A-19504, MARCH 1, 1930, 9 COMP. GEN. 371

A-19504, MARCH 1, 1930, 9 COMP. GEN. 371

INDIAN AFFAIRS - SIOUX - CIVILIZATION BENEFITS THE PROVISIONS OF THE SECOND SENTENCE OF THE ACT OF MAY 21, 1928, 45 STAT. 684, 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," ARE APPLICABLE ONLY TO THE ALLOTTEES UNDER SEC. 19 OF THE ACT OF MAY 29, 1908, 35 STAT. 451, WHO BECAME ENTITLED UNDER SAID ACT OF MAY 21, 1928, TO THE BENEFITS ENUMERATED UNDER SECTION 17 OF THE ACT OF MARCH 2, 1889, 25 STAT. 894, LEAVING UNAFFECTED THE PERSONS ENTITLED TO SIOUX BENEFITS UNDER THE ORIGINAL ACT OF MARCH 2, 1889, EXCEPT IN THE FEW CASES IN WHICH THE PROVISIONS OF THE VARIOUS STATUTES RELATING TO SIOUX BENEFITS MAY BE INVOLVED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, MARCH 1, 1930:

I HAVE YOUR LETTER OF FEBRUARY 7, 1930, AS FOLLOWS:

OUT ATTENTION HAS BEEN INVITED TO YOUR LETTER OF JANUARY 4, 1930 (A 19504), TO HON. WILLIAM WILLIAMSON, HOUSE OF REPRESENTATIVES, RELATIVE TO SIOUX BENEFITS, WHEREIN IT IS INTIMATED THAT THE ACT OF 1928 IS APPLICABLE ONLY TO ALLOTTEES UNDER THE ACT OF 1908 AND THAT IT LEAVES UNAFFECTED ALLOTTEES UNDER THE ACT OF 1889. THE ACT OF MAY 21, 1928, (45 STAT.L., 684), READS AS FOLLOWS:

"THAT THE SECRETARY OF THE INTERIOR BE, AND HE IS HEREBY DIRECTED TO CONTINUE THE ALLOWANCE OF THE ARTICLES ENUMERATED IN SEC. 17 OF THE ACT OF MARCH 2, 1889 (TWENTY-FIVE STATUTES AT LARGE, PAGE 894), OR THEIR COMMUTED CASH VALUE UNDER THE ACT OF JUNE 10, 1896 (TWENTY-NINTH STATUTES AT LARGE, PAGE 334), TO ALL SIOUX INDIANS WHO SHALL HAVE TAKEN OR MAY HEREAFTER TAKE ALLOTMENTS OF LAND IN SEVERALTY UNDER SEC. 19 OF THE ACT OF MAY 29, 1908 (THIRTY-FIFTH STATUTES AT LARGE, PAGE 451), AND WHO HAVE THE PRESCRIBED STATUS OF THE HEAD OF A FAMILY OR SINGLE PERSON OVER THE AGE OF EIGHTEEN YEARS, AND HIS APPROVAL SHALL BE FINAL AND CONCLUSIVE CLAIMS THEREFOR TO BE PAID AS FORMERLY FROM THE PERMANENT APPROPRIATION MADE BY SAID SEC. 17 AND CARRIED ON THE BOOKS OF THE TREASURY FOR THIS PURPOSE. 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 SE.'

WHILE THE FIRST PART OF THE ACT CLEARLY REFERS ONLY TO ALLOTTEES UNDER THE ACT OF 1908, AS WE HAVE UNDERSTOOD IT THE LAST SENTENCE--- "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"--- APPLIES TO ALL BENEFICIARIES IRRESPECTIVE OF THE ACT UNDER WHICH THEY WERE ALLOTTED. OTHERWISE DIFFERENT RULE WOULD APPLY IN THIS RESPECT TO ALLOTTEES UNDER THE ACT OF 1889 AND THOSE UNDER THE ACT OF 1908 IN THAT THE FORMER MAY UNDER CERTAIN CIRCUMSTANCES RECEIVE ,DOUBLE" BENEFITS AND THE RIGHT TO THE BENEFITS IS VESTED AND INHERITABLE AS HELD BY THE COMPTROLLER OF THE TREASURY ON MAY 11, 1915, (XXI COMP. 806.) BUT SUCH IS NOT THE CASE AS TO ALLOTTEES UNDER THE ACT OF 1908 WHO CAN NOT RECEIVE SUCH "DOUBLE" BENEFITS AND APPLICATION MUST BE MADE AND APPROVED WHILE THE INDIAN HAS THE REQUISITE STATUS AND DURING THE LIFETIME OF THE ALLOTTEE OR THE RIGHT SHALL LAPSE.

APPARENTLY THE OBJECT OF THE ACT OF 1928 WAS TWOFOLD: (1) TO CONTINUE THE ALLOWANCE OF BENEFITS UNDER THE ACT OF 1889 TO ALLOTTEES UNDER THE ACT OF 1908, WHICH WAS ACCOMPLISHED BY THE FIRST PART OF THE ACT, AND (2) TO CLARIFY THE MATTER OF "DOUBLE" BENEFITS AND TO MAKE IT CLEAR THAT THE RIGHT TO THE BENEFITS SHOULD NOT BE VESTED OR INHERITABLE WHETHER THE INDIAN WAS ALLOTTED UNDER THE ACT OF 1889 OR UNDER THAT OF 1908, AS PROVIDED BY THE LAST SENTENCE:

"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.'

THE WORDS "PERSON" AND "ALLOTTEE" ARE UNQUALIFIED BY ANY LANGUAGE LIMITING THEM TO INDIANS ALLOTTED UNDER THE ACT OF 1908 AND SUCH WAS NOT THE INTENTION OF THIS DEPARTMENT IN SUGGESTING THE SUBSTITUTE FOR H.R. 9046 WHICH EVENTUALLY BECAME THE ACT OF MAY 21, 1928. THE QUESTIONS EMBODIED IN OUR LETTER TO YOU OF JANUARY 19, 1929, HAD ARISEN BEFORE THE PASSAGE OF THE ACT OF 1928 IN CONNECTION WITH THE CONSIDERATION OF APPLICATIONS FOR THE BENEFITS FILED BY SIOUX INDIANS, SOME OF WHOM HAD BEEN ALLOTTED UNDER THE ACT OF 1889 AND OTHERS UNDER THAT OF 1908; AND IT WAS NOT THE PURPOSE TO MAKE ANY DISTINCTION IN THIS RESPECT BETWEEN ALLOTTEES UNDER THE TWO ACTS. ON PAGE 3 OF THIS SUBMISSION, JUST BEFORE THE LIST OF CASES, IT IS STATED:

"THE QUESTION IS AS TO WHETHER THE FOLLOWING APPLICANTS ARE OR ARE NOT ENTITLED TO BENEFITS UNDER THE ACT OF MAY 21, 1928.'

THE ONLY PART OF THAT ACT WHICH COULD APPLY TO THE CASES SUBMITTED IS THE LAST SENTENCE PREVIOUSLY QUOTED HEREIN PROHIBITING "DOUBLE" BENEFITS AND PROVIDING THAT THE RIGHT TO THE BENEFITS SHALL NOT BE INHERITABLE. NOWHERE IN THE SUBMISSION WAS IT THE INTENTION TO SUGGEST THAT THE QUESTIONS RELATE ONLY TO ALLOTTEES UNDER THE ACT OF 1908, AND YOUR DECISION OF FEBRUARY 1, 1929, IN RESPONSE THERETO, LIKEWISE, APPARENTLY, CONTAINS NO INTIMATION THAT SUCH IS THE CASE.

THE ACT OF 1928 FIRST CONTINUES OF THE ALLOWANCE OF BENEFITS UNDER THE ACT OF 1889 TO ALLOTTEES UNDER THE ACT OF 1908. THEN IN A SEPARATE SENTENCE ON A DIFFERENT AND ENTIRELY UNRELATED PHASE OF THE SUBJECT MATTER IT PROHIBITS "DOUBLE" BENEFITS AND PROVIDES IN EFFECT THAT THE RIGHT TO THE BENEFITS SHALL NOT BE VESTED OR INHERITABLE. IT SEEMS UNFAIR AND INEQUITABLE TO MAKE ANY DISTINCTION IN THIS RESPECT BETWEEN ALLOTTEES UNDER THE ACT OF 1889 AND THOSE UNDER THE ACT OF 1908. WHILE THE ACT OF 1928 MUST BE CONSTRUED AS A WHOLE, THIS DOES NOT NECESSARILY REQUIRE THAT THE PROVISIONS OF THE LAST SENTENCE BE LIMITED TO ALLOTTEES UNDER THE ACT OF 1908; IN FACT THE CONTRARY WOULD SEEM TO BE THE CASE.

THE ACT OF 1928 AS A WHOLE RELATES TO SIOUX BENEFITS. THE FIRST PART REFERS SPECIFICALLY TO ,ARTICLES" (BENEFITS) UNDER THE ACT OF 1889, WHILE THE LAST SENTENCE USES THE GENERAL TERM ,BENEFITS" WHICH UNDER WELL- SETTLED RULES OF STATUTORY CONSTRUCTION SHOULD BE GIVEN THE SAME MEANING AS THE EQUIVALENT TERM "ARTICLES" IN THE FIRST PART OF THE ACT THAT IS, BENEFITS UNDER THE ACT OF 1889, AND THIS INCLUDES ALLOTTEES THEREUNDER AS WELL AS THOSE UNDER THE ACT OF 1908. THUS, APPARENTLY, THE PURPOSE OF THE ACT OF 1928, AS A WHOLE IS TO PUT ALL ALLOTTEES ON THE SAME BASIS WITH RESPECT TO THE BENEFITS; THAT IS, WHETHER ALLOTTED UNDER THE ACT OF 1889 OR UNDER THE ACT OF 1908 ALL THE INDIANS HAVE THE RIGHT TO THE BENEFITS WHEN THEY ATTAIN THE REQUISITE STATUS, AND, EQUALLY, IT WOULD SEEM THAT THE PROHIBITION AGAINST "DOUBLE" BENEFITS AND INHERITABILITY SHOULD LIKEWISE APPLY IN ALL CASES IRRESPECTIVE OF THE ACT UNDER WHICH THE BENEFICIARY WAS ALLOTTED.

THE FIRST PART OF THE ACT OF 1928 DID NOT CREATE THE BENEFITS OR SET UP A NEW CLASS OF BENEFICIARIES. IT MERELY CONSTRUES THE ACT OF 1889 AS INCLUDING WITHIN ITS SCOPE ALLOTTEES UNDER THE ACT OF 1908. HENCE WE CAN NOT SAY THAT THE WORD "BENEFITS" IN THE LAST SENTENCE MEANS BENEFITS "UNDER THIS ACT," THEREBY LIMITING THEM TO ALLOTTEES UNDER THE ACT OF 1908. AS PREVIOUSLY STATED HEREIN, THE QUESTIONS EMBODIED IN OUR SUBMISSION OF JANUARY 19, 1929, HAD ARISEN BEFORE THE ACT OF 1928 IN CONNECTION WITH ALLOTTEES UNDER BOTH THE ACT OF 1889 AND THAT OF 1908; AND, IN FACT, WERE THE SPECIFIC OCCASION FOR THE LAST SENTENCE.

HAVING IN MIND THE PURPOSE OF THE BENEFITS IT HAD LONG BEEN THE BELIEF OF THIS DEPARTMENT THAT, BEING OF A PERSONAL NATURE, NO PERSON SHOULD PARTICIPATE THEREIN MORE THAN ONCE AND THAT THE RIGHT THERETO SHOULD BE MADE NONINHERITABLE IRRESPECTIVE OF THE ACT UNDER WHICH THE BENEFICIARY WAS ALLOTTED. THE LAST SENTENCE OF THE ACT OF 1928 WAS, THEREFORE, DRAFTED WITH THIS END IN VIEW, AND WE HAVE ALWAYS APPLIED IT IN THIS WAY. THE COURTS GIVE GREAT WEIGHT TO THE DEPARTMENTAL CONSTRUCTION OF AN ACT OF CONGRESS AND WILL NOT DISTURB IT EXCEPT FOR THE MOST COGENT REASONS WHICH DO NOT SEEM TO EXIST IN THIS CASE.

WE WOULD THEREFORE BE GLAD TO HAVE YOU CLARIFY THIS MATTER BY A FORMAL DECISION ON THE POINT BROUGHT OUT HEREIN.

I AM UNABLE TO AGREE WITH THE VIEW SUGGESTED IN YOUR LETTER THAT THE LAST SENTENCE OF THE ACT OF 1928 IS APPLICABLE TO ALLOTTEES UNDER THE ACT OF 1889 AS WELL AS TO THOSE UNDER THE ACT OF 1908. SAID ACT OF 1928 IS ENTITLED "AN ACT TO CONTINUE THE ALLOWANCE OF SIOUX BENEFITS.' PRIOR TO THE ENACTMENT OF SAID LAW IT HAD BEEN HELD THAT CERTAIN BENEFITS PROVIDED UNDER THE ACT OF 1889 WERE BEING ILLEGALLY ALLOWED TO CERTAIN ALLOTTEES UNDER THE ACT OF 1908, AND THE ACT OF 1928, SUPRA, DIRECTED THE SECRETARY OF THE INTERIOR TO CONTINUE THE ALLOWANCE OF THE ARTICLES ENUMERATED IN SEC. 17 OF THE ACT OF 1889, OR THEIR COMMUTED CASH VALUE TO SIOUX ALLOTTEES IN SEVERALTY "UNDER SEC. 19" OF THE ACT OF 1908, HAVING A CERTAIN PRESCRIBED STATUS, AND THEN PROVIDED 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.' THERE IS NOTHING IN THE ACT TO INDICATE THAT THE SENTENCE JUST QUOTED WAS NOT INTENDED TO BE APPLICABLE ONLY TO THE BENEFITS AND PERSONS DEALT WITH IN THE PRECEDING SENTENCE OF THE ACT. THE APPARENT OBJECT OF THE ACT OF 1928 WAS TO AUTHORIZE THE PAYMENT OF CERTAIN BENEFITS TO A DESIGNATED CLASS OF SIOUX INDIANS ALLOTTED LAND UNDER THE ACT OF 1908 SUBJECT TO SPECIFIED CONDITIONS AND LIMITATIONS THEREIN PRESCRIBED. THE ACT IS PLAIN AND UNAMBIGUOUS IN ITS TERMS TO ACCOMPLISH THIS PURPOSE AND NO REASON IS APPARENT WHY ITS PROVISIONS SHOULD HAVE BEEN OR SHOULD BE CONSTRUED OR APPLIED OTHERWISE.

AS STATED IN THE LETTER OF JANUARY 4, 1930, TO HON. WILLIAM WILLIAMSON, HOUSE OF REPRESENTATIVES, THE DECISION RENDERED BY THIS OFFICE FEBRUARY 1, 1929, INVOLVED SPECIFIC HYPOTHETICAL QUESTIONS SUBMITTED BY THE SECRETARY OF THE INTERIOR AS ARISING UNDER THE PROVISIONS OF THE ACT OF 1928, AND AS NO FACTS WERE PRESENTED AS TO THE ACT UNDER WHICH THE INDIANS WERE ALLOTTED, THAT IS, WHETHER UNDER THE ACT OF 1889 OR THAT OF 1908, IT WAS ASSUMED THE QUESTIONS RELATED TO ALLOTTEES UNDER THE LATER ACT AND THE QUESTIONS WERE ANSWERED ACCORDINGLY. SINCE NO QUESTION WAS RAISED AS TO THE APPLICABILITY OF THE RESTRICTIVE PROVISIONS OF THE ACT OF 1928, TO ALLOTTEES UNDER THE ACT OF 1889, NOTHING RELATIVE THERETO WAS SAID IN THE DECISION.

IN SPECIFIC ANSWER TO THE QUESTION NOW SUBMITTED BY YOU I HAVE TO ADVISE THAT THE RESTRICTIVE PROVISIONS OF THE ACT OF 1928--- THAT IS TO SAY, THE SECOND SENTENCE OF THE ACT--- MUST BE HELD TO BE APPLICABLE ONLY TO THE ALLOTTEES UNDER SEC. 19 OF THE ACT OF 1908 WHO BECAME ENTITLED UNDER THE SAID ACT OF 1928 TO THE BENEFITS ENUMERATED UNDER THE ACT OF 1889, LEAVING UNAFFECTED THE PERSONS ENTITLED TO SIOUX BENEFITS UNDER THE ORIGINAL ACT OF 1889, EXCEPT, AS STATED IN THE LETTER TO MR. WILLIAM WILLIAMSON, IN THE FEW CASES IN WHICH THE PROVISIONS OF THE VARIOUS STATUTES RELATING TO SIOUX BENEFITS MAY BE INVOLVED.