B-199418, JANUARY 30, 1981, 60 COMP.GEN. 212

B-199418: Jan 30, 1981

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INDIAN AFFAIRS - SIOUX BENEFITS - PROPOSED REGULATION REVISION - HEAD OF FAMILY DETERMINATION - SEX-NEUTRAL STANDARD ADOPTED SIOUX BENEFITS ARE FARM EQUIPMENT AND STOCK (OR CASH EQUIVALENT) GRANTED BY LAW TO SIOUX INDIANS WHO ARE HEADS OF FAMILIES. GENERAL ACCOUNTING OFFICE (GAO) AGREES THAT CHANGE IS CONSTITUTIONALLY REQUIRED. INSOFAR AS THEY HOLD THAT SIOUX WOMAN MARRIED TO NON-SIOUX MAN IS CONCLUSIVELY PRESUMED TO BE HEAD OF FAMILY. ARE OVERRULED: A-19504. IS ENTITLED TO ONLY ONE ALLOWANCE OF BENEFITS. THAT A FORMERLY MARRIED SIOUX WOMAN'S ENTITLEMENT TO BENEFITS IN HER OWN RIGHT WAS EXHAUSTED WHEN HER THEN-HUSBAND RECEIVED BENEFITS AS HEAD OF FAMILY. IS IMPERMISSIBLY DISCRIMINATORY ON BASIS OF SEX AND OVERRULES THAT PORTION OF A-19504.

B-199418, JANUARY 30, 1981, 60 COMP.GEN. 212

INDIAN AFFAIRS - SIOUX BENEFITS - PROPOSED REGULATION REVISION - HEAD OF FAMILY DETERMINATION - SEX-NEUTRAL STANDARD ADOPTED SIOUX BENEFITS ARE FARM EQUIPMENT AND STOCK (OR CASH EQUIVALENT) GRANTED BY LAW TO SIOUX INDIANS WHO ARE HEADS OF FAMILIES. INTERIOR DEPARTMENT PROPOSES SEX-NEUTRAL STANDARD FOR DETERMINING HEAD OF FAMILY STATUS. GENERAL ACCOUNTING OFFICE (GAO) AGREES THAT CHANGE IS CONSTITUTIONALLY REQUIRED. THEREFORE, FOLLOWING DECISIONS, INSOFAR AS THEY HOLD THAT SIOUX WOMAN MARRIED TO NON-SIOUX MAN IS CONCLUSIVELY PRESUMED TO BE HEAD OF FAMILY, AND THAT SIOUX WOMAN MARRIED TO SIOUX MAN CANNOT BE HEAD OF FAMILY, ARE OVERRULED: A-19504, FEBRUARY 1, 1929; A-98691, OCTOBER 28, 1938; 11 COMP.GEN. 469(1932). THIS DECISION ALSO OVERRULES IN PART 9 COMP.GEN. 371 AND A-61511, JULY 15, 1935. INDIAN AFFAIRS - SIOUX BENEFITS - PROPOSED REGULATION REVISION - DOUBLE BENEFITS PROHIBITION - SEX-NEUTRAL STANDARD ADOPTED ELIGIBLE RECIPIENT OF SIOUX BENEFITS-- FARM EQUIPMENT AND STOCK (OR CASH EQUIVALENT) GRANTED BY LAW TO SIOUX INDIANS-- IS ENTITLED TO ONLY ONE ALLOWANCE OF BENEFITS. INTERIOR PROPOSES SEX-NEUTRAL STANDARD OF ELIGIBILITY. GAO AGREES WITH INTERIOR, THAT RULE IN A-19504, FEBRUARY 1, 1929-- THAT A FORMERLY MARRIED SIOUX WOMAN'S ENTITLEMENT TO BENEFITS IN HER OWN RIGHT WAS EXHAUSTED WHEN HER THEN-HUSBAND RECEIVED BENEFITS AS HEAD OF FAMILY-- IS IMPERMISSIBLY DISCRIMINATORY ON BASIS OF SEX AND OVERRULES THAT PORTION OF A-19504. INDIAN AFFAIRS - SIOUX BENEFITS - PROPOSED REGULATION REVISION - VESTING OF RIGHTS - SAME STANDARD UNDER ALL FOUR BENEFITS STATUTES FOUR STATUTES-- 1889, 1896, 1928, AND 1934-- GOVERN AWARD OF SIOUX BENEFITS, FARM EQUIPMENT AND STOCK (OR CASH EQUIVALENT) GRANTED BY LAW TO ELIGIBLE SIOUX INDIANS. UNDER 1928 AND 1934 STATUTES, APPLICATIONS MUST BE APPROVED DURING APPLICANT'S LIFETIME, OR RIGHT LAPSES. TWO GAO DECISIONS (9 COMP.GEN. 371(1930) AND A-61511, JULY 15, 1935) HELD THAT LIMITATION DID NOT APPLY TO BENEFITS UNDER 1889 LAW. INTERIOR INTERPRETS 1928 AND 1934 LAWS AS MAKING LIMITATION APPLICABLE TO ALL SIOUX BENEFITS. LANGUAGE IS AMBIGUOUS SO GAO DEFERS TO ADMINISTERING AGENCY'S PREFERRED INTERPRETATION AND OVERRULES CITED DECISIONS. INDIAN AFFAIRS - SIOUX BENEFITS - PROPOSED REGULATION REVISION - ELIGIBILITY DETERMINATION - DATE OF ORIGINAL APPLICATION V. DATE OF APPLICATION'S APPROVAL WHERE APPLICATION FOR SIOUX BENEFITS-- FARM EQUIPMENT AND STOCK (OR CASH EQUIVALENT) GRANTED TO SIOUX INDIANS-- WAS DISAPPROVED ON GROUNDS NOW RECOGNIZED AS IMPROPER (FOR EXAMPLE, SEX DISCRIMINATION), AND INDIAN NOW REAPPLIES, INTERIOR DEPARTMENT PROPOSES TO DETERMINE ELIGIBILITY BASED ON APPLICANT'S STATUS AT TIME OF ORIGINAL APPLICATION. DEPARTMENT SUGGESTS THAT TWO GAO DECISIONS (A-19504, FEBRUARY 1, 1929, AND 11 COMP.GEN. 469(1932)) PREVENT IMPLEMENTATION OF PROPOSAL. DECISIONS, WHICH REQUIRE THAT ELIGIBILITY BE DETERMINED NOT AS OF DATE OF APPLICATION BUT AS OF DATE OF APPROVAL, ARE OVERRULED TO EXTENT THEY CONFLICT WITH PROPOSED EXCEPTION.

MATTER OF: DEPARTMENT OF THE INTERIOR - SIOUX BENEFITS, JANUARY 30, 1981:

THE DEPARTMENT OF THE INTERIOR (DEPARTMENT) WISHES TO REVISE THE POLICIES AND REGULATIONS OF ITS BUREAU OF INDIAN AFFAIRS WHICH GOVERN THE PAYMENT OF CERTAIN BENEFITS TO SIOUX INDIANS. THE IMPETUS FOR THIS PROPOSED REVISION WAS A SUIT AGAINST THE DEPARTMENT CHALLENGING THE CONSTITUTIONALITY OF THE PRESENT REGULATIONS. BECAUSE THESE REGULATIONS ARE BASED ON A NUMBER OF COMPTROLLER GENERAL DECISIONS, THE DEPARTMENT ASKS US TO MODIFY OR WITHDRAW THOSE DECISIONS WHICH ARE INCONSISTENT WITH THE PROPOSED REGULATIONS. INCONSISTENCIES ARISE IN FOUR AREAS: HEAD OF FAMILY STATUS; DOUBLE BENEFITS PROHIBITION; VESTING OF RIGHTS; AND TIMING OF ELIGIBILITY DETERMINATIONS.

BACKGROUND

"SIOUX BENEFITS" ARE ARTICLES OF FARMING EQUIPMENT AND STOCK OR, MORE COMMONLY TODAY, THE COMMUTED CASH VALUE OF SUCH ARTICLES, PAYABLE TO CERTAIN SIOUX INDIANS UNDER THE PROVISIONS OF FOUR FEDERAL STATUTES: THE 1889 SIOUX ALLOTMENT ACT (ACT OF MARCH 2, 1889, CH. 405, SEC. 17, 25 STAT. 888); AND 1896 AMENDMENT TO THAT ACT (ACT OF JUNE 10, 1896, CH. 398, 29 STAT. 321, 334); A 1928 STATUTE WHICH CONTINUED THOSE BENEFITS (ACT OF MAY 21, 1928, CH. 662, 45 STAT. 684); AND SECTION 14 OF THE INDIAN REORGANIZATION ACT (ACT OF JUNE 18, 1934, CH. 576, SEC. 14, 48 STAT. 987, 25 U.S.C. 474). UNDER EACH OF THESE STATUTES, ONLY SIOUX INDIANS WHO ARE SINGLE PERSONS OVER THE AGE OF 18 OR HEADS OF A FAMILY ARE ELIGIBLE. ADDITION, THE APPLICANT MUST HAVE RECEIVED AN ALLOTMENT OF LAND TO BE ELIGIBLE FOR BENEFITS UNDER THE 1889 OR 1928 STATUTES. THE 1934 LAW CONTINUED ELIGIBILITY FOR CERTAIN BENEFITS FOR "UNALLOTTED" INDIANS-- THAT IS, THOSE WHO HAD NOT RECEIVED LAND ALLOTMENTS ALTHOUGH OTHER ELIGIBLE-- ON THE PINE RIDGE, ROSEBUD, AND CHEYENNE RIVER RESERVATIONS, WITH PROVISION FOR A GRADUAL PHASE-OUT OF SUCH BENEFITS.

HEAD OF FAMILY STATUS

NEITHER THE 1889 ACT NOR ANY OF THE SUBSEQUENT ACTS RELATING TO SIOUX BENEFITS DEFINES THE TERM "HEAD OF A FAMILY." UNDER THE CURRENT REGULATIONS, AN ADULT SIOUX WOMAN MARRIED TO A MAN WHO IS NOT A SIOUX INDIAN IS CONCLUSIVELY CONSIDERED TO BE HEAD OF A FAMILY, BUT A SIOUX WOMAN MARRIED TO A SIOUX MAN IS HELD NOT TO BE THE HEAD OF A FAMILY AND IS THEREFORE INELIGIBLE FOR SIOUX BENEFITS.

THE DEPARTMENT HAS CONCLUDED THAT THESE REGULATIONS ARE UNCONSTITUTIONAL IN THAT THEY DISCRIMINATE AGAINST WOMEN ON THE BASIS OF SEX. IT PROPOSES TO REVISE THE REGULATIONS TO PROVIDE A SEX-NEUTRAL STANDARD FOR DETERMINING WHO IS THE HEAD OF A FAMILY.

THE PROPOSED REGULATIONS PROVIDE, AS A GENERAL RULE, THAT A MARRIED PERSON SHALL BE DEEMED A HEAD OF A FAMILY IF SO DESIGNATED BY BOTH PARTIES TO THE MARRIAGE. WHERE THE APPLICANT AND HIS OR HER SPOUSE CANNOT AGREE OR ARE NOT LIVING TOGETHER AS A FAMILY, AND IN CASES WHERE THE APPLICANT'S SPOUSE HAS PREVIOUSLY RECEIVED SIOUX BENEFITS AS THE HEAD OF A FAMILY, AN ECONOMIC CONTRIBUTION TEST IS USED TO DETERMINE HEAD OF FAMILY STATUS. UNDER THE STANDARD, EITHER THE HUSBAND OR THE WIFE COULD QUALIFY AS A HEAD OF THE FAMILY.

WE CONCUR IN THE DEPARTMENT'S DETERMINATION THAT THESE PROPOSED CHANGES IN THE REGULATIONS ARE NECESSARY TO MEET CONSTITUTIONAL REQUIREMENTS. THEREFORE, THE FOLLOWING DECISIONS ON WHICH THE CURRENT REGULATIONS ARE BASED ARE OVERRULED INSOFAR AS THEY HOLD THAT A SIOUX WOMAN MARRIED TO A NON-SIOUX IS CONCLUSIVELY CONSIDERED TO BE THE HEAD OF A FAMILY AND THAT A SIOUX WOMAN MARRIED TO A SIOUX MAN CANNOT BE THE HEAD OF A FAMILY: A- 19504, FEBRUARY 1, 1929; 11 COMP.GEN. 469(1932); A-98691, OCTOBER 28, 1938. (OTHER DECISIONS CITED BY INTERIOR AS FORMING THE BASIS FOR CURRENT REGULATIONS (2 COMP.GEN. 13(1922) AND A 96643, AUGUST 9, 1938) ARE IN OUR VIEW NOT INCONSISTENT WITH THE PROPOSED REGULATIONS AND NEED NOT BE OVERRULED.)

DOUBLE BENEFITS PROHIBITION

THE 1928 ACT WHICH CONTINUED THE ALLOWANCE OF SIOUX BENEFITS CONTAINED THE FOLLOWING PROHIBITION:

NO PERSON SHALL RECEIVE MORE THAN ONE ALLOWANCE OF THE BENEFITS, AND APPLICATION MUST BE MADE AND APPROVED DURING THE LIFETIME OF THE ALLOTTEE OR THE RIGHT SHALL LAPSE. ACT OF MAY 21, 1928, CH. 662, 45 STAT. 684.

IN A 1929 DECISION, WE HELD THAT THIS PROHIBITION PRECLUDED PAYMENT OF SIOUX BENEFITS TO A SIOUX WOMAN IF HER HUSBAND HAD PREVIOUSLY RECEIVED AN ALLOWANCE AS HEAD OF THE FAMILY, EVEN IF THE WOMAN (THOUGH ONCE MARRIED) WAS UNMARRIED, SINGLE, DIVORCED OR WIDOWED AT THE TIME OF HER APPLICATION. UNDER THIS REASONING, THE RIGHT OF A SIOUX WOMAN WAS DEEMED MERGED WITH THAT OF HER HUSBAND BY VIRTUE OF HER MARITAL STATUS AND HER ENTITLEMENT TO SIOUX BENEFITS WAS DEEMED EXHAUSTED BY THE ALLOWANCE OF BENEFITS TO HER HUSBAND. A-19504, FEBRUARY 1, 1929. THE DEPARTMENT OF THE INTERIOR BELIEVES THAT THIS RULE IMPERMISSIBLY DISCRIMINATES AGAINST WOMEN ON THE BASIS OF SEX AND IS NOT REQUIRED BY THE GOVERNING STATUTES, WHICH SPEAK IN TERMS OF AN ALLOWANCE OF BENEFITS TO EACH INDIVIDUAL WHO QUALIFIES EITHER AS A HEAD OF A FAMILY OR SINGLE ADULT, AND NOT IN TERMS OF AN ALLOWANCE PER FAMILY.

WE CONCUR IN THE DEPARTMENT'S DETERMINATION THAT THE ABOVE RULE IS IMPERMISSIBLY DISCRIMINATORY. THEREFORE, OUR DECISION A-19504, FEBRUARY 1, 1929, IS OVERRULED INSOFAR AS IT HOLDS THAT A FORMERLY MARRIED SIOUX WOMAN'S ENTITLEMENT TO SIOUX BENEFITS IN HER OWN RIGHT WAS EXHAUSTED WHEN HER THEN-HUSBAND RECEIVED SIOUX BENEFITS AS HEAD OF THE FAMILY.

VESTING OF RIGHTS

BOTH THE 1928 ACT CONTINUING THE ALLOWANCE OF SIOUX BENEFITS AND THE INDIAN REORGANIZATION ACT OF 1934 PROVIDED THAT "APPLICATION (FOR SIOUX BENEFITS) MUST BE MADE AND APPROVED DURING THE LIFETIME OF THE ALLOTTEE OR THE RIGHT SHALL LAPSE." ACT OF MAY 21, 1928, CH. 662, 45 STAT. 684; ACT OF JUNE 18, 1934, SEC. 14, 48 STAT. 987; 25 U.S.C. 474. THE 1889 SIOUX ALLOTMENT ACT DID NOT CONTAIN SUCH A PROVISION, AND THE COMPTROLLER OF THE TREASURY IN 1915 HELD THAT ELIGIBLE ALLOTTEES UNDER THE 1889 ACT HAD A VESTED RIGHT TO SIOUX BENEFITS WHICH WOULD DESCEND TO THEIR HEIRS IF THE DECEDENT REMAINED ELIGIBLE FOR SUCH BENEFITS AT HIS/HER DEATH AND HAD NOT RECEIVED THE ALLOWANCE. 21 COMP.DEC. 806.

THE DEPARTMENT'S PROPOSED REGULATIONS WOULD REQUIRE THAT ALL APPLICATIONS FOR BENEFITS BE MADE AND APPROVED DURING THE LIFETIME OF THE APPLICANT, REGARDLESS OF THE STATUTE UNDER WHICH BENEFITS ARE SOUGHT. THIS PROPOSED REGULATION CONFLICTS WITH SEVERAL COMPTROLLER GENERAL DECISIONS (9 COMP.GEN. 371(1930) AND A-61511, JULY 15, 1935) INTERPRETING THE 1928 AND 1934 STATUTES RELATING TO SIOUX BENEFITS, AND THEREFORE THE DEPARTMENT REQUESTS THAT WE WITHDRAW OR MODIFY THOSE DECISIONS. THE DECISIONS HELD THAT THE RESTRICTION IN THE 1928 AND 1934 ACTS AGAINST PAYING BENEFITS TO AN ALLOTTEE'S HEIRS IF THE ALLOTTEE'S APPLICATION HAD NOT BEEN APPROVED DURING HIS LIFETIME DID NOT APPLY TO BENEFITS UNDER THE 1889 ACT.

THE 1928 ACT DIRECTS THE SECRETARY "TO CONTINUE THE ALLOWANCE OF THE ARTICLES ENUMERATED IN" THE 1889 ACT TO ALL SIOUX INDIANS WHO HAVE TAKEN OR MAY TAKE ALLOTMENTS UNDER THE 1908 ACT (AND WHO ARE HEADS OF FAMILIES OR SINGLE PERSONS OVER 18). IT GOES ON TO SAY, AS QUOTED ABOVE IN PART, THAT "NO PERSON SHALL RECEIVE MORE THAN ONE ALLOWANCE OF THE BENEFITS, AND APPLICATION MUST BE MADE AND APPROVED DURING THE LIFETIME OF THE ALLOTTEE OR THE RIGHT SHALL LAPSE." SIMILAR LANGUAGE APPEARS IN THE 1934 ACT. CONCLUDED THAT THIS LIMITATION WAS INTENDED TO APPLY "ONLY TO THE BENEFITS AND PERSONS DEALT WITH" IN THE 1928 AND 1934 ACTS (9 COMP.GEN.AT 373; A- 61511).

WHILE THE CITED DECISIONS ARE NOT INCONSISTENT WITH THE STATUTORY LANGUAGE, WE RECOGNIZE THAT THE REFERENCES IN THE 1928 AND 1934 ACTS TO "ALLOWANCE OF THE BENEFITS" ARE AMBIGUOUS AND COULD BE READ, AS INTERIOR HAS CONSISTENTLY MAINTAINED, AS REFERRING TO "ALL BENEFICIARIES IRRESPECTIVE OF THE ACT UNDER WHICH THEY WERE ALLOTTED" (9 COMP.GEN. 271). UNDER THE CIRCUMSTANCES, WE WILL DEFER TO THE ADMINISTERING AGENCY'S PREFERRED INTERPRETATION. ACCORDINGLY, WE OVERRULE OUR DECISIONS INTERPRETING THE 1928 AND 1934 ACTS CONCERNING VESTING OF SIOUX BENEFITS, 9 COMP.GEN. 371 AND A-61511, JULY 15, 1935. (THE SAME DECISIONS, AS THE DEPARTMENT POINTS OUT, STOOD FOR THE PROPOSITION THAT THE PROHIBITION IN THE 1928 AND 1934 ACTS AGAINST DOUBLE BENEFITS DOES NOT APPLY TO THE 1889 ACT.)

TIMING OF ELIGIBILITY DETERMINATIONS

THE BUREAU'S PRESENT POLICY, WHICH IS CONTINUED IN THE PROPOSED REGULATIONS, IS THAT ELIGIBILITY FOR SIOUX BENEFITS IS DETERMINED AS OF THE DATE OF APPLICATION, SO THAT IF AN APPLICANT WAS "ELIGIBLE" FOR BENEFITS AT SOME PRIOR TIME, BUT NOT AT THE TIME OF APPLICATION, HE OR SHE IS NOT ENTITLED TO THE BENEFITS. HOWEVER, THE DRAFT REGULATIONS MAKE AN EXCEPTION TO THIS RULE FOR LIVING PERSONS WHO PREVIOUSLY APPLIED FOR SIOUX BENEFITS AND WHOSE APPLICATIONS WERE DISAPPROVED UNDER PRIOR REGULATIONS. WHERE A PRIOR APPLICATION WAS DISAPPROVED ON GROUNDS WHICH WOULD NO LONGER WARRANT DISAPPROVAL UNDER THE REVISED REGULATIONS, THE APPLICANT COULD REAPPLY AND HAVE HIS ELIGIBILITY DETERMINED ON THE BASIS OF HIS STATUS AT THE TIME OF THE ORIGINAL APPLICATION, RATHER THAN ON THE BASIS OF HIS STATUS AT THE TIME OF REAPPLICATION. THIS EXCEPTION WOULD NOT EXTEND SO FAR AS TO ALLOW BENEFITS TO BE RETROACTIVELY PAID ON BEHALF OF DECEASED INDIANS WHOSE APPLICATIONS WERE IMPROPERLY DENIED.

THE DEPARTMENT STATES THAT ITS GENERAL RULE OF DETERMINING ELIGIBILITY AS OF THE APPLICATION DATE IS BASED ON OUR DECISIONS A-19504, FEBRUARY 1, 1929, AND 11 COMP.GEN. 469(1932). BECAUSE IT IS CONCERNED THAT THE EXCEPTION MADE BY THE PROPOSED REGULATION MAY CONFLICT WITH THESE DECISIONS, THE DEPARTMENT ASKS THAT WE WITHDRAW OR MODIFY THEM AS NECESSARY.

WE AGREE THAT THE CITED DECISIONS ENUNCIATE THE PRINCIPLE THAT AN ALLOTED MARRIED WOMAN IS NOT ENTITLED TO BENEFITS MERELY BECAUSE SHE WOULD HAVE BEEN ELIGIBLE FOR BENEFITS AS A SINGLE PERSON IF SHE HAD APPLIED BEFORE HER MARRIAGE. THE PROPOSED REGULATION EXCEPTION WOULD NOT CHANGE THIS PRINCIPLE. HOWEVER, WE DO NOT AGREE THAT OUR DECISIONS REQUIRE ELIGIBILITY TO BE DETERMINED AS OF THE DATE OF APPLICATION FOR BENEFITS. RATHER, AS THE FOLLOWING QUOTATION DEMONSTRATES, OUR 1929 DECISION HELD THAT AN APPLICANT MAY NOT RECEIVE BENEFITS UNLESS SHE POSSESSES THE REQUIRED STATUS AT THE TIME HER APPLICATION IS APPROVED:

THE FACT THAT A SINGLE SIOUX WOMAN OVER 18 YEARS OF AGE HAS AN APPROVED ALLOTMENT AND MAY HAVE APPLIED FOR THE BENEFITS DOES NOT OPERATE TO GIVE HER A VESTED RIGHT TO RECEIVE SUCH BENEFITS. THE ALLOWANCE OF BENEFITS IS CONTINGENT UPON THE EXISTENCE OF CERTAIN CONDITIONS WHICH MAY VARY OR CHANGE FROM TIME TO TIME. TAKING INTO CONSIDERATION THE NATURE OF SUCH BENEFITS, WHICH ARE SUBSTANTIALLY GRATUITIES, NO VESTED RIGHT IS ACQUIRED UNTIL THE APPLICATION FOR BENEFITS HAS BEEN APPROVED FOR PAYMENT, SUCH APPROVAL UNDER THE ACT OF 1928 BEING TANTAMOUNT TO A PAYMENT OF SAME. COMP.DEC. 806. THUS WHILE A SIOUX INDIAN WOMAN MAY HAVE BEEN ENTITLED TO THE BENEFITS PROVIDED BY LAW AS A SINGLE PERSON OVER 18 YEARS OF AGE, HER STATUS AS SUCH IS CHANGED BY HER MARRIAGE PRIOR TO THE APPROVAL OF HER APPLICATION AND HER RIGHT TO SUCH BENEFITS LAPSES, UNLESS SHE MAY BE RECOGNIZED UNDER THE LAW AS A HEAD OF A FAMILY. A-19504, FEBRUARY 1, 1929.

SINCE AN APPLICANT'S STATUS AS A SINGLE PERSON OR THE HEAD OF A FAMILY MAY CHANGE BETWEEN THE FILING OF THE APPLICATION AND THE ACTUAL GRANT OF BENEFITS, ADMINISTRATIVE CONVENIENCE DICTATES THAT THAT AN APPLICANT'S STATUS AT SOME POINT IN TIME BE FINAL FOR THE PURPOSE OF DETERMINING ELIGIBILITY. THE STATUTORY SCHEME GOVERNING SIOUX BENEFITS DOES NOT PRESCRIBE THIS TIME. THEREFORE, WE BELIEVE IT IS APPROPRIATE TO LEAVE THE MATTER TO THE DISCRETION OF THE AGENCY CHARGED WITH ADMINISTERING THE PROVISON OF BENEFITS. THE DEPARTMENT'S PROPOSED RULE IS DESIGNED TO PREVENT AN INEQUITY, THE DENIAL OF BENEFITS BASED ON REGULATIONS THEN IN EFFECT BUT NOW RECOGNIZED TO HAVE BEEN IMPROPER, AND IS WITHIN THE SCOPE OF ITS DISCRETION. ACCORDINGLY, OUR DECISIONS A-19504, FEBRUARY 1, 1929, AND 11 COMP.GEN. 469(1932), ARE HEREBY OVERRULED TO THE EXTENT THAT THEY CONFLICT WITH THE BUREAU'S PROPOSED RULE GOVERNING THE REDETERMINATION OF ELIGIBILITY FOR SIOUX BENEFITS FOR THOSE WHOSE APPLICATIONS WERE DENIED IN THE PAST UNDER REGULATIONS NOW DETERMINED TO HAVE BEEN IMPROPER.

FINALLY, THE DEPARTMENT ASKS OUR ASSISTANCE IN LOCATING AND ANALYZING THREE DECISIONS WHICH ARE REFERRED TO IN THE MANUAL OF THE BUREAU OF INDIAN AFFAIRS: C.D., MAY 29, 1908; COMPTROLLER GENERAL DECISION A-19504, AUGUST 13, 1927; COMPTROLLER GENERAL DECISION A 61511, JULY 15, 1935.

WE ENCLOSE COPIES OF THE TWO COMPTROLLER GENERAL DECISIONS REFERRED TO. OUR DECISION A-19504, AUGUST 13, 1927, QUESTIONED THE AUTHORITY FOR THE PAYMENT OF SIOUX BENEFITS PRIOR TO ENACTMENT OF THE 1928 ACT CONTINUING THESE BENEFITS. THIS DECISION DOES NOT APPEAR TO BE INCONSISTENT WITH THE DEPARTMENT'S PROPOSED NEW REGULATIONS. OUR DECISION A-61511, JULY 15, 1935, IS DISCUSSED ABOVE UNDER "VESTING OF RIGHTS." WE HAVE BEEN UNABLE TO LOCATE A MAY 29, 1908, DECISION DEALING WITH SIOUX BENEFITS. IN ANY CASE, ANY DECISIONS OF THIS OFFICE ARE HEREBY OVERRULED TO THE EXTENT THEY ARE INCONSISTENT WITH THIS DECISION.

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