A-37784, AUGUST 3, 1931, 11 COMP. GEN. 42

A-37784: Aug 3, 1931

Additional Materials:

Contact:

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

 

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

HAVE NO APPLICATION TO THE INDIAN WHO BECAME ENTITLED TO THE CIVILIZATION BENEFITS UNDER THE ORIGINAL ACT OF MARCH 2. WAS SUSPENDED BY SETTLEMENT 046205-1 (CL. 013388). THE HEIRS OF MARY MENARD (PROBATE 56344-25) HAVE BEEN DETERMINED TO BE TWO SONS. IS SHOWN BY THE RECORDS OF THE INDIAN OFFICE TO HAVE RECEIVED SIOUX BENEFITS IN 1897. THEY HAVE BEEN MARRIED IN 1868. THE DECEASED ALLOTTEE APPEARS TO HAVE BEEN ENTITLED TO BENEFITS AT THE TIME OF HER DEATH. IS NOT ENTITLED THERETO. YOU SAID THAT THE ABOVE DECISION WAS PREDICATED ON THE ASSUMPTION THAT THE QUESTIONS INVOLVED ONLY ALLOTTEES UNDER THE ACT OF 1908. AS THIS WOMAN WAS ALLOTTED UNDER THE ACT OF 1889. THE HEIRS HAVE SUBMITTED A CLAIM FOR THE BENEFITS DUE THE DECEDENT.

A-37784, AUGUST 3, 1931, 11 COMP. GEN. 42

INDIAN AFFAIRS - SIOUX - CIVILIZATION BENEFITS THE PROVISIONS OF THE ACT OF MAY 21, 1928, 45 STAT. 684, PROHIBITING SIOUX INDIANS RECEIVING MORE THAN ONE ALLOWANCE OF BENEFITS, AND PROVIDING AGAINST INHERITABILITY OF THE BENEFITS, HAVE NO APPLICATION TO THE INDIAN WHO BECAME ENTITLED TO THE CIVILIZATION BENEFITS UNDER THE ORIGINAL ACT OF MARCH 2, 1889, 25 STAT. 894.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 3, 1931:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 23, 1931, AS FOLLOWS:

CLAIM 360676 OF MARY MENARD FOR SIOUX BENEFITS, SUBMITTED TO THE GENERAL ACCOUNTING OFFICE IN 1924, APPROVED FOR PAYMENT OF COMMUTED VALUE OF BENEFITS IN THE AMOUNT OF $493.96, WAS SUSPENDED BY SETTLEMENT 046205-1 (CL. 013388), OF SEPTEMBER 22, 1924, AWAITING THE DETERMINATION OF HER HEIRS.

THE HEIRS OF MARY MENARD (PROBATE 56344-25) HAVE BEEN DETERMINED TO BE TWO SONS, LOUIS MENARD, JR., AND GEORGE MENARD, BY HER ONLY HUSBAND, LOUIS MENARD, ROSEBUD SIOUX ALLOTTEE NO. 546, WHO PREDECEASED HIS WIFE ON APRIL 28, 1924.

HER HUSBAND, LOUIS MENARD, IS SHOWN BY THE RECORDS OF THE INDIAN OFFICE TO HAVE RECEIVED SIOUX BENEFITS IN 1897, DURING THEIR MARRIED LIFE, THEY HAVE BEEN MARRIED IN 1868.

THE DECEASED ALLOTTEE APPEARS TO HAVE BEEN ENTITLED TO BENEFITS AT THE TIME OF HER DEATH, ON JULY 5, 1924, HAVING THE REQUIRED STATUS AT THAT TIME AS THE HEAD OF A FAMILY WITH AN APPROVED ALLOTMENT, HER ALLOTMENT HAVING BEEN APPROVED ON JUNE 20, 1900, UNDER THE ACT OF 1889 (25 STAT. 888 -894), AS AMENDED BY THAT OF MARCH 3, 1899 (30 STAT.L. 1362), PROVIDING THAT INSTEAD OF MAKING THE ENTIRE ALLOTMENT TO THE HEAD OF THE FAMILY, IT SHOULD BE DIVIDED EQUALLY BETWEEN THE HUSBAND AND WIFE.

YOUR DECISION OF FEBRUARY 1, 1929, UNDER NO. (4), HELD THAT A SINGLE FEMALE, QUALIFIED BEFORE MARRIAGE, AS IN THIS CASE, BUT WIDOW OF SIOUX MAN WHO RECEIVED BENEFITS DURING THE MARRIAGE, IS NOT ENTITLED THERETO, BECAUSE OF THAT PORTION OF THE LAST SENTENCE OF THE ACT OF 1928 (45 TAT.L., 684), PROHIBITING DOUBLE BENEFITS. HOWEVER, UNDER DATE OF MARCH 1, 1930, YOU SAID THAT THE ABOVE DECISION WAS PREDICATED ON THE ASSUMPTION THAT THE QUESTIONS INVOLVED ONLY ALLOTTEES UNDER THE ACT OF 1908, AND HELD THAT THE LAST SENTENCE OF THE ACT OF 1928, PROHIBITING DOUBLE BENEFITS AND INHERITABILITY, APPLIES ONLY TO SUCH LAST-NAMED ALLOTTEES UNDER THE ACT OF 1908.

THEREFORE, AS THIS WOMAN WAS ALLOTTED UNDER THE ACT OF 1889, APPARENTLY SHE COMES WITHIN THE SCOPE OF THE DECISION OF COMPTROLLER DOWNEY, DATED MAY 11, 1915 (21 COMP., 806), HOLDING THAT UPON ATTAINING THE REQUISITE STATUS THE RIGHT TO THE BENEFITS BECOMES FIXED, DEFINITE, AND INDEFEASIBLE, AND THAT ON THE DEATH OF THE INDIAN BEFORE PAYMENT SUCH RIGHT DESCENDS TO THE HEIRS AS PART OF THE ESTATE.

THE HEIRS HAVE SUBMITTED A CLAIM FOR THE BENEFITS DUE THE DECEDENT. THE CASE INVOLVES TWO QUESTIONS: (1) WAS MARY MENARD ENTITLED TO THE BENEFITS AT THE TIME OF HER DEATH? (2) IF SO, DID THAT RIGHT DESCEND TO THE HEIRS? YOUR FORMAL DECISION THEREON IS REQUESTED.

SINCE THE ALLOTMENT TO MARY MENARD WAS UNDER THE ORIGINAL ACT OF 1889, THE PROVISIONS IN THE ACT OF MAY 21, 1928, 45 STAT. 684, THAT NO PERSON SHOULD RECEIVE MORE THAN ONE ALLOWANCE OF THE BENEFITS PROVIDED BY SECTION 17 OF THE ACT OF 1889 HAS NO APPLICATION, IT HAVING BEEN HELD BY THIS OFFICE THAT THE ACT OF 1928 IS APPLICABLE ONLY TO PERSONS ALLOTTED UNDER THE ACT OF MAY 29, 1908, 35 STAT. 451, 9 COMP. GEN. 371. AS THE RIGHT OF THE DECEASED WAS ACQUIRED UNDER THE ACT OF 1889, AS AMENDED BY THE ACT OF MARCH 3, 1899, 30 STAT. 1362, IT WAS NOT AFFECTED BY THE LATER ACT OF 1928, AND ACCORDINGLY AS TO THE FIRST QUESTION SUBMITTED IT MUST BE HELD THAT MARY MENARD WAS ENTITLED TO THE BENEFITS AT THE TIME OF HER DEATH IN 1924.

AS TO THE SECOND QUESTION, AS TO WHETHER THE RIGHT DESCENDED TO THE HEIRS, THE DECISION OF A FORMER COMPTROLLER OF THE TREASURY, CITED IN YOUR LETTER, APPEARS FULLY TO COVER, IT BEING HELD THEREIN THAT THE RIGHT TO THE COMMUTED VALUE OF BENEFITS AS PROVIDED BY THE ACT OF JUNE 10, 1896, 29 STAT. 334, WHEN DETERMINATION OF SUCH COMMUTED VALUES HAS BEEN DETERMINED BY THE SECRETARY OF THE INTERIOR, BECOMES FIXED, DEFINITE, AND INDEFEASIBLE, AND UPON THE DEATH OF THE INDIAN BEFORE PAYMENT BELONGS TO THE ESTATE OF THE DECEDENT. AS THE PROVISIONS IN THE ACT OF 1928, SUPRA, AGAINST INHERITABILITY ARE NOT APPLICABLE TO PERSONS COVERED BY THE ACT OF 1889, THE HOLDING IN THE DECISION CITED REMAINS IN FULL FORCE AND EFFECT. ACCORDINGLY, IN THE PRESENT CASE IT MUST BE HELD THAT THE RIGHT DESCENDED TO THE HEIRS, OR NEXT OF KIN, OF MARY MENARD.