had to first obtain family permission to marry, live together, and have children from the relationship. Ms. S~ went on to add that once the marriage customs were fulfilled, the marriage would be reflected in the tribal census. Finally, Ms. S~ opined that the language in the Zuni domestic code referencing marriages perfected according to tribal custom is essentially superfluous since there are no additional custom of marriage requirements beyond those previously discussed./
It appears that Carnalee Q~ B~ qualifies as Philip B~ widow under the Act as a party to a marriage under Zuni tribal custom. In sworn statements dated November 9, 1988, Ms. Q~, the claimant's sister, and Ms. C~, the deceased's sister, stated that Carnalee and Philip B~ began living together as man and wife around November 1960, had five children together, and were accepted into each other's family. Additionally, as previously noted, Zuni tribal census records indicate that on April 1, 1963, Philip and Carnalee B~ were listed as husband and wife. While tribal records, as well as Ms. B~ own statements, may have erroneously referred to her marriage as being based upon some type of common-law status, it is clear that it properly existed according to Zuni tribal custom. Given that the Zuni domestic relations code declared in 1976 that all existing marriages on the tribal reservation were valid, it is evident that Carnalee and Philip B~ were married notwithstanding the posthumously issued marriage license and certificate.
Tina M. W~
Regional Chief Counsel
Thomas C. S~
Assistant Regional Counsel
B. PR 90-004 (Navajo Tribal Law) Termination of a Navajo Tribal Custom Marriage for Validation Common Law Marriage - Herbert S~
DATE: May 4, 1990
The ex parte court order validating the NH's second marriage does not comport with the law of the Navajo Tribe and is not binding on SSA's determination. The NH's second spouse alleged a Navajo common-law marriage. However, the Navajo Supreme Court recently held that common-law marriage which is not the same as tribal custom marriage is not recognized by the Navajo Tribe. (S~, Herbert, ~ - Region VI - (Lerner) to RC, SSA, 05/O4/9O)
This memorandum is in response to your request for our supplemental opinion regarding the marital status of the subject individual at the time of his death in order to determine which of two women is the legal widow.1_/ With this request you provided additional development and information including a copy of Navajo Tribal Resolution CJ-3-40. You also provided us with the deceased wage earner's social security claims folder. Essentially, you requested that we reassess our earlier opinion that Elizabeth E~ is the decedent's legal widow by giving particular consideration to the question of whether Herbert S~ and Helen B~, his first wife, could have been divorced by tribal custom the face of Resolution CJ-3-40, which addresses the method by which such divorces must be accomplished. Accordingly, for purposes of this opinion, we reevaluated the information in the decedent's social security file in light of the new information you supplied and in consideration of Navajo Tribal Resolution CJ-3-40. We also analyzed the facts in relation to 1989 decision of the Navajo Nation Supreme Court, in which that court has reversed its earlier opinions on the validity of common-law marriages among Navajo.
For the reasons set forth below, we have concluded that Helen b~ not Elizabeth E~, is the legal widow of Herbert S~ for purposes of entitlement to Social Security benefits. This opinion supercedes and reverses our April 15, 1988 opinion, in which we concluded that Elizabeth E~ was Herbert S~ legal widow.
We would note here that our ability to outline the facts is somewhat hampered because the information contained in the claims folder is contradictory. Statements made by each claimant and members of their respective families are often inconsistent. Nevertheless, the following appear to be the most relevant and salient "facts" as we understand them from the claims folder.
Helen B~ and Herbert S~ were married by Navajo tribal custom ceremony in Farmington, New Mexico, on November 15, 1943. This marriage was recorded by Bureau of Indian Affairs on May 13, 1952 based on information given by Rev. J. C. K~ and was validated by the effect of Navajo Resolution CF-2-54 (Tribal Custom Marriages Prior to 1954). Three children were born of this marriage: Raymond, born at Fort Defiance Hospital (Arizona) on February 25, 1948; James, born at Rock Springs, Wyoming on January 30, 1950; and Christine, born at Shiprock Hospital (New Mexico) on August 31, 1951.2_/. In a July 8, 1981 statement, taken at Shiprock, New Mexico, Helen S~ stated that she and Herbert lived together as man and wife since "1947" in the states of New Mexico, California, Wyoming and Idaho, separating in 1954, when their oldest child was six years old. According to this statement, when the couple separated, they did not try to get a divorce. In her December 19, 1988 application for widow's benefits, Helen stated that she and Herbert were married in 1943 in Farmington, New Mexico, and separated in July 1979 "because of marital problems". Neither party sought or obtained a divorce.
In separate statements dated October 20, 1988 and December 19, 1988, respectively, Rachel S~ and Mary Lee M~ Helen's sisters, stated that Helen and Herbert S~ were never divorced. These statements are verified by a BIA "Marital Status Record," dated April 21, 1988, and a BIA certification of marriage between the applicant and Herbert Y~, also the name of Herbert S~.3_/
Elizabeth E~ S~ initially applied for young mother's insurance benefits on January 26, 1981 as the widow of Herbert S~ claiming that they were married by common-law in Idaho Falls, Idaho in 1956. She stated that the couple lived in Idaho Falls from June 1956 until November 1960, when they resettled in Thoreau, New Mexico. In a 1987 application for benefits and Statement of Marital Relationship, however, she claimed that she and Herbert were married by Navajo "tribal common law" and a tribal custom ceremony in 1958, but they never tried to get a tribal Tribal Court Order dated January 8, 1986 (later amended nunc pro tunc to correct errors) validating her marriage to Herbert S~. In the Matter of Validating The Marriage of Elizabeth E. S~ , C #86,392, Petitioner, and Herbert S~ (Deceased), C #11109-A, Civil Action No. CP-CV-206-85 (Crownpoint D.C. 4/6/87). In this ex parte order, the Navajo District Court, finding jurisdiction pursuant to Navajo law, decreed, among other things, that Elizabeth and Herbert S~ "started living together as husband and wife on October 15, 1957, and they have lived together as husband and wife since then to the time of Herbert S~ death." Id. The court ordered that the marriage be validated as of October 15, 1957 and legitimates the seven children born of the union.
In separate statements, each dated April 20, 1987, Bixie E~, Elizabeth's sister Elizabeth and Mar S~, Herbert's mother, said that Elizabeth and Herbert were husband and wife. Betty C~, a neighbor of Elizabeth, signed a statement dated April 19, 1987, stating that she knew Herbert and Elizabeth to be husband and wife.
In support of her claim to be Herbert's legal widow, Elizabeth also submitted Herbert's 1979 Income Tax return listing herself as his wife, and the birth certificate of Herbert S~, Jr., born on March 30, 1962, which shows the residence of his parents, Herbert and Elizabeth, in Roberts, Jefferson County, Idaho. Herbert S~ death certificate lists Elizabeth as the surviving spouse.
A search of the divorce court records in San Juan County, New Mexico; Bingham County, Idaho; Bonneville County, Idaho; and Idaho Falls, Idaho, produced no record of divorce for Herbert or Helen B~ S~. Likewise, a similar search of Navajo tribal records produced neither a record of a Certificate of Divorce by the Navajo Tribal Court nor a record in the Tribal Census Record of separation or divorce between Herbert S~ and Helen B~.
As you know, under the Social Security Act, the law of the state in which the wage earner died domiciled determines the family relationships of persons seeking to claim benefits on the DWE's record. 42 U.S.C. 416(h)(2)(A). In this case, all parties are members of the Navajo Nation, subject to Navajo tribal law, and the DWE was domiciled on the Navajo reservation, in New Mexico, at the time of his death. Therefore, although we have examined the law of the states which have some relationship to the parties, i.e., New Mexico and Idaho, it is our view that Navajo tribal law rather than New Mexico law would determine the family relationships of the claimants.
We note that our April 1988 opinion regarding the validity of a common law marriage between Elizabeth and Herbert was predicated largely on our determination that the 1986 Navajo Tribal Court order validating the marriage of Elizabeth E~ and Herbert S~, as issued by a court of competent jurisdiction, reflected not only the Navajo court's recognition of common-law marriages generally but also the court's assumption, that, in the absence of records of a tribal divorce, Helen and Herbert were divorced by tribal custom since the court found that there was no impediment to the marriage of Elizabeth and Herbert 4_/. It now appears, however, that notwithstanding the court order, the marriage of Elizabeth and Herbert was not valid not only because the Navajo Tribe does not recognize common-law marriage, but because there was a legal impediment in that the marriage between Helen and Herbert was never terminated.
It is universally recognized that the validity of a marriage will be determined by the local law which has the most significant relationship to the spouses. RESTATEMENT (SECOND) CONFLICT OF LAWS §283. This is generally held to be the place where the marriage was contracted. If recognized in that jurisdiction, a marriage will be recognized anywhere. Id.
Idaho law recognizes common-law marriages. Metropolitan Life Insurance Co. v. Johnson, 645 P.2d 356 (Ida. 1982). New Mexico law does not. In re Estate of L~, 655 P.2d 1001 (N.M. 1982). Moreover, the Navajo Supreme Court recently has held that common- law marriage, which is not the same as tribal custom marriage, is not recognized by the Navajo Tribe. In re: Validation of Marriage of Francisco, No. A-CV-15-88 (Nav. Sup. Ct. August 2, 1989), 16 Ind. Law Rep. 6113 (1989)(copy attached). In that case, the Court noted that common-law marriage is a product of "Anglo practice that is unknown and unrecognized in traditional Navajo society" and finding that earlier cases on the subject had blurred the distinction between common-law and traditional tribal custom marriages, specifically overruled In re Marriage of Ketchum, 2 Nav. R. 102, (1979) and Navajo Nation v. Murphy, A-CR-02-87 (Apr. 21, 1988 slip op.) The Francisco Court also stated that common-law marriage is not recognized by Title 9 of the Navajo Tribal Code. 16 Ind. Law Rep. at 6114. The Court emphasized that Navajo custom does not recognize con, non-law marriages, regardless of whether one or both spouses are Navajo, overruled all prior rulings that Navajo courts can validate unlicensed marriages in which no Navajo tribal ceremony occurred, and stated that the Court will not construe any section of Title 9 as authorizing judicial validation of common- law marriages. The F~ decision also appears to invalidate that portion of the Navajo Tribal Code which states that marriages between Navajo Indians contracted outside of Navajo Indian country are valid within Navajo Indian country if valid by the laws of the place where contracted. NAVAJO TRIBAL CODE, Title 9, §1. Thus, in light of the F~ decision, it is our view that a common law marriage between Elizabeth and Herbert, whether or not valid in Idaho, would not now be recognized by the Navajo Supreme Court.
Based on inconsistent statements of Elizabeth E~, however, not only is the situs of her marriage to Herbert unclear, 5_/ so is the type, i.e., whether or not the marriage was common-law or tribal custom or successively both. Regardless of which type of marriage she claims, however, both parties must have been free to enter into marriage for the marriage to be valid.
It is generally held that where a party has contracted a series of marriages, the law presumes that the latest marriage is valid. New Mexico law follows this presumption of validity of a second marriage. Panzer v. Panzer, 528 P.2d 888 (1974). This presumption can be overcome by clear and convincing evidence in the nature of proof of a prior marriage which has not been terminated by death or divorce. Id. If such evidence is presented, the burden shifts to the second spouse to show that the earlier marriage was ended. Navajo caselaw is silent on the issue, but the Navajo Tribal Code is not. The Code specifically states that in order to contract a Tribal marriage "both parties must be unmarried. If either party has been previously married, the marriage must have been dissolved by death of the spouse or by a valid decree of divorce". NAVAJO TRIBAL CODE, Title 9, §5.
Thus, it is unimportant whether or not Elizabeth and Herbert were married in a traditional tribal custom marriage because there is no evidence that his prior marriage to Helen B~ was properly terminated according to either Navajo tribal law or state law. Since 1940, when the Navajo Tribal Council passed Resolution CJ-3- 40, which, among other things, authorized the Court of Tribal Offenses to grant divorce for cause for all marriages consummated by Tribal Custom Ceremony, the Navajo Tribe has required that all such divorces must be recorded in the "Agency office", with a Certificate of Divorce to be issued by the Tribal Court. The Resolution further stated that no person married by Tribal Custom who claims to have been divorced shall be free to remarry until a certificate of divorce has been issued by the Tribal Court, and provided penalties for violation. This Resolution subsequently was codified at NAVAJO TRIBAL CODE, Title 9, §§255-257.
As earlier noted, not only is there is no record of a Certificate of Divorce terminating the marriage of Helen and Herbert pursuant to the provisions of the Code, there is no record of a divorce in various jurisdictions off the reservation where Herbert resided after he separated from her. Hence, in the absence of any record and in light of this Resolution and the corresponding provisions in the Tribal Code, it is our view that an inference that the marriage of Helen and Herbert was terminated by tribal custom is not reasonable.
In our view, the 1986 ex parte order of the Tribal Court purporting to validate the marriage of Elizabeth and Herbert does not warrant a determination that Elizabeth is to be considered his legal widow. It is well established that the Secretary is not bound by ex parte orders of a state trial court, but rather is at liberty to determine the law of the state as it would be determined by the highest court of the state. Warren v. Secretary of Health and Human Services, 868 F.2d 1444, 1445 (Lth Cir. 1989); Cain v. Secretary of Health Education and Welfare, 377 F.2d 55 (4th Cir. 1967). Under the law of all relevant jurisdictions, Helen has met her burden of proving that the marriage of Herbert and Elizabeth was invalid, because Herbert was married to her at the time his marriage to Elizabeth was contracted and there is no evidence that such marriage was terminated. Hence, it is proper for the Secretary to find that she, and not Elizabeth, is entitled to Social Security benefits.
In summary, after our review of the facts you presented under the relevant law, it is our opinion that Helen B~, not Elizabeth E~, is the legal widow of Herbert S~. The 1986 court order validating the marriage of Elizabeth E~ and Herbert S~ does not comport with the law of the Navajo Tribe and is, therefore, not binding on your determination as to eligibility for benefits on the DWE's record. We also suggest that you should revise POMS Section GN00305.216 Navajo Tribal Common Law Marriage to reflect the Navajo Supreme Court's decision in In re Validation of Marriage of F~, supra.
l_/In our earlier opinion, dated April 15, 1988, based on the information before us and our analysis of the law, we determined that a valid common law marriage existed between the deceased wage earner and Elizabeth E~ despite the absence of evidence of a divorce between the DWE and Helen Balone S~.
2_/A fourth child, Harriet, born on December 7, 1956, is listed on the Bureau of Indian Affairs (BIA) Family Card, but no further information is given.
3_/ Number 11109-A, the Tribal Roll Number of 'Herbert Kee Y~, is the same number as that of Herbert S~. See BIA Tribal Enrollment Services Family Card, September 16, 1985; BIA Marital Status Record, April 21, 1988.
4_/Elizabeth E~ is listed on BIA tribal census records as the wife of Jimmy M~. .The BIA records also show that Jimmy M~ married Freda W~ in 1972, as shown by a tribal marriage license.
5_/Elizabeth's statements concerning the time and type of her marriage to Herbert are not consistent. First, she stated that she and Herbert were married by common-law in Idaho in 1956 and lived there until November 1960. Later she stated that they only lived together in Idaho, but actually were married by tribal custom ceremony in New Mexico in 1958. The court order, however, recites that Herbert and Elizabeth were recognized and known to be husband and wife within the community of Thoreau, New Mexico from October 1957.