A-19504, JUNE 8, 1932, 11 COMP. GEN. 469

A-19504, JUNE 8, 1932, 11 COMP. GEN. 469

INDIAN AFFAIRS - SIOUX - CIVILIZATION BENEFITS 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.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 8, 1932:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 28, 1932, AS FOLLOWS:

YOUR DECISION IS REQUESTED UPON MATTER ARISING IN CONNECTION WITH THE ADMINISTRATION OF SECTION 17 OF THE ACT OF MARCH 2, 1889 (25 STAT. 888- 894), PROVIDING FOR THE ALLOWANCE OF SIOUX BENEFITS. THE ACT IN QUESTION PROVIDES:

"* * * THAT EACH HEAD OF FAMILY OR SINGLE PERSON OVER THE AGE OF EIGHTEEN 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; * * *.'

THIS ACT WAS AMENDED BY THE ACT OF JUNE 10, 1896 (29 STAT. 321-334), WHICH PROVIDED THAT THE COMMUTED VALUE IN CASH MIGHT BE RECEIVED IN LIEU OF THE ARTICLES ENUMERATED IN SECTION 17 OF THE ACT OF MARCH 2, 1889.

YOUR DECISION OF AUGUST 6 (3), 1931, HELD THAT THE DECISION OF COMPTROLLER DOWNEY, DATED MAY 11, 1915 (21 COMP. 806), REMAINED IN FULL FORCE AND EFFECT AS THE PROVISIONS IN THE ACT OF MAY 21, 1928 (45 STAT. 684), AGAINST INHERITABILITY ARE NOT APPLICABLE TO PERSONS COVERED BY THE ACT OF MARCH 2, 1889. IN THAT CASE THE ALLOTTEE, A PINE RIDGE SIOUX, MADE APPLICATION FOR BENEFITS ON AUGUST 15, 1914. THE APPLICATION WAS APPROVED ON FEBRUARY 1, 1915, AND PAYMENT WAS MADE BY WARRANT IN PURSUANCE OF THE AUDITOR'S SETTLEMENT DATED FEBRUARY 26, 1915. THE SUPERINTENDENT OF THE PINE RIDGE AGENCY, IN A LETTER DATED APRIL 21, 1915, REPORTED THAT THE PAYEE DIED ON OCTOBER 28, 1914, AND CANCELLATION OF THE WARRANT WAS REQUESTED BY THE SECRETARY OF THE INTERIOR.

THERE ARE SEVERAL CASES NOW PENDING BEFORE THIS DEPARTMENT WHICH DO NOT COME WITHIN THE FACTS ON WHICH THE DECISIONS ABOVE REFERRED TO WERE RENDERED, AND IT IS REQUESTED THAT WE BE ADVISED AS TO WHETHER OR NOT PAYMENT OF BENEFITS SHOULD BE ALLOWED IN THE FOLLOWING CLASSES OF CASES:

1. INDIAN ALLOTTED UNDER THE ACT OF MARCH 2, 1889 (25 STAT. 888 894), OR THE ACT OF MARCH 1, 1907 (34 STAT. 1049), AND HAVING THE REQUISITE STATUS, NOW DECEASED, WHO MADE NO APPLICATION FOR BENEFITS DURING LIFE, BUT WHOSE HEIRS NOW APPLY FOR THE BENEFITS WHICH THE DECEASED ALLOTTEE MIGHT HAVE RECEIVED.

2. FEMALE INDIAN ALLOTTED UNDER THE ACT OF MARCH 2, 1889 (25 STAT. 888- 894), OR THE ACT OF MARCH 1, 1907 (34 STAT. 1049), WHO AT SOME TIME DURING THE COURSE OF HER LIFE ATTAINED THE REQUIRED STATUS TO ENABLE HER TO PARTICIPATE IN THE BENEFITS BUT DID NOT APPLY FOR THEM WHILE SINGLE OR HEAD OF A FAMILY AND WHO NOW APPLIES AS A MARRIED WOMAN WITH SIOUX HUSBAND.

3. FEMALE INDIAN ALLOTTED UNDER THE ACT OF MARCH 2, 1889 (25 STAT. 888- 894), OR ACT OF MARCH 1, 1907 (34 STAT. 1049), WHO AT SOME TIME DURING THE COURSE OF HER LIFE ATTAINED THE REQUIRED STATUS TO ENABLE HER TO PARTICIPATE IN THE BENEFITS BUT DID NOT APPLY FOR THEM WHILE SINGLE OR THE HEAD OF A FAMILY AND WHO DIED WHILE MARRIED TO A SIOUX HUSBAND, AND APPLICATION IS NOW BEING MADE BY HER HEIRS.

SEE ALSO DECISION OF THE COMPTROLLER GENERAL DATED FEBRUARY 1, 1929.

1. AS TO CASES COMING UNDER QUESTION NO. 1, IF THE ALLOTTEE WAS ENTITLED TO THE BENEFITS AT DATE OF DEATH THE CASE WOULD APPEAR TO BE SIMILAR TO THAT INVOLVED IN THE MENARD CASE COVERED BY DECISION OF THIS OFFICE UNDER DATE OF AUGUST 3, 1931, A-37784, THAT IS TO SAY, BASED UPON THE DECISION 21 COMP. DEC. 806, THE RIGHT TO THE BENEFITS WOULD DESCEND TO THE HEIRS. HOWEVER, IF THE STATUS OF THE DECEASED ALLOTTEE AT TIME OF DEATH WAS NOT THAT OF THE HEAD OF A FAMILY OR A SINGLE PERSON ENTITLED TO THE BENEFITS UNDER SECTION 7 OF THE ACT OF 1889, NO RIGHT CAN DESCEND TO THE HEIRS, AND IN SUCH CASES THE HEIRS WOULD NOT BE ENTITLED TO SUCH BENEFITS.

2. A FEMALE INDIAN ALLOTTEE NOW MARRIED TO A SIOUX HUSBAND HAS NOT THE REQUIRED STATUS OF EITHER A HEAD OF A FAMILY OR A SINGLE PERSON ENTITLED TO THE BENEFITS UNDER THE ACT OF 1889. THE FACT THAT SHE MAY HAVE HAD THE REQUIRED STATUS AT SOME TIME DURING HER LIFE DOES NOT AFFECT HER PRESENT STATUS WHICH IS NOT COVERED BY THE LAW. FOR THAT REASON IT MUST BE HELD THAT SHE IS NOT ENTITLED TO THE BENEFITS IN QUESTION IN HER PRESENT STATUS, MERELY BECAUSE SHE MAY HAVE HAD THE REQUIRED STATUS AT SOME TIME.

3. WHERE A FEMALE INDIAN ALLOTTEE DIED WHILE MARRIED TO A SIOUX INDIAN THE HEIRS ARE NOT ENTITLED TO THE BENEFITS. WHAT IS SAID IN THE SECOND PART OF ANSWER TO QUESTION 1 IS EQUALLY APPLICABLE HERE. SINCE THE DECEASED WAS NOT ENTITLED TO THE BENEFITS AS SHOWN UNDER 2 AT THE TIME OF HER DEATH, BECAUSE SHE DID NOT HAVE THE REQUIRED STATUS AT THAT TIME, NO RIGHT COULD BE ACQUIRED BY OR DESCEND TO THE HEIRS. THE FACT THAT THE DECEASED MAY HAVE HAD THE REQUIRED STATUS AT SOME TIME DURING THE COURSE OF HER LIFE DOES NOT AFFECT HER STATUS AT THE TIME OF HER DEATH, AND HER STATUS AT THAT TIME IS THAT WHICH DETERMINES THE RIGHTS OF THE HEIRS.