A. Federal Law: Entitlement to Surviving Child’s Insurance Benefits under the
Act as a “Child” Per Section 216(h)(2)(A)
Under Title II of the Act, a claimant may be entitled to child’s insurance benefits
on an insured number holder’s account if, among other things, he or she is the insured
number holder’s child.[3] See 42 U.S.C. § 402(d)(1); 20 C.F.R. § 404.350. The Act and regulations define “child”
as an insured number holder’s natural child, legally adopted child, stepchild, grandchild,
step grandchild, or equitably adopted child. See 42 U.S.C. § 416(e); 20 C.F.R. §§ 404.354˗.359; POMS GN 00306.002. Consistent with the evidence provided, our inquiry focuses on whether the Claimant
is the NH’s natural child.
To determine a claimant’s status as a natural child, the agency must determine whether
the claimant could inherit the insured number holder’s personal property as his child
under the intestacy laws of the State where the insured number holder had his permanent
home at the time of his death. See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b); POMS GN 00306.010. We are unaware of any legal authority requiring the agency to apply a different
standard under the Act for determining whether a claimant is a number holder’s natural
child when the claimant or the number holder is a member of an Indian tribe (i.e.,
applying tribal law instead of the intestate succession law of the State where the
number holder was domiciled).
See 42 U.S.C. § 416(h)(2)(A); 20 C.F.R. § 404.355(a)(1), (b). Thus, per the Act and regulations
and consistent with published legal opinions on the issue from our office and others,
we begin the analysis of whether the Claimant is the NH’s natural child by looking
to State intestate succession law. See e.g., POMS PR 01115.004 Arizona, A. PR 19-200 (Sept. 26, 2019) (applying Arizona intestacy law to evidence
that included a Navajo Family Court order establishing paternity to determine if the
claimant is the number holder’s child under section 216(h)(2)(A) of the Act); POMS
PR 01115.029 Montana, A. PR 06-009 (Nov. 14, 2005) (applying Montana intestacy law to evidence
that included Blackfeet Tribe enrollment documents and an amended Montana birth certificate
to determine if the claimant is the number holder’s child under section 216(h)(2)(A)
of the Act); POMS PR 01115.034 New Mexico, D. PR 03-085 (Jan. 27, 2003) (applying New Mexico intestacy law to evidence
that included a Navajo Nation paternity decree and a New Mexico birth certificate
to determine if the claimant is the number holder’s child under section 216(h)(2)(A)
of the Act).[4]
Oklahoma law controls because the NH’s permanent home was in Oklahoma when he died.
Therefore, we apply Oklahoma intestate succession laws to determine whether the Claimant
could inherit from the NH as his child.
1. Oklahoma Intestate Succession Law and a Child’s Right to Inherit
Oklahoma law allows a child to inherit property from her deceased parent by intestate
succession. See Okla. Stat. Ann. tit. 84, §§ 213, 215 (allowing a child to inherit property by intestate
succession, and stating that a child born out of wedlock may inherit from her purported
father in the same way as a child born in wedlock if one of four requirements is met).
However, it provides different standards for children born within marriage and out
of marriage to establish a parent-child relationship for inheritance purposes.
For a child born into a marriage, Oklahoma law creates a presumption of paternity
to establish a parent-child relationship for inheritance purposes. See In re Estate of Dicksion, 286 P.3d 283, 288-291 (Okla. 2012) (the paternity statute applied to intestate
and probate proceedings); Okla. Stat. Ann. tit. 10, § 7700-203 (a parent-child relationship
established under the Uniform Parentage Act applies for all purposes). The presumption
does not apply in this case because there is no claim or evidence of a marriage between
the Claimant’s mother and the NH.
For a child born outside of a marriage, Oklahoma law requires the child to provide
proof of the child’s relationship to the father in order to inherit from that father
under Oklahoma intestate succession law. See Okla. Stat. Ann. tit. 84, § 215; see also In re Estate
of Watson, 135 P.3d 853, 855 (Okla. Civ. App. 2006) (citing Frazier v.
McCary, 236 P. 880 (Okla. 1925)). A child born out of a marriage must satisfy one of the
following four methods to establish inheritance rights from a purported father:
(a) the father, in writing and signed in the presence of a competent witness, acknowledges
himself to be the child’s father,
(b) the father and mother intermarry after the child’s birth, and the father, after
such marriage, acknowledges the child as his own or adopts her into his family,
(c) the father publicly acknowledges such child as his own, receiving her as such,
with the consent of his wife, if he is married, into his family and otherwise treating
her as if she were a child born in wedlock, or
(d) the father is judicially determined to be such in a paternity proceeding before
a court of competent jurisdiction.
See Okla. Stat. Ann. tit. 84, § 215.
Here, there is no evidence that the NH acknowledged the Claimant as his child in writing
in the presence of a competent witness; no claim or proof of a marriage between the
Claimant’s mother and the NH either before or after the Claimant’s birth; and no evidence
that the NH publicly acknowledged the Claimant as his own child and otherwise treated
her as his child. Thus, the first three methods for establishing a father-child relationship
are inapplicable here. See Okla. Stat. Ann. tit. 84, § 215(a)-(c). The final method for establishing a father-child
relationship under Oklahoma law requires a judicial determination of paternity in
a paternity proceeding from a court of competent jurisdiction. See Okla. Stat. Ann. tit. 84, § 215(d). We consider whether the Kickapoo Tribe of Oklahoma
court documents satisfy this method for establishing a father-child relationship that
would allow the Claimant the right to inherit from the NH.
2. The Law Provides Generally that an Indian Tribal Court is a Court of Competent
Jurisdiction for Parent-Child Proceedings and Tribal Court Judgments are Entitled
to Full Faith and
Credit
We believe generally that a paternity determination from the Kickapoo Tribe of Oklahoma[5] District Court would be considered a judicial determination from a court of competent
jurisdiction for purposes of Okla. Stat. Ann. tit. 84, § 215(d). Federal law recognizes
the jurisdiction and authority of tribal courts over various domestic relations issue.
See
e.g., IWCA, 25 U.S.C. § 1911(a) (providing that a tribal court has exclusive jurisdiction
over a child custody proceeding of “an Indian child who resides or is domiciled within
the reservation of such tribe,” or is a ward of a tribal court); National Farmers Union Ins.
Companies v. Crow Tribe of Indians, 471 US 845, 856 (1985) (“Our cases have often recognized that Congress is committed
to a policy of supporting tribal self-government and self-determination.”); Montana v. U.S., 450 U.S. 544, 564 (1981) (noting that “the Indian tribes retain their inherent power
to determine tribal membership, to regulate domestic relations among members, and
to prescribe rules of inheritance for members,” but also noting that such power did
not extent to relations between an Indian tribe and non-members of the tribe); Nat’l Labor Relations Bd. v. Little River Band of Ottawa Indians Tribal Gov’t, 788 F.3d 537, 544 (6th Cir. 2015) (“Indian tribes retain broad residual power over
intramural affairs: they may determine tribal membership, regulate domestic relations
among members, prescribe rules of inheritance among members, and punish tribal offenders.”).
In addition, under the Kickapoo Tribe of Oklahoma Child Support Code, the Kickapoo
Tribe of Oklahoma District Court appears to have jurisdiction over proceedings concerning
any action to determine and establish child support – which would appear to also include
proceedings to establish paternity – and jurisdiction over any person who is a member
of the Kickapoo Tribe, any minor who is eligible to be a member of the Kickapoo Tribe,
or any person who is alleged to be the parent of a “Kickapoo child”[6] residing within the Kickapoo Tribe’s jurisdiction. See Kickapoo Tribe of Oklahoma Child Support Code, Chapter 1, Section 3.[7] Further, the Kickapoo Tribe of Oklahoma Child Support Code specifically allows a
child, the child’s natural mother, or an alleged father of a child to file a petition
requesting the Kickapoo Tribe of Oklahoma Tribal Court[8] to establish paternity in a paternity proceeding. See id., Chapter 5, Section 2(A). Thus, both Federal and tribal law generally supports the
Kickapoo Tribe of Oklahoma District Court’s jurisdiction over a paternity proceeding
involving a Kickapoo child.
Moreover, under Oklahoma law, an Oklahoma State court would be required to provide
full faith and credit to a judicial determination from a tribal court – in this case
the Kickapoo Tribe of Oklahoma District Court – based on the rule of mutual reciprocity
set forth in both Oklahoma law and Kickapoo tribal law. See Okla. Stat. Ann. tit. 12, Ch. 2, Rule 30 (requiring district courts for the State
of Oklahoma to “grant full faith and credit and cause to be enforced any tribal judgment
where the tribal court that issued the judgment grants reciprocity to judgments of
the courts of the State of Oklahoma . . .”); Okla. Stat. Ann. tit. 12, § 728 (“This
Act affirms the power of the Supreme Court of the State of Oklahoma to issue standards
for extending full faith and credit to the records and judicial proceedings of any
court of any federally recognized Indian nation, tribe, band or political subdivision
thereof, including courts of Indian offenses. . . In issuing any such standard the
Supreme Court of the State of Oklahoma may extend such recognition in whole or in
part to such type or types of judgments of the tribal courts as it deems appropriate
where tribal courts agree to grant reciprocity of judgments of the courts of the State
of Oklahoma in such tribal courts.”); Barrett v. Barrett, 878 P.2d 1051, 1054 (Okla. 1994) (discussing this statute and rule in holding that
tribal court judgments were entitled to full faith and credit in Oklahoma courts when
they granted reciprocity to the judgments of the State of Oklahoma); In re Adoption of Standards for Recognition of Judicial Proceedings of Other
Sovereigns in the Courts of the Kickapoo Tribe of Oklahoma: Full Faith & Credit, No. AD-94-101, 6 Okla. Trib. 223, 1994 WL 16006119 (Kickapoo Dec. 5, 1994) (providing
that Kickapoo courts will grant full faith and credit to such judgments of federal,
state, and other tribal courts provided that the federal, state, or other tribal court
grants reciprocity to judgment of Kickapoo courts).
Thus, we believe that generally an Oklahoma State court would give full faith and
credit to a paternity determination of the Kickapoo Tribe of Oklahoma District Court
as a judgment from a court of competent jurisdiction for purposes of Okla. Stat. Ann.
tit. 84, § 215(d). We turn next to the specific tribal court documents provided.
3. Application of the Law to the Facts: The Tribal Court Documents are Insufficient
to
Determine if the Kickapoo Tribe of Oklahoma District Court had Jurisdiction over the
Claimant and
the NH, and if the Court Made a Judicial Determination of Paternity as to the NH and
the Claimant
As explained above and given the evidence provided, to establish a father-child relationship
for inheritance, Oklahoma law requires a judicial determination of paternity in a
paternity proceeding from a court of competent jurisdiction. See Okla. Stat. Ann. tit. 84, § 215(d). As discussed, the Kickapoo Tribe of Oklahoma
District Court has jurisdiction over any person who is a member of the Kickapoo Tribe,
any minor who is eligible to be a member of the Kickapoo Tribe, or any person who
is alleged to be the parent of a “Kickapoo child” residing within the Kickapoo Tribe’s
jurisdiction. See Kickapoo Tribe of Oklahoma Child Support Code, Chapter 1, Section 3. While the evidence
indicates that the Claimant and the Claimant’s mother are enrolled members of the
Kickapoo Tribe, there is no information regarding the Claimant’s residence or domicile
within the Kickapoo Tribe’s reservation. Thus, there is insufficient information to
determine that the Kickapoo Tribe of Oklahoma District Court had jurisdiction over
a paternity proceeding involving the Claimant and the NH.
In addition, the evidence in the record appears insufficient to meet the remaining
requirements for establishing paternity under Okla. Stat. Ann. tit. 84, § 215(d).
Specifically, the record does not contain evidence indicating that the Kickapoo Tribe
of Oklahoma District Court presided over a paternity proceeding involving the Claimant
and the NH. See Okla. Stat. Ann. tit. 84, § 215(d). In order to establish paternity through court
order in a paternity proceeding, the petitioner must file a petition requesting the
Kickapoo Tribe of Oklahoma Tribal Court to establish paternity. See The Kickapoo Tribe of Oklahoma Child Support Code, Chapter 5, Section 2(A). The petition
must be duly verified by the party alleging paternity and state the facts to support
paternity. See id. The proceedings must be entitled in the name of the Kickapoo Tribe of Oklahoma against
the accused as defendant. See
id. Here, the petition dated February 2010 does not appear to be a petition of paternity,
but a petition for permanent custody and child support filed by the Claimant’s mother
against the NH. The petition names the Claimant’s mother as the plaintiff and the
NH as the defendant, and requests the court to issue an order granting permanent custody
and child support. It does not request the court to enter an order determining the
Claimant’s paternity. Nor does it state any facts to support a parent-child relationship
between the Claimant and the NH. Thus, it does not appear that there was a paternity
proceeding to establish a parent-child relationship between the Claimant and the NH
as required by Okla. Stat. Ann. tit. 84, § 215(d) to establish paternity.
Even assuming there was a paternity proceeding, there is no evidence that the Kickapoo
Tribe of Oklahoma District Court made a judicial determination regarding the Claimant’s
paternity. An order determining paternity from the Kickapoo Tribe of Oklahoma Tribal
Court must contain provisions concerning adjudication of parentage, determination
of current child support owed as well as determination of arrears and payments thereon,
medical insurance coverage, child care costs, income assignments, enforcements, and
costs, including genetic testing and any payments for it. See
The Kickapoo Tribe of Oklahoma Child Support Code, Chapter 5, Section 3(C). Here,
the Kickapoo Tribe of Oklahoma District Court Minute dated March 2010 does not appear
to contain the provisions required in an order determining paternity. See id. In its Court Minute dated March 2010, the Kickapoo Tribe of Oklahoma District Court
merely ordered as follows: “Custody is awarded to plaintiff. Visitation is reserved.
Plaintiff is to make application for Defendant’s SSI benefits. Payee is to assist
in getting SSI benefits for minor child.” The Court did not find the NH to be the
Claimant’s father. Nor did the Court order the NH to pay child support for the Claimant.
If there was a prior determination of paternity made by this same tribal court, the
Claimant has not provided this evidence and indeed indicated that no such determination
exists. In the Child Relationship Statement that she completed for the agency in January
2019, the Claimant’s mother checked a box indicating that no court ever decreed the
NH to be the Claimant’s parent or ordered him to contribute to the Claimant’s support.
Thus, we believe an Oklahoma court would find that the Kickapoo Tribe of Oklahoma
District Court in the Court Minute issued on March XX, 2010 did not judicially determine
the NH to be the Claimant’s father. As such, the agency can reasonably conclude that
the Claimant, through the Court Minute and corresponding Petition for Custody and
Child Support, has not established a father-child relationship under Okla. Stat. Ann.
tit. 84, § 215(d) by showing that a court of competent jurisdiction determined her
to be the NH’s child in a paternity proceeding.
4. In the Absence of a Court Determination of Paternity, SSA Decides Paternity Using
the
Applicable State’s Standard of Proof for Paternity Determinations
Even in the absence of a court determination of parentage, SSA will decide parentage
using the standard of proof that the state court would use in determining paternity.
See 20 C.F.R. § 404.355(b)(1) (the agency will apply the intestacy laws of the State
in which the number holder had her permanent home at the time of her death to determine
whether an applicant is a number holder’s natural child), (2) (if applicable State
inheritance law requires a court determination of paternity, we will not require that
you obtain such a determination but will decide your paternity by using the standard
of proof that the State court would use as the basis for a determination of paternity).
Thus, we look to the totality of the evidence provided to determine if the Claimant
has a right to inherit from the NH under Oklahoma law using the standard of proof
that an Oklahoma state court would employ.
The Oklahoma Uniform Parentage Act (UPA)[9] applies to parental determinations in intestate and probate proceedings. In re
Estate of Dicksion, 286 P.3d 283, 290 (Okla. 2012). The UPA governs every determination of parentage
in Oklahoma. Okla. Stat. Ann. tit. 10, § 7700-103(A). Under the UPA, a man may establish
a father-child relationship through an adjudication of paternity. See Okla. Stat. Ann. tit. 10, § 7700-201(B)(3).[10] As we have discussed, in the absence of an adjudication of paternity in the present
claim, the agency applies the standard of proof an Oklahoma court would apply. See 20 C.F.R. § 404.355(b)(1). Courts consider genetic testing and other evidence to
adjudicate the issue of paternity for a child that does not have a presumed, acknowledged,
or adjudicated father, which we understand to be the case here with the Claimant.
See Okla. Stat. Ann. tit. 10, § 7700-631. Under Oklahoma law, the standard of proof to
prove paternity is “clear and convincing evidence.” See In re Estate of King, 837 P.2d 463, 464 (Okla. 1990) (overruled on other grounds); see also Kickapoo Tribe of Oklahoma Child Support Code, Chapter 5, Section 2(F) (the petitioner
in a paternity proceeding “has the burden of proving, by clear and convincing evidence,
that the putative father is, in fact, the natural father.”). Oklahoma courts define
“clear and convincing evidence” as “that measure or degree of proof which will produce
in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegation sought to be established.” In re A.L.F., 237 P.3d 217, 219 (Okla. 2010). Thus, in this case, an Oklahoma court would look
to whether the Claimant has established by clear and convincing evidence that the
NH is her father.
Here, there is some evidence that weighs in favor of a parent-child relationship between
the Claimant and the NH. A notice from a housing authority dated March 2008, shows
that the Claimant’s mother and the NH were members of the same household, and were
presumably living together eight months before the Claimant was born in November 2008.
Further, the Petition for Custody and Child Support establishes that in February 2010,
the Claimant’s mother filed a petition against the NH in a tribal court to grant permanent
custody and child support as to the Claimant indicating she was at least alleging
that the NH was the Claimant’s father. The Court Minute entered in March 2010 appears
to show that the tribal court ordered the Claimant’s mother to file for Social Security
benefits for the Claimant on the NH’s record, though this is not entirely clear as
the tribal court references Supplemental Security Income (SSI) under Title XVI of
the Act, as opposed to auxiliary child’s benefits on the NH’s record under Title II
of the Act. Finally, the Claimant’s mother has made statements indicating that the
NH acknowledged the Claimant to be his child in a letter to the Claimant’s mother,
and acknowledged the Claimant as his child orally to his best friend.
However, there is no corroborating evidence to support the Claimant’s mother’s self-serving
statements that the NH acknowledged the Claimant as his child orally or in writing.
Likewise, while there is evidence that she petitioned the court for permanent custody
and child support, the Claimant’s mother did not provide any facts in her petition
to support the NH’s paternity as to the Claimant. The Court Minute only orders the
Claimant’s mother to apply for Social Security benefits and orders the “payee” to
assist in getting SSI benefits for the minor child. See The Kickapoo Tribe of Oklahoma Child Support Code, Chapter 2, Definitions (“payee”
is person in whose name child support is paid). The Court Minute did not make a specific
determination that the NH was the Claimant’s father and did not meet the requirements
for a paternity determination as set forth in the Kickapoo Court of Oklahoma Child
Support Code. See Okla. Stat. Ann. tit. 10, § 7700-636 (providing that the court shall issue an order
adjudicating whether a man is the child’s parent and the order adjudicating parentage
shall identify the child by name and date of birth); The Kickapoo Tribe of Oklahoma
Child Support Code, Chapter 5, Section 3(C) (setting forth the provisions to be included
in paternity orders). There is no reference to the NH as a father or parent in the
Court Minute. And the Claimant’s mother represented to the agency in the Child Relationship
Statement that no court ever decreed the NH to be the Claimant’s parent or ordered
him to contribute to the Claimant’s support. She said she did not have any other written
evidence of any kind that would show that the Claimant is the NH’s child. She indicated
on this form that the NH did not undertake any actions with regard to the Claimant
from the time of the Claimant’s birth in November 2008 until the time of the NH’s
death in June 2011 that would indicate a parent-child relationship. She has not offered
any other witness statements to corroborate the alleged parent-child relationship
between the NH and the Claimant. There is no genetic testing evidence. In addition,
the Claimant’s birth certificate did not list the NH as her father. Moreover, while
the NH filed for disability benefits in December 2008 (the month following the Claimant’s
birth) and listed three dependent children for auxiliary benefits, he did not name
the Claimant as his dependent child.
In weighing the totality of the evidence provided on the Claimant’s behalf, while
there is some evidence to support paternity, we believe an Oklahoma court would find
that it is not such that it “will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegation sought to be established.”
See In re A.L.F., 237 P.3d at 219. Thus, we believe an Oklahoma court would find that the evidence
was not clear and convincing evidence to establish a father-child relationship between
the NH and the Claimant. See Kinney o/b/o
Kinney v. Sullivan, 746 F. Supp. 1067, 1069-71 (W.D. Okla. 1990) (affirming a Social Security administrative
law judge’s decision that there was no clear and convincing evidence of paternity).[11] As such, we believe an Oklahoma court would find that the Claimant has not proven
the right to inherit from the NH under intestate succession law. See Okla. Stat. Ann. tit. 84, § 215(d). Thus, the agency can reasonably conclude that
the Claimant would not be considered the NH’s natural child under section 216(h)(2)(A)
of the Act upon application of Oklahoma intestate succession law.
B. Federal Law: Entitlement to Surviving Child’s Insurance Benefits as a
“Child” under Section 216(h)(2)(B) and (h)(3)(C) of the Act
Having established that the Claimant is unable to establish a parent-child relationship
with the NH under section 216(h)(2)(A) of the Act, we also consider whether the Claimant
has established the parent-child relationship with the NH under federal standards.
See POMS GN 00306.100(A) (“Apply section 216(h)(3) when you cannot establish the parent-child relationship
under State law. You may explore all possible relationship provisions consecutively
or concurrently.”). Under section 216(h)(2)(B) of the Act, a claimant will be deemed
to be a number holder’s child if the claimant is the number holder’s biological child,
and the claimant’s parents went through a marriage ceremony that would have been valid
but for a legal impediment. See 42 U.S.C. § 416(h)(2)(B); 20 C.F.R. § 404.355(a)(2); POMS GN 00306.090. As there is no indication that the NH and the Claimant’s mother ever married or
attempted to marry, this provision does not apply to establish the parent-child relationship.
Under section 216(h)(3)(C)(i) of the Act, the biological child of a deceased number
holder may be deemed to be the number holder’s child if, before the deceased number
holder’s death: (1) the number holder acknowledged in writing that the child was his
child; (2) a court decreed the number holder to be the child’s father; or (3) a court
ordered the number holder to contribute to the child’s support. See 42 U.S.C. § 416(h)(3)(C)(i); 20 C.F.R. § 404.355(a)(3)-(4); POMS GN 00306.100. Here, there is no evidence of a written acknowledgment of the Claimant. The Claimant’s
mother represented to the agency in the Child Relationship Statement that no court
ever decreed the NH to be the Claimant’s parent or ordered him to contribute to the
Claimant’s support. As detailed in the prior discussion above with regard to the Court
Minute, because there is no evidence of a court order entered before the NH’s death
decreeing the NH to be the Claimant’s father or ordering him to pay child support,
this provision does not apply to establish the parent-child relationship.
In addition, under section 216(h)(3)(C)(ii) of the Act, a biological child of a deceased
number holder may be deemed to be the number holder’s child if the agency finds “by
other satisfactory evidence” that the number holder was the child’s biological father,
and the number holder was living with or contributing to the child’s support at the
time of his death (or if the child was in the womb when the number holder died, the
number holder must have been either living with or contributing to the support of
the mother at the time of the number holder’s death). See 42 U.S.C. § 416(h)(3)(C)(ii); 20 C.F.R. § 404.355(a)(4); POMS GN 00306.100(C)(3), GN 00306.125. Here, there is no evidence as to whether the NH was living with or contributing
to the support of the Claimant (who was born in 2008) at the time of the NH’s death
in 2011. Therefore, this provision does not apply to establish the parent-child relationship.
Furthermore, based on the information we have been given, it would appear that the
Claimant has not provided sufficient evidence of a biological relationship with the
NH, which is required for all of the above standards under section 216(h)(2)(B) and
(h)(3) of the Act. See POMS GN 00306.090, GN 00306.100.
Therefore, under the specific evidence provided with this claim, we believe there
is legal support for the agency to conclude that the Claimant does not meet the criteria
of section 216(h)(2)(B) or (h)(C) of the Act and thus, has not established a parent-child
relationship with the NH as required for child’s insurance benefits on the NH’s record.