A-18004, APRIL 15, 1927, 6 COMP. GEN. 673

A-18004: Apr 15, 1927

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WHEN THE CERTIFICATE IS REVOKED PURSUANT TO LAW. 1927: I HAVE YOUR LETTER OF APRIL 2. RECEIVED A CERTIFICATE OF COMPETENCY WHICH WAS REVOKED BY THE DEPARTMENT ON MAY 15. THIS INDIAN IS UNDER THE GUARDIANSHIP OF MR. DURING THE TIME THIS ALLOTTEE HAD A CERTIFICATE OF COMPETENCY AND UP TO THE DATE OF ITS CANCELLATION HIS GUARDIAN WAS PAID THE FUNDS DUE THE ALLOTTEE. THERE IS ENCLOSED A LETTER FROM ROBERT STUART. IN THE EVENT THEY WERE RETURNED HE BELIEVES THAT THERE MIGHT ARISE A LIABILITY ON BEHALF OF THE GUARDIAN IN FAVOR OF THE WARD IF A SUIT OF THAT CHARACTER WERE INSTITUTED. IS A DECISION RENDERED NOVEMBER 9. IN WHICH IT WAS HELD THAT WHEN A CERTIFICATE OF COMPETENCY FORMERLY GIVEN TO AN OSAGE INDIAN IS REVOKED.

A-18004, APRIL 15, 1927, 6 COMP. GEN. 673

INDIAN AFFAIRS - OSAGE INDIANS - FUNDS IN THE HANDS OF GUARDIANS FUNDS IN THE HANDS OF LEGAL GUARDIANS OF OSAGE INDIANS AS A RESULT OF PAYMENTS MADE TO THEM OR TO THE WARDS IN EXCESS OF $4,000 PER ANNUM OVER A PERIOD DURING WHICH THE WARD HELD A CERTIFICATE OF COMPETENCY SHOULD, WHEN THE CERTIFICATE IS REVOKED PURSUANT TO LAW, BE RETURNED TO THE SECRETARY OF THE INTERIOR FOR DISPOSITION AS HE SHALL DEEM FOR THE BEST INTEREST OF THE WARD.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, APRIL 15, 1927:

I HAVE YOUR LETTER OF APRIL 2, 1927, REQUESTING DECISION UPON A QUESTION SUBMITTED BY LETTER OF THE COMMISSIONER OF INDIAN AFFAIRS, DATED APRIL 1, 1927, AS FOLLOWS:

IN 1910 DON DICKINSON, FULL-BLOOD ALLOTTEE NO. 153, RECEIVED A CERTIFICATE OF COMPETENCY WHICH WAS REVOKED BY THE DEPARTMENT ON MAY 15, 1926. THIS INDIAN IS UNDER THE GUARDIANSHIP OF MR. CHARLES STUART, OF PAWHUSKA, OKLAHOMA.

DURING THE TIME THIS ALLOTTEE HAD A CERTIFICATE OF COMPETENCY AND UP TO THE DATE OF ITS CANCELLATION HIS GUARDIAN WAS PAID THE FUNDS DUE THE ALLOTTEE. MR. STUART STATES THAT HE HAS ON HAND FUNDS APPROXIMATING $75,000 WHICH UNDER THE COMPTROLLER GENERAL'S OPINION HERETOFORE REFERRED TO SHOULD BE RETURNED TO THE SECRETARY OF THE INTERIOR. THERE IS ENCLOSED A LETTER FROM ROBERT STUART, ATTORNEY FOR MR. CHARLES F. STUART, IN WHICH HE STATES THAT HE BELIEVES THERE EXISTS NO PROVISION UNDER THE LAW AUTHORIZING THE RETURN OF THE FUNDS HELD BY DON DICKINSON'S GUARDIAN TO THE SECRETARY OF THE INTERIOR, AND IN THE EVENT THEY WERE RETURNED HE BELIEVES THAT THERE MIGHT ARISE A LIABILITY ON BEHALF OF THE GUARDIAN IN FAVOR OF THE WARD IF A SUIT OF THAT CHARACTER WERE INSTITUTED.

THE "COMPTROLLER GENERAL'S OPINION" REFERRED TO IN THE COMMISSIONER'S LETTER, SUPRA, IS A DECISION RENDERED NOVEMBER 9, 1925, A-11255, IN THE CASE OF JOHN KENNY, IN WHICH IT WAS HELD THAT WHEN A CERTIFICATE OF COMPETENCY FORMERLY GIVEN TO AN OSAGE INDIAN IS REVOKED, MONEY PAID TO THE ALLOTTEE OR THE GUARDIAN IN EXCESS OF $4,000 PER ANNUM UNDER THE ACT OF MARCH 3, 1921, 41 STAT. 1250, OVER THE PERIOD FROM THE DATE THE GUARDIAN WAS APPOINTED TO THE DATE OF REVOCATION OF THE CERTIFICATE AND NOT EXPENDED ARE REQUIRED BY A PROVISION IN THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1009, TO BE RETURNED BY THE GUARDIAN TO THE SECRETARY OF THE INTERIOR, BUT THAT THE SECRETARY OF THE INTERIOR MAY, IN HIS DISCRETION, PERMIT SUCH MONEYS TO BE EXPENDED AND USED BY THE GUARDIAN FOR THE USE AND BENEFIT OF THE ALLOTTEE SUBJECT TO THE APPROVAL IN WRITING OF THE COUNTY COURT OF OSAGE COUNTY, OKLA., AND THE SUPERINTENDENT OF THE OSAGE INDIAN AGENCY, PURSUANT TO ANOTHER PROVISION OF THE SAID ACT OF FEBRUARY 27, 1925.

WHAT WAS SAID IN THAT DECISION IS EQUALLY APPLICABLE IN THE PRESENT CASE, AND AS STATED THEREIN WHILE THE PROVISION IN THE ACT OF 1925 REQUIRING THAT ALL MONEYS IN THE POSSESSION OR CONTROL OF THE LEGAL GUARDIANS PAID TO THEM IN EXCESS OF $4,000 PER ANNUM BE TURNED OVER BY THEM TO THE SECRETARY OF THE INTERIOR FOR DISPOSITION AS SHALL BE DEEMED FOR THE BEST INTEREST OF THE INDIAN ALLOTTEE APPEARS TO HAVE BEEN INTENDED PRIMARILY TO COVER PAYMENTS MADE TO LEGAL GUARDIANS UNDER THE CONSTRUCTION PLACED BY THE INTERIOR DEPARTMENT UPON THE ACT OF MARCH 3, 1921, PRIOR TO THE DECISION IN THE CASE OF WORK V. UNITED STATES EX REL LYNN, 266 U.S. 161, THE LANGUAGE DOES NOT RESTRICT IT TO SAID PAYMENTS, BUT MAKES THE PROVISION APPLICABLE TO ALL MONEY HELD BY LEGAL GUARDIAN AS A RESULT OF PAYMENTS UNDER THE ACT OF 1921 IN EXCESS OF $4,000 PER ANNUM, REGARDLESS OF WHETHER THE INDIAN DID OR DID NOT HAVE A CERTIFICATE OF COMPETENCY AT THE TIME THE PAYMENTS WERE MADE.

THE CONTENTION OF THE ATTORNEY FOR THE GUARDIAN THAT THERE IS NOTHING IN THE ACT OF 1925 REQUIRING UNRESTRICTED FUNDS IN THE HANDS OF A GUARDIAN TO BE RETURNED TO THE SECRETARY OF THE INTERIOR, OVERLOOKS THE PLAIN LANGUAGE OF THE PROVISION, WHICH IS---

* * * 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 * * * 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 ALL PROPERTY, BONDS, SECURITIES, AND STOCK PURCHASED, OR INVESTMENTS MADE BY SUCH GUARDIANS OUT OF SAID MONEYS PAID THEM SHALL BE DELIVERED TO THE SECRETARY OF THE INTERIOR BY THEM, TO BE HELD BY HIM OR DISPOSED OF BY HIM AS HE SHALL DEEM TO BE FOR THE BEST INTEREST OF THE MEMBERS TO WHOM THE SAME BELONGS. * * *

FURTHERMORE, IMMEDIATELY UPON THE REVOCATION OF A CERTIFICATE OF COMPETENCY AS AUTHORIZED UNDER SECTION 4 OF THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1010, ALL MONEY THEN BELONGING TO THE INCOMPETENT INDIAN THEREUPON CEASES TO BE "UNRESTRICTED FUNDS" REGARDLESS OF WHETHER IN THE HANDS OF A LEGAL GUARDIAN OR HELD IN TRUST IN THE TREASURY OF THE UNITED STATES, AND, THEREFORE, SUCH FUNDS ARE FOR DISPOSITION AND USED AS PROVIDED FOR IN THE ACT WITH RESPECT TO FUNDS BELONGING TO RESTRICTED OSAGE INDIANS.

YOU ARE ACCORDINGLY ADVISED THAT ANY FUNDS NOW IN THE HANDS OF THE LEGAL GUARDIAN IN THE PRESENT CASE RESULTING FROM PAYMENTS AT ANY TIME MADE TO SAID GUARDIAN OR HIS WARD IN EXCESS OF $4,000 PER ANNUM, ARE REQUIRED TO BE RETURNED TO THE JURISDICTION AND CONTROL OF THE SECRETARY OF THE INTERIOR FOR DISPOSTION AS HE SHALL DEEM FOR THE BEST INTEREST OF THE INDIAN. HOWEVER, THE SECRETARY MAY, IN HIS DISCRETION AFTER ASSUMING CONTROL OF SUCH FUNDS, PERMIT THE GUARDIAN TO USE, INVEST, AND EXPEND THE FUNDS IN QUESTION SUBJECT TO THE CONDITIONS PRESCRIBED IN THE ACT OF 1926.