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Kickapoo Traditional Tribe of Texas - Tribal Court and Tribal Code

Individual Rights

Learn the virtual court procedures, who you need to contact, and more about the Kickapoo Traditional Tribe of Texas Tribal Court.
Overview

Guide Overview

Article VII of the Kickapoo Traditional Tribe of Texas Constitution confers upon the Traditional Council the power “to regulate and maintain law and order on lands within the Tribe’s jurisdiction” and “to provide for the administration of justice by establishing tribal courts”. 

This guide contains information on the Kickapoo Tribal Court and Tribal Codes.

Texas Law Help is working with courts around the state to provide you with accurate information. To help improve upon the information that is available, please leave any comments or recommendations in this Virtual Court Content Survey.   

Research Tips

Read our articles on WebEx and how to use it to prepare for your hearing. You should also read the following documents uploaded by the Tribe: 

Common questions about Kickapoo Traditional Tribe of Texas

The Kickapoo Traditional Tribe of Texas Tribal Court is located at the Courthouse at: 

381 Bishop Gracida 

Eagle Pass, TX 78852  

Phone: (830) 421-5977  

Hours of Operation: Monday–Friday, 8 a.m. to 5 p.m. (Closed for lunch, 12 p.m. to 1 p.m.) 

The Tribal Court Administrator maintains information on the activities of the Court. Visit the Tribal Court homepage for up-to-date contacts for Tribal Court Administration.

The Kickapoo Traditional Tribe of Texas Constitution confers the power upon the Traditional Council to regulate and maintain law and order on lands within the Tribe’s jurisdiction. The Traditional Council desires to administer in a just and impartial fashion, consistent with Kickapoo traditions and customs, all applicable laws, ordinances, regulations and policies.

Under section 1.3(B) of the Tribal Code:

  • Whenever there is uncertainty or a question as to the interpretation of certain provisions of Tribal Code, tribal law or custom shall be controlling; and
  • Interpretation of Tribal Code may be based on the testimony of a qualified tribal elder, historian or other representative.
  • Where Tribal Law does not address particular subject matter, the Court may apply federal law, only if the Court determines them to be consistent with tribal custom.
  • Where neither Tribal Code nor federal law address a particular matter, the Court may apply state law, only if consistent with tribal custom.

The Kickapoo Traditional Tribe of Texas Tribal Court accepts electronic filing via e-mail. Contact Tribal Court Administration for complete details on filing via e-mail.

The Kickapoo Traditional Tribe of Texas Tribal Court offers an up-to-date docket on the Tribal Court homepage.

Instructions & Forms

Honorable Judge Francisco Martinez, III

Honorable Judge Paul Tsosie

381 Bishop Gracida 

Eagle Pass, TX 78852  


Phone: (830) 421-5977

Checklist Steps

Is this court doing virtual hearings?What platform are they using?Are there any exceptions?
Yes.WebEx.Yes. Jury trials are held in-person.

You can visit the Tribal Court’s webpage, or Kickapoo Traditional Tribe of Texas home page for the most up-to-date information.  

Also read our article on How to Use WebEx to prepare for a virtual hearing on WebEx. 

Contact Court Administration for complete filing rules.

Contact Court Administration to schedule a hearing.  

Possibly. Depending on the complexity of the matter, type of hearing, and the situation, the court will use its discretion to permit virtual hearings. Contact the court to see if you can schedule a virtual hearing. 

Court staff will contact you after your hearing is set with instructions for the hearing, including how evidence is submitted and presented to the court. 

Possibly. Contact the court for information on virtual jury trials. 

Possibly. Contact Court Administration for more information. 

If you have any questions concerning your case or court procedures, contact the Tribal Court Administrator by email at monica.davila@ktttribe.org or through the Kickapoo Tribal Court’s Contact Page

Kickapoo Tribal Code - Establishing the Court

Checklist Steps

The Tribal Court has authority over both the Civil and Criminal (Penal) Tribal Codes.

Chapters 1 through 5 of the Kickapoo Traditional Tribe of Texas Tribal Code explain the establishment of the Tribal Court, the Tribal Court’s jurisdiction, and the rules of procedure for the Tribal Court.

Under Chapter 1, the Traditional Council, through a separate and independent judicial system, holds the authority to administer in a just and impartial fashion, all applicable laws, ordinances, regulations and policies.

Under Section 1.2(A)(1) of the Tribal Code, Tribal jurisdiction extends over the Kickapoo Traditional Tribe and its territory, persons who enter its territory, its members, and persons who interact with the Kickapoo Traditional Tribe or its members wherever found.

Under Section 1.30 of the Kickapoo Tribal Code, civil actions may be commenced within three (3) years after the right accrues, except as may be otherwise provided by tribal law.

See Statute of Limitations in Civil Lawsuits for an explanation of limitations in practice. 

The Domestic Relationships Code (Chapter 19 of the Kickapoo Traditional Tribe of Texas Tribal Code) covers domestic relationships such as Marriage, Divorce, Custody, Visitation, Child Support, and Paternity. 

Checklist Steps

Under the Domestic Relationships Code, to maintain an action for divorce or annulment, at lease one party to the marriage must:

  • Be an enrolled member of the KTTT; and
  • Have lived within the territorial jurisdiction for at least three months prior to bringing the action.

There is a general 60-day waiting period to finalize the case from the separation or filing of the petition, whichever is less. 

Exception: Where the parties are both non-tribal members and agree to the jurisdiction of the Tribal Court, no waiting period or residency requirement shall apply. However, in each of these cases, the agreed final Decree of Divorce should be filed together with the Petition of Dissolution.

The KTTT is a community property nation. Both spouses share a one-half interest in both the property and debts of the marriage. Upon dissolution of the marriage, all marital property is to be divided equally between spouses.

Note: If either spouse disposes of community property without the permission of the other, the person disposing the property is liable to the other spouse for damages related to the loss of the other spouse’s interest in the asset.

Marital property, or, community property is the property acquired during the marriage. Upon dissolution of the marriage, all marital property is to be divided equally between the spouses.

Conversely, separate property is all other property acquired prior to the marriage, as well as certain property acquired during the marriage. Separate property that is not divisible in a divorce include:

  • Property acquired before the marriage;
  • Property obtained as a result of personal injury; and
  • Property acquired through inheritance.

Spouses have an obligation to confer with one another regarding the acquisition and disposal of marital assets and the incurring of marital debt. 

When one spouse enters into a contract in which the other spouse has no interest, the non-interested spouse is not liable for the debts or obligations of the other spouse solely by reason of marriage to the other spouse. 

When Kickapoo Traditional Tribe of Texas Tribal Code does not allow two people to get married in certain situations, this marriage is void, and therefore invalid. Unlike an annulment (discussed further below), in a void marriage, both spouses cannot agree to declare the marriage as valid. 

Under the Kickapoo Traditional Tribe of Texas Domestic Relationships Code, the following marriages are void and invalid:

  • Marriages between an ancestor and their descendant;
  • Marriages between brothers and sisters, of the the half as well as the whole blood;
  • Marriages between an uncle and his niece or an aunt and her nephew;
  • Marriages between first cousins, whether or not the degree of relationship is legitimate or illegitimate;
  • Marriages between a person who is at the time of the marriage married to another person still living;
  • Marriage if either party is incapable as a result of some cause or mental dysfunction, or legal incapacity to enter into the marital state, and such cause appears to be permanent; and
  • Marriages where the consent of either party to marry was obtained by force or fraud.

Note: Marriages where one person is, at the time of the marriage, married to another person still living may still be considered valid, until ruled otherwise by a court of competent jurisdiction, if the party that was previously married:

  • Actually believed in good faith that the prior marriage had been dissolved as a result of divorce, annulment, or custom; or
  • Actually believed in good faith that his or her prior spouse was dead.

A marriage may be annulled for any of the following causes:

  • Where the party who is seeking the annulment was under the age of 18 years, and the marriage was contracted without the consent of their parent or guardian, unless that party freely cohabits with the other spouse after attaining the age of 18;
  • Where the former husband or wife of either party was living, and the former marriage was in force at the time of the requested annulment;
  • Where either party was of unsound mind, unless such party, after coming into reason, freely cohabited with the other spouse;
  • Where the consent of either party was obtained by fraud, unless such party afterward, with full knowledge of the facts constituting the fraud, freely cohabited with the other spouse; or
  • Where the consent of either party was obtained by force or threat of force, unless such party afterwards freely cohabits with the other spouse.

Sections 19.22-19.30 of the Kickapoo Traditional Tribe of Texas Domestic Relationships Code cover child custody generally. 

The KTTT favors joint conservatorship of the children by their parents. The presumption is that joint conservatorship should be granted. 

If circumstances exist that make joint conservatorship impracticable, the Tribal Court shall determine who should have sole conservatorship based on a totality of the circumstances. 

The Tribal Court shall determine custody in accordance with the best interests of the child, and, secondarily, the traditions and customs of the KTTT people. 

When determining the best interests of the child, the Tribal Court shall consider the following factors:

  • The wishes of the child’s parent or parents as to visitation privileges;
  • The wishes of the child as to his custodian and as to visitation privileges;
  • The relationship between the child and his or her parents, his or her siblings, and any other person who may significantly affect the child’s bests interests;
  • The child’s adjustment to his or her home, school, and community;
  • The mental and physical health of all parties involved; and
  • The Indian heritage of the child and the KTTT’s compelling state interest in the supervision of its children’s upbringing and need for maintenance of its number of members. 

A man is presumed to be the natural father of a child if:

  • He and the child’s natural mother are or have been married, and the child is born during the marriage, or within three hundred days after the marriage is terminated by death, annulment or divorce’
  • Before the child’s birth, he and child’s natural mother have attempted to marry in apparent compliance with law, although the attempted marriage is or could be declared invalid, and the child is born within three hundred days after the termination of cohabitation; or
  • After the child’s birth, he and the child’s natural mother have married or attempted to marry, and he has either (1) acknowledged his paternity; (2) he is named on the child’s birth certificate; or (3) he is obligated to support the child under a written voluntary promise or by court order. 

A presumption of paternity may be rebutted only by clear and convincing evidence.

A suit to determine paternity may be brought by:

  • A child;
  • The child’s natural mother;
  • A man alleging to be the father;
  • A child’s guardian or personal representative;
  • The Kickapoo Traditional Tribe of Texas; or
  • Any interested party for the purpose of declaring the existence or nonexistence of the father and child relationship.

The Tribal Court may, upon request, require the child, mother, and any alleged father who has been made a party to submit to blood tests.

Child Support is covered in Domestic Relationships Code Sections 19.47-19.63.

The Tribal Court has continuing jurisdiction to prospectively modify a judgment and order for future education and future support upon showing a substantial change of circumstances.

Child support shall be based on the monthly net resources of the Obligor in the following percentages:

  • 1 child – 20% of Obligor’s Net Resources
  • 2 children – 25% of Obligor’s Net Resources
  • 3 children – 30% of Obligor’s Net Resources
  • 4 Children – 35% of Obligor’s Net Resources
  • 5 Children – 40% of Obligor’s Net Resources
  • 6+ Children – Not less than the amount for 5 children

Where there are support obligations to children in more than one household, the court may determine the child support amount by applying the percentages in the table below to the obligor’s net resources:

 Number of children before the court:1234567
Number of other children for whom the obligor has a duty of support:        
0 20.00% of Net Resources25.00% of Net Resources30.00% of Net Resources35.00% of Net Resources40.00% of Net Resources40.00% of Net Resources40.00% of Net Resources
1 17.50% of Net Resources22.50% of Net Resources27.38% of Net Resources32.20% of Net Resources37.33% of Net Resources37.71% of Net Resources38.00% of Net Resources
2 16.00% of Net Resources20.63% of Net Resources25.20% of Net Resources30.33% of Net Resources35.43% of Net Resources36.00% of Net Resources36.44% of Net Resources
3 14.75% of Net Resources19.00% of Net Resources24.00% of Net Resources29.00% of Net Resources34.00% of Net Resources34.67% of Net Resources35.20% of Net Resources
4 13.60% of Net Resources18.33% of Net Resources23.14% of Net Resources28.00% of Net Resources32.89% of Net Resources33.60% of Net Resources34.18% of Net Resources
5 13.33% of Net Resources17.86% of Net Resources22.50% of Net Resources27.22% of Net Resources32.00% of Net Resources32.73% of Net Resources33.33% of Net Resources
6 13.14% of Net Resources17.50% of Net Resources22.00% of Net Resources26.60% of Net Resources31.27% of Net Resources32.00% of Net Resources32.62% of Net Resources
7 13.00% of Net Resources17.22% of Net Resources21.60% of Net Resources26.09% of Net Resources30.67% of Net Resources31.38% of Net Resources32.00% of Net Resources

The Indian Child Welfare Code can be found in Chapter 20 of the Kickapoo Traditional Tribe of Texas Tribal Codes. There are supporting codes listed in Chapters Seven through Ten.

The Kickapoo Traditional Tribe of Texas has Established the Indian Child Welfare Code with the purpose of protecting the best interests of Kickapoo children and of the Tribe and its customs and culture.

The Kickapoo Traditional Tribe of Texas carries the following policies as it relates to child welfare:

  • To protect the best interests of KTTT children;
  • To prevent the unwarranted breakup of KTTT families;
  • To maintain the connection of KTTT children to their families and Tribe;
  • To promote the stability and security of the Tribe;
  • To foster cooperative intergovernmental relations between KTTT and the State of Texas, and other States and Tribes, with regard to the welfare of KTTT children and families;
  • To provide child welfare services to KTTT children and families;
  • To preserve the opportunity for KTTT children to learn about their culture and heritage, and to become productive adult members of the tribal community; and
  • To utilize the Tribe’s Family Unity Model approach in its efforts to reunify families.

Checklist Steps

The caseworker is required to initiate all investigations of matters that arise under this Code, when an allegation of abuse, dependency, or neglect is made. The investigation shall cover the child’s:

  • Home environment;
  • History;
  • Associations;
  • Condition and the family’s condition; and
  • Recommendations as to the child’s future care.

The tribal representative shall take a minor into custody if:

  • There are reasonable grounds to believe that the minor is a youth-in-need-of-care and is in immediate danger from his or her surroundings, and that removal is necessary;
  • An emergency custody order has been issued by the Tribal Court; or
  • There is reasonable cause to believe that a youth subject to the Tribal Court’s jurisdiction is leaving the jurisdiction of the Court or being taken from this jurisdiction without permission.

A child in need of emergency placement may be placed, pending a court hearing, in one of the following placements:

  • With extended family members who will be able to protect the health and safety of the child;
  • A foster care facility in the service area licensed or approved by the Tribal Family Action Program (“TFAP”);
  • A private family home in the service area licensed or approved as a foster home by the TFAP;
  • A shelter care facility in the service area approved by the TFAP; or
  • A shelter care facility outside of the service area or an approved foster home outside of the service area approved by the TFAP. 

After a petition is filed for custody pursuant to this Code, the removal of a child must result from a judicial determination that continued custody would be contrary to the health and welfare of such child. Where more than one child is removed from a home, it shall be the Tribe’s policy to keep all the children so removed in one placement or shelter.

Before removal of a child, the caseworker must prepare a pre-dispositional report that outlines a specific plan for the care and assistance to the minor or their parents. The pre-dispositional report shall be made available to the minor, parents, guardian, custodian, or legal representative at least two (2) days before a dispositional hearing. Any party may submit a separate pre-dispositional report to the Court in this same time period.

Dispositional or adjudicatory placements must be reviewed every six (6) months. However, within 18 months of the original placement, the Court shall hold a permanency planning hearing to determine the long-term status of the child. The court may order, but is not limited to, any of the following dispositions:

  • Returning the child to the parent(s);
  • Ordering that a guardian be appointed and placing the child with the guardian;
  • Continuing the child in foster care for a specific period; and
  • Continuing the child in foster care on a permanent basis.

Disposition and placement of a child are covered in Sections 20.2 and 20.3 of the Child Welfare Code. Long-term placement provisions are covered in Section 20.5. 

Parental rights can be terminated both voluntarily and non-voluntarily. Child Welfare Code Section 20.4 is intended to ensure competent, stable, and ongoing care of the child by prompt and final adjudication.

Non-voluntary Termination of Parental Rights

Factors considered during a termination include, but are not limited to, any of the following:

  • Abandonment;
  • Illness or deficiency of the parent that would render the parent unable to care for the ongoing physical, mental, and emotional needs of the minor within one year from the date of determination of the illness;
  • Abuse or Neglect;
  • Excessive use of intoxicating liquor or illegal substances for over a period of one or more years;
  • Imprisonment for a period of one or more years;
  • A guilty plea that the parent, either intentionally or recklessly, willfully, or wantonly caused the death or injury of a minor’s sibling;
  • Failure to provide a home or reasonable substitute physical care and maintenance where custody is lodged with others;
  • Failure to maintain regular visitation or other contact with the child as designated in a plane to reunite the child with the parent;
  • Failure to maintain consistent contactor communication with the child over a period of one year; or
  • Unsuccessful rehabilitation of the parents.

Note: In any proceeding for non-voluntary termination of parental rights, the Court may appoint an advocate to represent the child as counsel or guardian ad litem if the Court determines that the interest of the child are not being represented by any of the parties in the proceeding, in the Court’s discretion.  The Court may also appoint a guardian ad litem in a voluntary termination proceeding.

A termination hearing shall be held within thirty (30) days after a petition is filed, except by the order of the Court.

A termination judgment should include the decision, reason for the decision, and order the disposition  of the minor as follows:

  • Place the minor with an extended family member; or
  • Place the minor in a foster care or shelter care facility which has been approved by the tribe; and in either case
  • Place the child in long-term placement, and proceed to the adoption section of this Code if appropriate. 

Voluntary Termination of Parental Rights

In a case of voluntary termination of parental rights, the Court shall require that:

  • No voluntary termination occurs before a child is ten (10) days old, except by order of the Tribal Court;
  • No voluntary termination shall occur until a written report is submitted to the Court by a recognized social services agency indicating that social services and counseling have been offered to the parent, the consequences of voluntary termination have been fully explained and understood, and such action is in the best interest of the child; or
  • A parent may waive in writing, the right to appear at a hearing, the right to notice of hearing, or both, and the Court shall assure that such waiver is knowing and voluntary. 

Where the Court has reasonable doubt as to the emotional state of the petitioner or petitioner’s ability to understand the consequences of his or her decision, the Court shall place the child with the Social Services Department for a period not to exceed thirty (30) days in order to allow the parent to consider the decision. 

Further, the Court shall order legal and psychological counseling for the parent in order to assure the parent’s understanding of the consequences of the decision and a report of the results of such counseling shall be made to the court. 

At the end of the thirty (30) day period, based upon the report received by the Court, the Court shall either:

  • Return custody to the parent;
  • Process the petition for voluntary termination of parental rights; or
  • Extend the period for no more than an additional thirty (30) days to allow additional counseling. 

Long term placement and adoption provisions are outlined in Sections 20.5 and 20.6 of the Child Welfare Code, respectively. 

Guardianship

It is the policy of the Tribe to prefer guardianship as a long-term placement option for tribal children over adoption or long-term foster care. 

Guardianship is covered in Section 20.5(a) of the Child Welfare Code. 

Where necessary or convenient, the Court may appoint guardians of the person and/or property of children under the court’s jurisdiction, as well as incapacitated adults who have no guardian legally appointed by will or deed. This appointment may be made on the petition of a relative or other person on behalf of the child or incapacitated adult, or on a petition of the child if the child is at least fourteen (14) years of age. Notice requirements for a Guardianship proceeding are outlined in Section 20.5(a)(1). 

When the child is under fourteen (14) years, the court may nominate or appoint his guardian. However, if he or she is fourteen (14) years or older, he or she may nominate their own guardian who, if approved by the court, must be appointed accordingly. If the guardian nominated by the child is not approved, or if the child resides outside of KTTT Indian Country or if the child neglects for ten (10) days to nominate a suitable person, the court may nominate and appoint the guardian in the same manner as if the child were under the age of fourteen (14) years. 

When a guardian is appointed to a child under the age of fourteen (14) years, the child, at any time after they attain the age of fourteen (14), may nominate their own guardian, subject to approval of the court. 

Adoption 

It is the policy of the Tribe that its children should be adopted only as a matter of last resort, and that alternative methods for long-term placement should first e considered. 

The following persons may file a petition to adopt:

  • Any adult, given that the petitioning adult shall be at least ten (10) years older than the minor;
  • In the case of married persons maintaining a home together, both spouses shall be petitioners, except where one of the spouses is the natural parent of the minor to be adopted. The natural parent shall not be a party to the petition in this situation;
  • A married person legally separated may adopt without the consent of his or her spouse.

The welfare of the child is the primary condition to consider during an adoption proceeding.

Preference in adoption shall be given in the following order:

  • Tribal member adoptive parents, at least one person of any adoptive couple must be a tribal member;
  • Families in which one person is a Tribal member or can prove decadence from a KTTT Tribal member;
  • Indian adoptive parents, which means that at least one person of any adoptive couple must be a member of a federally recognized tribe;
  • Non-Indian adoptive parents.

Petitions for adoption shall contain the following: 

  • The full name, residence, place of birth, date and sex of the child, with attached documentary proof of the date and place of birth of the child to be adopted;
  • Documentary poof of the child’s membership status in the Tribe, if such proof exists;
  • The full name, residence, date and place of birth, occupation of the adoptive parent(s), statement of relationship to the child, documentary proof of marital status (provided this not be interpreted to prohibit single parent adoptions) and tribal membership or Indian status;
  • Proof of parental consent to the adoption where the petitioners are relatives of the child by blood or marriage; except where the natural parents have abandoned the child and cannot be located or where there is proof of a court order terminating parental rights of the parents to said child. [See Section 20.5(b)(5) and (6) for full details on parental consent].
  • An agreement by the adopting parent of the desire that a relationship of parent and child be established between them and the child;
  • A full description and statement of value of all property owned, possessed, or held in trust by and for the child;
  • A citation to the specific section of this Code giving the Court jurisdiction of the proceedings; and
  • A brief and concise statement of the facts which may aid the Court in its determination. 

A Tribal Caseworker shall prepare and present to the Court a report within 60 days of the filing of a petition for adoption as to the suitability of the child for adoption, as well as to the financial, moral, physical fitness, general background of the adoptive home, and adoptive parent or parents. A home study shall be conducted as part of this procedure. Copies of this report shall be served on petitioner at the same time they are presented to the Court.

Written consent cannot be withdrawn after the entry of a final order of adoption but consent may be withdrawn prior to the final order of adoption. A withdrawing party must show by a preponderance of evidence that consent was obtained by fraud, duress or coercion, or the best interests of the child require the consent to adoption be voided.

Adoption Hearing

Adoption hearings shall be held within 90 days of receipt of an adoption petition. Adoptive parent or parents shall appear personally. At or before the hearing, any biological, adoptive or acknowledged parent consenting to the adoption must appear personally before the judge, in open court so the Court can determine the voluntaries and understanding with which consent was given, if the court determines the validity of the consent is an issue. 

The judge shall examine all persons appearing as to the suitability of the child for adoption, the validity of consent to adoption, the financial, moral, and physical fitness, responsibility of the adoptive parents, and whether the best interests of the child will be promoted by the adoption. The Court shall also hear natural extended family members to decide whether the child’s legal relationship to the extended family should be terminated.

Order of Adoption

Where the Court is satisfied that the petition for adoption is in the best interest of the child, the Court may enter a final decree of adoption as follows:

  • In the case of a child who has lived with the adoptive parent for more than one year before the adoption petition has filed, the final decree of adoption shall be entered immediately; and
  • In all other cases, the Court shall order the child be placed in the legal custody of the adoptive parent for at least one year; at that time, the court shall request a supplemental report and, if the Court determines that the best interest of the child are served, shall enter the final decree of adoption immediately.

Debt claims are covered in Chapter 17 of the Kickapoo Traditional Tribe of Texas Tribal Code. The Tribal Court has jurisdiction over civil claims involving a debt or contractual obligation, the right to use or possession of land, or the right to possession or ownership of any personal property within the territorial jurisdiction of the Court.

Checklist Steps

Under Section 17.3(B) of the Tribal Code, any defendant in a debt claim shall have twenty (20) days to file an answer to the complaint. The Kickapoo Traditional Tribe of Texas has prepared a Civil Answer form for use on their Tribal Court webpage. 

The following property shall be exempt from execution and garnishment:

  • Trust property;
  • Income from trust property; and
  • Any property which is protected by statute or ordinance.

The Kickapoo Probate Code can be found in Chapter 6 of the Tribal Codes. The purpose of this code is to ensure that the property of decedents (individuals who have died) passes to the rightful heirs or beneficiaries. 

Checklist Steps

Under the Probate Code, a valid will can be made by any person who is 18 or more years of age and who is of sound mind

In order to be valid, a self-proved will must: 

  • Be put in writing and signed by the testator, or in the testator’s presence and at the testator’s direction signed by another person; and
  • Be signed by at least two (2) witnesses who either witnessed the signing of the will, or the testator’s acknowledgment of the signature and direction to do so.

A holographic will is a will which does not comply with the requirements above, and can be valid, whether or not witnessed, if the signature and material provisions of the will are in the handwriting of the testator. 

An oral will is a will that does not comply with the requirements above is valid under custom and tradition if the testator orally made known the testator’s last will in the traditional matter. Under Section 6.2.4 of the Probate Code, the Court shall hear testimony on the credibility and manner of an oral will. An oral will cannot revoke a prior written will.

A will or any part of a will is revoked:

  • When a subsequent valid written will, codicil (amendment, supplement, or addition to a will that may explain, modify, add to, subtract from, qualify, alter, restrain, or revoke provisions in an existing will), or other instrument which revokes the prior will in whole or in part expressly or by inconsistency; or
  • By being burned, torn, canceled, obliterated, or destroyed with the intent and for the purpose of revoking it by the testator or by another person in the testator’s presence and at the testator’s direction.

Where any part of the estate is not effectively disposed of by the decedent’s will, the unidentified property will pass to the decedent’s heirs as prescribed in Section 6.3 of the Probate Code. This disposition of property is known as intestate succession.

Under the rules of intestate succession, the surviving spouse:

  • Is entitled to the entire intestate estate if there is no surviving issue (children, grandchildren, lineal descendants) or parent of the decedent;
  • Is entitled to the first $10,000, plus one-half of the balance of the intestate estate if there is no surviving issue, but thee decedent is survived by a parent or parents;
  • Is entitled to the first $10,000, plus one-half of the balance of the intestate estate if there are surviving issue (all of whom are issue of the survived spouse). 
  • Is entitled to one-half of the intestate estate if there are surviving issue, and one or more of the issue are not issue of the surviving spouse.

Estate property that is not passing to the surviving spouse as described above (or if there is no surviving spouse) passes as follows:

  • To the issue (children, grandchildren, lineal descendants) of the decedent. If they are all of the same degree of kinship, they take equally. If there are unequal degrees of kinship, those of more remote degree take by representation (proportionally);
  • If there is no surviving issue, to the decedent’s parent or parents equally;
  • If there is no surviving issue or parent, to the issue of the parents or either of them by representation;
  • If there is no surviving issue, parent or issue of a parent, and the decedent is survived by one or more grandparents or issue of grandparents, then half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal grandparents if both are deceased, the issue taking equally if they are all of the same degree of kinship to the decedent. The other half passes to the maternal relatives in the same manner.

If there is no taker under the preceding conditions, the intestate estate passes to the Tribe. 

The rules for Probate of wills fall under Section 6.7 of the Kickapoo Traditional Tribe of Texas Tribal Code. The rules for Administration of intestate estates fall under Section 6.6. 

Probate and administration of estate property can be complex. We recommend contacting a local probate lawyer for assistance with the probate process.

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A guardian is an adult appointed to take care of the person or property of another. Unless a guardian has been appointed by a court, each parent is the natural guardian of their minor children.

There are two types of court-appointed guardianship. Guardianship of the estate (Tribal Code Section 6.8.4) and guardianship of the person (Section 6.8.3). Guardianship can be either temporary in nature (Section 6.8.6) or permanent in nature (Section 6.8.5), subject to the terms of the order.

Under Section 6.8.8 of the Tribal Code, a Guardianship Petition must include the following:

  • Full name, address, and tribal affiliation of the petitioner;
  • Full name, sex, date and place of birth, residence and tribal affiliation of the proposed ward;
  • The basis for the Court’s jurisdiction and if the petitioner is not a member of the tribe, a statement that the petitioner consents to the jurisdiction of the court;
  • The relationship of the proposed guardian to the proposed ward, if any;
  • The name and address of the person or agency having actual custody of the proposed ward;
  • Whether any court has issued any orders concerning the custody or estate of the proposed ward and, if so, the name of the court, title and number of the case, and nature of the proceeding. A true copy of any orders shall be attached to the petition if available; 
  • The type of guardianship requested and why there is a need for appointment of a guardian;
  • Whether an emergency guardianship is sough and, if so, the nature of the emergency;
  • In the case of alleged incompetent persons, the grounds for incompetency under Section 6.8.11; and
  • A full description and statement of value of all property owned, possessed, or in which the proposed ward has an interest (if guardianship of the estate is requested). 

All petitions for guardianship must be signed under oath and dated by the petitioner(s), and must be notarized. 

In the event that guardianship is appointed over the estate, management of estate property is strictly outlined in Section 6.8.10.

Termination of Guardianship: Upon motion of any person, including the Tribe, the Court, after notice shall hold a hearing on whether to remove a guardian. 

The Probate Code is located in Chapter 6 of the Tribal Code. The Probate Code contains extensive provisions based on several variables surrounding the probate process. Some of the relevant miscellaneous provisions are detailed below:

  • Under Section 6.1.7(3), A person who is absent for a continuous period of five (5) years, during which they have not been heard from, and whose absence is not satisfactorily explained after a diligent search is presumed to be dead. Their death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier.
  • Under Section 6.1.15, A person who is divorced from a decedent is not a surviving spouse for purposes of this code.
  • Under Section 6.3.6, a person conceived before the decedent’s death, but born thereafter will inherit as if they had been born in the lifetime of the decedent. 

Under Section 6.3.9, An adopted person is the child of an adopting parent and of the natural parents for inheritance purposes only. An adopted person shall also inherit from all other relatives of an adoptive parent as though the adopted person was the natural child of the adoptive parent and the relatives shall inherit from the adoptive parent’s estate as if they were the adoptive parent’s relatives.

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