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The decision of the Auditor is primarily directed against the distribution of annuities to “heads of families” except where those persons are adults under the laws of Nebraska. Section 154 of the regulations mentioned makes no such distinction, but provides for making payment to “heads of families” without qualification as to age. The regulations in this respect are simply a recognition of the laws and usages of the tribes. This practice of recognizing the usages of the tribes has the sanction of the Attorney-General in his opinion of February 9, 1894 (20 Opin. A. G., 712), wherein he said:
" Whether the common-law rule that the offspring of free persons follow the condition of the father prevails in determining the status of the children born to a white man, a citizen of the United States, and an Indian woman, his wife, * * * is a question to be determined, in my opinion, not by the common law, but by the laws and usages of the tribe.”
Some of the laws of the United States seem to have been framed in recognition of this principle. The act of March 3, 1875 (18 Stat., 420), provides:
“That any Indian born in the United States and the head of a family, or who has arrived at the age of twenty-one, * *** shall * * * be entitled to make a homestead entryl” * *
It will be noticed that in describing the Indians who may make entries, the disjunctive word or is used, thus making the two classes, viz: Those who are heads of families (without qualification as to age), and others who are 21 years of age. This is in accordance with the laws disposing of the public lands generally, and the same classification may be found in section 5, act of August 7,1882 (22 Stat., 342), and section 1, act of February 8, 1887 (24 Stat., 388), where heads of families have been recognized without regard to age.
In Ex parte Coombs (127 Mass., 278) the supreme court of Massachusetts held that the guardianship of Indians by the legislature might be continued after they had been invested with citizenship.
The payment of annuities usually arises out of treaties and agreements made with the Indians, by which the United States have been empowered, and have undertaken to exercise, certain discretion in the use of the funds. That discretion can properly be exercised only by retaining a sovereign power over the matter. An intention on the part of the Government to abandon the relations heretofore existing between it and the Indians should not be assumed without the most cogent reasons, and such an intention has been strongly negatived by much of the legislation enacted since the dates of the acts under consideration. This legislation is based on the assumption of the continuance of the time honored and acknowledged relations existing between the Government and the Indians.
In my view of this matter, there is no necessary relation between the rights of the Indian as a citizen and the right of the United States to impose such restrictions as it sees fit in the distribution of the annuities, paid in accordance with a treaty. As the Commissioner of Indian Affairs forcibly says:
“There is no change or modification in the status of the funds of an Indian tribe to the members of which allotments in severalty have been given. They remain in the hands of the Government in trust for the tribe and are subject to the same incidents and control to which funds of a tribe where no allotments have been given are subject. Therefore the distribution of the various funds of the Omabas is subject to the regulations of the Indian Office relating to such matters.
If the allotment of lands in severalty is held by the Treas. ury to operate as a total extinction of the tribe for all purposes whatsoever, then it must be held that payments to children of allottees born since the making of allotments, and consequently since their parents have been made citizens of the United States, except such as have been made to them under the rule of representation, were contrary to law. The only theory upon which children of Indian allottees, born since their parents became citizens by taking allotments in severalty, can be held to be entitled to participate in the distribution of funds, is that by their birth they acquire certain rights as members of a tribe to tribal property.
“If Indian funds held in trust by the Government for the benefit of a tribe of Indians are not to be governed in their distribution by the regulations of the Indian Office, after the members of the tribe have become citizens under the allotment laws, then the allotment schedules must be taken as forming the basis upon which all per capita distributions of the funds of that tribe are to be made thereafter. No one whose name does not appear on the allotment schedule would be entitled to participate in the benefits arising from the property of the tribe of his ancestors, except such as may come to him under the ordinary rules of descent.
“I am sure that it would not be seriously contemplated that Congress has, by any act heretofore passed providing for the making of allotments to Indians and their admission to citizenship, intended thereby to deprive the descendants of the allottees of any benefits arising from tribal funds which remain in the possession of the Government, even as the allotment of land
as communal property. Such, however, would be the effect of the Auditor's decision if pursued to its logical conclusion. No such interpretation has been given the allotment laws by this Department, which is charged with their execution, and the Supreme Court in several cases has announced and reiterated the principle that 'the construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons.' (United States v. Moore, 95 U.S.. 760. 763; Railroad Co. v. Whitney, 132 U. S., 366; Sturr v. Beck, 133 U. S., 548.)
"This Department has observed that in all its acts admitting Indians to citizenship Congress has taken great care to preserve their rights in such tribal property as retains its communal character after the allotment of landin severalty to the members of the tribe.”
This view is not inconsistent with the acts of 1882 and 1887, to which full force and effect can be given without trenching upon the power of the United States to protect and control certain property interests of the Indians, and to carry out obligations assumed by tre. ties with them. The opinions of the Attorneys-General and the decisions of courts heretofore cited support this position. The act approved August 7, 1882, is virtually an agreement between the Omaha Indians and the United States, and puts such agreement in legislative form. Section 3 provides the manner of disposing of their income, which is the interest due annually on the amount of money placed in the Treasury to their credit from the sale of certain of their lands. Because this act makes these Indians subject to the laws of Nebraska, both civil and criminal, and citizens of the United States, it by no means follows that the fund which the United States has agreed to retain and pay the interest annually thereon to the Indians comes under the control of State legislation, for under the agreement between the Indians and the United States the same is to be “expended for the benefit of said Indians, under the direction of the Secretary of the Interior.”
Section 465, Revised Statutes, empowers the President to prescribe such regulations as he may think fit for carrying into effect the various provisions of any act relating to Indian affairs. Section 154, Regulations of the Indian Office, 1894, has been approved by the Secretary of the Interior, acting for the Presi. dent. The question of a modification of the regulation to meet the changing condition of the Indians is a matter for the proper officers to decide. This Department has no authority to impose restrictions which may operate as a practical denial of rights guaranteed to the Indians, by entailing an expense for their assertion far out of proportion to the amounts due those people.
Accordingly, the decision of the Auditor is not approved, and receipts takeu for payments made in accordance with the existing regulations governing payments of annuities to said Indians will be accepted as a sufficient acquittance of the United States.
EDW. A. BOWERS,
CONTINGENT EXPENSES, COAST AND GEODETIC
There being provided for the Coast Survey an appropriation for “miscel
laneous expenses, contingencies of all kinds," it is available for the purchase of articles mentioned in the Treasury Department contingent appropriations, notwithstanding the latter is made to include "all buildings under control of the Treasury in Washington," such provision for the Coast Survey being to that extent a specific exception of that Bureau from the limitation contained in the Treasury Department appropriation.
December 20, 1895. SIR: I am in receipt of your letter of the 13th instant, inclosing for my decision several vouchers approved for pay. ment from the appropriation “ General expenses, Coast and Geodetic Survey, 1896.” That appropriation, as found in the act of March 2, 1895 (28 Stat., 923), is as follows:
“Office Expenses: For the purchase of new instruments, for materials and supplies required in the instrument shop, carpenter shop, and drawing division, and for books, maps, charts, and subscriptions, eight thousand dollars.
“For copper plates, chart paper, printer's ink, copper, zinc, and chemicals for electrotyping and photographing, engraving, printing, photographing, and electrotyping supplies; for extra engraving and drawing; and for photolithograpbing charts and printing from stone and copper for immediate use, eighteen thousand dollars.
66 For stationery for the office and field parties, transportation of instruments and supplies, when not charged to party expenses, office wagon and horses, fuel, gas, telegrams, ice, and washing, six thousand dollars.
“For miscellaneous expenses, contingencies of all kinds, office furniture, repairs, and extra labor, and for traveling expenses of assistants and others employed in the office sent on special duty in the service of the office, four thousand five hundred dollars."
The bill for locks, if the same are a part of the material or supplies provided for in the first paragraph, is properly payable from the appropriation therein.
The second bill, being for belting, is payable from paragraph 2, under the provision therein for “printing supplies.”
The bill for horseshoeing is payable from paragraph 3, under the provision therein for "wagon and horses.”
The fourth bill is for 5 dozen glass tumblers, and is approved for payment from paragraph 4. It may be paid from that appropriation under the provision for miscellaneous expenses, contingencies of all kinds."
The appropriation for the contingent expenses of the Treasury Department, found in the act of March 2, 1895 (28 Stat., 781), includes all buildings under control of the Treasury in Washington.” In view of the fact that said last-named appropriation contains provision for the purchase of tumblers, you ask whether the contingent appropriation for the Coast and Geodetic Survey can be used for the same purpose. Notwithstanding the lan. guage extending the Treasury Department appropriation to all buildings under control of the Treasury in Washington, I am clearly of the opinion that the Coast Survey appropriation for - miscellaneous expenses, contingencies of all kinds," is a specific exception of that Bureau from the general law and a provision for its contingent expenses independent of the general Treasury Department contingent appropriations. This seems to be required not only by the language just quoted, but by that of the whole clause relating to "office expenses" of the Survey, which specifically provides for most of the items, specified in the appropriations for the contingent expenses of the Treasury Department and “for miscellaneous expenses, contingencies of all kinds,” etc. Respectfully, yours,
R. B. BOWLER,
Comptroller. Mr. R. J. GRIFFIN,
Disbursing Agent, Coast and Geodetic Survey.