A-43974, SEPTEMBER 22, 1932, 12 COMP. GEN. 373

A-43974: Sep 22, 1932

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THERE IS NO AUTHORITY TO REFUND TO AN ENTRYMAN OF UMATILLA INDIAN LANDS THE TOTAL PURCHASE PRICE PAID FOR THE LAND UPON CANCELLATION OF THE ENTRY FOR FAILURE TO MEET THE STATUTORY REQUIREMENTS AS TO RESIDENCE OR CULTIVATION. WAS PAID IN THREE INSTALLMENTS BY THE CLAIMANT ON THE ENTRY INVOLVED. THE ENTRY WAS CANCELED ON RELINQUISHMENT FILED FEBRUARY 6. THAT THE LAND WAS LATER REENTERED AND FULLY PAID FOR UNDER LA GRANDE 05773 AND 01026. IS PROVIDED THEREIN THAT A PURCHASER OF ANY OF SAID LANDS SHALL BE ENTITLED TO PURCHASE 160 ACRES OF UNTIMBERED LANDS AND AN ADDITIONAL TRACT OF 40 ACRES OF TIMBERED LANDS. SECTION 2 FURTHER PROVIDES: * * * NO PATENT SHALL ISSUE UNTIL ALL PAYMENT SHALL HAVE BEEN MADE.

A-43974, SEPTEMBER 22, 1932, 12 COMP. GEN. 373

PUBLIC LANDS - REFUNDED PURCHASE PRICE - UMATILLA INDIAN LANDS UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1885, 23 STAT. 340, THERE IS NO AUTHORITY TO REFUND TO AN ENTRYMAN OF UMATILLA INDIAN LANDS THE TOTAL PURCHASE PRICE PAID FOR THE LAND UPON CANCELLATION OF THE ENTRY FOR FAILURE TO MEET THE STATUTORY REQUIREMENTS AS TO RESIDENCE OR CULTIVATION.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 22, 1932:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR SETTLEMENT THE CLAIM OF JENNIE STANLEY PETERS FOR $260.01 IN REPAYMENT OF PURCHASE MONEY AND INTEREST PAID BY HER UNDER THE ACT OF MARCH 3, 1885, 23 STAT. 340, FOR LAND EMBRACED IN UMATILLA CASH ENTRY, LA GRANDE, OREG., NO. 522.

THE AMOUNT, $260.01, WAS PAID IN THREE INSTALLMENTS BY THE CLAIMANT ON THE ENTRY INVOLVED, AS SHOWN BY RECEIPT NO. 522, DATED SEPTEMBER 15, 1902, IN THE SUM OF $116.67, COVERING 40 ACRES OF TIMBERED LAND PAID FOR IN FULL, $50, AND FIRST INSTALLMENT (ONE-THIRD OF $200), $66.67, FOR 160 ACRES OF UNTIMBERED LAND AT $1.25 PER ACRE; RECEIPT NO. 386, DATED SEPTEMBER 15, 1903, COVERING SECOND INSTALLMENT, $66.66, AND 5 PERCENT INTEREST, $6.67, TOTAL $73.33; AND RECEIPT NO. 775, DATED SEPTEMBER 15, 1904, COVERING THIRD AND FINAL INSTALLMENT, $66.67, AND 5 PERCENT INTEREST, $3.34, TOTAL $70.01. IT FURTHER APPEARS THAT FOR SOME REASON, NOT DISCLOSED BY THE PAPERS FORWARDED TO THIS OFFICE, BUT PRESUMABLY BECAUSE THE PURCHASER FAILED TO RESIDE FOR ONE YEAR UPON THE LANDS PURCHASED AND TO REDUCE 25 ACRES THEREOF TO CULTIVATION, THE ENTRY WAS CANCELED ON RELINQUISHMENT FILED FEBRUARY 6, 1906, AND THAT THE LAND WAS LATER REENTERED AND FULLY PAID FOR UNDER LA GRANDE 05773 AND 01026.

THE ACT OF MARCH 3, 1885, 23 STAT. 340, PROVIDES FOR THE ALLOTMENT OF LANDS IN SEVERALTY TO THE INDIANS RESIDING UPON THE UMATILLA RESERVATION AND FOR THE SALE FOR THEIR BENEFIT OF THE RESIDUE OF THEIR LANDS NOT NEEDED FOR SUCH ALLOTMENT.

SECTION 2 OF SAID ACT MAKES PROVISION FOR THE SALE OF SUCH RESIDUE. IS PROVIDED THEREIN THAT A PURCHASER OF ANY OF SAID LANDS SHALL BE ENTITLED TO PURCHASE 160 ACRES OF UNTIMBERED LANDS AND AN ADDITIONAL TRACT OF 40 ACRES OF TIMBERED LANDS; THAT HE SHALL PAY ONE-THIRD OF THE PURCHASE PRICE OF UNTIMBERED LANDS AT THE TIME OF PURCHASE, ONE THIRD IN ONE YEAR, AND ONE-THIRD IN TWO YEARS, WITH INTEREST ON THE DEFERRED PAYMENTS AT THE RATE OF 5 PERCENTUM PER ANNUM, AND SHALL PAY THE FULL PURCHASE PRICE OF TIMBERED LANDS AT THE TIME OF PURCHASE; THAT, BEFORE A PATENT SHALL ISSUE FOR UNTIMBERED LANDS, THE PURCHASER SHALL MAKE SATISFACTORY PROOF THAT HE HAS RESIDED UPON THE LANDS PURCHASED AT LEAST ONE YEAR AND HAS REDUCED AT LEAST 25 ACRES TO CULTIVATION.

SECTION 2 FURTHER PROVIDES:

* * * NO PATENT SHALL ISSUE UNTIL ALL PAYMENT SHALL HAVE BEEN MADE; AND ON THE FAILURE OF ANY PURCHASER TO MAKE ANY PAYMENT WHEN THE SAME BECOMES DUE, THE SECRETARY OF THE INTERIOR SHALL CAUSE SAID LAND TO BE AGAIN OFFERED AT PUBLIC OR PRIVATE SALE, AFTER NOTICE TO THE DELINQUENT; AND IF SAID LAND SHALL SELL FOR MORE THAN THE BALANCE DUE THEREON, THE SURPLUS, AFTER DEDUCTING EXPENSES, SHALL BE PAID OVER TO THE FIRST PURCHASER: * *

THE ACT CONTAINS NO OTHER PROVISION FOR ANY REFUND TO THE PURCHASER IN THE EVENT PATENT DOES NOT ISSUE.

THIS ACT OF 1885 IS A SPECIFIC STATUTE EXCLUSIVELY APPLICABLE TO THIS CLASS OF CASES INVOLVING UMATILLA INDIAN LANDS, AND THERE IS NOT FOR CONSIDERATION THE GENERAL REPAYMENT STATUTES APPLICABLE TO PUBLIC LANDS, TO WIT, ACT OF JUNE 16, 1880, 21 STAT. 287, AND THE ACT OF MARCH 26, 1908, 35 STAT. 48, AS AMENDED BY THE ACT OF DECEMBER 11, 1919, 41 STAT. 366. SEE 10 COMP. GEN. 411.

WHEN THE CLAIMANT IN THIS CASE MADE APPLICATION FOR THE INDIAN LANDS, SHE, IN EFFECT, ENTERED INTO A CONTRACT TO PAY THE INDIANS THEREFORE, AND TO LIVE UPON THE LAND FOR AT LEAST ONE YEAR AND TO REDUCE AT LEAST 25 ACRES THEREOF TO CULTIVATION. AS SHE FAILED TO KEEP SUCH AGREEMENT, SHE BREACHED THE CONTRACT AND REFUND TO HER OF ANY AMOUNT PAID IN CONNECTION WITH HER APPLICATION IS AUTHORIZED ONLY IN ACCORDANCE WITH, AND SUBJECT TO THE CONDITIONS OF, THE SPECIFIC TERMS OF THE CONTROLLING STATUTE; THAT IS TO SAY, NO REFUND IN ANY AMOUNT IN SUCH CASE IS AUTHORIZED EXCEPT WHERE, AS SPECIFICALLY PROVIDED FOR IN THE STATUTE, THE GOVERNMENT TERMINATES THE APPLICANT'S RIGHT TO PROCEED FURTHER BECAUSE OF FAILURE TO MEET SOME PAYMENT WHEN DUE. NO PROVISION IS MADE FOR ANY REFUND WHERE THE APPLICANT BREACHES EITHER OF THE OTHER TWO CONDITIONS; THAT IS, THE CONDITIONS AS TO RESIDENCE AND CULTIVATION.

IN THIS CASE CLAIMANT DID NOT FAIL "TO MAKE ANY PAYMENT WHEN THE SAME BECOMES (BECAME) DUE," BUT EVIDENTLY SHE ELECTED NOT TO COMPLY WITH ONE OR BOTH OF THE OTHER CONDITIONS--- RESIDENCE AND CULTIVATION. THEREFORE NO REFUND IS AUTHORIZED UNDER THE LAW.

THERE HAS NOT BEEN OVERLOOKED THE OPINION RENDERED MARCH 8, 1923 (38 YEARS AFTER THE LAW WAS ENACTED AND 17 YEARS AFTER THE RELINQUISHMENT IN THE PRESENT CASE) BY THE FIRST ASSISTANT SECRETARY OF THE INTERIOR, 49 L.D. 479, REVERSING THE PRIOR ACTION OF THE COMMISSIONER OF THE GENERAL LAND OFFICE DENYING A REPAYMENT IN A CASE, SUCH AS THIS, WHERE THE FULL AMOUNT OF THE PURCHASE PRICE HAD BEEN PAID FOR UMATILLA INDIAN LANDS.