A-38937, JANUARY 8, 1932, 11 COMP. GEN. 266

A-38937: Jan 8, 1932

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1932: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20. CONCERNING THE CONCLUSIVENESS OF YOUR DETERMINATION THAT WILLIAM DUSTON IS ENTITLED AS THE BROTHER OF NELLIE PENN. THERE HAVE NOT BEEN DISCOVERED THE "OTHER APPLICABLE STATUTES" WHICH YOU REFER TO IN CONJUNCTION WITH SECTION 1 OF THE ACT OF JUNE 25. WITHOUT HAVING MADE A WILL DISPOSING OF SAID ALLOTMENT AS HEREINAFTER PROVIDED. CONTROVERSIES INVOLVING THE DETERMINATION OF TITLE OR RIGHT TO POSSESSION OF SUCH ALLOTMENTS WHILE THE SAME ARE HELD IN TRUST BY THE UNITED STATES ARE NOT PRIMARILY COGNIZABLE BY ANY COURT. THE CASE IS IN NO WAY A PRECEDENT FOR HOLDING THAT THE SECRETARY OF THE INTERIOR HAS AUTHORITY TO DETERMINE CONCLUSIVELY THE NEXT OF KIN ENTITLED TO THE PERSONAL PROPERTY OF DECEASED INDIANS.

A-38937, JANUARY 8, 1932, 11 COMP. GEN. 266

INDIAN AFFAIRS - DETERMINATION OF DISTRIBUTEES OF PERSONAL PROPERTY OF DECEASED INDIANS NEITHER SECTION 1 OF THE ACT OF JUNE 25, 1910, 36 STAT. 855, NOR OTHER STATUTORY PROVISION CONFERS ON THE SECRETARY OF THE INTERIOR THE AUTHORITY TO DETERMINE THE PERSONS ENTITLED AS NEXT OF KIN OR DISTRIBUTEES TO THE PERSONAL PRIVATE PROPERTY OF DECEASED INDIANS AND, ACCORDINGLY, AN AMOUNT DUE THE ESTATE OF A DECEASED INDIAN WOMAN FROM THE UNITED STATES MAY NOT BE ALLOWED HER BROTHER ON THE REPORT OF THE SECRETARY OF THE INTERIOR THAT HE HAS DETERMINED SUCH BROTHER TO BE SOLELY ENTITLED TO HER PERSONAL ESTATE, OR WITHOUT THE FILING OF AN APPLICATION FROM THE SAID BROTHER IN THE GENERAL ACCOUNTING OFFICE ESTABLISHING HIS RIGHT TO BE PAID SUCH AMOUNT AS THE NEXT OF KIN OF THE DECEASED.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JANUARY 8, 1932:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 20, 1931, CONCERNING THE CONCLUSIVENESS OF YOUR DETERMINATION THAT WILLIAM DUSTON IS ENTITLED AS THE BROTHER OF NELLIE PENN, A SAN CARLOS APACHE INDIAN, NOW DECEASED, TO BE PAID THE AMOUNT OF $25 REPRESENTED BY A CHECK ISSUED IN HER FAVOR UNDER SETTLEMENT OF THIS OFFICE DATED APRIL 27, 1929, FOR DAMAGE TO HER PRIVATE PERSONAL PROPERTY IN THE COOLIDGE DAM RESERVOIR AREA.

THE MATTER HAS BEEN CAREFULLY EXAMINED, BUT THERE HAVE NOT BEEN DISCOVERED THE "OTHER APPLICABLE STATUTES" WHICH YOU REFER TO IN CONJUNCTION WITH SECTION 1 OF THE ACT OF JUNE 25, 1910, 36 STAT. 855, AS CONFERRING UPON YOU AUTHORITY TO DETERMINE CONCLUSIVELY THE NEXT OF KIN ENTITLED AS DISTRIBUTEES TO THE PERSONAL PROPERTY OF DECEASED INDIANS.

SECTION 1 OF THE ACT OF JUNE 25, 1910, SUPRA, PROVIDES:

THAT WHEN ANY INDIAN TO WHOM AN ALLOTMENT OF LAND HAS BEEN MADE, OR MAY HEREAFTER BE MADE, DIES BEFORE THE EXPIRATION OF THE TRUST PERIOD AND BEFORE THE ISSUANCE OF A FEE SIMPLE PATENT, WITHOUT HAVING MADE A WILL DISPOSING OF SAID ALLOTMENT AS HEREINAFTER PROVIDED, THE SECRETARY OF THE INTERIOR, UPON NOTICE AND HEARING, UNDER SUCH RULES AS HE MAY PRESCRIBE, SHALL ASCERTAIN THE LEGAL HEIRS OF SUCH DECEDENT, AND HIS DECISION THEREON SHALL BE FINAL AND CONCLUSIVE * * *

BUT THIS CONFERS NO AUTHORITY TO DETERMINE CONCLUSIVELY OR OTHERWISE THE NEXT OF KIN OR DISTRIBUTEES ENTITLED TO THE PERSONAL PROPERTY OF THE DECEDENT AS DISTINGUISHED FROM "THE LEGAL HEIRS" ENTITLED UNDER THE LAWS OF DESCENT TO THE REAL PROPERTY OF A DECEASED INDIAN ALLOTTEE WHO DIES BEFORE THE ISSUANCE OF A FEE SIMPLE PATENT TO THE ALLOTTED LAND, AND THERE APPEAR TO BE NO STATUTES OTHERWISE CONFERRING SUCH AUTHORITY AND NO COURT DECISIONS RECOGNIZING THE EXISTENCE OF SUCH AUTHORITY.

YOU CITE THE CASE OF MCCAY V. KALYTON, 204 U.S. 458, AS SHOWING THE AUTHORITY OF THE DEPARTMENT OVER THE TRUST ALLOTMENTS OF DECEASED INDIANS. SAID CASE HOLDS THAT THE UNITED STATES RETAINED SUCH CONTROL OVER THE LAND ALLOTMENTS TO INDIANS THAT, EXCEPT AS OTHERWISE PROVIDED BY STATUTE, CONTROVERSIES INVOLVING THE DETERMINATION OF TITLE OR RIGHT TO POSSESSION OF SUCH ALLOTMENTS WHILE THE SAME ARE HELD IN TRUST BY THE UNITED STATES ARE NOT PRIMARILY COGNIZABLE BY ANY COURT, BUT THE CASE IS IN NO WAY A PRECEDENT FOR HOLDING THAT THE SECRETARY OF THE INTERIOR HAS AUTHORITY TO DETERMINE CONCLUSIVELY THE NEXT OF KIN ENTITLED TO THE PERSONAL PROPERTY OF DECEASED INDIANS. THE CASE OF UNITED STATES V. BOWLING, 256 U.S. 484, CITED BY YOU HELD THAT THE AUTHORITY OF THE SECRETARY OF THE INTERIOR UNDER SECTION 1 OF THE ACT OF JUNE 25, 1910, SUPRA, TO DETERMINE CONCLUSIVELY THE HEIRS OF DECEASED INDIANS ENTITLED TO ALLOTTED LANDS HELD IN TRUST EXTENDED TO RESTRICTED ALLOTMENTS, THAT IS, THOSE WHERE THE ALLOTMENT HAS BEEN PATENTED IN FEE BUT SUBJECT TO A RESTRICTION ON ALIENATION TO ACCOMPLISH THE SAME PURPOSE AS AN ALLOTMENT STRICTLY IN TRUST. WHILE THERE WAS NOT INVOLVED IN THIS CASE ANY QUESTION OF THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO DETERMINE THE NEXT OF KIN ENTITLED TO THE PERSONAL PROPERTY OF DECEASED INDIANS, YOU STATE THAT SINCE THIS CASE THE CONGRESS IN APPROPRIATION ACTS HAS RECOGNIZED THE AUTHORITY OF THE SECRETARY OF THE INTERIOR TO DETERMINE THE HEIRS TO TRUST PROPERTY OF DECEASED INDIANS "NOT ONLY TO THEIR TRUST AND RESTRICTED ALLOTMENTS BUT ALSO TO THEIR TRUST FUNDS" AND CITE IN SUPPORT OF THIS CONTENTION THE PROVISIONS OF THE ACT OF JANUARY 24, 1923, 42 STAT. 1185. THIS ACT APPROPRIATED FUNDS FOR "THE PURPOSE OF DETERMINING THE HEIRS OF DECEASED INDIAN ALLOTTEES HAVING RIGHT, TITLE, OR INTEREST IN ANY TRUST OR RESTRICTED PROPERTY" AND PROVIDED FURTHER---

* * * THAT HEREAFTER UPON A DETERMINATION OF THE HEIRS TO ANY TRUST OR RESTRICTED INDIAN PROPERTY OF THE VALUE OF $250 OR MORE, OR TO ANY ALLOTMENT, OR, AFTER APPROVAL BY THE SECRETARY OF THE INTERIOR, OF ANY WILL COVERING SUCH TRUST OR RESTRICTED PROPERTY, THERE SHALL BE PAID BY SUCH HEIRS, OR BY THE BENEFICIARIES UNDER SUCH WILL, OR FROM THE ESTATE OF THE DECEDENT, OR FROM THE PROCEEDS OF SALE OF THE ALLOTMENT, OR FROM ANY TRUST FUNDS BELONGING TO THE STATE OF THE DECEDENT, THE SUM OF $20 WHERE THE APPRAISED VALUE OF THE ESTATE OF THE DECEDENT IS $250 OR MORE AND DOES NOT EXCEED $1,000. * * *

THIS LEGISLATION CERTAINLY DOES NOT EXPRESSLY CONFER AUTHORITY ON THE SECRETARY OF THE INTERIOR TO DETERMINE THE NEXT OF KIN ENTITLED TO SHARE IN THE DISTRIBUTION OF TRUST FUNDS OR OTHER PERSONAL PROPERTY OF THE DECEDENT. IT CLEARLY HAS REFERENCE TO THE SPECIFIC AUTHORITY CONFERRED BY SECTION 1 OF THE ACT OF JUNE 25, 1910, AS CONSTRUED BY THE SUPREME DETERMINE THE HEIRS OF DECEASED INDIAN ALLOTTEES HAVING ANY RIGHT, TITLE, OR INTEREST IN ANY TRUST OR RESTRICTED ALLOTMENT OF LAND. THE USE OF THE TERM "HEIRS" IN THIS CONNECTION CONNOTES THAT THE TERM "TRUST OR RESTRICTED INDIAN PROPERTY" REFERS TO THE TRUST OR RESTRICTED LAND OR REAL PROPERTY OF THE DECEDENT AND NOT TO PERSONAL PROPERTY, WHICH, STRICTLY SPEAKING, DOES NOT PASS TO THE "HEIRS" BUT IS SUBJECT TO DISTRIBUTION TO THE NEXT OF KIN, WHO MAY OR MAY NOT BE THE SAME PERSONS AS THE HEIRS. SEE 29 C.J. 289, ET SEQ. THE ONLY MENTION MADE IN THE LEGISLATION OF THE TRUST FUND OF THE DECEDENT IS THAT THE FEE FOR DETERMINING THE HEIRS TO ANY TRUST OR RESTRICTED PROPERTY MAY BE PAID FROM TRUST FUNDS BELONGING TO THE ESTATE OF THE DECEDENT. THIS IS NOT SUFFICIENT TO ESTABLISH THAT THE CONGRESS BY IMPLICATION OR INDIRECTION HAS VESTED IN THE SECRETARY OF THE INTERIOR THE AUTHORITY, NOT EXPRESSLY CONFERRED, TO DETERMINE CONCLUSIVELY WHO ARE ENTITLED AS THE NEXT OF KIN TO SHARE IN THE DISTRIBUTION OF THE PERSONAL PROPERTY OF A DECEASED INDIAN. IN THIS CONNECTION IT MAY BE POINTED OUT THAT THE APPROPRIATION FOR THE CURRENT FISCAL YEAR, ACT OF FEBRUARY 14, 1931, 46 STAT. 1120, FOLLOWS THE LANGUAGE OF THE 1923 LEGISLATION, SUPRA; AND PROVIDES FUNDS FOR THE PURPOSE "OF DETERMINING THE HEIRS OF DECEASED INDIAN ALLOTTEES HAVING RIGHT, TITLE, OR INTEREST IN ANY TRUST OR RESTRICTED PROPERTY" AND MAKES NO PROVISION FOR DETERMINING THE NEXT OF KIN ENTITLED TO THE PERSONAL ESTATE OF SUCH INDIANS. FURTHERMORE, THERE IS NO SHOWING IN THE PRESENT CASE THAT THE AMOUNT IN QUESTION INVOLVED TRUST FUNDS. THE AMOUNT ALLOWED IN THE SETTLEMENT IN FAVOR OF NELLIE PENN WAS UNDER AN APPROPRIATION MADE IN THE ACT OF DECEMBER 22, 1927, 45 STAT. 18-19, FOR THE PAYMENT OF PROPERTY AND OTHER DAMAGES INCIDENT TO THE CONSTRUCTION OF THE COOLIDGE DAM. THE AMOUNT AWARDED NELLIE PENN WAS IN PAYMENT FOR THE DESTRUCTION OR REMOVAL FROM THE RESERVOIR AREA OF HER TEPEE FOR WHICH SHE AGREED TO ACCEPT $25 AND NEITHER THE APPROPRIATION NOR THE VOUCHER SUBMITTED FOR PAYMENT OF THE AWARD SHOWS THAT THE AMOUNT TO BE PAID WAS TO BE HELD IN TRUST FOR HER OR THAT PAYMENT WAS OTHERWISE RESTRICTED.

IN THE CASE OF KENDALL V. EWERT, 259 U.S. 139, CONCERNING THE PROPERTY OF AN ALLOTTEE INDIAN, DECIDED BY THE SUPREME COURT OF THE UNITED STATES MAY 15, 1922, SUBSEQUENT TO THE BOWLING CASE, SUPRA, IT WAS HELD, QUOTING FROM THE SYLLABUS, THAT---

RENTS AND ROYALTIES ACCRUED FROM A RESTRICTED ALLOTMENT OF LAND MADE TO AN INDIAN ARE PERSONAL PROPERTY PASSING TO HIS ADMINISTRATOR UPON HIS DEATH FOR PAYMENT OF TAXES AND CHARGES OF ADMINISTRATION AND FOR DISTRIBUTION UNDER THE STATE LAW, WHEN NO ACT OF CONGRESS CONTROLS,

AND THE COURT SAID, CONCERNING THIS PHASE OF THE MATTER:

* * * THE RECORD SHOWS THAT LARGE SUMS IN ROYALTIES FOR ZINC AND LEAD ORES MINED FROM THE LANDS INVOLVED HAD BEEN PAID TO EWERT, AND THESE WHEN ACCRUED WERE CLEARLY PERSONAL PROPERTY (UNITED STATES V. NOBLE, 237 U.S. 74, 80), WHICH, ON THE DEATH OF REDEAGLE, WOULD PASS TO HIS ADMINISTRATOR FOR PURPOSES OF PAYING ANY INHERITANCE OR OTHER TAXES WHICH MIGHT BE PROPERLY CHARGEABLE AGAINST IT, AND FOR OTHER ADMINISTRATIVE CHARGES AND FOR DISTRIBUTION. THERE BEING NO CONGRESSIONAL LEGISLATION PROVIDING FOR THE ADMINISTRATION OF SUCH INTESTATE PROPERTY, THE STATE LAW IS APPLICABLE AND WE THINK THE ADMINISTRATOR IS A COMPETENT PARTY TO ASSERT THE RIGHT OF THE ESTATE, WHATEVER IT MAY BE, TO RENTS OR ROYALTIES DERIVED FROM THE LAND DURING REDEAGLE'S LIFETIME. * * *

IT HAS BEEN HELD THAT EXCEPT AS OTHERWISE SPECIALLY PROVIDED BY LAW INDIAN TRIBES REGULATE AND CONTROL THEIR OWN LOCAL AFFAIRS AND RIGHTS OF PERSON AND PROPERTY AND THAT THE DESCENT OF LANDS AND THE DISTRIBUTION OF PERSONAL PROPERTY OF AN INTESTATE INDIAN, WHERE THE TRIBAL ORGANIZATION IS STILL RECOGNIZED BY THE GOVERNMENT, ARE DETERMINED IN ACCORDANCE WITH TRIBAL LAWS AND CUSTOMS. 31 C.J. 486, 487, AND CASES CITED.

AS IT DOES NOT APPEAR THAT THERE HAS BEEN ENACTED ANY LEGISLATION PROVIDING FOR THE ADMINISTRATION BY THE DEPARTMENT OF THE INTERIOR OF THE PERSONAL PROPERTY OF INTESTATE INDIANS, I AM CONSTRAINED TO HOLD THAT THE RECORD BEFORE THE OFFICE DOES NOT WARRANT PAYMENT OF THE AMOUNT DUE THE ESTATE OF NELLIE PENN TO WILLIAM DUSTON ON THE BASIS OF THE ASSERTED CONCLUSIVENESS OF YOUR DETERMINATION THAT HE IS ENTITLED TO BE PAID SUCH AMOUNT, AND WITHOUT THE FILING OF AN APPLICATION FROM THE SAID WILLIAM DUSTON IN THIS OFFICE ESTABLISHING HIS RIGHT TO BE PAID SUCH AMOUNT AS THE NEXT OF KIN OF NELLIE PENN. SEE 16 COMP. DEC. 244.