MARCH 31, 1924, 3 COMP. GEN. 698

MARCH 31, 1924, 3 COMP. GEN. 698

OSAGE INDIANS - PAYMENT TO PARENTS OR GUARDIANS OF MONEY DUE MINORS UNDER THE ACTS OF JUNE 28, 1906, 34 STAT., 544, AND APRIL 18, 1912, 37 STAT., 86, PROVIDING A PROCEDURE FOR THE PAYMENT OF CERTAIN FUNDS ACCRUED IN FAVOR OF MINOR OSAGE INDIANS, THE FOLLOWING GENERAL RULES ARE FOR APPLICATION: 1. WHERE ONE PARENT IS DEAD THE ACCUMULATED FUNDS SHALL BE PAID TO THE SURVIVING PARENT IF COMPETENT. 2. WHERE BOTH PARENTS ARE DEAD, PAYMENT SHALL BE MADE TO THE LEGAL GUARDIAN OF THE MINOR RATHER THAN TO THE ADMINISTRATOR OR ADMINISTRATORS OF THE ESTATES OF THE DECEASED PARENTS. 3. WHERE BOTH PARENTS ARE LIVING BUT DIVORCED, IN CASE WHERE THE SEPARATION OCCURRED AFTER THE DATE THE QUARTERLY INSTALLMENT HAD ACCRUED, PAYMENT SHOULD BE MADE TO BOTH PARENTS IN THE ABSENCE OF A WAIVER OR STIPULATION BY ONE PARENT; AND IN CASES WHERE THE SEPARATION OCCURRED PRIOR TO THE DATE THE QUARTERLY INSTALLMENT ACCRUED, PAYMENT SHOULD BE MADE TO THE PARENT HAVING THE CARE AND CUSTODY OF THE MINOR.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 31, 1924:

I HAVE YOUR LETTER OF FEBRUARY 7, 1924, REQUESTING DECISION OF QUESTIONS ARISING UNDER STATUTES REQUIRING PAYMENT OF OSAGE INDIAN MONEYS TO PARENTS OF MINORS.

THE THREE GENERAL QUESTIONS SUBMITTED ARE AS FOLLOWS:

1. WHERE ONE PARENT IS DEAD, SHOULD THE ACCUMULATED FUNDS BE PAID TO THE SURVIVING PARENT, OR ONE-HALF TO SUCH SURVIVING PARENT, AND ONE HALF TO THE ADMINISTRATOR (OR EXECUTOR, IN CASE OF A WILL) OF THE DECEASED PARENT?

2. WHERE BOTH PARENTS ARE DECEASED, CAN PAYMENT NOW BE MADE TO THE LEGAL GUARDIAN OF THE MINOR RATHER THAN TO THE ADMINISTRATOR OR ADMINISTRATORS OF THE ESTATE OF THE DECEASED PARENTS?

3. WHERE BOTH PARENTS ARE LIVING, BUT DIVORCED, SHOULD PAYMENT BE MADE ONE-HALF TO EACH PARENT, OR CAN THE ENTIRE AMOUNT DUE BE PAID TO THE PARENT WHO ACTUALLY HAD THE CARE, CUSTODY, AND SUPPORT OF THE MINOR?

YOU HAVE ALSO FORWARDED A STATEMENT BY THE SPECIAL DISBURSING AGENT IN CHARGE OF THE OSAGE INDIAN AGENCY SUBMITTING 10 SPECIFIC CASES AS ILLUSTRATIVE OF THE 3 GENERAL QUESTIONS OF WHICH QUESTION IS REQUESTED.

THE ACT OF JUNE 28, 1906, 34 STAT., 539, PROVIDING FOR DIVISION OF LANDS AND FUNDS OF THE OSAGE INDIANS IN OKLAHOMA RESERVED THE MINERALS IN THE LANDS SELECTED FOR DIVISION OR ALLOTMENT FOR A PERIOD OF 25 YEARS FROM APRIL 8, 1906. SEE SECTION 3 OF SAID ACT, 34 STAT., 543. THIS PERIOD WAS EXTENDED BY THE ACT OF MARCH 3, 1921, 41 STAT., 1249. SECTION 4 OF THE ACT OF JUNE 28, 1906, PROVIDED THAT THE INTEREST ON TRUST MONEYS CREDITED TO THE INDIANS AND ROYALTIES RECEIVED FROM THE MINERAL LEASES, ETC., ARE TO BE DISTRIBUTED TO THE MEMBERS OF THE TRIBE AS INCOME PAYABLE QUARTERLY. THERE IS HERE FOR CONSIDERATION ONLY THE INTERESTS OF THE MINOR INDIANS RELATIVE TO WHICH SECTION 4 DIRECTS PAYMENT---

* * * TO THE PARENTS UNTIL SAID MINOR ARRIVES AT THE AGE OF TWENTY ONE YEARS: PROVIDED, THAT IF THE COMMISSIONER OF INDIAN AFFAIRS BECOMES SATISFIED THAT THE SAID INTEREST OF ANY MINOR IS BEING MISUSED OR SQUANDERED HE MAY WITHHOLD THE PAYMENT OF SUCH INTEREST: AND PROVIDED FURTHER, THAT SAID INTEREST OF MINORS WHOSE PARENTS ARE DECEASED SHALL BE PAID TO THEIR LEGAL GUARDIANS, AS ABOVE PROVIDED.

THE AMENDATORY ACT OF APRIL 18, 1912, 37 STAT., 86-7, PROVIDES IN SECTION 3 FOR GENERAL CONTROL OF THE PROPERTY OF DECEASED AND OF ORPHAN MINORS, INSANE OR OTHER INCOMPETENT ALLOTTEES OF THE OSAGE TRIBE, IN ACCORDANCE WITH THE LAWS OF OKLAHOMA INCLUDING THE INVESTIGATION OF THE CONDUCT OF EXECUTORS, ADMINISTRATORS, GUARDIANS, AND OTHER PERSONS HAVING IN CHARGE THE ESTATE OF SUCH INDIANS, AND PROVIDES SPECIFICALLY AS FOLLOWS:

* * * PROVIDED, THAT NO GUARDIAN SHALL BE APPOINTED FOR A MINOR WHOSE PARENTS ARE LIVING, UNLESS THE ESTATE OF SAID MINOR IS BEING WASTED OR MISUSED BY SUCH PARENTS; * * *.

SECTION 4 OF THE ACT OF MARCH 3, 1921, 41 STAT., 1250, AUTHORIZES THE SECRETARY OF THE INTERIOR AT THE END OF EACH QUARTER FROM AND AFTER THE PASSAGE OF SAID ACT---

* * * TO PAY FOR MAINTENANCE AND EDUCATION TO THE PARENTS OR NATURAL GUARDIANS OR LEGAL GUARDIANS ACTUALLY HAVING MINOR MEMBERS UNDER TWENTY- ONE YEARS OF AGE PERSONALLY IN CHARGE $500 QUARTERLY OUT OF THE INCOME OF SAID MINORS * * *.

IT IS UNDERSTOOD FROM YOUR SUBMISSION THAT THE MONEY HERE INVOLVED REPRESENTS AMOUNTS WHICH ACCRUED UNDER THE ACT OF APRIL 8, 1906, AND PRIOR TO MARCH 3, 1921, AS INCOME OF MINORS, THE QUARTERLY PAYMENT OF WHICH WAS WITHHELD BY THE SECRETARY OF THE INTERIOR FOR REASONS WHICH THE SUPREME COURT OF THE UNITED STATES IN ITS DECISION OF MARCH 19, 1923, IN CASE OF HUBERT WORK, SECRETARY OF THE INTERIOR, V. UNITED STATES EX REL. MOSIER ET AL., 261 U.S., 359, HELD TO BE INSUFFICIENT. IN SAID DECISION THE COURT IN CONSTRUING THE CITED ACT OF 1906, STATED:

* * * CONGRESS EVIDENTLY INTENDED TO TRUST TO THE NATURAL DISPOSITION OF THE PARENTS TO LOOK AFTER AND CARE FOR THEIR CHILDREN OUT OF THE PROCEEDS, AND TO ALLOW THEM TO TREAT THE PROCEEDS OF THE INALIENABLE LANDS AS A FAMILY FUND TO BE ADMINISTERED BY THEM UNTIL THE CHILDREN SHOULD REACH THEIR MAJORITY. IT WAS PROBABLY ANTICIPATED THAT THE PROCEEDS OF A MINOR'S LAND FROM AGRICULTURE ONLY WOULD NOT BE LARGE AND COULD NOT GREATLY EXCEED, IF INDEED IT WOULD EQUAL, THE EXPENSE HIS CARE AND SUPPORT WOULD ENTAIL ON THE FAMILY.

WITH RESPECT TO THE PAYMENT OF INCOME FROM UNITED STATES BONDS, MINERAL LEASES, SALE OF EXTRA LANDS, AND GRAZING RENTS, BELONGING TO MINORS, CONGRESS SEEMS TO HAVE HAD A SIMILAR VIEW; BUT IT DID VEST IN THE COMMISSIONER OF INDIAN AFFAIRS, SUBJECT TO THE SUPERVISION OF THE SECRETARY OF THE INTERIOR, DISCRETION TO SEE THAT ITS CONFIDENCE IN THE NATURAL PARENTAL FEELING AS A MOTIVE FOR CARE OF THE MINORS' INTEREST IN SUCH INCOME SHOULD NOT BE ABUSED, AND WHENEVER HE FOUND MISUSE OR SQUANDERING BY THE PARENTS OF THE INCOME, HE WAS GIVEN AUTHORITY TO WITHHOLD PAYMENT.

THE QUESTIONS PRESENTED WILL BE CONSIDERED AND DECIDED IN THE LIGHT OF THE VIEWS THUS EXPRESSED BY THE COURT.

1. THE PROVISION IN THE ACT OF 1906 DIRECTING PAYMENT TO THE PARENTS CONTEMPLATES THE RELATIONSHIP OF THE PARENTS AND NOT THE TWO INDIVIDUALS. THE INTEREST INVOLVED IS THAT OF THE MINOR AND THE PARENTS' INTEREST IS PRIMARILY BECAUSE OF THEIR RELATIONSHIP. UPON THE DEATH OF ONE PARENT THE STATUTORY RIGHT TO RECEIVE THE MINOR'S INTEREST DOES NOT SURVIVE TO THE ESTATE OF THE DECEASED PARENT, BUT PASSES TO THE OTHER PARENT BY REASON OF THE RELATIONSHIP UPON WHICH THE STATUTE HAS MADE THE RIGHT TO RECEIVE THE MONEY DEPEND. THE SAME MAY BE SAID RELATIVE TO THE PROVISION IN THE ACT OF 1912, THAT NO GUARDIAN SHALL BE APPOINTED FOR A MINOR WHOSE PARENTS ARE LIVING, UNLESS THE ESTATE OF SAID MINOR IS BEING WASTED OR MISUSED. CONSIDERING THE GENERAL SPIRIT AND PURPOSE OF THE LAW, I THINK IT MUST BE HELD THAT THE AUTHORITY FOR APPOINTMENT OF A GUARDIAN ARISES ONLY WHERE BOTH PARENTS ARE DEAD OR INCAPACITATED, OR WHERE IT IS SHOWN THAT THE ESTATE IS BEING MISUSED OR WASTED. YOUR FIRST QUESTION IS ANSWERED BY STATING GENERALLY THAT THE ENTIRE AMOUNT OF THE ACCUMULATED FUND SHALL BE PAID TO THE SURVIVING PARENT, AND NOT ONE HALF TO THE SURVIVING PARENT AND ONE-HALF TO THE ESTATE OF THE DECEASED PARENT.

2. THE ACT OF 1906 PROVIDES "THAT SAID INTEREST OF MINORS WHOSE PARENTS ARE DECEASED SHALL BE PAID TO THEIR LEGAL GUARDIANS.' WHILE IT MAY BE SAID THAT THE PARENTS DURING THEIR LIFE MAY HAVE BORNE THE LIVING EXPENSES, ETC., OF THE MINORS AND THE FUND WOULD HAVE BEEN FOR THE USE OF THE FAMILY, IF RECEIVED, AS STATED BY THE SUPREME COURT, SUPRA, YET THERE IS NO VESTED RIGHT TO THE AMOUNT THAT HAD ACCRUED AND WAS PAYABLE DURING THEIR LIFE, BUT WHICH FOR SOME REASON WAS WITHHELD, THAT SURVIVED TO THE ESTATES OF THE PARENTS. THE PRIMARY INTEREST IS THAT OF THE MINOR, AND THE FACT THAT A LEGAL GUARDIAN HAS BEEN PROVIDED FOR INDICATES AN INTENTION THAT ACCRUALS WITHHELD UNTIL AFTER THE DEATH OF BOTH PARENTS ARE TO BE PAID TO THE LEGAL GUARDIAN FOR THE BENEFIT OF THE MINOR AND NOT TO THE ADMINISTRATOR OR ADMINISTRATORS OF THE ESTATES OF THE DECEASED PARENTS. YOUR SECOND QUESTION IS ANSWERED ACCORDINGLY.

WITH RESPECT TO THE THIRD QUESTION, DECISION OF JULY 13, 1923, HELD AS FOLLOWS:

I UNDERSTAND THAT ALL BONUS ACCRUING AFTER THE PASSAGE OF THIS ACT (MARCH 3, 1921) HAS BEEN PAID IN ACCORDANCE WITH ITS TERMS, AND THAT THE ACCUMULATED MONEY NOW IN QUESTION REPRESENTS QUARTERLY ACCRUALS PRIOR TO MARCH 3, 1921, SO THAT IN CASE OF SEPARATION OF THE PARENTS AFTER THAT DATE ALL ACCUMULATED MONEYS HAVE ACCRUED TO THE PARENTS WHILE LIVING TOGETHER. THE INSTRUCTION THAT CHECKS BE DRAWN TO THEM JOINTLY IN SUCH CASES, AND ALSO IN CASE THE PARENTS ARE STILL LIVING TOGETHER, IS IN ACCORDANCE WITH THE STATUTE, AS IS ALSO THE INSTRUCTION THAT WHERE SEPARATION OCCURRED PRIOR TO THE WITHHOLDING OF THE MONEY PAYMENT SHALL BE MADE TO THE PARENT HAVING THE CARE AND CUSTODY OF THE MINOR.

IN THE ABSENCE OF ANY WAIVER OR STIPULATION BY THE PARENT WHO HAS NOT BEEN GIVEN THE CUSTODY OF THE MINORS, THE RULE STATED IN THE FORMER DECISION IS FOR APPLICATION. THAT IS TO SAY, THE RIGHT OF DIVORCED PARENTS TO SHARE JOINTLY IN THE INCOME OF THE MINOR DEPENDS UPON WHETHER THEY WERE LIVING TOGETHER ON THE DATE THE QUARTERLY PAYMENT BECAME DUE. IF IN MAKING PAYMENT TO DIVORCED PARENTS OF A QUARTERLY INSTALLMENT WHICH ACCRUED WHEN THEY WERE LIVING TOGETHER IT SHOULD BE FOUND IMPRACTICABLE TO MAKE THE PAYMENT IN ONE CHECK PAYABLE TO BOTH PARENTS, PAYMENT MAY BE EFFECTED BY TWO CHECKS, ONE TO EACH PARENT FOR THE PROPORTIONATE SHARE OF THE AMOUNT DUE. THE DISTINCTION BETWEEN A DIVORCED PARENT WITH RESPECT TO FUNDS ACCRUED PRIOR TO SEPARATION AND DECEASED PARENTS IS THAT THE RELATIONSHIP OF "PARENT" REQUIRED BY THE STATUTE STILL EXISTS ALTHOUGH THE MARITAL RELATIONSHIP HAS BEEN TERMINATED; AND IF IT APPEARS THAT THERE WAS NO MISUSE OR WASTING OF THE PRECEDING QUARTERLY PAYMENT A SUBSEQUENT SEPARATION DOES NOT DEFEAT THE RIGHT TO RECEIVE A PART OF THE QUARTERLY INCOME WHICH ACCRUED TO SUCH SEPARATION.

WITHOUT SETTING FORTH THE STATEMENT OF FACTS IN EACH OF THE 10 CASES SUBMITTED, IT MAY BE STATED THAT IN CASES OF IRENE AND TERESA BENNETT; CHARLOTTE E., MARGARET I., AND MARTHA M. DENOYA; AGNES, CAPITOLA, AND PAULINE LYMAN; LOUIS B. FRONKIER AND CLEO AND MINNIE REVARD, PAYMENT IS AUTHORIZED TO THE SURVIVING PARENT.

IN THE CASE OF MARY GRAY PRATT, WHERE IT IS SHOWN THE SURVIVING PARENT IS "RESTRICTED," NO DEFINITE HOLDING MAY BE MADE. THERE IS FOR CONSIDERATION IN THIS CASE THE COMPETENCY OF THE SURVIVING PARENT. THE FACT THAT THE MINOR IS MARRIED DOES NOT AFFECT THE SITUATION, THE STATUTE SPECIFYING THE AGE OF 21 YEARS AS THE LIMITATION OF THE PERIOD FOR PAYMENT TO THE PARENTS OR GUARDIANS.

IN THE CASE OF MARY B. AND MILTON J. BOCKIUS, IT APPEARS THAT THE PARENTS WERE DIVORCED IN 1919, THAT THE CARE AND CUSTODY OF THE CHILDREN WERE GIVEN TO THE FATHER, A WHITE MAN, AND A STIPULATION WAS ENTERED INTO AND APPROVED BY THE COURT EXPRESSLY PROVIDING THAT THE FATHER SHOULD "COLLECT AND USE AND RECEIVE THE BENEFITS FROM THEIR LANDS.' THE MOTHER STATES IN HER LETTER AS FOLLOWS:

I BOUGHT HIM (MILTON B. BOCKIUS) MORE CLOTHES THAN HIS FATHER DID, AND OUR NEIGHBORS WILL TELL YOU THAT, SO I THINK I SHOULD HAVE ONE HALF OF IT AND HE AND SHE BOTH SAID FOR ME TO HAVE ONE-HALF IF I HAVE TO GO TO COURT, I-M THE INDIAN, HE ISN-T AND HE HAS HAD THE USE OF ALL THE MONEY, NOT I, AND HE HAS NEVER DID A THING FOR EITHER OF THEM ONLY SPEND IT. I ALWAYS SUPPORTED THE FAMILY ON MINE AND EVERYONE, EVEN THE BANKER, KNOWS IT. SO HOPING YOU WILL CONSIDER THIS CASE LIKE IT WAS YOUR OWN, I REMAIN.

THE DECREE WOULD SEEM TO HAVE DETERMINED THE FITNESS OF THE FATHER TO RECEIVE THE AMOUNT DUE FOR THE BENEFIT OF THE MINORS. THE CUSTODY OF THE CHILD IS IN THE FATHER AND PRESUMPTIVELY THE SUPPORT OF THE CHILD IS IMPOSED ON THE FATHER AND SUPPORT IS BEING FURNISHED. THE QUESTION IS NOT SO MUCH REIMBURSING FOR PAST SUPPORT BUT IN WHOM IS THE CUSTODY OF THE CHILD REQUIRING SUPPORT TO BE GIVEN. UNDER THE DECREE IT WOULD APPEAR THAT PAYMENT IS PROPERLY MADE TO THE FATHER UNLESS THE ESTATE OF THE MINORS IS BEING WASTED OR MISUSED BY THE FATHER.

IN THE CASE OF CATHERINE OWENS, TO WHICH YOU DIRECT SPECIAL ATTENTION, THE MOTHER IS DEAD, THE FATHER, A WHITE MAN, IS LIVING, BUT THE MINOR HAS ALWAYS LIVED WITH HER GRANDPARENTS. THE MINOR STATES THAT HER FATHER HAS NEVER CONTRIBUTED TO HER SUPPORT EXCEPT TRIVIAL SUMS, WHILE THE FATHER STATES THAT HE HAS NOT WASTED OR MISUSED ANY FUNDS THAT HAVE COME TO HIM FOR THE EDUCATION AND SUPPORT OF THE MINOR.

THIS IS A CASE FOR DETERMINATION OF THE FITNESS OF THE FATHER TO RECEIVE THE AMOUNT DUE FOR THE BENEFIT OF THE MINOR, BEARING IN MIND THAT THE MINOR'S INTEREST IS FOR PRIMARY CONSIDERATION. PAYMENT TO THE GRANDPARENTS WOULD NOT BE AUTHORIZED UNLESS APPOINTED AS GUARDIAN BECAUSE THE FATHER IS SHOWN TO HAVE WASTED OR MISUSED THE ESTATE OF THE MINOR. VIEW OF THE FACTS APPEARING IN THIS CASE THERE WOULD SEEM TO BE JUSTIFICATION FOR WITHHOLDING THE $18,979.02 STATED TO BE DUE AS INCOME OF THE MINOR. PAYMENT OF THE ENTIRE AMOUNT TO THE FATHER AT ONE TIME IS NOT AUTHORIZED UPON THE FACTS PRESENTED.

IN THE CASE OF LOUIS DEL ORIER, WHERE PARENTS ARE BOTH DEAD, PAYMENT SHOULD BE MADE TO THE LEGAL GUARDIAN AND NOT TO THE ADMINISTRATOR OF THE MOTHER'S ESTATE.

IN THE CASE OF HOWARD CECIL AND CHRISTINE MARTIN, THE PARENTS WERE DIVORCED PRIOR TO THE ACCUMULATION OF THE FUNDS, AND THE MOTHER GIVEN CUSTODY OF THE MINORS UNTIL HER DEATH, WHEN THE FATHER REGAINED CUSTODY, BEING THE SURVIVING PARENT. CHRISTINE MARTIN IS UNDER GUARDIANSHIP OF B. F. MAZE. HOWARD CECIL MARTIN IS UNDER THE GUARDIANSHIP OF HIS FATHER. THE ACT OF 1912 PROHIBITED THE APPOINTMENT OF A GUARDIAN, IF THE PARENTS ARE LIVING, UNLESS THE PARENT IS INCOMPETENT OR THE ESTATE OF THE MINOR IS BEING WASTED OR MISUSED. IF THE FATHER REGAINED THE CUSTODY OF BOTH CHILDREN, AS YOU STATED, UPON THE DEATH OF THE MOTHER, PAYMENT OF THE ACCRUED FUNDS OF BOTH CHILDREN IS REQUIRED TO BE MADE TO THE FATHER UNLESS IT CAN BE SHOWN THAT HE HAS WASTED OR MISUSED THE FUNDS PAID TO HIM.