A-62639, AUGUST 13, 1935, 15 COMP. GEN. 132

A-62639: Aug 13, 1935

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ARE NOT PAYABLE TO AN INDIAN WHOSE LAND ALLOTMENT WAS ACQUIRED BY DESCENT AND RELINQUISHMENT FROM THE ORIGINAL LAND ALLOTTEE WHO DIED PRIOR TO ATTAINING A STATUS ENTITLING HIM TO THE CASH ALLOTMENT. THE LAND BELONGING TO THE APPLICANT WAS ORIGINALLY ALLOTTED TO SETH EAR. WAS DETERMINED TO BE HIS SOLE HEIR. IS ENTITLED TO CASH BENEFITS. THE MATTER IS NOT FREE FROM DOUBT. YOUR DECISION IN THE PREMISES IS REQUESTED. WHO SHALL HAVE OR MAY HEREAFTER TAKE HIS OR HER ALLOTMENT OF LAND IN SEVERALTY. ALL SUITABLE TO THE WORK THEY MAY HAVE TO DO. PROVIDED THAT IN THE PURCHASE OF SUCH SEED PREFERENCE SHALL BE GIVEN TO INDIANS WHO MAY HAVE RAISED THE SAME FOR SALE. SO MUCH MONEY AS SHALL BE NECESSARY FOR THIS PURPOSE IS HEREBY APPROPRIATED OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED * * *.

A-62639, AUGUST 13, 1935, 15 COMP. GEN. 132

INDIAN AFFAIRS - CASH ALLOTMENT BENEFITS THE CASH ALLOTMENT BENEFITS AUTHORIZED TO BE PAID UNDER CERTAIN SPECIFIED CONDITIONS TO AN ALLOTTEE OF INDIAN LAND UNDER THE PROVISIONS OF THE ACT OF MARCH 2, 1889, 25 STAT. 894, AS AMENDED BY THE ACT OF JUNE 10, 1896, 29 STAT. 321, 334, ARE NOT PAYABLE TO AN INDIAN WHOSE LAND ALLOTMENT WAS ACQUIRED BY DESCENT AND RELINQUISHMENT FROM THE ORIGINAL LAND ALLOTTEE WHO DIED PRIOR TO ATTAINING A STATUS ENTITLING HIM TO THE CASH ALLOTMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, AUGUST 13, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 5, 1935, AS FOLLOWS:

ONE STEPHEN EAR, IDENTIFIED ON THE ALLOTMENT RECORDS AS CROW CREEK ALLOTTEE NO. 1496A, HAS APPLIED FOR CASH ALLOTMENT BENEFITS UNDER THE PROVISIONS OF SECTION 17 OF THE ACT OF MARCH 2, 1889 (25 STAT. 894), AS AMENDED BY THE ACT OF JUNE 10, 1896 (29 STAT. 321, 334).

THE LAND BELONGING TO THE APPLICANT WAS ORIGINALLY ALLOTTED TO SETH EAR, CROW CREEK ALLOTTEE NO. 1496. THE ALLOTTEE HAVING DIED WHEN ABOUT ONE YEAR OF AGE, HIS FATHER, JOHN EAR, WAS DETERMINED TO BE HIS SOLE HEIR. JOHN EAR THEN RELINQUISHED HIS INTEREST IN THE LAND FOR REALLOTMENT TO STEPHEN UNDER SECTION 3 OF THE ACT OF JUNE 25, 1910 (36 STAT. 855), WHICH DECLARES THAT THE NEW ALLOTTEE SHALL RECEIVE THE LAND SUBJECT TO ALL THE CONDITIONS ATTACHING THERETO BEFORE SUCH RELINQUISHMENT. IN VIEW OF THIS DECLARATION AND THE FAMILIAR RULE THAT LEGISLATION OF THIS KIND MUST BE LIBERALLY CONSTRUED IN FAVOR OF THE INDIANS, IT WOULD SEEM THAT THIS APPLICANT WHO AS A PERSON OVER 18 YEARS OF AGE WITH AN APPROVED ALLOTMENT MEETS THE REQUIREMENTS OF THE ACT OF 1889, IS ENTITLED TO CASH BENEFITS.

THE MATTER IS NOT FREE FROM DOUBT, HOWEVER, AND AS AN EXAMINATION OF THE SEVERAL DECISIONS RENDERED BY YOU ON THE ELIGIBILITY OF APPLICANTS FOR CASH BENEFITS UNDER THE ACTS CITED ABOVE FAILS TO SHOW THAT THIS CLASS OF CASES HAS RECEIVED YOUR CONSIDERATION, YOUR DECISION IN THE PREMISES IS REQUESTED.

SECTION 17 OF THE ACT OF MARCH 2, 1889, 25 STAT. 894, 895, CONTAINS THE FOLLOWING PROVISIONS:

* * * THAT EACH HEAD OF FAMILY OR SINGLE PERSON OVER THE AGE OF 18 YEARS, WHO SHALL HAVE OR MAY HEREAFTER TAKE HIS OR HER ALLOTMENT OF LAND IN SEVERALTY, SHALL BE PROVIDED WITH TWO MILCH COWS, ONE PAIR OF OXEN, WITH YOKE AND CHAIN, OR TWO MARES AND ONE SET OF HARNESS IN LIEU OF SAID OXEN, YOKE, AND CHAIN, AS THE SECRETARY OF THE INTERIOR MAY DEEM ADVISABLE, AND THEY SHALL ALSO RECEIVE ONE PLOW, ONE WAGON, ONE HARROW, ONE HOE, ONE AXE, AND ONE PITCHFORK, ALL SUITABLE TO THE WORK THEY MAY HAVE TO DO, AND ALSO FIFTY DOLLARS IN CASH; TO BE EXPENDED UNDER THE DIRECTION OF THE SECRETARY OF THE INTERIOR IN AIDING SUCH INDIANS TO ERECT A HOUSE AND OTHER BUILDINGS SUITABLE FOR RESIDENCE OR THE IMPROVEMENT OF HIS ALLOTMENT; NO SALES, BARTERS, OR BARGAINS SHALL BE MADE BY ANY PERSON OTHER THAN SAID INDIANS WITH EACH OTHER, OF ANY OF THE PERSONAL PROPERTY HEREINBEFORE PROVIDED FOR, AND ANY VIOLATION OF THIS PROVISION SHALL BE DEEMED A MISDEMEANOR AND PUNISHED BY FINE NOT EXCEEDING ONE HUNDRED DOLLARS, OR IMPRISONMENT NOT EXCEEDING ONE YEAR OR BOTH IN THE DISCRETION OF THE COURT; THAT FOR TWO YEARS THE NECESSARY SEEDS SHALL BE PROVIDED TO PLANT FIVE ACRES OF GROUND INTO DIFFERENT CROPS, IF SO MUCH CAN BE USED, AND PROVIDED THAT IN THE PURCHASE OF SUCH SEED PREFERENCE SHALL BE GIVEN TO INDIANS WHO MAY HAVE RAISED THE SAME FOR SALE, AND SO MUCH MONEY AS SHALL BE NECESSARY FOR THIS PURPOSE IS HEREBY APPROPRIATED OUT OF ANY MONEY IN THE TREASURY NOT OTHERWISE APPROPRIATED * * *.

THE ACT OF JUNE 10, 1896, 29 STAT. 334, PROVIDES AS FOLLOWS:

THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED AND DIRECTED TO ASCERTAIN THE NUMBER OF SIOUX AND PONCA INDIANS IN SOUTH DAKOTA AND NEBRASKA WHO WOULD NOT BE BENEFITED BY THE FULFILLMENT OF THE PROVISO OF SECTION SEVENTEEN OF AN ACT ENTITLED "AN ACT TO DIVIDE A PORTION OF THE RESERVATION OF THE GREAT SIOUX NATION OF INDIANS IN DAKOTA INTO SEPARATE RESERVATIONS AND SECURE THE RELINQUISHMENT OF THE INDIAN TITLE TO THE REMAINDER, AND FOR OTHER PURPOSES," APPROVED MARCH SECOND, EIGHTEEN HUNDRED AND EIGHTY-NINE, BY THE RECEIPT FROM THE UNITED STATES OF THE ARTICLES OF PERSONAL PROPERTY THEREIN MENTIONED AND WHO DESIRE TO HAVE THE SAME CONVERTED INTO MONEY, AND IN LIEU OF SUCH ARTICLES OF PERSONAL PROPERTY, OR ANY PART THEREOF HE MAY THINK PROPER, THE SECRETARY OF THE INTERIOR SHALL CONVERT OR COMMUTE THE SAME, OR SO MUCH THEREOF AS HE MAY THINK PROPER, INTO MONEY, AND PAY THE AMOUNT THEREOF TO SUCH INDIANS; AND THE PAYMENT UNDER THE PROVISIONS OF THIS ACT SHALL BE HELD TO BE A LIQUIDATION OF THE OBLIGATION OF THE UNITED STATES TO SAID INDIANS UNDER THAT PORTION OF SAID SECTION SEVENTEEN, SO FAR AS THE ARTICLES OF PERSONAL PROPERTY THEREIN NAMED ARE CONCERNED.

SECTIONS 1 AND 3 OF THE ACT OF JUNE 25, 1910, 36 STAT. 855, 856 PROVIDE, INSOFAR AS HERE MATERIAL, AS FOLLOWS:

THAT WHEN ANY INDIAN TO WHOM AN ALLOTMENT OF LAND HAS BEEN MADE, OR MAY HEREAFTER BE MADE, DIES BEFORE THE EXPIRATION OF THE TRUST PERIOD AND BEFORE THE ISSUANCE OF A FEE SIMPLE PATENT, WITHOUT HAVING MADE A WILL DISPOSING OF SAID ALLOTMENT AS HEREINAFTER PROVIDED, THE SECRETARY OF THE INTERIOR, UPON NOTICE AND HEARING, UNDER SUCH RULES AS HE MAY PRESCRIBE, SHALL ASCERTAIN THE LEGAL HEIRS OF SUCH DECEDENT, AND HIS DECISIONS THEREON SHALL BE FINAL AND CONCLUSIVE. * * *

THAT IN ANY CASE WHERE AN INDIAN HAS AN ALLOTMENT OF LAND, OR ANY RIGHT, TITLE, OR INTEREST IN SUCH AN ALLOTMENT, THE SECRETARY OF THE INTERIOR, IN HIS DISCRETION, MAY PERMIT SUCH INDIAN TO SURRENDER SUCH ALLOTMENT, OR ANY RIGHT, TITLE, OR INTEREST THEREIN, BY SUCH FORMAL RELINQUISHMENT AS MAY BE PRESCRIBED BY THE SECRETARY OF THE INTERIOR, FOR THE BENEFIT OF ANY OF HIS OR HER CHILDREN TO WHOM NO ALLOTMENT OF LAND SHALL HAVE BEEN MADE; AND THEREUPON THE SECRETARY OF THE INTERIOR SHALL CAUSE THE ESTATE SO RELINQUISHED TO BE ALLOTTED TO SUCH CHILD OR CHILDREN SUBJECT TO ALL CONDITIONS WHICH ATTACHED TO IT BEFORE SUCH RELINQUISHMENT.

IN DECISION OF JUNE 8, 1932, 11 COMP. GEN. 469, IT WAS HELD AS FOLLOWS, QUOTING FROM THE SYLLABUS:

UNDER SECTION 17 OF THE ACT OF MARCH 2, 1889, 25 STAT. 894, PROVIDING FOR THE ALLOWANCE OF CIVILIZATION BENEFITS TO HEADS OF FAMILIES AND SINGLE PERSONS, SIOUX INDIAN ALLOTTEES, THE ALLOWANCE OF BENEFITS DESCENDS TO THE HEIRS WHERE THE STATUS OF THE ALLOTTEE AT THE TIME OF DEATH ENTITLED HIM TO SUCH BENEFITS, BUT IF THE ALLOTTEE AT TIME OF DEATH DID NOT HAVE THE REQUIRED STATUS NO RIGHT TO THE BENEFITS CAN BE ACQUIRED BY OR DESCEND TO THE HEIRS.

IN THE INSTANT CASE THE ORIGINAL ALLOTTEE, SETH EAR, DIED WHEN ABOUT ONE YEAR OF AGE AND ACCORDINGLY NEVER ATTAINED A STATUS ENTITLING HIM TO THE BENEFITS UNDER SECTION 17 OF THE ACT OF MARCH 2, 1889, AS AMENDED. THUS THE FATHER, JOHN EAR, DETERMINED BY THE SECRETARY OF INTERIOR TO HAVE INHERITED THE ORIGINAL ALLOTMENT, DID NOT INHERIT AS INCIDENT THERETO THE BENEFIT UNDER SECTION 17 OF THE ACT OF MARCH 2, 1889, AS AMENDED, SUPRA. IT IS PRESUMED THE FATHER HAD SUCH A BENEFIT INCIDENT TO HIS OWN ORIGINAL ALLOTMENT, BUT HOWEVER THAT MAY BE, THE CONTINGENT BENEFIT OF HIS SON, SETH EAR, THE ORIGINAL ALLOTTEE, UNDER THE 1889 STATUTE, AS AMENDED, TERMINATED UPON HIS DEATH AND DID NOT SURVIVE TO THE FATHER. SUCH BENEFIT, THEREFORE, WAS NOT ONE OF THE "CONDITIONS WHICH ATTACHED" TO THE ALLOTMENT LATER RELINQUISHED BY THE FATHER IN FAVOR OF HIS OTHER SON, STEPHEN EAR, THE PRESENT CLAIMANT, UNDER THE TERMS OF SECTION 3 OF THE ACT OF JUNE 25, 1910, SUPRA.

YOU ARE ADVISED, THEREFORE, THAT PAYMENT OF THE CASH ALLOTMENT BENEFIT TO STEPHEN EAR IS NOT AUTHORIZED.