A-18570, JUNE 8, 1927, 6 COMP. GEN. 795

A-18570: Jun 8, 1927

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TO BE PAID TO EITHER OF THE PARENTS OR THE LEGAL GUARDIAN HAVING PERSONALLY IN CHARGE MINOR OSAGE INDIAN CHILDREN WHO HAVE NO INCOME OF THEIR OWN. ARE NEITHER FEDERAL NOR TRIBAL FUNDS BUT ARE PART OF THE INDIVIDUAL INCOME OF THE ENROLLED INDIAN PARENT NOT HAVING A CERTIFICATE OF COMPETENCY AND ARE HELD IN TRUST FOR SUCH INDIAN. THERE IS. SUCH PAYMENTS MAY NOT BE MADE OUT OF THE INCOME OF AN INDIAN MOTHER WHO WAS AWARDED THE LEGAL CUSTODY OF THE CHILDREN IN DIVORCE PROCEEDINGS TO THE DIVORCED FATHER WHO HAS THE ACTUAL CUSTODY OF THE CHILDREN. 1927: I HAVE YOUR LETTER OF MAY 16. THE FUNDS OF A PARENT OF MINOR UNENROLLED OSAGE INDIAN CHILDREN MAY BE DISBURSED FOR THE SUPPORT OF THOSE CHILDREN WITHOUT THE CONSENT OF THE SAID PARENT WHO IS AUTHORIZED TO HAVE THE LEGAL CARE AND CUSTODY OF SUCH CHILDREN.

A-18570, JUNE 8, 1927, 6 COMP. GEN. 795

OSAGE INDIANS - QUARTERLY ALLOWANCE FOR MAINTENANCE AND EDUCATION OF MINOR CHILDREN OF DIVORCED PARENTS THE FUNDS AUTHORIZED BY THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, TO BE PAID TO EITHER OF THE PARENTS OR THE LEGAL GUARDIAN HAVING PERSONALLY IN CHARGE MINOR OSAGE INDIAN CHILDREN WHO HAVE NO INCOME OF THEIR OWN, TO BE USED FOR THEIR MAINTENANCE AND EDUCATION, ARE NEITHER FEDERAL NOR TRIBAL FUNDS BUT ARE PART OF THE INDIVIDUAL INCOME OF THE ENROLLED INDIAN PARENT NOT HAVING A CERTIFICATE OF COMPETENCY AND ARE HELD IN TRUST FOR SUCH INDIAN. THERE IS, ACCORDINGLY, NO AUTHORITY TO PAY ANY AMOUNTS OUT OF THE INCOME OF A PARTICULAR INDIAN PARENT FOR THE MAINTENANCE AND EDUCATION OF THE CHILDREN EXCEPT TO THAT PARENT AND WHEN THAT PARENT HAS THE ACTUAL CUSTODY OF THE CHILDREN. SUCH PAYMENTS MAY NOT BE MADE OUT OF THE INCOME OF AN INDIAN MOTHER WHO WAS AWARDED THE LEGAL CUSTODY OF THE CHILDREN IN DIVORCE PROCEEDINGS TO THE DIVORCED FATHER WHO HAS THE ACTUAL CUSTODY OF THE CHILDREN, NOR MAY SUCH FUNDS BE DISBURSED BY THE BUREAU OF INDIAN AFFAIRS DIRECTLY FOR THE MAINTENANCE, EDUCATION, OR MEDICAL TREATMENT OF THE MINOR INDIAN CHILDREN.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 8, 1927:

I HAVE YOUR LETTER OF MAY 16, 1927, IN WHICH YOU REQUEST DECISION AS TO WHETHER UNDER THE PROVISIONS OF THE ACT APPROVED FEBRUARY 27, 1925, 43 STAT. 1008, THE FUNDS OF A PARENT OF MINOR UNENROLLED OSAGE INDIAN CHILDREN MAY BE DISBURSED FOR THE SUPPORT OF THOSE CHILDREN WITHOUT THE CONSENT OF THE SAID PARENT WHO IS AUTHORIZED TO HAVE THE LEGAL CARE AND CUSTODY OF SUCH CHILDREN.

THE FACTS IN THE PARTICULAR CASE YOU PRESENT ARE STATED BY THE ASSISTANT COMMISSIONER OF INDIAN AFFAIRS IN HIS LETTER OF MAY 12, 1927, TO BE AS FOLLOWS:

MARY BIRD, OSAGE ALLOTTEE NO. 864, MARRIED LEO WISTAR A NUMBER OF YEARS AGO AND AS A RESULT OF THIS UNION THREE CHILDREN WERE BORN. IN 1922 THE ALLOTTEE STARTED SUIT FOR DIVORCE, AND ON MARCH 22, 1922, THE DISTRICT COURT OF OSAGE COUNTY GRANTED HER PETITION AND PROVIDED AS FOLLOWS:

"IT IS FURTHER ORDERED THAT THE CARE, CUSTODY, AND EDUCATION OF THE CHILDREN OF THE PARTIES HERETO, HUBERT OWEN WISTAR, EDWIN WILLIS WISTAR, AND AGNES ADELINE WISTAR, BE CONFIDED TO THE PLAINTIFF EXCLUSIVELY AND THE DEFENDANT IS HEREBY ENJOINED FROM INTERFERING WITH EITHER OF SAID CHILDREN, OR WITH THE PLAINTIFF IN HER CUSTODY OF THEM, UNTIL THE FURTHER ORDER OF THIS COURT.'

SOME TIME IN MAY, 1925, MARY BIRD (NOW COPPLE) PERMITTED THESE CHILDREN TO VISIT THEIR FATHER IN PAWHUSKA, WHO TOOK THEM TO KANSAS, WHERE HE LIVED AND WHERE THEY NOW ARE. FROM THAT TIME UNTIL MAY, 1926, MARY BIRD INDORSED THE CHECKS SENT TO HER, AND THEY WERE THEN SENT TO LEO WISTAR TO BE USED BY HIM FOR THE SUPPORT AND CARE OF THE CHILDREN. ON MAY 10, 1926, MARY BIRD WROTE TO THE SUPERINTENDENT OF THE OSAGE AGENCY IN PART AS FOLLOWS:

"I WISH TO STATE THAT I WILL NOT IN THE FUTURE INDORSE ANY CHECKS OVER TO HIM, AND I WISH TO SERVE NOTICE THAT IF ANY OF MY FUNDS ARE ATTEMPTED TO BE PAID TO HIM OVER MY PROTEST THAT I WILL HOLD THE DISBURSING AGENT STRICTLY ACCOUNTABLE FOR THE SAME.'

LEO WISTAR, THE FATHER, HAS PRESENTED THE BILL OF DOCTOR J. E. BOSWELL, OF BAXTER SPRINGS, KANSAS, FOR MEDICAL TREATMENT FURNISHED THESE CHILDREN AND REQUESTS PAYMENT.

THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, UNDER WHICH THE QUESTION PRESENTED IN THIS CASE ARISES PROVIDES:

THAT THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE PAID AT THE END OF EACH FISCAL QUARTER TO EACH ADULT MEMBER OF THE OSAGE TRIBE OF INDIANS IN OKLAHOMA HAVING A CERTIFICATE OF COMPETENCY, HIS OR HER PRO RATA SHARE, EITHER AS A MEMBER OF THE TRIBE OR HEIR OR DEVISEE OF A DECEASED MEMBER, OF THE INTEREST ON TRUST FUNDS, THE BONUS RECEIVED FROM THE SALE OF OIL OR GAS LEASES, THE ROYALTIES THEREFROM, AND ANY OTHER MONEYS DUE SUCH INDIAN RECEIVED DURING EACH FISCAL QUARTER, INCLUDING ALL MONEYS RECEIVED PRIOR TO THE PASSAGE OF THIS ACT AND REMAINING UNPAID SO LONG AS THE ACCUMULATED INCOME IS SUFFICIENT THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE PAID TO THE ADULT MEMBERS OF SAID TRIBE NOT HAVING A CERTIFICATE OF COMPETENCY $1,000 QUARTERLY, EXCEPT WHERE SUCH ADULT MEMBERS HAVE LEGAL GUARDIANS, IN WHICH CASE THE AMOUNTS PROVIDED FOR HEREIN MAY BE PAID TO THE LEGAL GUARDIAN OR DIRECT TO SUCH INDIAN IN THE DISCRETION OF THE SECRETARY OF THE INTERIOR AND THE TOTAL AMOUNTS OF SUCH PAYMENTS, HOWEVER, SHALL NOT EXCEED $1,000 QUARTERLY EXCEPT AS HEREINAFTER PROVIDED; AND SHALL CAUSE TO BE PAID FOR THE MAINTENANCE AND EDUCATION, TO EITHER ONE OF THE PARENTS OR LEGAL GUARDIANS ACTUALLY HAVING PERSONALLY IN CHARGE, ENROLLED OR UNENROLLED, MINOR MEMBER UNDER TWENTY-ONE YEARS OF AGE, AND ABOVE EIGHTEEN YEARS OF AGE, $1,000 QUARTERLY OUT OF THE INCOME OF EACH OF SAID MINORS, AND OUT OF THE INCOME OF MINORS UNDER EIGHTEEN YEARS OF AGE, $500 QUARTERLY, AND SO LONG AS THE ACCUMULATED INCOME OF THE PARENT OR PARENTS OF A MINOR WHO HAS NO INCOME OR WHOSE INCOME IS LESS THAN $500 PER QUARTER IS SUFFICIENT, SHALL CAUSE TO BE PAID TO EITHER OF SAID PARENTS HAVING THE CARE AND CUSTODY OF SUCH MINOR $500 QUARTERLY, OR SUCH PROPORTION THEREOF AS THE INCOME OF SUCH MINOR MAY BE LESS THAN $500, IN ADDITION TO THE ALLOWANCES ABOVE PROVIDED FOR SUCH PARENTS. RENTALS DUE SUCH ADULT MEMBERS FROM THEIR LANDS AND THEIR MINOR CHILDREN'S LANDS AND ALL INCOME FROM SUCH ADULTS' INVESTMENTS SHALL BE PAID TO THEM IN ADDITION TO THE ALLOWANCE ABOVE PROVIDED. * * *

NO COPY OF THE DECREE OF THE COURT GRANTING THE DIVORCE ACCOMPANIES YOUR SUBMISSION. HOWEVER, IT APPEARS FROM THE PART THEREOF QUOTED IN THE LETTER OF THE ASSISTANT COMMISSIONER OF INDIAN AFFAIRS, SUPRA, THAT BY THE TERMS OF THE DECREE OF THE COURT THE CARE, CUSTODY, AND EDUCATION OF THE CHILDREN WERE GIVEN TO THE MOTHER AND IT MADE NO PROVISION THAT THE FATHER SHOULD CONTRIBUTE TO THE SUPPORT AND EDUCATION OF THE SAID CHILDREN.

IN THE INSTANT MATTER IT APPEARS THAT BY THE CONSENT OF THE MOTHER THE CHILDREN WERE ALLOWED TO VISIT THEIR FATHER; THAT FOR SOME REASON NOT DISCLOSED FROM THE FACTS OF RECORD THE SAID CHILDREN HAVE NOT BEEN RETURNED TO THE MOTHER BUT ARE NOW LIVING WITH THE FATHER; THAT THEY HAVE BEEN REMOVED BY THE FATHER TO ANOTHER STATE; THAT FOR THE PERIOD OF A YEAR THE MOTHER INDORSED THE CHECKS SENT HER UNDER THE PROVISIONS OF THE ACT, SUPRA, AND SENT THEM TO THE FATHER TO BE USED IN THE CARE AND EDUCATION OF SAID CHILDREN; THAT THE MOTHER NOW REFUSES TO INDORSE ANY CHECKS OVER TO THE FATHER TO BE USED FOR THE BENEFIT OF SAID CHILDREN. IF, AS WOULD APPEAR FROM THE SUBMISSION, THE DECREE OF THE COURT IMPOSED UPON THE MOTHER THE LEGAL OBLIGATION FOR THE CARE, CUSTODY, AND EDUCATION OF THESE MINOR CHILDREN, HER ACTION IN PERMITTING THE FATHER TO TAKE AND RETAIN THE CUSTODY OF THE CHILDREN CAN NOT OPERATE TO RELIEVE HER OF SAID LEGAL OBLIGATION. SEE 15 L.R.A. (NS) 744, AND CASES CITED THEREIN. BUT THE MATTER OF ENFORCING THE MOTHER'S OBLIGATION UNDER THE DECREE OF THE COURT IS FOR THE CONSIDERATION OF THE COURT RATHER THAN THE BUREAU OF INDIAN AFFAIRS OR THIS OFFICE.

WHILE THE PROVISIONS OF THE ACT QUOTED, SUPRA, AUTHORIZE THE PAYMENTS OF CERTAIN AMOUNTS OUT OF THE INCOME OF THE PARENTS HELD IN TRUST BY THE UNITED STATES TO EITHER OF THE PARENTS HAVING THE CARE AND CUSTODY OF THE MINOR CHILDREN WHO HAVE NO INCOME OF THEIR OWN, TO BE USED BY THE SAID PARENT FOR THE MAINTENANCE AND EDUCATION OF THE SAID MINOR CHILDREN, THE TERM "CARE AND CUSTODY" MUST BE CONSTRUED TO MEAN LEGAL CARE AND CUSTODY, AND THE PROVISION CAN NOT BE CONSTRUED AS AUTHORIZING PAYMENT OF THE INCOME OF THE PARENT HAVING THE LEGAL RIGHT TO CARE AND CUSTODY OF THE CHILDREN TO THE OTHER PARENT WHO HAS BEEN LEGALLY DIVORCED FROM THE PARENT HAVING THE INCOME AND LEGAL RIGHT TO CARE AND CUSTODY OF THE MINOR CHILDREN.

FURTHERMORE, THE PROVISION OF THE STATUTE IS FOR THE PAYMENT OF A PART OF THE INCOME OF THE PARENT TO THE PARENT FOR THE MAINTENANCE AND EDUCATION OF THE MINOR CHILDREN; IT DOES NOT AUTHORIZE THE BUREAU OF INDIAN AFFAIRS TO DISBURSE THE INCOME OF THE PARENT FOR THE MAINTENANCE AND EDUCATION OF THE CHILDREN. THE FUNDS IN QUESTION ARE NEITHER FEDERAL FUNDS NOR TRIBAL FUNDS BUT THE INDIVIDUAL INCOME OF AN ENROLLED INDIAN NOT HAVING THE CERTIFICATE OF COMPETENCY, AND ARE HELD BY THE GOVERNMENT IN TRUST FOR SAID INDIAN. THEREFORE, THEY LEGALLY MAY BE EXPENDED OR WITHDRAWN FROM THE TREASURY ONLY IN STRICT ACCORDANCE WITH THE TERMS OF THE STATUTE.

ACCORDINGLY, YOU ARE ADVISED THAT THE PROPOSED USE OF THE INCOME OF THE MOTHER IN PAYMENT OF THE BILL PRESENTED BY THE DOCTOR FOR MEDICAL TREATMENT FURNISHED THE SAID CHILDREN IS NOT AUTHORIZED. YOU ARE FURTHER ADVISED THAT SO LONG AS THE CONDITIONS ARE REPRESENTED BY THE BUREAU OF INDIAN AFFAIRS CONTINUE TO EXIST NO FURTHER PAYMENTS OF THE MOTHER'S INCOME ON ACCOUNT OF SAID CHILDREN EITHER TO THE MOTHER OR ANYONE ELSE ARE AUTHORIZED.