A-22720, JUNE 4, 1928, 7 COMP. GEN. 774

A-22720: Jun 4, 1928

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SUCH FUNDS AND PROPERTY NOT BEING UNDER THE SUPERVISION AND CONTROL OF THE SECRETARY OF THE INTERIOR AS ARE RESTRICTED FUNDS COVERED BY THE ACT OF FEBRUARY 27. 1928: I HAVE YOUR LETTER OF APRIL 27. IT IS STATED THAT ALL SUCH FUNDS WERE RECEIVED BY A GUARDIAN PREDECESSOR OF MR. ARE THEREFORE UNRESTRICTED. IT IS CONTENDED THAT AS SUCH THE FUNDS WHICH HAVE THUS ACCUMULATED ARE PROPERLY FOR DELIVERY TO THE ALLOTTEE IN HER OWN RIGHT. 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. 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.

A-22720, JUNE 4, 1928, 7 COMP. GEN. 774

OSAGE INDIANS - DISPOSITION OF UNRESTRICTED FUNDS AND PROPERTY OF MINORS REACHING MAJORITY UNRESTRICTED FUNDS AND PROPERTY IN THE HANDS OF A GUARDIAN OF A MINOR OSAGE INDIAN ALLOTTEE WHO BECOMES OF AGE SHOULD BE DISPOSED OF IN ACCORDANCE WITH THE ORDER OF THE COUNTY COURT OF OSAGE COUNTY, SUCH FUNDS AND PROPERTY NOT BEING UNDER THE SUPERVISION AND CONTROL OF THE SECRETARY OF THE INTERIOR AS ARE RESTRICTED FUNDS COVERED BY THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JUNE 4, 1928:

I HAVE YOUR LETTER OF APRIL 27, 1928, REQUESTING DECISION AS TO WHAT DISPOSITION SHOULD BE MADE OF FUNDS AND SECURITIES IN THE HANDS OF A FORMER GUARDIAN OF A RESTRICTED OSAGE INDIAN ALLOTTEE WHO HAS NOW BECOME OF AGE.

A REQUEST HAS BEEN FILED ON BEHALF OF KATE WILCOX, NEE ALBERT, OSAGE ALLOTTEE NO. 2164, WHO BECAME OF AGE FEBRUARY 3, 1928, FOR THE TURNING OVER TO HER OF ALL THE FUNDS IN THE HANDS OF J. C. CORNETT, HER FORMER GUARDIAN, CONSISTING OF $123.98 IN CASH AND SECURITIES VALUED AT APPROXIMATELY $20,900. IT IS STATED THAT ALL SUCH FUNDS WERE RECEIVED BY A GUARDIAN PREDECESSOR OF MR. CORNETT PRIOR TO THE ACT OF MARCH 3, 1921, AND ARE THEREFORE UNRESTRICTED, AND IT IS CONTENDED THAT AS SUCH THE FUNDS WHICH HAVE THUS ACCUMULATED ARE PROPERLY FOR DELIVERY TO THE ALLOTTEE IN HER OWN RIGHT, SHE HAVING NOW BECOME OF AGE.

THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, AMENDING THE PROVISIONS OF THE ACT OF MARCH 3, 1921, 41 STAT. 1250, PROVIDED IN SECTION 1:

THAT THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE PAID AT THE END OF EACH FISCAL QUARTER TO EACH ADULT MEMBER OF THE OSAGE TRIBE OF INDIANS IN OKLAHOMA HAVING A CERTIFICATE OF COMPETENCY, HIS OR HER PRO RATA SHARE, EITHER AS A MEMBER OF THE TRIBE OR HEIR OR DEVISEE OF A DECEASED MEMBER, OF THE INTEREST ON TRUST FUNDS, THE BONUS RECEIVED FROM THE SALE OF OIL OR GAS LEASES, THE ROYALTIES THEREFROM, AND ANY OTHER MONEYS DUE SUCH INDIAN RECEIVED DURING EACH FISCAL QUARTER, INCLUDING ALL MONEYS RECEIVED PRIOR TO THE PASSAGE OF THIS ACT AND REMAINING UNPAID; 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, * * * AND SHALL CAUSE TO BE PAID FOR THE MAINTENANCE AND EDUCATION, TO EITHER ONE OF THE PARENTS OR LEGAL GUARDIANS ACTUALLY HAVING PERSONALLY IN CHARGE, ENROLLED OR UNENROLLED, MINOR MEMBER UNDER TWENTY-ONE YEARS OF AGE, AND ABOVE EIGHTEEN YEARS OF AGE, $1,000 QUARTERLY OUT OF THE INCOME OF EACH OF SAID MINORS, * * *. 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 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. ALL BONDS, SECURITIES, STOCKS, AND PROPERTY PURCHASED AND OTHER INVESTMENTS MADE BY LEGAL GUARDIANS SHALL NOT BE SUBJECT TO ALIENATION, SALE, DISPOSAL, OR ASSIGNMENT WITHOUT THE APPROVAL OF THE SECRETARY OF THE INTERIOR. 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. ALL FUNDS OTHER THAN AS ABOVE MENTIONED, AND OTHER PROPERTY HERETOFORE OR HEREAFTER RECEIVED BY A GUARDIAN OF A MEMBER OF THE OSAGE TRIBE OF INDIANS, WHICH WAS THERETOFORE UNDER THE SUPERVISION AND CONTROL OF THE SECRETARY OF THE INTERIOR OR THE TITLE TO WHICH WAS HELD IN TRUST FOR SUCH INDIAN BY THE UNITED STATES, SHALL NOT THEREBY BECOME DIVESTED OF THE SUPERVISION AND CONTROL OF THE SECRETARY OF THE INTERIOR OR THE UNITED STATES BE RELIEVED OF ITS TRUST; AND SUCH GUARDIAN SHALL NOT, SELL, DISPOSE OF, OR OTHERWISE ENCUMBER SUCH FUNDS OR PROPERTY WITHOUT THE APPROVAL OF THE SECRETARY OF THE INTERIOR, AND IN ACCORDANCE WITH ORDERS OF THE COUNTY COURT OF OSAGE COUNTY, OKLAHOMA. IN CASE OF THE DEATH, RESIGNATION, OR REMOVAL FROM OFFICE OF SUCH A GUARDIAN, THE FUNDS AND PROPERTY IN HIS POSSESSION SUBJECT TO SUPERVISION AND CONTROL OF THE SECRETARY OF THE INTERIOR OR TO WHICH THE UNITED STATES HELD THE TITLE IN TRUST SHALL BE IMMEDIATELY DELIVERED TO THE SUPERINTENDENT OF THE OSAGE AGENCY, TO BE HELD BY HIM AND SUPERVISED OR INVESTED AS HEREINBEFORE PROVIDED. * * *

THE GUARDIANSHIP IN THE PRESENT CASE IN SO FAR AS MR. CORNETT IS CONCERNED DID NOT TERMINATE BECAUSE OF DEATH, RESIGNATION, OR REMOVAL FROM OFFICE OF THE GUARDIAN BUT BECAUSE THE MINOR REACHED HER MAJORITY. BUT REGARDLESS OF THE CAUSE OF TERMINATION OF GUARDIANSHIP, THERE IS FOR CONSIDERATION THE QUESTION WHETHER THE FUNDS AND PROPERTY INVOLVED IN THE PRESENT CASE ARE ,SUBJECT TO SUPERVISION AND CONTROL OF THE SECRETARY OF THE INTERIOR.' THE FUNDS NOW IN THE HANDS OF THE GUARDIAN AND THOSE USED IN ACQUIRING THE SECURITIES WERE NOT DERIVED FROM THE GOVERNMENT, AS INCOME OR OTHERWISE, SUBSEQUENT TO MARCH 3, 1921, BUT WERE PAID TO A FORMER GUARDIAN OF THE MINOR ALLOTTEE UNDER THE PROVISIONS OF SECTION 4 OF THE ACT OF JUNE 28, 1906, 34 STAT. 539, IN WHICH IT WAS PROVIDED THAT CERTAIN FUNDS DUE OSAGE INDIAN MINORS SHOULD BE PAID QUARTERLY TO THE PARENTS UNTIL THE MINOR REACHED THE AGE OF 21, OR TO A LEGAL GUARDIAN IF THE PARENTS WERE DECEASED, THE PAYMENTS TO BE MADE IN THE MANNER THEREIN PRESCRIBED. THE SECTION CONTAINED ALSO A PROVISO THAT IF THE FUNDS WERE BEING MISUSED OR SQUANDERED THE COMMISSIONER OF INDIAN AFFAIRS COULD WITHHOLD PAYMENT OF THE INCOME, BUT IN SO FAR AS PAYMENTS ALREADY MADE TO THE PARENTS OR TO THE GUARDIAN THERE WAS NO PROVISION FOR ASSUMING ANY SUPERVISION OR CONTROL THEREOF.

THE ACTS OF MARCH 3, 1921, AND FEBRUARY 27, 1925, SUPRA, BOTH RELATE TO, AND DEAL WITH, FUNDS REMAINING UNPAID OR, UNDER THE ACT OF 1925, TO FUNDS RESTRICTED BY THE ACT OF 1921, AND IMPROPERLY PAID TO THE GUARDIANS. NEITHER ACT MAKES ANY ATTEMPT TO PLACE ANY RESTRICTIONS UPON FUNDS PAID TO A GUARDIAN PRIOR TO THE ENACTMENT OF 1921, AND IN THIS CONNECTION ATTENTION IS INVITED TO DECISION OF THE SUPREME COURT OF THE UNITED STATES IN THE CASE OF WORK V. LYNN, 266 U.S. 161, IN WHICH IT WAS HELD IN SUBSTANCE THAT WHERE A PAYMENT IS MADE TO A LEGAL GUARDIAN DULY APPOINTED BY A COURT OF COMPETENT JURISDICTION SUCH COURT ALONE IS TO SAY WHAT DISPOSITION SHOULD BE MADE OF THE FUNDS.

ACCORDINGLY, IT MUST BE HELD IN THE PRESENT CASE THAT THE FUNDS AND PROPERTY INVOLVED ARE NOT SUCH AS PROPERLY MAY BE CONSIDERED UNDER THE SUPERVISION AND CONTROL OF THE SECRETARY OF THE INTERIOR. THEY ARE PROPERLY FOR DISPOSITION BY THE GUARDIAN IN ACCORDANCE WITH THE DIRECTIONS OF THE DECREE OF THE COUNTY COURT OF OSAGE COUNTY UNDER WHICH SAID GUARDIAN HOLDS HIS APPOINTMENT.

IN THIS CONNECTION IT IS NOTED THAT AT THE HEARING BEFORE THE OSAGE COUNTY COURT UPON THE FINAL REPORT OF THE GUARDIAN THE COURT DIRECTED THAT, INASMUCH AS KATE ALBERT IS A FULL-BLOOD OSAGE INDIAN, THE GUARDIAN MAKE SETTLEMENT WITH THE SUPERINTENDENT OF THE OSAGE INDIAN AGENCY AS TO THE BALANCE OF CASH REMAINING IN HIS HANDS AFTER PAYMENT OF THE COSTS IN THE CASE, AND AS TO ANY SECURITIES AND PROPERTY REMAINING IN HIS HANDS, BUT THE ORDER WAS AMENDED BY THE COURT AT THE INSTANCE OF THE GUARDIAN, WHO SUGGESTED THAT THE CHARACTER AND SOURCE OF THE FUNDS AND PROPERTY WERE SUCH THAT THERE WAS AT LEAST A DOUBT WHETHER THE FEDERAL GOVERNMENT HAD OR SHOULD EXERCISE ANY SUPERVISION OR CONTROL THEREOF. SHOULD THE COUNTY COURT OF OSAGE COUNTY AUTHORIZE OR DIRECT THE GUARDIAN TO MAKE FINAL SETTLEMENT WITH THE FORMER WARD INSTEAD OF WITH THE SUPERINTENDENT OF THE AGENCY, SUCH SETTLEMENT WOULD BE LEGAL AND PROPER IN SO FAR AS THE FEDERAL GOVERNMENT IS CONCERNED.