THE JUDICIAL COURT OF THE TOHONO O'ODHAM NATION
ADULT CIVIL DIVISION

In the Matter of the Estate of:
Elizabeth Siquieros
DOB: 08/13/1950
DOD: 11/21/2021
Decedent
 
5 TOR3d -- (Tr. Ct., Apr. 22, 2025)
Case Number: AV2023-0113

ORDER RE. DISTRIBUTION OF PROPERTY

I. Background; Distribution of Personal Property other than HUD Home 1

Elizabeth Siquieros (Decedent) passed on November 21, 2021. She died without a written will The Personal Representative  Nina Siquieros, filed a Petition to Appoint Personal Representative and Petition to Probate Estate (Petition) on August 18, 2023.

The Petition listed as Estate property: Hud home no. AZ-026-019-0035-01 in the Sells District (the HUD Home) and various personal property items (later supplemented by a detailed inventory).

In the Petition, the Personal Representative asked that Elizabeth Siquieros's four grandchildren be named her lawful heirs: Jennifer Celaya, Marisela Celaya, Lizette Osife, and Joshua Osife. Without objection, the Court named them as her heirs pursuant to an Order filed on October 31, 2023.

According to the Personal Representative·s Report on Sibling's Meeting 10/6/2024 re Personal Property filed December 9, 2024 (the Report), the heirs selected some Estate property pursuant to agreement amongst themselves, with plans for further selection. The Court approves and ratifies that past and any future distribution by agreement.

The Report asks the Court to award a $3,311.37 Department of Education refund, and all other Estate funds, equally among the heirs. The Court has said that, if no interested party proposed applying the Nation's customs to distribute the Estate's property not divided by mutual agreement (other than the HUD Home), the Court would likely apply Arizona law and divide it equally among the heirs. (See Orders filed May 1, 2024, p.4 & Oct. 7, 2024, p. 2 (discussing the application of 4 T.O.C. ch. 1, § 1-102, and looking to AZ law for guidance, in the Court's discretion, only if the issue is not addressed by the Nation's Constitution, laws, or  customs--as  further  discussed  below).)  With  the  Personal Representative's request to divide all funds equally among the heirs, and because no interested party has asked to use the Nation's customs to distribute any property (other than the HUD Home) in any other way, the Court implements that earlier likelihood, looking to Arizona law for guidance and, applying A.R.S. §§ 14-2103 & 14-2106, ORDERS that all Estate funds, and any remaining property not distributed among the heirs by agreement ( excluding the HUD Home), are awarded equally to the four heirs. 2

II.   Issue

The Personal Representative and the heirs cannot agree on distribution of the HUD Home, so the Court must decide. The Personal Representative claims that it should be awarded only to Lizette and Joshua Osife under the Nation's custom of oral wills. One heir, Jenniter Celaya, claims that the Nation's custom that the eldest child (which she says applies to grandchildren as well) controls, so the HUD Home should go to her--though she feels it is her duty as the eldest to distribute it among all four grandchildren.

III. Applicable Laws

A. Customs of the Nation

In all civil cases the Tohono O'odham Courts shall apply, in order of precedence, the Tohono O'odham Constitution, the Nation's laws and ordinances, and finally the customs of the Nation. O'odham custom may be proved by testimony of persons familiar with the customary practices of the O'odham, or the custom of a particular community within the Nation. If a Tohono O'odham Court finds that there is no Tohono O'odham law or custom which address the claims asserted, the court may in its discretion look to the laws of the State of Arizona for guidance.

4 T.O.C. ch. 1, § 1-102.

The Tohono O'odham Constitution, and the Nation's laws and ordinances, do not address intestate succession, or how property passes without a written will. Under 4 T.O.C. ch. 1, § 1-102, the next law this Court is required to apply is the Nation's customs.

The Personal Representative elected to prove under 4 T.O.C. ch. 1 § 1-102, "by testimony of persons familiar with the customary practices of the O'odham, or the custom of a particular community within the Nation", see id., that the HUD Home should go to just Lizette Osife and Joshua Osife because the Decedent made an oral will to that effect, and oral wills are a custom of the Nation. In contrast, but also under 4 T.O.C. ch. 1, § 1-102, Jennifer Celaya chose to prove that the custom applicable to this case is that the eldest child / grandchild (being Jennifer Celaya) inherited the HUD Home; though Ms. Celaya modified that by saying, as the eldest, she felt it was her duty to distribute fairly, which in this case meant to all four grandchildren.

B. Burden of Proof

"As a matter of law, it is axiomatic that the Petitioner, as the proponent for application of tribal custom has the burden to offer proof to satisfy the evidentiary requirements implicit with this kind of fact." In re Norris, 1 TOR3d 63, 64 (Tr. Ct. 1988). Though prior Trial Court decisions are not conclusive, they are persuasive. T.O. R. Ct., § 1, R. 8.2(d). The Court finds this rule persuasive and applies it here.

The Parties followed this rule during several trials on customs of the Nation. The Personal Representative, representing herself, and Jennifer Celaya, represented by Suzanne Laursen of the Tohono O'odham Advocate Program, called witnesses (most of them elders) and presented evidence to support their cases. The following witnesses testified:

Called by the Personal Representative:
Ida Rose Norris	Nina Siquieros	Ned Norris Jr.
Juanita Parvello	Shirley Molina
Called by Jennifer Celaya:
Jennifer Celaya	Candace Lee Juan	Clifford Wolf Black Sr.

The Court gave several notices to the other heirs, and opportunities to be heard and present their own evidence on the Nation's customs if they wished, but none did. Accordingly, because the only two that appeared at the trials were the Personal Representative and Jennifer Celaya, they are referred to in this Order as the Parties.

The Court is not aware, however, of any Tohono O'odham law or custom on the burden of proof required to establish customs of the Nation. Therefore, pursuant to 4 T.O.C., ch. 1, § 1-102, the Court exercises its discretion and looks to Arizona law for guidance.

Under Arizona law, the basic standard for proving facts in a civil matter is "preponderance of the evidence" or over a 50% likelihood. See Aileen H. Char Life Interest v. Maricopa County, 208 Ariz. 286, 291 (2004) ("We perceive no reason to depart from the usual rule that a plaintiff must establish each element of a civil action by a preponderance of the evidence, and we hold that standard applies.").

That is in accordance with other jurisdictions. The Court further FINDS that the Nation's customs are factual matters, and this is a civil case. Therefore, the Court here HOLDS that the preponderance of evidence standard applies to the parties' proving the Nation's customs under 4 T.O.C. ch. 1, § 1-102.

C. Hearsay: Then-existing stale of mind exception

Before the customs trials, the Court ruled that (i) it would follow the Arizona Rules of Evidence regarding hearsay for the customs of the Nation trials, and (ii) it would allow statements by Elizabeth Siquieros about what she planned or intended to do with the HUD Home after she passed, under Ariz. R. Evi. Rule 803(3), which allows: "A statement of the declarant's then-existing state of mind (such as motive, intent, or plan)[.]"). (Order filed Oct. 7, 2024, p. 2.)

Ms. Laursen objected for the record on behalf of Jennifer Celaya at one of those pretrial hearings to the Court's second ruling. (Id.) However, at trial, Jennifer Celaya herself testified as to statements by Elizabeth Siquieros about what she intended to do with the HUD Home. Therefore, the Court FINDS that Ms. Celaya waived her objection.

D. "Heir"; Non-applicability of Arizona law

The Court notes that the term "heir" is not defined under Tohono O'odham law. However, it typically implies entitlement to at least some part of a decedent's estate, detennined by the applicable intestacy laws of a jurisdiction. See, e.g., A.R.S. § 14-1201.31 (" 'Heirs' ... [means persons] who are entitled under the statutes of intestate succession to the property of a decedent."); Black's Law Dictionary (7th ed.) ("1. A person who, under the laws of intestacy, is entitled to receive an intestate decedent's property, esp. real property"); Webster's New World Dictionary (3d college ed.) ("a person who, under the laws of intestacy, inherits or is legally entitled to inherit, through the natural action of the law, another's property or title upon the other's death 2 anyone who receives property of a deceased person either by will or by law.").

As noted above, and unlike Arizona, the Nation has no statutes of intestate succession. But under 4 T.O.C. ch. 1, § 1-102, Arizona intestacy law would only apply if no custom of the Nation was proved as to intestate succession, and the Court then chose to exercise its discretion and look to Arizona law for guidance. In practice, that is usually what happens in this Court.

If that were the case here, then each grandchild would be entitled to an equal ¼ share of the HUD Home. See A.R.S. §§ 14-2103 & 14-2106. But that is NOT the case here. In this case, both the Personal Representative and Jennifer Celaya chose to prove the Nation's custom with respect to the HUD Home under 4 T.O.C. ch. 1, § 1-102.

Therefore, Arizona intestacy law does not apply now for the HUD Home and may never apply if a Nation's custom is proved for this case. Accordingly, it would be premature to say what right, if any, each heir has to the HUD Home. And if the Court either (i) determined the Personal Representative proved her case and awarded the HUD Home to only Lizette Osife and Joshua Osife, or (ii) determined Jennifer Celaya proved her case (other than her modification to share the HUD Home with the other heirs), and awarded the HUD Home entirely to Jennifer Celaya, it could not be said that any heir was having an entitlement or property interest taken away from them, or that they were being "disinherited", because Arizona law never applied to the HUD Home and they were never vested with a right in the first place.3

IV.  Findings of Fact & Conclusions of Law

After considering the weight and credibility of the witnesses and other evidence, and applying the law, the Court FINDS and ORDERS as follows:

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A. Customs not set in stone

1.    Witnesses called by both parties agreed that customs of the Nation can differ from District to District, even from village to village, and can change over time. (Testimony of Clifford Wolf Black Sr. and Ned Norris Jr.)

2.    The HUD Home is in the Siquieros compound in the Sells District. Elizabeth Siquieros is enrolled in the Chukut Kuk District.

3.    Most witnesses spoke to the customs of only one or two particular communities or Districts- some of them were neither Sells nor Chukut Kuk.

4.    Neither party attempted to establish which community or District would be applicable for this case, if not a custom of the O'odham in general.

5.    For the above reasons, the holdings in this case with respect to customs are specific to the facts and circumstances of this case.

B. Eldest child / grandchild inherits

6.    Only one witness said that it is always the custom that the eldest child inherits property-and that would apply to grandchildren if all the children were deceased. (Testimony of Candace Lee Juan, for Schuk Toak and Chukut Kuk Districts.)

7.    Other witnesses acknowledged that as a custom, but that the oral will custom overrode it. (Testimony of Juanita Parvello and Clifford Wolf Black Sr.)

8.    The Court notes that, when the Personal Representative questioned witnesses about oral wills overriding the eldest child custom (which she appeared to acknowledge), she framed it as the parents choosing someone else in cases where the eldest child was not responsible enough to care for the property. This does not square with the Personal Representative's repeated assertion that Jennifer Celaya does not need the HUD Home because she is resourceful enough to get her own home. It would seem that under the Personal Representative's logic, Jennifer Celaya is the eldest and highly responsible, and therefore under this custom she would be the sole recipient, and the Decedent would not choose anyone else to inherit.

9.    In any event, that was not developed. But neither did the Court FIND this custom proved by a preponderance of the evidence (as applicable to this case, see Section IV.A.5 above). Therefore, the Court will not apply it to distribute the HUD Home.

C. Oral Wills

  1.  Oral wills generally

10.    Although this term was seldom used (it was mentioned a few times), the Personal Representative's argument is in essence that Elizabeth Siquieros made an oral will that her HUD Home be awarded to only Lizette Osife and Joshua Osife; and that making oral wills is a custom of the Nation (or a particular community within the Nation) and is therefore controlling law under 4 T.O.C. ch. 1, § 1-102.

11.    If the Personal Representative could prove that custom and the making of the oral will, this would have some support in 9 T.O.C. ch. 1, § 17 ("A Will shall be deemed to be valid ... if the Will was made in accordance with proved Tribal custom or made in writing[.]") (emphasis added). However, that statute was adopted in 1938. So even if making oral wills was a Nation-wide custom at that time, it does not necessarily mean it is now, or at the times applicable to this matter.

12.    The Court did find, however, credible testimony from several witnesses that making oral wills remains a strong custom across the Nation, at least through the time periods that would impact the mindset of Elizabeth Siquieros: Clifford Wolf Black Sr. for Chukut Kuk, Ned Norris Jr. for the Nation in general, and Shirley Molina for the community of Schuchuligk in Hickiwan District.

13.    Weighing against the argument for oral wills in this case is the fact that many in the Decedent's own family, including her father, the patriarch Pete Siquieros, used written wills. Pursuant to Pete Siquieros' written will, Elizabeth Siquieros served as caretaker for the Siquieros compound for decades. However, not everyone in the family used a written will.

14.    In addition, as discussed below, testimony was provided that the Decedent tried to provide an oral will--but possibly at different times with different dispositions.

15.    Seeing evidence of making oral wills in Districts as far apart as Chukut Kuk (where the Decedent is enrolled) and Hickiwan, and the Nation in general from as far back as 1938 through much of the Decedent's lifetime, the Court FINDS that the Personal Representative has proved by a preponderance of evidence that making oral wills is a custom of the Nation applicable to this case (and this case only, see Section IV.A.5 above), despite the presence of several written wills in the Decedent's family.

  2.  Decedent's final wishes

16.    However, the Court also FINDS that under this custom (and also for this case only), a Decedent's wishes may change, and it is the final wishes that matter. (Testimony of Clifford Wolf Black Sr. & Ned Norris Jr.)

17.    The Personal Representative and Juanita Parvello testified that Elizabeth Siquieros stated several times that she wanted her HUD Home to go to Lizette Osife and Joshua Osife upon her passing.

18.    However, they both acknowledged that Elizabeth Siquieros also wanted all her grandchildren to be cared for, and that Jennifer Celaya had her own home when the Decedent made those statements.

19.    Ned Norris Jr. (the Personal Representative's witness) testified that it would be reasonable for a homeowner to change her mind to later add a relative in the distribution of her home if she later learned that relative lost her home.

20.    During closing arguments, the Personal Representative acknowledged that she did not know whether Elizabeth Siquieros had changed her mind about including Jennifer Celaya in the distribution of the HUD Home.

21.    Jennifer Celaya testified that the Decedent told her--after Ms. Celaya no longer had her own home, that the Decedent's home was hers.

22.    Jennifer Celaya was certain that the Decedent was referring to the HUD Home. However, there is credible evidence that Elizabeth Siquieros believed she also owned another home on the Siquieros compound (the home actually belonging to Susie Siquieros, in related case no. AV2022-0116 4) and some evidence that Elizabeth Siquieros at some point may have intended to give that home to Jennifer Celaya (See Ex. A to Order filed Oct. 7, 2024).

23.    No other witness testified as to Decedent's intent to give the HUD Home to Jennifer Celaya and, if she did, whether she intended to exclude any other grandchildren.

24.    Accordingly, the Court FINDS that Elizabeth Siquieros's exact last words have not been proven by a preponderance of evidence by either Party.

  3.  Mindset of the Decedent to determine final wishes

1.    Although the Decedent's last words are not known, this Court has recognized the Nation's custom of honoring the wishes of a decedent. See In re Hughes-Juan, 4 TOR3d 172, 175 (Tr. Ct. 2023); In re Elizabeth Norris, 2021 TOR Supp. 142, 143 (Tr. Ct. 2018); In re Miguel, 2 TOR3d 75, 76 (Tr. Ct. 2004).

2.    One witness opined that it was important to put yourself in the mindset of the now deceased person. (Testimony of Ned Norris Jr.).

3.    Compare the Restatement (Third) of Property (Wills & Don. Trans.) § 10.1 (2003) ("The controlling consideration in determining the meaning of a donative document [or oral will] is the donor's intention. The donor's intention is given effect to the maximum extent allowed by law.").

4.    The Court agrees with these concepts, and that a decedent's final wishes may be shown by evidence of her mindset / intention, if enough exists.

5.    This also aligns with the Tohono O'odham Judicial Court being one of equity as well as one of law. See T.O. CONST. art. VIII, § 2 ("The judicial power of the Tohono O'odham Judiciary shall extend to all cases and matters in law and equity[.]"); 4 T.O.C. ch. 1, § 1-101(a) ("The Tohono O'odham Courts ... are empowered to hear all actions in law and equity arising under the Tohono O'odham Constitution, the laws, ordinances or customs of the Tohono O'odham Nation[.]").

6.    Accordingly, the Court will attempt that here, to see if there is enough extrinsic evidence to determine Elizabeth Siquieros's final wishes for her oral will.

  4.  Caring for family members

7.    This third custom -- caring for family members (and looking out for future generations) -- became apparent during the trials. Nearly every witness -- for all communities and Districts across the Nation, and the Nation generally, agreed on it. (Testimony of Clifford Wolf Black Sr. for Chukut Kuk and the Nation generally, take care of each other; if the eldest inherits, is expected to take care of siblings); Ned Norris Jr., for the Nation in general (O'odham are a caring people; if there is an opportunity to provide -- specifically in the context of a home -- and we have the ability, we usually will); Ida Rose Norris, for Baboquivari District (sister's children had homes so she wanted to leave house to grandson); Juanita Parvello (from Baboquivari District, but general O'odham custom to share, take care of all, later generations); (Shirley Molina for the community of Schuchuligk in Hickiwan District (if the Decedent's wishes are not known, see who needs a home next); Jennifer Celaya (saying the HUD Home is all of her siblings' home, and as the eldest, it's her duty to look out for her younger siblings).)

8.    With this near unanimous support, the Court finds the custom of caring for all family members (and looking out for future generations) applicable to this matter (and this matter only, see Section IV.A.5 above).

  5.  Application

9.    Both parties presented ample evidence that Elizabeth Siquieros did indeed share the custom of caring for all family members and looking out for future generations.

10.    Moreover, the witnesses that knew Elizabeth Siquieros -- including the Personal Representative, Jennifer Celaya, and Juanita Parvello -- agreed that Ms. Siquieros embraced these values expressly for her four grandchildren. (Testimony of Nina Siquieros (Elizabeth Siquieros wanted to share with all four grandkids, equally spreading her wealth); Juanita Parvello (Elizabeth Siquieros wanted all four of her grandchildren to have a home).

11.    The Personal Representative also testified that Elizabeth Siquieros was actively helping Jennifer Celaya find another home. But she passed without success.

12.    There was also documentary evidence that the Decedent was trying to get Jennifer Celaya a home- the traditional home on the Siquieros compound that Elizabeth may have thought she owned, but which actually belonged to Susie Siquieros. Although that evidence is far from conclusive as to any specific action, as explained by the Personal Representative's valid in-court criticisms, the Court does find in it more intent that the Decedent wanted, and was actively trying to help, Jennifer Celaya get a home. (See Ex. A to Order filed Oct. 7, 2024.)

13.    Jennifer Celaya had lost her own home several years ago and had been living with Elizabeth Siquieros since then and through Ms. Siquieros's passing. Lizette Osife and Joshua Osife are younger, living with their father, and not yet on their own. The evidence above, under Ms. Siquieros's living this custom, shows the Court that Elizabeth Siquieros would want at least Jennifer Celaya, Lizette Osife, and Joshua Osife to share her HUD Home.

14.    The alternative would be that Elizabeth Siquieros would want Jennifer Celaya ejected upon Ms. Siquieros's passing and again have no home.

15.    The Personal Representative argued for this several times, with the reasoning that Jennifer Celaya was at some point in the past "on track" to finding a home and she is quite resourceful and therefore has no need of the HUD Home. That. however, is an opinion. not factual evidence, and the Court therefore may not accept it. The evidence presented was that Jennifer Celaya was not able to maintain the one home she had and, even with the active help of Elizabeth Siquieros, was not able to secure another one-showing a strong need for a home -- period.

16.    In addition, neither the Personal Representative nor any of the witnesses suggested there was a caveat to this custom of caring for family members in need -- that the resourceful ones should be left to fend for themselves.

17.    Indeed. the Personal Representative herself said in closing arguments that while Elizabeth Siquieros was very happy to have her own house, she also welcomed family members- she never turned them away. She took in Jennifer Celaya to live with her before and after Ms. Celaya had her own home. The Court does not believe that Ms. Siquieros -- after a lifetime of welcoming in all family members -- would choose to turn away Jennifer Celaya now.

18.    Instead, the Court finds this alternative (that Elizabeth Siquieros would want Jennifer Celaya removed from the HUD Horne since she is resourceful and was previously searching -- unsuccessfully -- for another home) exactly opposite to the strong evidence presented about Elizabeth Siquieros's mindset and intention, and her respect for the custom of caring for all family members and looking out for future generations.

19.    Marisela Celaya has her own home now. It is therefore less clear whether Elizabeth Siquieros would want her to share in the HUD Home as well. And Marisela did not make her position known in any way or present any evidence as to any need she may have in the HUD Home, despite several invitations from the Court to all interested parties.

20.    However, Jennifer Celaya repeated several times that it was her position the HUD Home belonged to all four siblings. One time she stated that, as the eldest, she felt it her duty to distribute fairly, implying if not a current need, perhaps a potential need for the HUD Home by Marisela.

21.    Therefore, the Court must defer to what the evidence does show: Elizabeth Siquieros wanted to take care of all four grandchildren (including Marisela), and Jennifer Celaya's testimony suggesting some current or future need of the home by Marisela.

V.  Conclusion

22.    For the above reasons, the Court FINDS that Elizabeth Siquieros made an oral will under the Nation's custom, and her final wishes -- as shown by the strong evidence of her intentions and mindset under the custom of caring for family and looking out for future generations, were to leave her HUD Home to all four of her grandchildren.

23.    The Court therefore ORDERS that the HUD Home is awarded in equal shares to Jennifer Celaya, Lizette Osife, Joshua Osife, and Marisela Celaya.

24.    There was one caveat suggested to the custom of caring for family members -- specifically for taking extended family members in need into one's home. That is the expectation that they help. (Testimony of Ned Norris Jr.)

25.    While just one witness said this and it therefore cannot be deemed a rule (for this case at least, see above), the Court finds it consistent with two earlier cases, In re Francisco, 1 TOR3d 55, 58 (Tr. Ct. 1988) ("In the interests of fairness, the Court further FINDS that the upkeep and maintenance of the rock house must be shared equally by the family members."); In re Norris, 1 TOR3d 63, 68 (Tr. Ct. 1988) (applying In re Francisco) ("all lawful heirs have a right to the use and enjoyment of the land located within the Chukut Kuk District, provided that ... upkeep or maintenance must be shared among the users in equal proportion to their use.").

26.    Again, applying Rule 8.2(d) of Section 1 of the Tohono O'odham Rules of Court, the Court finds those prior cases persuasive. Although they were decided under a different Nation's custom, they offer useful guidance for splitting maintenance costs for a shared property. The Court is particularly persuaded by In re Norris -- that maintenance costs should be divided based on proportion of usage. That principle applies here, as the heirs do not now, and may never, use the HUD Home equally.

27.    Accordingly, the Court, in its role as a court of equity as noted above, applies that principle here and ORDERS that each heir share in the upkeep and maintenance of the HUD Home in equal proportion to their use.

28.    This is a final, appealable Order.

Dated: April 22, 2025

/s/ Joseph Hardy Jr
Judge Joseph Hardy Jr.