A-15610, OCTOBER 2, 1926, 6 COMP. GEN. 228

A-15610: Oct 2, 1926

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THE SUPERVISION OF THE EXPENDITURE OF THE AMOUNT SO AWARDED AFTER PAYMENT TO THE MOTHER IS NOT VESTED IN THE SUPERINTENDENT OF THE AGENCY UNDER THE ACT OF FEBRUARY 27. 1926: I HAVE YOUR LETTER OF SEPTEMBER 1. THE REMAINDER OF THE $500 ALLOWANCE TO BE EXPENDED UNDER SUPERVISION. * * * IT IS BELIEVED ALSO THAT THIS AGENCY IS CHARGED WITH THE DUTY OF SEEING THAT THE CHILDREN OF RESTRICTED OSAGE INDIANS RECEIVE THE BENEFIT OF ALLOWANCES DISBURSED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 27. 000.00 SHALL HAVE BEEN PAID. UNDER THE COURT ORDER IN THIS CASE THE $500 QUARTERLY PAYMENTS FOR THE MINOR ARE TO BE PAID THE MOTHER. SHE IS NOT REQUIRED TO ACCOUNT FOR SAME. AS THE CHILD IS NOW ONLY THREE OR FOUR YEARS OF AGE.

A-15610, OCTOBER 2, 1926, 6 COMP. GEN. 228

OSAGE INDIANS - PAYMENT DECREED BY COURT FOR SUPPORT OF MINOR CHILD THE PAYMENT TO A WHITE WOMAN, THE DIVORCED WIFE OF A RESTRICTED OSAGE ALLOTTEE, OF AN ALLOWANCE OF $500 QUARTERLY FOR THE SUPPORT OF A MINOR CHILD AS DECREED BY THE COURT IN THE DIVORCE PROCEEDING MAY BE MADE ONLY AS DIRECTED BY THE COURT AND IF FOUND TO BE FOR THE BENEFIT OF THE ALLOTTEE, BUT THE SUPERVISION OF THE EXPENDITURE OF THE AMOUNT SO AWARDED AFTER PAYMENT TO THE MOTHER IS NOT VESTED IN THE SUPERINTENDENT OF THE AGENCY UNDER THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, OCTOBER 2, 1926:

I HAVE YOUR LETTER OF SEPTEMBER 1, 1926, IN WHICH YOU REQUEST A DECISION OF A QUESTION PRESENTED BY THE SUPERINTENDENT OF THE OSAGE INDIAN AGENCY RELATIVE TO THE METHOD OF PAYMENT OF THE SUM OF $500 QUARTERLY AWARDED MERTIE M. MORRELL FOR THE SUPPORT OF A MINOR CHILD, BY A DECREE OF DIVORCE OBTAINED BY HER AGAINST GEORGE MORRELL, A RESTRICTED OSAGE ALLOTTEE.

THE SUPERINTENDENT OF THE OSAGE AGENCY IN PRESENTING THE QUESTION IN A LETTER TO THE COMMISSIONER OF INDIAN AFFAIRS MAKES THE FOLLOWING OBSERVATION:

REFERRING TO YOUR LETTER OF MAY 25, 1926, AS APPROVED BY THE DEPARTMENT ON JUNE 3, 1926, IN THE MATTER OF THE JUDGMENT OBTAINED BY MERTIE M. MORRELL AGAINST GEORGE MORRELL, RESTRICTED OSAGE ALLOTTEE NO. 804, IN A DIVORCE ACTION, I ENCLOSE MEMORANDUM PREPARED BY J. M. HUMPHREYS, TRIBAL ATTORNEY.

IT HAS OCCURRED TO ME THAT THE SUM OF $500 PER QUARTER PROVIDED FOR THE SUPPORT AND MAINTENANCE OF THE MINOR CHILD OF GEORGE MORRELL SHOULD BE DISBURSED UNDER THE SUPERVISION OF THE SUPERINTENDENT OF THIS AGENCY, FOR THE SUPPORT AND MAINTENANCE OF THE MINOR CHILD. EXISTING INSTRUCTIONS ALLOW A REASONABLE SUM TO THE PARENTS FOR THE SUPPORT OF THE MINOR, THE REMAINDER OF THE $500 ALLOWANCE TO BE EXPENDED UNDER SUPERVISION. * * * IT IS BELIEVED ALSO THAT THIS AGENCY IS CHARGED WITH THE DUTY OF SEEING THAT THE CHILDREN OF RESTRICTED OSAGE INDIANS RECEIVE THE BENEFIT OF ALLOWANCES DISBURSED UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 27, 1925. THE JOURNAL ENTRY OF JUDGMENT IN THIS CASE, AS MODIFIED ON MAY 4, 1926, PROVIDES FOR THE PAYMENT OF $500 PER QUARTER TO MERTIE M. MORRELL FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF HER CHILD AND THE CHILD OF THE ALLOTTEE, AS FOLLOWS, TO WIT:

THE SUM OF $500.00 FORTHWITH, AND THE FURTHER SUM OF $500.00 ON OR BEFORE THE FOLLOWING SUCCEEDING AND RECURRING DATES, TO WIT: THE 20TH DAY OF JUNE, THE 20TH DAY OF SEPTEMBER, THE 20TH DAY OF DECEMBER, AND THE 20TH DAY OF MARCH, UNTIL THE SUM OF $34,000.00 SHALL HAVE BEEN PAID.

UNDER THE COURT ORDER IN THIS CASE THE $500 QUARTERLY PAYMENTS FOR THE MINOR ARE TO BE PAID THE MOTHER, BUT SHE IS NOT REQUIRED TO ACCOUNT FOR SAME; AND AS THE CHILD IS NOW ONLY THREE OR FOUR YEARS OF AGE, IT IS APPARENT SUCH AMOUNT IS NOT NEEDED FOR THE CHILD AT THIS TIME, AND SUCH PAYMENTS WOULD UNDOUBTEDLY NOT BE USED FOR SUCH PURPOSES.

THE DISBURSING AGENT, THEREFORE, ASKS THAT THE MATTER BE REFERRED TO THE COMPTROLLER GENERAL FOR A RULING AS TO WHETHER THE $500 QUARTERLY ALLOWANCE SHOULD BE PAID DIRECT TO THE WHITE PARENT QUARTERLY OR UNDER SUPERVISION FOR THE BENEFIT OF THE CHILD.

NO COPY OF THE DECREE OF DIVORCE ACCOMPANIES THE SUBMISSION, BUT THE FACTS APPEAR TO BE THAT GEORGE MORRELL IS A FULL-BLOODED OSAGE INDIAN, FROM WHOM HIS WIFE, MERTIE M. MORRELL, A WHITE WOMAN, OBTAINED A DIVORCE AND WAS AWARDED, IN ADDITION TO CERTAIN ALIMONY, THE SUM OF $500 QUARTERLY FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF A MINOR CHILD OF THE COUPLE. IT APPEARS THAT THE ORDER OF THE COURT IS TO THE EFFECT THAT THE SUM SHALL BE PAID DIRECTLY TO THE MOTHER FOR THE BENEFIT OF THE CHILD. THE SUPERINTENDENT OF THE OSAGE AGENCY REQUESTS ADVICE AS TO WHETHER THIS SUM MAY NOT BE REQUIRED TO BE EXPENDED UNDER HIS SUPERVISION.

IT IS TO BE OBSERVED THAT THE QUARTERLY ALLOWANCE OF $500 HERE UNDER CONSIDERATION IS AN AMOUNT AWARDED BY THE COURT AND IS NOT THE $500 QUARTERLY ALLOWANCE AUTHORIZED BY THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, TO BE PAID FOR PURPOSES OF MAINTENANCE AND EDUCATION OF MINORS TO A LEGAL GUARDIAN OR TO THE PARENT HAVING ACTUALLY PERSONALLY IN CHARGE A MINOR MEMBER OF THE OSAGE TRIBE UNDER 18 YEARS OF AGE. SEE DECISION OF APRIL 26, 1926, A-13531, 5 COMP. GEN. 861. IT MAY BE ASSUMED THAT THE COURT, HAVING JURISDICTION OF THE PARTIES FOR THE PURPOSE OF DIVORCE PROCEEDINGS, HAD THE RIGHT AND THE DUTY TO ENTER SUCH ORDER WITH RESPECT TO THE SUPPORT OF THE MINOR CHILD AS IT SEEMED PROPER. IT DECREED THAT THE HUSBAND SHOULD PAY TO THE WIFE THE SUM OF $500 QUARTERLY FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF THE CHILD, AND A PAYMENT TO ANY OTHER PERSON OR IN ANY OTHER AMOUNT WOULD NOT APPEAR TO SATISFY THE DECREE.

YOUR QUERY, HOWEVER, IS CONCERNED MORE WITH THE MATTER OF CONTROLLING THE EXPENDITURE OF THIS SUM AFTER IT HAS BEEN PAID TO THE MOTHER. THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, GIVES THE SUPERINTENDENT OF THEOSAGE AGENCY THE RIGHT TO SUPERVISE THE EXPENDITURE OF FUNDS PAID TO LEGAL GUARDIANS OF OSAGE INDIANS, AND, UNDER CERTAIN CONDITIONS THEREIN SPECIFIED, TO ADULT MEMBERS OF THE TRIBE NOT HAVING CERTIFICATES OF COMPETENCY. THE PROVISION OF THE STATUTE IN THIS RESPECT IS AS FOLLOWS:

ALL PAYMENTS TO LEGAL GUARDIANS OF OSAGE INDIANS SHALL BE EXPENDED SUBJECT TO THE JOINT APPROVAL IN WRITING OF THE COURT AND THE SUPERINTENDENT OF THE OSAGE AGENCY. ALL PAYMENTS TO ADULTS NOT HAVING CERTIFICATES OF COMPETENCY, INCLUDING AMOUNTS PAID FOR EACH MINOR, SHALL,IN CASE THE SECRETARY OF THE INTERIOR FINDS THAT SUCH ADULTS ARE WASTING OR SQUANDERING SAID INCOME, BE SUBJECT TO THE SUPERVISION OF THE SUPERINTENDENT OF THE OSAGE AGENCY.

IT IS ASSUMED THAT THE MOTHER IS ACTING IN THE CAPACITY OF A NATURAL RATHER THAN A LEGAL GUARDIAN, AND SINCE SHE WAS A WHITE WOMAN, IF SHE IS OF AGE, HER COMPETENCY WILL BE PRESUMED. IT APPEARS THEREFORE THAT THE RIGHT OF SUPERVISION OF FUNDS PAID TO HER, PURSUANT TO THE DECREE OF THE COURT, IS NOT GRANTED TO THE SUPERINTENDENT OF THE AGENCY BY THESE PROVISIONS. FURTHERMORE, IT MUST BE ASSUMED THAT THE COURT IN ENTERING ITS DECREE WITH RESPECT TO THE CHILD WAS GOVERNED PRIMARILY BY CONSIDERATION FOR THE CHILD'S WELFARE. IN VIEW OF THE FACTS, THEREFORE, THERE WOULD APPEAR TO BE NO AUTHORITY FOR THE SUPERVISION BY THE OSAGE AGENCY OF THE FUNDS PAID TO THE MOTHER FOR THE BENEFIT OF THE CHILD UNDER A DECREE OF THE COURT AND YOUR QUESTION IS ANSWERED ACCORDINGLY.

IT IS TO BE UNDERSTOOD, OF COURSE, THAT THE DECREE AND ORDER OF THE COURT DIRECTING THE ALLOTTEE TO MAKE THE PAYMENT IN QUESTION COULD NOT OF ITSELF OPERATE TO REQUIRE OR AUTHORIZE THE DISBURSING OFFICER TO MAKE THE PAYMENT ON BEHALF OF THE ALLOTTEE FROM THE ALLOTTEE'S INCOME OR FROM OTHER FUNDS UNDER THE CONTROL OF THE GOVERNMENT. THE INCOME OF THE ALLOTTEE--- IN EXCESS OF THE FIXED QUARTERLY ALLOWANCE AUTHORIZED TO BE PAID TO HIM--- MAY BE USED TO MAKE THE PAYMENT ONLY IF SUCH PAYMENT IS FOUND TO BE FOR THE BENEFIT OF THE ALLOTTEE. SEE 5 COMP. GEN. 602; ID. 862.