A-12113, DECEMBER 11, 1925, 5 COMP. GEN. 424

A-12113: Dec 11, 1925

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THERE IS NO AUTHORITY TO PAY A CLAIM FOR LEGAL SERVICES RENDERED A TRIBE OF INDIANS IN THE ABSENCE OF A CONTRACT FORMALLY EXECUTED AND APPROVED AS PROVIDED IN SAID SECTION. THE FACT THAT THE EMPLOYMENT OF LEGAL SERVICES WAS AUTHORIZED BY THE INDIANS IN COUNCIL AND THAT THE SERVICES RENDERED WERE APPROVED BY THE COMMISSIONER OF INDIAN AFFAIRS DOES NOT FULFILL THE REQUIREMENTS OF THE STATUTE. WITH WHICH THE INDIANS WERE DISSATISFIED AND WHICH THEY DESIRED TO HAVE CANCELED ON THE GROUND OF FRAUD. THAT SERVICES WERE ACTUALLY RENDERED BY CLAIMANT. THAT THERE WAS NO CONTRACT EXECUTED AS REQUIRED BY SECTION 2103. IT APPEARS THAT HE IS NOT CLAIMING PAYMENT UNDER A CONTRACT WITH THE INDIANS EITHER IN CONFORMITY WITH OR IN DISREGARD OF THE STATUTE SUPRA.

A-12113, DECEMBER 11, 1925, 5 COMP. GEN. 424

PERSONAL SERVICES, ATTORNEY'S FEES - INDIAN SERVICE CONTRACTS IN VIEW OF THE PROVISIONS OF SECTION 2103, REVISED STATUTES, THERE IS NO AUTHORITY TO PAY A CLAIM FOR LEGAL SERVICES RENDERED A TRIBE OF INDIANS IN THE ABSENCE OF A CONTRACT FORMALLY EXECUTED AND APPROVED AS PROVIDED IN SAID SECTION. THE FACT THAT THE EMPLOYMENT OF LEGAL SERVICES WAS AUTHORIZED BY THE INDIANS IN COUNCIL AND THAT THE SERVICES RENDERED WERE APPROVED BY THE COMMISSIONER OF INDIAN AFFAIRS DOES NOT FULFILL THE REQUIREMENTS OF THE STATUTE.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 11, 1925:

CHARLES J. KAPPLER, ATTORNEY AT LAW, HAS FILED A CLAIM IN THE SUM OF $250 FOR LEGAL SERVICES RENDERED THE SAC AND FOX INDIANS DURING THE PERIOD SEPTEMBER 17, 1924, TO JANUARY 15, 1925.

IT APPEARS THAT THE INDIANS COMPRISING THE SAC AND FOX TRIBES IN COUNCIL ON AUGUST 4 AND SEPTEMBER 4, 1924, PASSED RESOLUTIONS AUTHORIZING THE BUSINESS COMMITTEE OF THE SAID TRIBE TO EMPLOY COUNSEL IN A MATTER CONCERNING A CERTAIN OIL AND GAS MINING LEASE COVERING THE SCHOOL RESERVE LANDS OF THE SAID TRIBE EXECUTED SEPTEMBER 15, 1917, TO ONE LEE PATRICK, WITH WHICH THE INDIANS WERE DISSATISFIED AND WHICH THEY DESIRED TO HAVE CANCELED ON THE GROUND OF FRAUD; THAT IN ACCORDANCE WITH THIS AUTHORITY THE BUSINESS COMMITTEE WITHOUT AUTHORIZATION FROM THE INTERIOR DEPARTMENT OR WITHOUT ANY FORMAL OR WRITTEN CONTRACT APPROVED BY THE SAID DEPARTMENT, EMPLOYED THE FIRM OF EMBRY, JOHNSON AND TOLBERT, OF OKLAHOMA CITY, OKLA., AND THE CLAIMANT, CHARLES J. KAPPLER, TO REPRESENT THE SAID TRIBE IN SECURING CANCELLATION OF THE LEASE; THAT SERVICES WERE ACTUALLY RENDERED BY CLAIMANT; THAT AFTER THE SERVICES HAD BEEN RENDERED, THE BUSINESS COMMITTEE OF THE SAID TRIBE TOOK THE MATTER UP WITH SAID DEPARTMENT, REQUESTING THAT PAYMENT BE MADE TO THE ATTORNEYS FOR THEIR SERVICES FROM FUNDS TO THE CREDIT OF THE SAC AND FOX TRIBES.

SECTION 2103, REVISED STATUTES, PROVIDES IN PART THAT:

NO AGREEMENT SHALL BE MADE BY ANY PERSON WITH ANY TRIBE OF INDIANS, OR INDIVIDUAL INDIANS NOT CITIZENS OF THE UNITED STATES, FOR THE PAYMENT OR DELIVERY OF ANY MONEY OR OTHER THING OF VALUE, IN PRESENT OR IN PROSPECTIVE, OR FOR THE GRANTING OR PROCURING ANY PRIVILEGE TO HIM, OR ANY OTHER PERSON IN CONSIDERATION OF SERVICES FOR SAID INDIANS RELATIVE TO THEIR LANDS, OR TO ANY CLAIMS GROWING OUT OF, OR IN REFERENCE TO, ANNUITIES, INSTALLMENTS, OR OTHER MONEYS, CLAIMS, DEMANDS, OR THING, UNDER LAWS OR TREATIES WITH THE UNITED STATES, OR OFFICIAL ACTS OF ANY OFFICERS THEREOF, OR IN ANY WAY CONNECTED WITH OR DUE FROM THE UNITED STATES, UNLESS SUCH CONTRACT OR AGREEMENT BE EXECUTED AND APPROVED AS FOLLOWS: * *

CLAIMANT ADMITS IN HIS LETTER OF NOVEMBER 21, 1925, THAT THERE WAS NO CONTRACT EXECUTED AS REQUIRED BY SECTION 2103, SUPRA. HOWEVER, IT APPEARS THAT HE IS NOT CLAIMING PAYMENT UNDER A CONTRACT WITH THE INDIANS EITHER IN CONFORMITY WITH OR IN DISREGARD OF THE STATUTE SUPRA, BUT BY VIRTUE OF THE DECLARATION OF THE INDIANS BY PROPER COUNCIL PROCEEDINGS, THAT THEY WISH THE AMOUNT PAID TO HIM.

IN CONSIDERING THE SAID SECTION 2103, REVISED STATUTES, ATTORNEY GENERAL GARLAND IN 18 OP.ATTY.GEN. 497, SAID IN PART:

THE QUESTION NOW PRESENTED IS WHETHER THE APPROVAL OF THE CONTRACT BY THE BUSINESS COMMITTEE OF THE CITIZEN POTTAWATOMIES SUPPLIES THE DEFECT ON WHICH THE OPINION ABOVE REFERRED TO WAS GIVEN. THE LAW (REV.STAT., SEC. 2103) UNDER WHICH THIS WHOLE PROCEEDING IS SUPPOSED TO HAVE BEEN CARRIED ON IS VERY EXPLICIT AND LEAVES NO MARGIN OF DISCRETION TO THE SECRETARY OF THE INTERIOR. THE LAW MUST BE LITERALLY COMPLIED WITH, AND NOTHING CAN BE TAKEN BY INTENDMENT, NOR CAN THE SECRETARY DISPENSE WITH ANY OF ITS REQUIREMENTS. * * *

IN DECISION OF MAY 11, 1900, 6 COMP. DEC. 853, IT WAS STATED, QUOTING IN PART FROM THE DECISION, THAT:

THE EQUITY OF THEIR CLAIM BECAUSE OF MERITORIOUS SERVICE, OR LENGTH OR VALUE OF SERVICE AS MEASURED BY RESULTS, CAN NOT PROPERLY BE CONSIDERED BY THE OFFICERS OF THE GOVERNMENT TO WHOM THE DUTY OF MAKING PAYMENTS THEREUNDER IS ENTRUSTED WHEN CONSIDERING THE QUESTION AS TO THE PAYMENT OF SUCH FEES.

IT IS PROVIDED BY SAID SECTION 2103 AND FOLLOWING SECTIONS THAT NO MONEYS SHALL BE PAID BY (TO) ANY PERSONS AS ATTORNEYS' FEES ON ACCOUNT OF THE PERFORMANCE OF THE CLASS OF SERVICES FOR NONCITIZEN INDIANS, AS IS THEREIN SET FORTH, UNLESS THE PROVISIONS OF SAID SECTION 2103 HAVE BEEN FULLY COMPLIED WITH; THAT ALL CONTRACTS NOT MADE IN CONFORMITY WITH THE PROVISIONS OF SAID SECTION SHALL BE HELD TO BE NULL AND VOID.

THE FACT THAT THE INDIANS IN COUNCIL AUTHORIZED THE EMPLOYMENT AND WISH THE AMOUNT PAID AND THAT THE COMMISSIONER OF INDIAN AFFAIRS HAS APPROVED THE CLAIM DOES NOT FULFILL THE REQUIREMENTS OF THE STATUTE.