A-32464, AUGUST 4, 1930, 10 COMP. GEN. 55

A-32464: Aug 4, 1930

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

IS NOT BINDING UPON THE FEDERAL GOVERNMENT OR THE DISBURSING OFFICER OF THE INDIAN SERVICE. ANY QUESTION OF ENFORCING THE PAYMENT OF ALIMONY IS A QUESTION FOR THE LOCAL COURTS WITH WHICH THE FEDERAL GOVERNMENT IS NOT CONCERNED. AS FOLLOWS: TRANSMITTED HEREWITH IS COPY OF A LETTER DATED JUNE 5. THE PAYMENT TO HIM OF HIS SHARE OF THE OSAGE TRIBAL INCOME IS GOVERNED BY THE FOLLOWING DIRECTION IN THE ACT OF MARCH 3. EASLEY WAS DIVORCED FROM HIS FORMER WIFE. CUSTODY OF THE THREE MINOR CHILDREN BORN TO THE UNION WAS GIVEN THE MOTHER AND EASLEY AGREED THAT THERE SHOULD BE PAID TO HER FOR THEIR SUPPORT AND MAINTENANCE ONE-HALF OF HIS OSAGE ANNUITY PAYMENT. EASLEY WAS UNDER GUARDIANSHIP WHEN THE STIPULATION WAS ENTERED INTO AND THE SAME WAS APPROVED BY THE COUNTY COURT HAVING JURISDICTION OF THE GUARDIANSHIP.

A-32464, AUGUST 4, 1930, 10 COMP. GEN. 55

INDIAN AFFAIRS - ANNUITIES OF COMPETENT INDIANS THE DECREE OF A COURT IN APPOINTING A GUARDIAN FOR AN INCOMPETENT INDIAN, ORDERING THAT, SHOULD THE GUARDIAN BE DISCHARGED, THE ANNUITY SHOULD BE PAID TO SOME BANK, SAID BANK TO DISBURSE ONE-HALF TO THE DIVORCED WIFE OF THE INDIAN FOR THE SUPPORT OF THEIR MINOR CHILDREN, IS NOT BINDING UPON THE FEDERAL GOVERNMENT OR THE DISBURSING OFFICER OF THE INDIAN SERVICE, AND UPON DISCHARGE OF THE INDIAN FROM GUARDIANSHIP AND THE ISSUANCE TO HIM OF A CERTIFICATE OF COMPETENCY BY THE SECRETARY OF THE INTERIOR PAYMENT OF THE ANNUITY INSTALLMENTS SHOULD BE MADE DIRECTLY TO THE INDIAN. ANY QUESTION OF ENFORCING THE PAYMENT OF ALIMONY IS A QUESTION FOR THE LOCAL COURTS WITH WHICH THE FEDERAL GOVERNMENT IS NOT CONCERNED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 4, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 1, 1930, AS FOLLOWS:

TRANSMITTED HEREWITH IS COPY OF A LETTER DATED JUNE 5, 1930, FROM THE SUPERINTENDENT OF THE OSAGE INDIAN AGENCY REGARDING THE DISPOSITION TO BE MADE OF A CHECK REPRESENTING THE PRO RATA SHARE OF GEORGE E. EASLEY, ONE- EIGHTH BLOOD OSAGE INDIAN, IN THE JUNE DISTRIBUTION OF THE TRIBAL INCOME; ALSO COPY OF A TELEGRAM DATED JUNE 21, 1930, FROM MR. EASLEY DEMANDING THAT THIS CHECK BE DELIVERED TO HIM OR THE FIRST NATIONAL BANK OF PAWHUSKA, OKLAHOMA.

MR. EASLEY HOLDS A CERTIFICATE OF COMPETENCY ISSUED PURSUANT TO THE PROVISIONS OF THE ACT OF JUNE 28, 1906 (34 STAT. 539), AND THE PAYMENT TO HIM OF HIS SHARE OF THE OSAGE TRIBAL INCOME IS GOVERNED BY THE FOLLOWING DIRECTION IN THE ACT OF MARCH 3, 1921 (41 STAT. 1249, AS AMENDED BY THE ACT OF FEBRUARY 27, 1925 (43 STAT. 1008):

"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.'

ORDINARILY, UNDER THE FOREGOING DIRECTIONS NOTHING REMAINS FOR ADMINISTRATIVE OFFICERS OF THE GOVERNMENT TO DO BUT PERFORM THE PURELY MINISTERIAL DUTY OF MAKING PAYMENTS IN THE MANNER AND AT THE TIME SPECIFIED. (SEE WORK V. LYNN, 266 U.S. 161.) IT APPEARS, HOWEVER, THAT BY DECREE OF THE DISTRICT COURT OF OSAGE COUNTY, HANDED DOWN MARCH 4, 1929 (COPY HEREWITH), MR. EASLEY WAS DIVORCED FROM HIS FORMER WIFE, STELLA MARIE EASLEY, AND AS A PART OF SUCH DECREE THE COURT APPROVED A STIPULATION BETWEEN THE PARTIES PROVIDING FOR AN EQUITABLE SETTLEMENT OF THEIR PROPERTY RIGHTS. BY THIS STIPULATION, CUSTODY OF THE THREE MINOR CHILDREN BORN TO THE UNION WAS GIVEN THE MOTHER AND EASLEY AGREED THAT THERE SHOULD BE PAID TO HER FOR THEIR SUPPORT AND MAINTENANCE ONE-HALF OF HIS OSAGE ANNUITY PAYMENT, NOT EXCEEDING $2,400 A YEAR, UNTIL THE YOUNGEST CHILD, NOW FOUR YEARS OF AGE, REACHES MAJORITY. EASLEY WAS UNDER GUARDIANSHIP WHEN THE STIPULATION WAS ENTERED INTO AND THE SAME WAS APPROVED BY THE COUNTY COURT HAVING JURISDICTION OF THE GUARDIANSHIP. HAS SINCE BEEN RESTORED TO COMPETENCY AND DISCHARGED FROM GUARDIANSHIP. UNDER HIS AGREEMENT AS INCORPORATED IN THE DECREE, THE PRESENT CHECK AND THOSE REPRESENTING FUTURE ACCRUALS SHOULD BE DISPOSED OF IN THE FOLLOWING MANNER:

"THAT IN THE EVENT THE GUARDIAN IS DISCHARGED AND DEFENDANT RESTORED TO COMPETENCY, THEN IN THAT EVENT THE CHECK SHALL BE SENT TO SOME BANK TO BE DESIGNATED BY THE SUPERINTENDENT OF THE OSAGE AGENCY TO BE HELD IN ESCROW BY SAID BANK FOR ENDORSEMENT AND SAID BANK TO DISBURSE ONE HALF OF THE FUNDS TO STELLA MARIE EASLEY AND ONE-HALF OF THE FUNDS TO GEORGE E. EASLEY.'

INASMUCH AS THE GOVERNMENT WAS NOT A PARTY TO THE DIVORCE PROCEEDINGS AND AS IT APPEARS THAT THE COURT WAS WITHOUT JURISDICTION OVER FUNDS IN OUR CONTROL, WE DO NOT CONSIDER THAT THE SECRETARY OF THE INTERIOR OR THE OSAGE DISBURSING AGENT CAN BE COMPELLED TO RECOGNIZE THE FOREGOING DIRECTION. (SEE IN THIS CONNECTION SUTHERLAND V. U.S., 266 U.S. 226; PRIVETT V. U.S., 256 U.S. 201; BUCHANAN V. ALEXANDER (4 HOW. 20).) NEVERTHELESS, EASLEY, WHO HAD BEEN FREED FROM FEDERAL SUPERVISION AND CONTROL BY THE ISSUANCE OF A CERTIFICATE OF COMPETENCY, WAS SUBJECT TO THE JURISDICTION OF THE COURT AND THE DECREE WOULD, THEREFORE, APPEAR TO BE BINDING UPON HIM UNTIL MODIFIED OR VACATED IN AN APPROPRIATE PROCEEDING BROUGHT FOR THAT PURPOSE. FOR THIS REASON WE ARE IN DOUBT AS TO HIS LEGAL RIGHT TO REPUDIATE THE AGREEMENT WHICH HE VOLUNTARILY ENTERED INTO AND WHICH HAS BECOME BINDING UPON HIM IN THE FORM OF A COURT DECREE, AND IN ORDER THAT WE MAY HAVE A DEFINITE RULE FOR GUIDANCE IN THIS AND OTHER CASES OF A SIMILAR NATURE THAT MAY ARISE IN THE FUTURE, YOUR DECISION IS RESPECTFULLY REQUESTED UPON THE FOLLOWING QUESTIONS:

1. IS THE GOVERNMENT OR ITS DISBURSING OFFICERS IN ANY WAY BOUND BY THE DECREE OF MARCH 4, 1929, OF THE DISTRICT COURT OF OSAGE COUNTY?

2. IF NOT, IS THAT DECREE BINDING UPON EASLEY TO SUCH AN EXTENT THAT HE CAN NOT REPUDIATE THE PROVISIONS THEREOF WITH RESPECT TO THE DISTRIBUTION TO BE MADE OF HIS OSAGE ANNUITY PAYMENTS?

3. IS DISCRETION LODGED IN THE SECRETARY UNDER THE LAW TO THE EXTENT THAT HE MAY CAUSE THE PAYMENT TO BE MADE EITHER TO THE INDIAN OR IN THE MANNER SPECIFIED IN THE COURT DECREE, AND IN THE EXERCISE OF THAT DISCRETION MAY HE MAKE PAYMENT UNDER THE COURT DECREE OVER THE PROTEST AND AGAINST THE EXPRESS WISHES OF THE INDIAN?

IT HAS BEEN HELD THAT THE SECRETARY OF THE INTERIOR MAY RECOGNIZE DIVORCE DECREES OF LOCAL COURTS AFFECTING RESTRICTED OSAGE INDIANS UNDER GUARDIANSHIP. 5 COMP. GEN. 861; 6 ID. 228. SEE ALSO, GENERALLY PROVISIONS OF THE ACT OF APRIL 18, 1912, 37 STAT. 86, RELATIVE TO THE CONTROL OF THE LOCAL COURTS OVER RESTRICTED INDIANS, AND THE DUTY OF THE GOVERNMENT WITH RESPECT TO THE DECREES OF THE LOCAL COURTS IN SUCH CASES. HENCE, IN THE INSTANT CASE, IT WAS PROPER FOR THE GOVERNMENT TO PAY TO THE GUARDIAN, PRIOR TO THE TIME OF HIS DISCHARGE, THE QUARTERLY PRO RATA SHARE OF INDIAN FUNDS DUE THE INDIAN BEFORE THE GUARDIAN WAS DISCHARGED.

HOWEVER, WHEN AN OSAGE INDIAN HAS BEEN ISSUED A CERTIFICATE OF COMPETENCY, HE CEASES TO BE THE WARD OF THE GOVERNMENT. HE IS SUBSTANTIALLY IN THE SAME RELATIONSHIP WITH THE GOVERNMENT AS ANY OTHER PAYEE, EXCEPT WITH RESPECT TO THE CHARACTER OF THE INDIAN TRUST FUNDS, RATHER THAN APPROPRIATED FUNDS, FROM WHICH PAYMENTS TO HIM ARE MADE, NOT HERE INVOLVED. THE GOVERNMENT MAY RECEIVE A PROPER AND LAWFUL ACQUITTANCE FOR QUARTERLY ALLOWANCES OR PRO RATA SHARE OF INDIAN FUNDS DUE AN ADULT OSAGE INDIAN HAVING A CERTIFICATE OF COMPETENCY BY PAYMENT TO THE INDIAN HIMSELF.

IN ANSWER TO QUESTION 1 YOU ARE ADVISED THAT AS NEITHER THE GOVERNMENT NOR THE DISBURSING OFFICER WAS MADE A PARTY TO THE ACTION NEITHER THE GOVERNMENT NOR THE DISBURSING OFFICER IS IN ANY WAY BOUND BY THE DECREE OF MARCH 4, 1929, OF THE DISTRICT COURT OF OSAGE COUNTY.

QUESTION 2 IS ANSWERED BY STATING THAT ENFORCEMENT OF ALIMONY PAYMENTS IS NOW A MATTER FOR THE CONSIDERATION OF THE LOCAL COURTS AND WITH WHICH THE FEDERAL GOVERNMENT HAS NO CONCERN.