DECEMBER 20, 1922, 2 COMP. GEN. 389

DECEMBER 20, 1922, 2 COMP. GEN. 389

DISTRIBUTION OF ANNUITY TO PAWNEE INDIANS OF OKLAHOMA THE FINAL ROLL OF THE PAWNEE INDIANS OF OKLAHOMA, PREPARED BY THE SECRETARY OF THE INTERIOR AND APPROVED SEPTEMBER 2, 1921, FOR THE PURPOSES OF SEGREGATING TRIBAL OR COMMON OR COMMUNITY FUNDS, IS NOT A PROPER BASIS FOR THE DISTRIBUTION OF THE $30,000 ANNUITY PROVIDED FOR IN THE RATIFIED AGREEMENT OF NOVEMBER 23, 1892, AND BY ANNUAL APPROPRIATIONS FOR SUCH ANNUITIES MADE PURSUANT THERETO.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, DECEMBER 20, 1922:

I HAVE YOUR LETTER OF NOVEMBER 27, 1922, TRANSMITTING A LETTER FROM THE COMMISSIONER OF INDIAN AFFAIRS AND REQUESTING A DECISION AS TO MATTERS THEREIN SUBMITTED RELATIVE TO THE PROPER BASIS FOR DISTRIBUTING THE $30,000 APPROPRIATED IN THE ACT OF MAY 24, 1922, 42 STAT., 574, "FOR FULFILLING TREATIES WITH PAWNEES, OKLAHOMA: FOR PERPETUAL ANNUITY,TO BE PAID IN CASH TO THE PAWNEES (ARTICLE 3, AGREEMENT OF NOVEMBER 23, 1892).'

THE FACTS APPEAR THAT ARTICLE 2 OF A TREATY OF SEPTEMBER 24, 1857, 11 STAT., 729, PROVIDED AN ANNUITY OF $40,000 FOR FIVE YEARS FROM JANUARY 1, 1858, AND $30,000 ANNUALLY THEREAFTER, AT LEAST ONE-HALF THEREOF TO BE PAID IN OTHER THAN COIN; THAT THIS PROVISION OF LAW WAS AMENDED BY THE ACT OF MARCH 3, 1893, 27 STAT., 644, RATIFYING AN AGREEMENT OF NOVEMBER 23, 1892, ARTICLE 3 OF WHICH PROVIDED THAT: "THE UNITED STATES AGREES TO PAY TO THE PAWNEES THE SUM OF THIRTY THOUSAND DOLLARS PER ANNUM, AS A PERPETUAL ANNUITY, TO BE DISTRIBUTED ANNUALLY AMONG THEM PER CAPITA, IN COIN; " THAT BY THE ACT OF MARCH 1, 1921, 41 STAT., 1172, THE SUM OF $312,811.27, WITH INTEREST AT 5 PERCENT FROM SEPTEMBER 3, 1920, WAS APPROPRIATED TO PAY THE PAWNEE TRIBE OF INDIANS OF OKLAHOMA FOR CERTAIN LANDS, ETC., PURSUANT TO THE FINDINGS OF THE COURT OF CLAIMS OF DECEMBER 6, 1920, ETC. ; THAT BY THE TERMS OF THE ACT OF JUNE 30, 1919, 41 STAT., 9, THE SECRETARY OF THE INTERIOR WAS AUTHORIZED, IN HIS DISCRETION, TO CAUSE A FINAL ROLL TO BE MADE OF THE MEMBERSHIP OF ANY TRIBE, SUCH ROLLS WHEN APPROVED BY THE SAID SECRETARY BEING DECLARED TO CONSTITUTE THE LEGAL MEMBERSHIP OF THE RESPECTIVE TRIBES FOR THE PURPOSE OF SEGREGATING THE TRIBAL FUNDS AS PROVIDED IN SECTION 28 OF THE ACT OF MAY 25, 1918, 40 STAT., 591; AND THAT ON SEPTEMBER 2, 1921, A FINAL ROLL OF THE PAWNEE INDIANS, FOR THE PURPOSE OF DISTRIBUTING THE AMOUNT APPROPRIATED ON THE BASIS OF THE FINDINGS OF THE COURT OF CLAIMS, WAS APPROVED, THE ROLL HAVING BEEN CLOSED OUT AS OF MARCH 1, 1921.

THE SUBSTANCE OF THE MATTER FOR DECISION IS WHETHER THIS FINAL ROLL OF THE PAWNEE INDIANS, APPROVED SEPTEMBER 2, 1921, MAY LEGALLY BE USED AS THE BASIS FOR THE DISTRIBUTION OF THE $30,000 ANNUITY PROVIDED BY THE AGREEMENT OF NOVEMBER 23, 1892, AND APPROPRIATED FOR ANNUALLY, OR WHETHER THE INDIANS LIVING ON THE DATE OF THE AUTHORITY FOR THE SEMIANNUAL DISTRIBUTION OF ANNUITY ARE TO BE PARTICIPANTS, WHICH THEY WOULD NOT BE IF THE FINAL ROLL OF SEPTEMBER 2, 1921, WERE USED.

AMOUNTS APPROPRIATED FOR PER CAPITA ANNUITY DISTRIBUTIONS APPEAR NOT TO BE "TRIBAL FUNDS," OR ,COMMON OR COMMUNITY FUNDS OF ANY INDIAN TRIBE, WHICH ARE, OR HEREAFTER MAY BE, HELD IN TRUST BY THE UNITED STATES," WITHIN THE INTENT AND MEANING OF SECTION 28 OF THE ACT OF MAY 25, 1918, 40 STAT., 591, AND THE PROVISIONS OF THE ACT OF JUNE 30, 1919, 41 STAT., 9. THE PROVISIONS OF THESE RESPECTIVE ACTS, TAKEN TOGETHER, ARE THAT SUCH FINAL ROLLS SHALL CONSTITUTE THE LEGAL MEMBERSHIP OF THE RESPECTIVE TRIBES FOR THE PURPOSE OF SEGREGATING THE TRIBAL, OR COMMON, OR COMMUNITY FUNDS OF ANY INDIAN TRIBE. THE STIPULATION OF THE AGREEMENT OF NOVEMBER 23, 1892, ARTICLE 3, RATIFIED BY THE ACT OF MARCH 3, 1893, 27TH STAT., 644, IS FOR PAYMENT TO THE PAWNEES OF THE SUM OF $30,000 PER ANNUM, AS A PERPETUAL ANNUITY, TO BE DISTRIBUTED ANNUALLY AMONG THEM PER CAPITA, ETC. THE TERM "PER CAPITA" IS DEFINED (BOUVIER'S LAW DICTIONARY, RAWLE'S THIRD EDITION) AS "BY THE HEAD OR POLLS.' IT WOULD THUS APPEAR THAT A DISTRIBUTION OF THE APPROPRIATED ANNUITY ON THE BASIS OF THE FINAL ROLL, CLOSED ON MARCH 1, 1921, AND APPROVED ON SEPTEMBER 2, 1921, ELIMINATING, AS IT WOULD, THOSE INDIANS BORN SUBSEQUENT THERETO WOULD NOT BE A PER CAPITA DISTRIBUTION AS PROVIDED BY THE RATIFIED AGREEMENT OF NOVEMBER 23, 1892, AND ANNUAL APPROPRIATIONS MADE PURSUANT THERETO.

ANSWERING THE QUESTION SPECIFICALLY THE FINAL ROLL OF THE PAWNEE INDIANS, APPROVED SEPTEMBER 2, 1921, MAY NOT LEGALLY BE USED FOR THE DISTRIBUTION OF THE $30,000 ANNUITY PROVIDED FOR IN THE RATIFIED AGREEMENT OF NOVEMBER 23, 1892, AND BY ANNUAL APPROPRIATIONS FOR SUCH ANNUITIES MADE PURSUANT THERETO.