A-12956, FEBRUARY 9, 1926, 5 COMP. GEN. 602

A-12956: Feb 9, 1926

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IF AND WHEN IT IS DETERMINED BY THE SECRETARY OF THE INTERIOR THAT SUCH PAYMENT IS FOR THE BENEFIT OF THE INDIAN. PROVIDED SUCH DEBTS HAVE BEEN OR WILL BE APPROVED BY THE COURT ISSUING THE LETTERS OF GUARDIANSHIP. 3. WILL ACTUALLY BENEFIT THE INDIAN. 1926: I HAVE YOUR LETTER OF FEBRUARY 3. WHICH THEY ARE NOT UNABLE TO PAY BECAUSE THEY DID NOT RECEIVE THESE PAYMENTS. IS AS FOLLOWS: AND SO LONG AS THE ACCUMULATED INCOME IS SUFFICIENT THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE PAID TO THE ADULT MEMBERS OF SAID TRIBE NOT HAVING A CERTIFICATE OF COMPETENCY $1. EXCEPT WHERE SUCH ADULT MEMBERS HAVE LEGAL GUARDIANS. IN CASE THE SECRETARY OF THE INTERIOR FINDS THAT SUCH ADULTS ARE WASTING OR SQUANDERING SAID INCOME.

A-12956, FEBRUARY 9, 1926, 5 COMP. GEN. 602

OSAGE INDIANS - PAYMENT OF DEBTS UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, THE FOLLOWING CLASSES OF DEBTS OF ADULT OSAGE INDIANS NOT HAVING CERTIFICATES OF COMPETENCY MAY BE PAID FROM THE INCOME OF THE INDIANS UNDER THE CONTROL OF THE SECRETARY OF THE INTERIOR: 1. DEBTS INCURRED DIRECTLY BY THE INDIANS PRIOR TO FEBRUARY 27, 1925, IF AND WHEN IT IS DETERMINED BY THE SECRETARY OF THE INTERIOR THAT SUCH PAYMENT IS FOR THE BENEFIT OF THE INDIAN, AND SUCH DEBTS INCURRED SUBSEQUENT TO FEBRUARY 27, 1925, AS A RESULT OF CONTRACTS APPROVED BY THE SECRETARY OF THE INTERIOR. DEBTS RESULTING FROM THE INDIANS' UNLAWFUL ACTS OF CARELESSNESS OR NEGLIGENCE. 2. DEBTS INCURRED BY GUARDIANS OF SUCH ADULT INDIANS INCURRED PRIOR TO FEBRUARY 27, 1925, IN ANTICIPATION OF RECEIVING PAYMENT OF THE ENTIRE INCOME OF THE ADULT UNDER AN INTERPRETATION OF A PRIOR STATUTE, PROVIDED SUCH DEBTS HAVE BEEN OR WILL BE APPROVED BY THE COURT ISSUING THE LETTERS OF GUARDIANSHIP. 3. DEBTS INCURRED BY GUARDIANS OF SUCH ADULT INDIANS SUBSEQUENT TO FEBRUARY 27, 1925, ONLY TO THE EXTENT THE SECRETARY OF THE INTERIOR MAY FIND AND CERTIFY THAT THE PAYMENT OF SUCH DEBTS, AS DISTINGUISHED FROM THE ORIGINAL INCURRING THEREOF, WILL ACTUALLY BENEFIT THE INDIAN.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, FEBRUARY 9, 1926:

I HAVE YOUR LETTER OF FEBRUARY 3, 1926, REQUESTING DECISION WHETHER THE THREE FOLLOWING CLASSES OF INDEBTEDNESS NOW OUTSTANDING AGAINST INDIVIDUAL OSAGE INDIANS OF OKLAHOMA MAY BE PAID FROM THE INCOME OF THE RESPECTIVE INDIANS UNDER THE PROVISIONS OF THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008:

1. THAT INCURRED BY AN ADULT INCOMPETENT INDIAN IN EXCESS OF $4,000 PER YEAR.

(THIS CLASS OF INDEBTEDNESS INCLUDES MONEY LOANED BY BANKS OR SUPPLIES FURNISHED BY MERCHANTS, AGGREGATING, FROM THE BEST OBTAINABLE INFORMATION, APPROXIMATELY $176,000.)

2. THAT INCURRED BY THE LEGAL GUARDIANS OF NONCOMPETENT ADULTS PRIOR TO THE PASSAGE OF THE ACT OF 1925, IN EXCESS OF $4,000 PER YEAR.

(THIS INDEBTEDNESS AGGREGATES APPROXIMATELY $155,000.)

3. THAT INCURRED BY THE LEGAL GUARDIANS OF NONCOMPETENT ADULTS AFTER THE ACT OF 1925, UNDER THE IMPRESSION AND UPON THE ASSUMPTION THAT THE GUARDIANS WOULD BE ABLE TO REPAY IT FROM THE QUARTERLY PAYMENTS TO BE MADE TO THEM UNDER THE 1925 ACT, BUT WHICH THEY ARE NOT UNABLE TO PAY BECAUSE THEY DID NOT RECEIVE THESE PAYMENTS.

(FROM THE BEST INFORMATION OBTAINABLE THE DEBTS OF THIS CLASS AMOUNT TO BETWEEN $40,000 AND $50,000.)

THE MATERIAL PORTION OF THE ACT OF FEBRUARY 27, 1925, SUPRA, WHICH AMENDED THE ACT OF MARCH 3, 1921, 41 STAT. 1250, IS AS FOLLOWS:

AND SO LONG AS THE ACCUMULATED INCOME IS SUFFICIENT THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE PAID TO THE ADULT MEMBERS OF SAID TRIBE NOT HAVING A CERTIFICATE OF COMPETENCY $1,000 QUARTERLY, EXCEPT WHERE SUCH ADULT MEMBERS HAVE LEGAL GUARDIANS, IN WHICH CASE THE AMOUNTS PROVIDED FOR HEREIN MAY BE PAID TO THE LEGAL GUARDIAN OR DIRECT TO SUCH INDIAN IN THE DISCRETION OF THE SECRETARY OF THE INTERIOR THE TOTAL AMOUNTS OF SUCH PAYMENTS, HOWEVER, SHALL NOT EXCEED $1,000 QUARTERLY EXCEPT AS HEREINAFTER PROVIDED; * * * ALL PAYMENTS TO LEGAL GUARDIANS OF OSAGE INDIANS SHALL BE EXPENDED SUBJECT TO THE JOINT APPROVAL IN WRITING OF THE COURT AND THE SUPERINTENDENT OF THE OSAGE AGENCY. ALL PAYMENTS TO ADULTS NOT HAVING CERTIFICATES OF COMPETENCY, INCLUDING AMOUNTS PAID FOR EACH MINOR, SHALL, IN CASE THE SECRETARY OF THE INTERIOR FINDS THAT SUCH ADULTS ARE WASTING OR SQUANDERING SAID INCOME, BE SUBJECT TO THE SUPERVISION OF THE SUPERINTENDENT OF THE OSAGE AGENCY: PROVIDED, THAT IF AN ADULT MEMBER, NOT HAVING A CERTIFICATE OF COMPETENCY SO DESIRES, HIS ENTIRE INCOME ACCUMULATING IN THE FUTURE FROM THE SOURCES HEREIN SPECIFIED MAY BE PAID TO HIM WITHOUT SUPERVISION, UNLESS THE SECRETARY OF THE INTERIOR SHALL FIND, AFTER NOTICE AND HEARING, THAT SUCH MEMBER IS WASTING OR SQUANDERING HIS INCOME, IN WHICH EVENT THE SECRETARY OF THE INTERIOR SHALL PAY TO SUCH MEMBER ONLY THE AMOUNTS HEREINBEFORE SPECIFIED TO BE PAID TO ADULT MEMBERS NOT HAVING CERTIFICATES OF COMPETENCY. THE SECRETARY OF THE INTERIOR SHALL INVEST THE REMAINDER, * * * OR EXPEND THE SAME FOR THE BENEFIT OF SUCH MEMBER, SUCH EXPENDITURES, INVESTMENTS, AND DEPOSITS TO BE MADE UNDER SUCH RESTRICTIONS, RULES, AND REGULATIONS AS HE MAY PRESCRIBE: * * * ALL MONEYS NOW IN THE POSSESSION OR CONTROL OF LEGAL GUARDIANS HERETOFORE PAID TO THEM IN EXCESS OF $4,000 PER ANNUM EACH FOR ADULTS AND $2,000 EACH FOR MINORS UNDER THE ACT OF CONGRESS OF MARCH 3, 1921, RELATING TO THE OSAGE TRIBE OF INDIANS, SHALL BE RETURNED BY SUCH GUARDIANS TO THE SECRETARY OF THE INTERIOR, * * *. AND INDEBTEDNESS HERETOFORE LAWFULLY INCURRED BY GUARDIANS SHALL BE PAID OUT OF THE FUNDS OF THE MEMBERS FOR WHOM SUCH INDEBTEDNESS WAS INCURRED BY THE SECRETARY OF THE INTERIOR. * * *

SEC. 6. NO CONTRACT FOR DEBT HEREAFTER MADE WITH A MEMBER OF THE OSAGE TRIBE OF INDIANS NOT HAVING A CERTIFICATE OF COMPETENCY, SHALL HAVE ANY VALIDITY, UNLESS APPROVED BY THE SECRETARY OF THE INTERIOR. IN ADDITION TO THE PAYMENT OF FUNDS HERETOFORE AUTHORIZED, THE SECRETARY OF THE INTERIOR IS HEREBY AUTHORIZED IN HIS DISCRETION TO PAY, OUT OF THE FUNDS OF A MEMBER OF THE OSAGE TRIBE NOT HAVING A CERTIFICATE OF COMPETENCY, ANY INDEBTEDNESS HERETOFORE OR HEREAFTER INCURRED BY SUCH MEMBER BY REASON OF HIS UNLAWFUL ACTS OR CARELESSNESS OR NEGLIGENCE.

THE ACT MAKES SOME MATERIAL AMENDMENTS TO THE PRIOR STATUTE OF MARCH 3, 1921. THE PRIOR STATUTE WAS CONSTRUED BY THE ADMINISTRATIVE OFFICE AS AUTHORIZING PAYMENTS OF THE ENTIRE INCOME OF ADULT INDIANS NOT HAVING CERTIFICATES OF COMPETENCY TO THEIR GUARDIANS AND THAT THE LIMITATION OF $1,000 PER QUARTER APPLIED ONLY TO DIRECT PAYMENTS MADE TO ADULT INDIANS NOT HAVING CERTIFICATES OF COMPETENCY AND WHO HAD NO GUARDIAN. THE DECISION OF THE SUPREME COURT OF THE UNITED STATES, DATED NOVEMBER 17,1924, 266 U.S. 159, HELD THAT THE LIMITATION OF $1,000 PER QUARTER AUTHORIZED TO BE PAID FROM THE INCOME OF ADULT OSAGE INDIANS NOT HAVING CERTIFICATES OF COMPETENCY APPLIED ALSO TO PAYMENTS MADE TO THE GUARDIANS OF SUCH INDIANS. THE LANGUAGE OF THE AMENDATORY ACT IS SUCH AS TO SHOW THE INTENT TO CORRECT CONDITIONS ARISING PRIOR TO THE ENACTMENT BY REASON OF THE ERRONEOUS INTERPRETATION OF THE PRIOR STATUTE AS WELL AS TO MAKE IT PERFECTLY CLEAR THAT THEREAFTER THE LIMITATION OF $1,000 PER QUARTER, OR $4,000 PER ANNUM, WAS APPLICABLE ALIKE TO INCOME PAYMENTS MADE TO THE GUARDIANS AND DIRECTLY TO THE ADULT INDIANS NOT HAVING CERTIFICATES OF COMPETENCY; ALSO TO PLACE CERTAIN RESTRICTIONS ON EXPENDITURES OF INCOME PAID TO GUARDIANS, AND TO RESTRICT EXECUTION OF CONTRACTS FOR DEBTS BY INDIANS NOT HAVING CERTIFICATES OF COMPETENCY.

THE QUESTIONS WILL HERE BE ANSWERED IN THE ORDER STATED ABOVE:

1. THE FIRST CLASS OF INDEBTEDNESS WAS INCURRED DIRECTLY BY ADULT INDIANS NOT HAVING CERTIFICATES OF COMPETENCY. PRIOR TO THE ACT OF FEBRUARY 27, 1925, THERE WAS NO EXPRESS STATUTORY RESTRICTION ON THIS CLASS OF INDIANS AGAINST CONTRACTING FOR DEBTS OVER AND ABOVE THEIR QUARTERLY ALLOWANCE. THE PROVISION IN THE STATUTE OF 1925 THAT THE SECRETARY OF THE INTERIOR MAY EXPEND THE REMAINDER OF THE INCOME "FOR THE BENEFIT OF SUCH MEMBER" WOULD AUTHORIZE THE SECRETARY TO PAY SUCH DEBTS INCURRED PRIOR TO FEBRUARY 27, 1925, IF AND WHEN IT IS DETERMINED BY HIM THAT SUCH PAYMENT IS FOR THE BENEFIT OF THE INDIAN. DEBTS INCURRED SUBSEQUENT TO FEBRUARY 27, 1925, AS A RESULT OF CONTRACT, WHICH ARE APPARENTLY THE CHARACTER OF DEBTS YOU DESCRIBE, MAY NOT BE PAID UNLESS THE CONTRACTS HAVE BEEN APPROVED BY THE SECRETARY OF THE INTERIOR. INDEBTEDNESS RESULTING FROM THE INDIANS' UNLAWFUL ACTS OF CARELESSNESS OR NEGLIGENCE MAY BE PAID.

2. THE SECOND CLASS COVERS INDEBTEDNESSES INCURRED PRIOR TO FEBRUARY 27, 1925, BY GUARDIANS OF ADULT INDIANS NOT HAVING CERTIFICATES OF COMPETENCY. IT WILL BE NOTED THAT THE STATUTE OF FEBRUARY 27, 1925, REQUIRES THE GUARDIANS OF SUCH INDIANS TO RETURN TO THE SECRETARY OF THE INTERIOR ALL MONEYS AND PROPERTY IN THEIR POSSESSION DERIVED AS A RESULT OF INCOME PAYMENTS IN EXCESS OF $4,000 PER ANNUM MADE TO THE GUARDIANS PRIOR TO THE ENACTMENT UNDER THE ERRONEOUS INTERPRETATION OF THE PRIOR STATUTE OF MARCH 3, 1921. BUT IN THIS CONNECTION IT IS PROVIDED THAT "ANY INDEBTEDNESS HERETOFORE LAWFULLY INCURRED BY GUARDIANS SHALL BE PAID OUT OF THE FUNDS OF THE MEMBERS FOR WHOM SUCH INDEBTEDNESS WAS INCURRED BY THE SECRETARY OF THE INTERIOR.' THIS EVIDENTLY WAS IN RECOGNITION OF THE PRACTICE OF THE GUARDIANS IN INCURRING OBLIGATIONS, PRIOR TO THE ENACTMENT, IN ANTICIPATION OF RECEIVING PAYMENT OF THE ENTIRE INCOME OF THE ADULT INDIAN NOT HAVING A CERTIFICATE OF COMPETENCY. AND I AM CONSTRAINED TO HOLD THE WORD "LAWFUL" REFERS TO ANY INDEBTEDNESS INCURRED PRIOR TO FEBRUARY 27, 1925, WHICH HAS BEEN OR WILL BE APPROVED BY THE COURT ISSUING THE LETTERS OF GUARDIANSHIP, EVEN THOUGH SUCH INDEBTEDNESSES MAY HAVE EXCEEDED THE AMOUNT OF $4,000 PER ANNUM.

3. THE THIRD QUESTION RELATES TO INDEBTEDNESS INCURRED SUBSEQUENT TO FEBRUARY 27, 1925, BY GUARDIANS OF ADULT INDIANS NOT HAVING CERTIFICATES OF COMPETENCY. THE STATUTE OF THAT DATE GRANTED DISCRETION TO THE SECRETARY OF THE INTERIOR TO MAKE PAYMENTS OF QUARTERLY INCOME ALLOWANCE EITHER TO THE GUARDIAN OR DIRECTLY TO THE ADULT INDIAN. THIS OF ITSELF WAS SUFFICIENT NOTICE TO THE GUARDIAN AND TO PERSONS DEALING WITH HIM THAT HIS AUTHORITY TO OBLIGATE THE INCOME OF HIS WARD EXTENDED ONLY TO THE AMOUNT OF FUNDS ACTUALLY ON HAND AT THE TIME, AND THAT HE COULD NOT OBLIGATE FUNDS UNDER THE CONTROL OF THE SECRETARY OF THE INTERIOR. ADDITION TO THIS PROVISION THE STATUTE REQUIRES THAT EXPENDITURES BY GUARDIANS SHALL BE SUBJECT TO THE JOINT APPROVAL IN WRITING OF THE COURT AND THE SUPERINTENDENT OF THE OSAGE AGENCY. THIS PROVISION APPLIES AS WELL TO THE INCURRING OF OBLIGATIONS AS TO THE ACTUAL PAYMENT THEREOF. CLEARLY THERE IS NO AUTHORITY TO PAY THIS THIRD CLASS OF DEBTS EXCEPT TO THE EXTENT THE SECRETARY OF THE INTERIOR MAY FIND AND CERTIFY THAT THE PAYMENT OF SUCH DEBTS--- AS DISTINGUISHED FROM THE ORIGINAL INCURRING THEREOF--- WILL ACTUALLY BENEFIT THE INDIAN, IN WHICH EVENT THE PAYMENT COULD BE MADE IN THE DISCRETION OF THE SECRETARY UNDER SUCH REGULATIONS AS HE MIGHT PRESCRIBE.