A-19449, AUGUST 20, 1927, 7 COMP. GEN. 125

A-19449: Aug 20, 1927

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A QUARTERLY ALLOWANCE FOR THE MAINTENANCE AND EDUCATION OF A MINOR CHILD IF IT IS FOUND BY THE SECRETARY OF THE INTERIOR THAT SUCH PAYMENTS ARE FOR THE BENEFIT OF THE INDIAN. 1927: I HAVE YOUR LETTER OF AUGUST 3. FROM THE COMMISSION OF INDIAN AFFAIRS AND REQUESTING DECISION WHETHER A RESTRICTED OSAGE ALLOTTEE IS ENTITLED TO RECEIVE AN ANNUITY FOR THE SUPPORT OF HER MINOR UNALLOTTED CHILD WHEN SHE IS RECEIVING HER FULL INCOME UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 27. THE FACTS GIVING RISE TO THE QUESTION ARE STATED IN THE LETTER OF THE COMMISSIONER OF INDIAN AFFAIRS AS FOLLOWS: BEULAH TUCKER MARSHALL IS OF ONE-EIGHTH DEGREE INDIAN BLOOD. SHE IS A RESTRICTED INDIAN. AUTHORITY WAS GRANTED THE SUPERINTENDENT TO PAY MRS.

A-19449, AUGUST 20, 1927, 7 COMP. GEN. 125

OSAGE INDIANS - MAINTENANCE AND EDUCATION OF MINOR CHILDREN A RESTRICTED OSAGE INDIAN ALLOTTEE RECEIVING HIS OR HER FULL INCOME ACCUMULATING IN THE FUTURE UNDER THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, MAY BE PAID IN ADDITION THERETO, FROM THE UNPAID INCOME THAT HAD THERETOFORE ACCUMULATED, A QUARTERLY ALLOWANCE FOR THE MAINTENANCE AND EDUCATION OF A MINOR CHILD IF IT IS FOUND BY THE SECRETARY OF THE INTERIOR THAT SUCH PAYMENTS ARE FOR THE BENEFIT OF THE INDIAN.

ACTING COMPTROLLER GENERAL GINN TO THE SECRETARY OF THE INTERIOR, AUGUST 20, 1927:

I HAVE YOUR LETTER OF AUGUST 3, 1927, INCLOSING A LETTER OF JULY 29, 1927, FROM THE COMMISSION OF INDIAN AFFAIRS AND REQUESTING DECISION WHETHER A RESTRICTED OSAGE ALLOTTEE IS ENTITLED TO RECEIVE AN ANNUITY FOR THE SUPPORT OF HER MINOR UNALLOTTED CHILD WHEN SHE IS RECEIVING HER FULL INCOME UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 27, 1925,43 STAT. 1008.

THE FACTS GIVING RISE TO THE QUESTION ARE STATED IN THE LETTER OF THE COMMISSIONER OF INDIAN AFFAIRS AS FOLLOWS:

BEULAH TUCKER MARSHALL IS OF ONE-EIGHTH DEGREE INDIAN BLOOD, TWENTY TWO YEARS OF AGE, AND THE MOTHER OF AN UNALLOTTED CHILD. SHE IS A RESTRICTED INDIAN, BUT UNDER DATE OF DECEMBER 9, 1926, AUTHORITY WAS GRANTED THE SUPERINTENDENT TO PAY MRS. MARSHALL HER FULL FUTURE ANNUITY PAYMENTS BEGINNING WITH THE DECEMBER, 1926, PAYMENT. MRS. MARSHALL DEMANDS THE $500 PAYMENT FOR THE SUPPORT, MAINTENANCE, AND EDUCATION OF HER MINOR CHILD IN ADDITION TO HER FULL PAYMENTS, AND THE SUPERINTENDENT HAS REQUESTED INSTRUCTIONS REGARDING THIS MATTER.

SECTION 1 OF THE ACT OF FEBRUARY 27, 1925, UNDER WHICH THE QUESTION APPEARS TO ARISE, PROVIDES, IN PART, AS FOLLOWS:

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; AND 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 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. 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: PROVIDED, THAT IF AN ADULT MEMBER, NOT HAVING A CERTIFICATE OF COMPETENCY SO DESIRES, HIS ENTIRE INCOME ACCUMULATING IN THE FUTURE FROM THE SOURCES HEREIN SPECIFIED MAY BE PAID TO HIM WITHOUT SUPERVISION, UNLESS THE SECRETARY OF THE INTERIOR SHALL FIND, AFTER NOTICE AND HEARING, THAT SUCH MEMBER IS WASTING OR SQUANDERING HIS INCOME, IN WHICH EVENT THE SECRETARY OF THE INTERIOR SHALL PAY TO SUCH MEMBER ONLY THE AMOUNTS HEREINBEFORE SPECIFIED TO BE PAID TO ADULT MEMBERS NOT HAVING CERTIFICATES OF COMPETENCY. THE SECRETARY OF THE INTERIOR SHALL INVEST THE REMAINDER, AFTER PAYING THE TAXES OF SUCH MEMBERS, IN UNITED STATES BONDS, OKLAHOMA STATE BONDS, REAL ESTATE, FIRST MORTGAGE REAL ESTATE LOANS NOT TO EXCEED 50 PERCENTUM OF THE APPRAISED VALUE OF SUCH REAL ESTATE, AND WHERE THE MEMBER IS A RESIDENT OF OKLAHOMA SUCH INVESTMENT SHALL BE IN LOANS ON OKLAHOMA REAL ESTATE, STOCK IN OKLAHOMA BUILDING AND LOAN ASSOCIATIONS, LIVESTOCK, OR DEPOSIT THE SAME IN BANKS IN OKLAHOMA, OR EXPEND THE SAME FOR THE BENEFIT OF SUCH MEMBER, SUCH EXPENDITURES, INVESTMENTS, AND DEPOSITS TO BE MADE UNDER SUCH RESTRICTIONS, RULES, AND REGULATIONS AS HE MAY PRESCRIBE: * * *.

THE ACT THUS PROVIDES, FIRST, FOR THE PAYMENT OF ALL FUNDS DUE AN ADULT MEMBER OF THE OSAGE TRIBE OF INDIANS WHEN SUCH INDIAN HAS A CERTIFICATE OF COMPETENCY; SECOND, TO ADULT INDIANS NOT HAVING CERTIFICATES OF COMPETENCY, PAYMENT OF AN ALLOWANCE NOT EXCEEDING $1,000 QUARTERLY PAYABLE EITHER TO THE INDIAN OR TO HIS GUARDIAN IF ONE HAS BEEN APPOINTED; AND, THIRD, IF AN ADULT MEMBER NOT HAVING A CERTIFICATE OF COMPETENCY SO DESIRES THE ENTIRE INCOME ACCUMULATING IN THE FUTURE MAY BE PAID TO HIM OR HER WITHOUT SUPERVISION UNLESS THE SECRETARY OF THE INTERIOR FINDS AFTER NOTICE AND HEARING THAT THE MEMBER IS WASTING OR SQUANDERING THE INCOME.

AS TO MINOR CHILDREN, THE SECTION QUOTED PROVIDES THAT WHEN THE ENROLLED OR UNENROLLED MINOR MEMBER OF THE OSAGE INDIAN TRIBE HAS AN INCOME OF HIS OWN, THERE SHALL BE PAID TO EITHER ONE OF THE PARENTS OR THE LEGAL GUARDIAN HAVING THE ACTUAL CUSTODY OF THE MINOR, $1,000 QUARTERLY IF THE MINOR IS UNDER 21 AND ABOVE 18 YEARS OF AGE, AND $500 QUARTERLY IF UNDER 18 YEARS OF AGE, FOR THE PURPOSE OF MAINTENANCE AND EDUCATION OF SUCH MINOR, PAYABLE OUT OF THE INCOME OF THE MINOR. WITH RESPECT TO MINOR OSAGE CHILDREN WHO HAVE NO INCOME OR WHOSE INCOME IS LESS THAN $500 PER QUARTER, IT IS PROVIDED THAT SO LONG AS THE ACCUMULATED INCOME OF THE PARENT OR PARENTS IS SUFFICIENT, PAYMENTS MAY BE MADE TO THE PARENT HAVING THE LEGAL CUSTODY OF THE CHILD IN THE SUM OF $500 QUARTERLY OR IN SUCH PROPORTION AS THE INCOME OF THE MINOR MAY BE LESS THAN $500.

THIS LAST PROVISION RELATING TO THE PAYMENT OF $500 FOR THE MAINTENANCE AND EDUCATION OF A MINOR MEMBER FROM THE ACCUMULATED INCOME OF THE PARENTS MUST BE TAKEN AS APPLICABLE ONLY IN CASES WHERE THE PARENT IS A RESTRICTED ADULT MEMBER OF THE OSAGE TRIBE, PARTICULARLY IN CASES WHERE THE RESTRICTED ALLOTTEE IS LIMITED TO RECEIVE UNDER THE SECOND CLASS ABOVE REFERRED TO THE SUM OF $1,000 QUARTERLY. IT COULD NOT LOGICALLY HAVE ANY APPLICATION TO CASES IN WHICH THE ADULT MEMBER HAS A CERTIFICATE OF COMPETENCY AND HAS BEEN PAID ALL OF THE FUNDS DUE OR ACCRUING FOR THE REASON THAT IN SUCH CASES THERE IS NO ACCUMULATED INCOME FROM WHICH THE ALLOWANCE OF THE MINOR CAN BE PAID. FURTHERMORE, THE $500 FOR THE CARE AND CUSTODY OF THE CHILD IS AUTHORIZED TO BE PAID IN ADDITION TO THE RESTRICTED SUM OF $1,000 PER QUARTER, NOT IN ADDITION TO THE ENTIRE QUARTERLY INCOME OF THE PARENT.

IN CASES SUCH AS THE ONE HERE PRESENTED WHERE THE INDIAN HAS NO CERTIFICATE OF COMPETENCY BUT IS PAID THE FULL INCOME ACCUMULATING IN THE FUTURE, THERE REMAINS UNPAID THE INCOME WHICH HAD THERETOFORE ACCUMULATED IN EXCESS OF THE PAYMENTS MADE AT THE RATE OF $1,500 PER QUARTER, AND WHILE THE PROVISION OF THE STATUTE, SUPRA, UNDER WHICH THE SUM OF $500 PER QUARTER WAS PAID FOR THE CARE AND CUSTODY OF THE CHILD PRIOR TO DECEMBER, 1926, IS NO AUTHORITY FOR THE CONTINUANCE OF SUCH PAYMENTS AFTER DECEMBER, 1926, THE ACT PROVIDES THAT THE SECRETARY OF THE INTERIOR MAY EXPEND THAT PART OF THE ACCUMULATED INCOME REMAINING UNPAID FOR THE BENEFIT OF THE INDIAN. IT HAS BEEN HELD THAT UNDER SUCH AUTHORITY THE ALIMONY AWARDED BY A COURT OF COMPETENT JURISDICTION TO THE DIVORCED WIFE OF A RESTRICTED OSAGE INDIAN MAY BE PAID. 5 COMP. GEN. 861. NO REASON APPEARS WHY THE SAME RULE SHOULD NOT APPLY IN A CASE AS HERE INVOLVED IF IT IS DEEMED BY THE SECRETARY OF THE INTERIOR FOR THE BENEFIT OF THE INDIAN WHOSE FUNDS ARE INVOLVED THAT HER UNPAID INCOME THAT HAD ACCUMULATED UP TO DECEMBER 1926, SHOULD BE PAID TO AND USED BY HER AT THE RATE OF $500 PER QUARTER FOR THE CARE, MAINTENANCE, AND EDUCATION OF HER CHILD.

THE QUESTION SUBMITTED IS ANSWERED ACCORDINGLY. SEE IN THIS CONNECTION DECISION OF OCTOBER 28, 1925, A-11387; AND 5 COMP. GEN. 476.