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April 24, 1981

Anita Sampson LEWIS, Appellant,
Cecil D. ANDRUS, Secretary of the Interior, Appellee

The opinion of the court was delivered by: QUACKENBUSH



 Pursuant to 43 CFR Part 4, Subpart D 4.20 et. seq. The United States Department of the Interior conducted a hearing on an application to approve the will of Asmakt Yumpquitat (Millie Sampson), deceased Yakima Allottee 124-2911, Probate No. IP PO 194L 75-225, who died testate on May 17, 1977, at the age of 109. After hearings conducted on February 24 and November 30, 1978, Administrative Law Judge Robert C. Snashall issued an order on March 6, 1979, determining the decedent's heirs in accordance with the terms of a will dated December 28, 1976.

 Upon the death of Charles Y. Sampson, Sr., on June 19, 1979, the Appellant in the present suit, Anita Sampson Lewis, appealed to the Interior Department Board of Indian Appeals, (IBIA), on behalf of Mr. Sampson's estate. The appeal alleged that the ALJ had committed error in approving the will and also alleged a failure to comply with the Administrative Procedure Act, 5 U.S.C. § 557(c), in that the ALJ's decision did not include the reasons for his findings and conclusions on all material facts. In a decision dated January 31, 1980, 8 IBIA I, the Board affirmed the ALJ's March 6, 1979, order, concluding that the ALJ's findings were "supported by a preponderance of the substantial and probative evidence." 8 IBIA at 5. The Board also rejected the Appellant's APA argument. This decision by the Board represented the final administrative appeal decision for the Department. 43 CFR § 4.1(b)(2).

 The Appellant now brings the case to this Court pursuant to 5 U.S.C. § 702 and 28 U.S.C. § 1331 to obtain judicial review of the final decision of the Secretary determining heirs and approving the will of Asmakt Yumpquitat (Millie Sampson).


 Asmakt Yumpquitat (Millie Sampson) died on May 17, 1977 at the approximate age of 109, leaving a purported Last Will and Testament dated December 28, 1976. This Will, which replaced an earlier Will, was submitted for probate before the United States Department of the Interior, Office of Hearings and Appeals. On November 30, 1978 a hearing was held for the purpose of taking evidence on the objections to the Will by the Testatrix's sole surviving child, Charles Y. Sampson, Sr., who was disinherited by the replacement Will.

 At the November 30, 1978 hearing, testimony was taken from Julia Hill who prepared the December 28, 1976 Will and Joyce Redthunder and Lehigh John who witnessed the Testatrix's execution of the Will. All three of these witnesses testified that the Testatrix appeared to be competent and was not acting under undue influence at the time the Will was executed. (See Tr. Pgs. 10, 14, 21, 29). Lillian Ferguson who notarized the signatures of the witnesses on the Testatrix's Will, also testified. Her testimony coincided with that of the previous witnesses that the Testatrix did not appear to be under any type of pressure. (Tr. 36, 1.8).

 The Petitioner called several witnesses to support his contention that the Testatrix had been unduly influenced. Teresa Pierre testified that on December 12, 1976, the day on which Lena Sampson Sohappy, Testatrix's daughter, died, she went to Lena Sohappy's house at the request of Melvina and Dave Aleck to cook and care for the Testatrix. That she remained with the decedent until December 23, 1976 and that during this period of time the Testatrix was bedridden, physically unable to care for herself, and very upset over the death of her daughter. Teresa Pierre further testified that a number of people, including Melvina Aleck and Helen Totus, frequently asked the Testatrix what she was going to do about her property now that her daughter had died. It was Teresa Pierre's opinion that the Testatrix had been talked into disinheriting Charles Sampson in the December 28, 1976 Will by Melvina Aleck (Tr. 55-58).

 The Petitioner also called Charles Sampson and Anita Lewis, the Testatrix's granddaughter. Charles Sampson testified that he had cared for his mother and had always been on good terms with her. (Tr. 65-66). Anita Lewis testified that in January 1977, after the execution of the December 28, 1976 Will, the Testatrix informed her that it was her intention that her land and money pass by Indian Custom and Tradition to her surviving child (Tr. 75, 11.9-14).

 The unsigned document by Teresa Pierre stated that while Mrs. Pierre was caring for the Testatrix, she heard Rose Y. Lucy John and Melvina Aleck tell the Testatrix that she should change her Will and not leave any property to her son, Charles Sampson, Sr.

 The first affidavit was that of Louie Charles, a longtime acquaintance of the Testatrix. The affidavit stated that in 1972 the Testatrix told Mr. Charles that she would never make a Will and that she wanted her property to pass to her surviving children. The affidavit further stated that Mr. Charles was of the opinion that ...

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