The 9th Circuit Court of Appeals issued a ruling last week in the case of an Indian probate that has been in dispute for nearly six years.

Matilda Covington, a deceased member of the Confederated Colville Tribes of Washington, left all of her allotments to her great-grandson, a minor. Two of her grandchildren subsequently challenged the will before the Interior Department.

An issue arose when the probate was before the Office of Hearings and Appeals. An administrative law judge ordered the disclosure of notes made by Covington shortly before she changed her will.

The will had been prepared with the help of the Colville Tribal Legal Services. The director of CTLS, James Edmonds, went to court to prevent the release of the notes, citing privileged attorney-client communications, confidential and protected work product.

A federal judge sided with Edmonds but attorneys for DOI appealed. They argued that OHA judges can seek evidence that might not otherwise be admitted.

The 9th Circuit disagreed with Interior and said federal regulations require probate cases to be decided based on the laws of the state where the land is located. Washington, the court said, bars the release of privileged information such as Covington's notes.

One judge wrote separately to state that he agreed with the analysis of Interior's regulations. But he said the issue of privileged information should be decided by the Washington state courts.

9th Circuit Decision:
Edmonds v. Standcampiano (May 25, 2006)

Indian Trust Reform Act:
S.1439 | H.R.4322

Relevant Documents:
Trust Reform and Cobell Settlement Workgroup Principles for Legislation (June 2005)

Relevant Links:
Indian Land Working Group - http://www.ilwg.net
Institute for Indian Estate Planning and Probate - http://www.law.seattleu.edu/indianinstitute
Indian Land Tenure Foundation - http://www.indianlandtenure.org

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