A-15411, SEPTEMBER 17, 1926, 6 COMP. GEN. 191

A-15411: Sep 17, 1926

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REQUESTING DECISION WHETHER THE DIRECTOR OF THE VETERANS' BUREAU MAY DETERMINE THAT SUPERINTENDENTS OF INDIAN AGENCIES OR SCHOOLS ARE. SUCH PERSONS AS ARE LEGALLY VESTED WITH THE RESPONSIBILITY OR CARE OF THE ESTATE OF AN INDIAN MINOR WHO IS UNDER THE JURISDICTION AND CONTROL OF SUCH SUPERINTENDENTS OR AGENTS BY VIRTUE OF REGULATIONS OF THE SECRETARY OF THE INTERIOR. ANY PAYMENT IS TO BE MADE TO A MINOR. SUCH PAYMENT SHALL BE MADE TO THE PERSON WHO IS CONSTITUTED GUARDIAN OR CURATOR BY THE LAWS OF THE STATE OR RESIDENCE OF CLAIMANT. OR IS OTHERWISE LEGALLY VESTED WITH RESPONSIBILITY OR CARE OF THE CLAIMANT. WHETHER SUPERINTENDENTS IN THE INDIAN SERVICE WERE. WHEREUPON THE SECRETARY OF THE INTERIOR ISSUED THE FOLLOWING REGULATIONS: SUPERINTENDENTS ARE AUTHORIZED AS GUARDIANS EX OFFICIO TO RECEIVE FOR AND PAY IN CASH TO A MINOR.

A-15411, SEPTEMBER 17, 1926, 6 COMP. GEN. 191

VETERANS' BUREAU - GUARDIANS OF INDIAN MINORS UNDER SECTION 21 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 791, THE DIRECTOR OF THE VETERANS' BUREAU MAY DETERMINE THAT PAYMENTS OF DISABILITY COMPENSATION DUE AN INDIAN BENEFICIARY UNDER LEGAL DISABILITY FOR WHOM NO GUARDIAN, CURATOR, OR CONSERVATOR HAS BEEN APPOINTED UNDER STATE LAWS SHOULD BE MADE TO A SUPERINTENDENT OF AN INDIAN SCHOOL OR AGENCY.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, SEPTEMBER 17, 1926:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF AUGUST 13, 1926, REQUESTING DECISION WHETHER THE DIRECTOR OF THE VETERANS' BUREAU MAY DETERMINE THAT SUPERINTENDENTS OF INDIAN AGENCIES OR SCHOOLS ARE, IN CASES WHERE NO GUARDIAN HAS BEEN LEGALLY CONSTITUTED UNDER STATE LAWS, SUCH PERSONS AS ARE LEGALLY VESTED WITH THE RESPONSIBILITY OR CARE OF THE ESTATE OF AN INDIAN MINOR WHO IS UNDER THE JURISDICTION AND CONTROL OF SUCH SUPERINTENDENTS OR AGENTS BY VIRTUE OF REGULATIONS OF THE SECRETARY OF THE INTERIOR.

SECTION 23 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 402, PROVIDED AS FOLLOWS:

THAT WHEN, BY THE TERMS OF THIS AMENDATORY ACT, ANY PAYMENT IS TO BE MADE TO A MINOR, OTHER THAN A PERSON IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, OR TO A PERSON MENTALLY INCOMPETENT, SUCH PAYMENT SHALL BE MADE TO THE PERSON WHO IS CONSTITUTED GUARDIAN OR CURATOR BY THE LAWS OF THE STATE OR RESIDENCE OF CLAIMANT, OR IS OTHERWISE LEGALLY VESTED WITH RESPONSIBILITY OR CARE OF THE CLAIMANT.

UNDER THIS STATUTE THE COMPTROLLER OF THE TREASURY, UNDER DATE OF JULY 2, 1920, REFUSED TO DECIDE DEFINITELY, IN THE ABSENCE OF PROPER REGULATIONS BY THE INTERIOR DEPARTMENT, WHETHER SUPERINTENDENTS IN THE INDIAN SERVICE WERE, BY VIRTUE OF THEIR OFFICIAL POSITIONS, LEGALLY VESTED WITH RESPONSIBILITY FOR, OR CARE OF, INDIAN MINORS SO AS TO ENTITLED THEM TO RECEIVE AND RECEIPT FOR AMOUNTS DUE SUCH MINORS UNDER THE PROVISIONS OF THE WAR RISK INSURANCE ACT. WHEREUPON THE SECRETARY OF THE INTERIOR ISSUED THE FOLLOWING REGULATIONS:

SUPERINTENDENTS ARE AUTHORIZED AS GUARDIANS EX OFFICIO TO RECEIVE FOR AND PAY IN CASH TO A MINOR, OR HIS PARENT, CUSTODIAN, OR GUARDIAN, OR DISBURSE FOR THE BENEFIT OF SUCH MINOR, FUNDS RECEIVED UNDER WAR RISK INSURANCE ACT, SECTION 23, IN SUCH SUMS AS MAY BE NECESSARY FOR THE PROPER CARE, SUPPORT, AND EDUCATION OF SUCH MINOR.

BY DECISION DATED FEBRUARY 23, 1921, THE COMPTROLLER OF THE TREASURY HELD AS FOLLOWS:

I FIND NO AUTHORITY OF LAW FOR THE REGULATION WHICH YOU HAVE QUOTED. MONEY DUE FROM THE BUREAU OF WAR RISK INSURANCE TO EX-SOLDIERS OF INDIAN BLOOD, OR THEIR BENEFICIARIES, IS NOT DUE BECAUSE OF THEIR INDIAN BLOOD, AND THEREFORE IS NOT INDIAN MONEYS. I HAVE BEEN UNABLE TO FIND ANY GENERAL STATUTE OR OTHER AUTHORITY WHICH EMPOWERS SUPERINTENDENTS OF INDIAN SCHOOLS TO ACT EX OFFICIO AS GUARDIANS OF MINOR INDIANS IN THEIR CHARGE, OR WHICH EMPOWERS THE SECRETARY OF THE INTERIOR TO AUTHORIZE THEM TO ACT AS GUARDIANS EX OFFICIO OF SUCH MINORS. THE REGULATION IS NOT IN ITSELF SUFFICIENT AUTHORITY FOR PAYMENT IN ACCORDANCE WITH ITS TERMS.

IN THIS CONNECTION, SEE DECISION OF THIS OFFICE TO THE SECRETARY OF THE TREASURY DATED JULY 2, 1920, AND MEMORANDUM OF JANUARY 6, 1921, TO ASSISTANT SECRETARY LAPORTE. SEE ALSO, UNITED STATES V. BLACKFEATHER, 155 U.S. 180.

SECTION 21 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 791, PROVIDES IN PART AS FOLLOWS:

(1) THAT WHERE ANY PAYMENT UNDER THIS ACT IS TO BE MADE TO A MINOR, OTHER THAN A PERSON IN THE MILITARY OR NAVAL FORCES OF THE UNITED STATES, OR TO A PERSON MENTALLY INCOMPETENT, OR UNDER OTHER LEGAL DISABILITY ADJUDGED BY A COURT OF COMPETENT JURISDICTION, SUCH PAYMENT MAY BE MADE TO THE PERSON WHO IS CONSTITUTED GUARDIAN, CURATOR, OR CONSERVATOR BY THE LAWS OF THE STATE OF RESIDENCE OF CLAIMANT, OR IS OTHERWISE LEGALLY VESTED WITH THE CARE OF THE CLAIMANT OR HIS ESTATE: * * * PROVIDED FURTHER, THAT FOR THE PURPOSE OF PAYMENTS OF BENEFITS UNDER TITLE II HEREOF, WHERE NO GUARDIAN, CURATOR, OR CONSERVATOR OF THE PERSON UNDER A LEGAL DISABILITY HAS BEEN APPOINTED UNDER THE LAWS OF THE STATE OF RESIDENCE OF THE CLAIMANT, THE DIRECTOR SHALL DETERMINE THE PERSON WHO IS OTHERWISE LEGALLY VESTED WITH THE CARE OF THE CLAIMANT OR HIS ESTATE.

THE REGULATIONS PRESCRIBED BY THE SECRETARY OF THE INTERIOR PURPORT TO AUTHORIZE THE SUPERINTENDENTS TO RECEIVE AND RECEIPT FOR ALL MONEYS DUE UNDER THE WAR RISK INSURANCE ACT, WHETHER OR NOT THERE WAS A GUARDIAN OR OTHER PERSON LEGALLY VESTED WITH THE CARE OF THE CLAIMANT OR HIS ESTATE. THE PROVISIONS OF LAW RELATING TO THE CARE AND CUSTODY OF INDIANS AND INDIAN FUNDS WOULD NOT JUSTIFY ANY SUCH GENERAL REGULATION ISSUED BY THE SECRETARY OF THE INTERIOR RELATING TO AMOUNTS DUE UNDER THE WORLD WAR VETERANS' ACT.

THE LAST PROVISO OF SECTION 21 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, ABOVE QUOTED, REFERS ONLY TO PAYMENTS OF DISABILITY COMPENSATION. AS TO SUCH PAYMENTS DUE AN INDIAN MINOR FOR WHOM NO GUARDIAN, CURATOR, OR CONSERVATOR HAS BEEN APPOINTED UNDER THE LAWS OF THE STATE OF RESIDENCE OF THE MINOR, THE DIRECTOR IS AUTHORIZED AND DIRECTED TO "DETERMINE THE PERSON WHO IS OTHERWISE LEGALLY VESTED WITH THE CARE OF THE CLAIMANT OR HIS ESTATE.' THE PURPOSE AND EFFECT OF SAID SECTION AS NOW AMENDED WOULD APPEAR TO BE TO CONFER UPON THE DIRECTOR PLENARY POWER AND JURISDICTION TO DETERMINE THE PERSON TO WHOM PAYMENTS OF BENEFITS UNDER TITLE II SHOULD BE MADE IN THE CASE OF A BENEFICIARY UNDER LEGAL DISABILITY FOR WHOM NO GUARDIAN, CURATOR, OR CONSERVATOR HAS BEEN APPOINTED UNDER STATE LAWS. THEREFORE, IF THE DIRECTOR SHOULD DETERMINE THAT A SUPERINTENDENT OF AN INDIAN AGENCY OR SCHOOL IS LEGALLY VESTED WITH THE CARE OF AN INDIAN CLAIMANT OR HIS ESTATE, IN THE CASE OF ANY SUCH BENEFICIARY, PAYMENT TO SUCH SUPERINTENDENT WOULD BE LEGAL AND PROPER. HOWEVER, THE AUTHORITY CONFERRED BY THE STATUTE DOES NOT EXTEND TO A BENEFICIARY UNDER LEGAL DISABILITY FOR WHOM A GUARDIAN, CURATOR, OR CONSERVATOR HAS BEEN APPOINTED UNDER STATE LAWS.