There's Nothing Like A Good, Juicy Probate

At the very beginning of my genealogical research of my Ojibwe/French-Canadian ancestry, one of the most important documents for my search was what we all called the Heirs List: the list of relatives of Joseph Chosa (Jr.), my Grandpa Henry’s brother, who had died a childless bachelor in 1938. He died poor, but he did have an allotment situated on a hilltop overlooking Keweenaw Bay in Michigan. (An allotment, for those of you who don't know, is a parcel of land on a Reservation allotted to an individual member of that tribe, with the idea that he or she should farm it and so support self and family.)

Joseph’s heirs were his siblings (most of whom had died) or their surviving legal heirs—the first people on the Heirs List. Their names and locations were all listed along with birth and death information and names of spouses. This particular document was issued in the 1950s and has been updated on several occasions through the decades afterwards, as various heirs died and their shares passed on to their legal heirs—dozens of them, now hundreds and growing every year. There was a distribution of timber income a few years ago, but that's all. 

Real estate always requires a probate unless the decedent has made a will, which few Native Americans do. Probates for Native Americans are handled by the federal government and can take years, even decades to settle, when an allotment on a reservation is at stake—as Joseph's probate shows. (The government’s preferred solution for an allottee with no heirs by blood has generally been to sell the land, usually to some deserving white person or company at a bargain rate. Perhaps the bureaucrats think that without land, Native Americans will finally submit to being completely swallowed up by white society, white culture, and white values. Don’t hold your breath waiting for that to happen anytime soon.)

My mother had a copy of the Heirs List, so did my aunts and several cousins, and all of them were happy to share their copies (with annotations) so that I could do what I’m doing now: tracing as many members of our extended clan as possible, living or otherwise.

Since Great-Grandfather Vincent Dufauld and his daughters were enrolled at Bois Forte, my mother was also enrolled there and eventually, so was I. This means that when the Bois Forte Band began publishing a newsletter for its members, I received a copy of every issue. In the issue for March 2003, J. Kay Davis, the then official Band Historian, wrote about one of several Bois Forte Inheritance Files she had found during a research trip to the National Archives in Washington, DC. (The term “Inheritance File” was used rather than probate, possibly because the term “probate” was what they used for white folks and the government didn’t want to imply that Native Americans had the same rights . . . or perhaps that they were really fully human.)

The file in question involved the estate of Alex Vivier, who died in December 1914. At issue was the land allotted before the turn of the century to Alex’s young daughter Mary, whose death was recorded in May 1903. Under the law, Mary’s allotment went to her father (her mother had died in 1899). After Alex’s death, his property, by law, was divided equally between his widow (who was not the mother of any of his living children) and his two surviving children by his first wife. One of those children, Edith, protested on the grounds that she and Mary were in fact the same person; that the Indian agent had gotten the records mixed up by failing to register Edith’s birth at the correct time, then (to make up for the annuity payments she should have received), created a fictitious child “Mary” who was then “killed off” once the shortage had been made up. During her “lifetime,” “Mary” was given an allotment, which should have been registered to Edith. (If this sounds complicated, that’s because it really is complicated.) Not surprisingly, the decision went against Edith despite the testimony of many people who swore that Edith was the first-born child of her parents.

What got me excited was that Alex’s widow happened to be my own great-grandmother, Saag-i-ji-way-ga-bo-wiik, who had had two daughters by her earlier relationship with Vincent Dufauld. My great-grandmother gave testimony during the proceedings.

I immediately contacted Kay about where, precisely, this file was located and explained the reason for my excitement. My husband and I were already scheduled to fly to Washington about two weeks later, where he was to receive an award, and if I could access probate files for family members I could answer a great many questions. Kay immediately sent me the information I needed, and when in Washington I was able to spend about 6 hours at the National Archives looking for records involving my great-grandparents and other kin.

Talk about pay dirt!! I found not only Alex Vivier’s “Inheritance File”, but one for my great-grandmother’s son—whose very existence was news to us—a young man named Mush-kah-wa-nance (whose father, like my great-grandmother, was from Lac La Croix in Canada, where the father had died). Mush-kah-wah-nance died unmarried and childless in January 1901, but he had crossed the border, been enrolled at Bois Forte and had an allotment. It took ten years to settle the case, by which time my Great-Grandfather Vincent Dufauld had also died. Someone in the bureaucracy got the idea (NOT from Vincent’s widow or her daughter) that the young man’s father “must be” Vincent since Vincent had fathered two of Saag-i-ji-way-ga-bo-wiik’s other daughters (Annie and Clara Dufauld). Since Vincent had outlived Mush-kah-wah-nance, under Minnesota law in 1901 he, as the father, would have been the sole legal heir and Mush-kah-wah-nance's allotment should have been part of Vincent's estate after Vincent's death in 1910. (A relatively speedy settlement: this one took only 9 years.)

At the hearing, my great-grandmother explained Mush-kah-wah-nance’s actual parentage, and no one disagreed with her. Vincent’s widow and their daughter were clearly both decent, honest people: they both swore that Mush-kah-wa-nance was not Vincent’s child even though they would otherwise have inherited the young man’s allotment. My great-grandmother inherited the allotment, or rather the proceeds from its sale. (I’m sure she would have preferred for her son to be still alive and preferably producing grandchildren.)

But the most exciting information came from the inheritance file of Vincent himself, who died in September 1910, although the heirship process didn’t begin until 1912 and the estate wasn’t settled until early 1915. As you may have gathered already, Vincent had something of a reputation for straying from the marital relationship, and there were rumors that he had a son about 45-46 years old as of 1913 living somewhere in Wisconsin, possibly near La Pointe.

Vincent’s brother Peter and a lifelong friend named Baptiste Artischoe testified before the Indian Agent for that area that Vincent had never been married to anyone except to May-min-waun-da-gosh-eake of Bois Forte. Apparently no one ever noticed that since (according to the 1880 census) Vincent was born about 1857, this alleged 45- or 46-year-old son would have been born somewhere about 1868, when Vincent was about 10 or 11 years old—clearly impossible no matter how precocious he was.

Peter also stated that Vincent had lived at Bayfield with his parents until about 1882, then went to his uncle in Superior, Wisconsin; about September of that year, Peter testified, “Vincent Dufauld went to work for their uncle in his trading post near Tower, Minn. In a year or so after his arrival at Tower he married the woman with whom he was living at the time of his death.”

The file also gave the names of his parents (Micheal [sic] Dufauld and Josette Dufauld, and his four surviving siblings: Peter (age 51 in 1912), and sisters Julia, Mary, and Lizzie. Vincent’s grandparents were listed as “Joe Dufauld and ?” and “Vincen [sic] and Lizzie Roy”.

I now had documentary confirmation of my cousin’s information as to Vincent’s parents and grandparents.

Vincent’s probate also revealed a major dispute over whether my grandmother Clara was Vincent’s daughter or not. Vincent’s wife May-min-waun-da-gosh-eake and his daughter Mary (Kay-ge-gay-ah-bun-du-moke), by then married to a white man named Joseph Cook) both testified that while Vincent had always acknowledged being the father of Annie, he “asserted time and again that he was not the father” of Clara—and I believe they were telling the exact truth. However, if Vincent denied paternity “time and again”, this means that his wife and daughter must have kept asking about it! I suspect that Vincent fibbed to them for the sake of domestic tranquility: he simply didn’t want to get beaned with a skillet (or worse) over a second “indiscretion” with my great-grandmother.

It’s interesting that Alex Vivier, now married to my great-grandmother Saag-i-ji-way-ga-bo-wiik, acted as interpreter for all the proceedings. You might think someone would object on the grounds of a conflict of interest, but nobody did. He must have been well known and trusted as a person of sterling probity who wouldn’t twist anyone’s testimony even to benefit his wife or her children.

Alex Vivier himself testified that he had asked Vincent whether he should have both Annie and Clara enrolled in the Bois Forte band under the surname Dufauld; that Vincent had acknowledged paternity of both girls; and that Vincent specifically told him to enroll them both with the surname Dufauld. Several other people testified that Vincent had freely acknowledged paternity of Clara to them. There was testimony that Vincent gave money, clothing, and other gifts equally to both girls (but not to Saag-i-ji-way-ga-bo-wiik’s other children).

In the end, the authorities seem to have decided that actions speak louder than words; they ruled that Clara was indeed Vincent’s daughter and divided Vincent’s estate according to the law: 1/3 to the wife, and the remaining 2/3 in equal shares to the three daughters.

To their very great credit, Vincent’s widow and legitimate daughter held no grudge over this affair. They accepted that Vincent had been untruthful to them and indeed, my mother remembers that whenever she came to town, Clara always called on Mary and her mother and was warmly welcomed; in fact, Mary and Clara were “best buds”.

You may think all of this as proof that I am descended from truly awful, sinful people, but you’re wrong. Among the Anishinaabe, as with most other Native American groups, when a couple married (often without ceremony of any kind) the intention was to remain together so long as the relationship remained pleasing and supportive to both parties—and there are many thousands of documented instances where the couple stayed together for life.

Splitting up and moving on to another relationship was no disgrace, only good sense when circumstances became bad. Women were not considered possessions, but equal companions who had the right to move on if they wished. Vincent, his wife, and my great-grandmother were simply abiding by their culture’s tradition and customs. And that, I maintain, was their right as human beings.

There are not a whole lot of probates (“Inheritance Files”) for Native Americans, but the National Archives in Washington has 5 boxes of them for Minnesota Chippewas. (I intend to go back there one of these days and look for other family probates.) Others are to be found in Regional branches of the National Archives. (I found some for relatives in Wisconsin in the Chicago branch not too long ago.) If you have Native American ancestors, it’s very much worth your while to look for them in the inheritance files for their tribe or band. You never know what juicy tidbits of information you might find; heck, you might just find a really big and tender steak—or maybe even a whole steer.