A-7771, JUNE 24, 1926, 5 COMP. GEN. 1018

A-7771: Jun 24, 1926

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THE ATTORNEY IS NOT ENTITLED TO REIMBURSEMENT FOR THE COST OF MEALS FURNISHED INDIANS WITH WHOM HE HAD TO CONSULT IN CONNECTION WITH THE RENDERING OF SUCH SERVICES. HENDERSON HAS CLAIMED $37.22 AS REIMBURSEMENT OF EXPENDITURES INCURRED BY HIM FOR MEALS FURNISHED TO INDIANS WITH WHOM IT WAS NECESSARY FOR HIM TO HAVE CONSULTATIONS IN THE COURSE OF WORK CONTEMPLATED UNDER CONTRACTS ENTERED INTO BY CLAIMANT WITH THE RED LAKE BAND OF CHIPPEWA INDIANS AND WITH THE KLAMATH AND MODOC TRIBES AND THE WOHOOSKEN BAND OF SNAKE INDIANS ON FEBRUARY 21. BOTH CONTRACTS RECITE THAT THEY ARE EXECUTED PURSUANT TO THE PROVISIONS OF SECTIONS 2103. THE FOLLOWING PROVISION IS TAKEN FROM PAGE 4 OF THE CHIPPEWA CONTRACT.

A-7771, JUNE 24, 1926, 5 COMP. GEN. 1018

CONTRACTS, ENTERTAINING - MEALS FURNISHED INDIANS BY CONTRACT ATTORNEY WHERE THE CONTRACTS OF AN ATTORNEY WITH INDIAN TRIBES FOR THE PERFORMANCE OF CERTAIN LEGAL SERVICES FOR SAID TRIBES PROVIDED FOR THE REIMBURSEMENT OF CERTAIN ACTUAL AND NECESSARY EXPENSES INCURRED IN CONNECTION WITH THE SERVICES TO BE PERFORMED UNDER SAID CONTRACTS, THE ATTORNEY IS NOT ENTITLED TO REIMBURSEMENT FOR THE COST OF MEALS FURNISHED INDIANS WITH WHOM HE HAD TO CONSULT IN CONNECTION WITH THE RENDERING OF SUCH SERVICES.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 24, 1926:

DANIEL B. HENDERSON HAS CLAIMED $37.22 AS REIMBURSEMENT OF EXPENDITURES INCURRED BY HIM FOR MEALS FURNISHED TO INDIANS WITH WHOM IT WAS NECESSARY FOR HIM TO HAVE CONSULTATIONS IN THE COURSE OF WORK CONTEMPLATED UNDER CONTRACTS ENTERED INTO BY CLAIMANT WITH THE RED LAKE BAND OF CHIPPEWA INDIANS AND WITH THE KLAMATH AND MODOC TRIBES AND THE WOHOOSKEN BAND OF SNAKE INDIANS ON FEBRUARY 21, 1920, AND JULY 14, 1923, RESPECTIVELY, FOR PERFORMING CERTAIN LEGAL SERVICES FOR SAID TRIBES. BOTH CONTRACTS RECITE THAT THEY ARE EXECUTED PURSUANT TO THE PROVISIONS OF SECTIONS 2103, 2104, 2105, AND 2106, REVISED STATUTES.

THE FOLLOWING PROVISION IS TAKEN FROM PAGE 4 OF THE CHIPPEWA CONTRACT, WHICH READS AS FOLLOWS:

IN ADDITION TO THE FEES ABOVE PROVIDED, THE PARTY OF THE SECOND PART SHALL RECEIVE THE COST OF TRANSPORTATION AND PULLMAN FARE, TOGETHER WITH ACTUAL EXPENSES (NOT EXCEEDING $5 PER DAY) WHILE ABSENT FROM WASHINGTON AND ENGAGED IN THE DUTIES HEREINBEFORE MENTIONED, SUCH ALLOWANCE FOR EXPENSES NOT TO INCLUDE CLERICAL HIRE OR THE LIKE; AND SAID PARTY OF THE FIRST PART SHALL PAY FROM ITS TRIBAL FUNDS THE COST OF TELEPHONING, TELEGRAPHING, AND OF INTERPRETER'S SERVICE: PROVIDED, THAT ALL EXPENDITURES ALLOWED UNDER THIS CONTRACT SHALL BE ITEMIZED AND VERIFIED BY THE SAID PARTY OF THE SECOND PART AND SHALL BE ACCOMPANIED BY PROPER VOUCHERS AND SHALL BE PAID ONLY UPON THE APPROVAL OF THE COMMISSIONER OF INDIAN AFFAIRS OR AN OFFICER DESIGNATED BY HIM.

MR. HENDERSON CONCEDES THAT HIS ACTUAL EXPENSES ARE LIMITED TO $5 PER DAY UNDER THIS CONTRACT AND MAKES NO OBJECTION TO A SETTLEMENT UPON THAT BASIS. HE INSISTS, HOWEVER, THAT HE IS ENTITLED TO REIMBURSEMENT OF $37.22 EXPENDED AS AFORESAID, BECAUSE THERE IS NO DEFINITE LIMIT PLACED ON HIS ACTUAL EXPENSES IN THE CONTRACT WITH THE OTHER INDIANS. THAT PART OF THE CONTRACT ON WHICH HE RELIES FOR REIMBURSEMENT IS FOUND AT PAGE 4 AND READS AS FOLLOWS:

THE SAID ATTORNEYS, PARTIES OF THE SECOND PART, SHALL ALSO BE ALLOWED SUCH ACTUAL EXPENSES AS ARE STRICTLY NECESSARY OR PROPER IN CONNECTION WITH THE PRINTING OF BRIEFS, COURT COSTS AND PROCEEDINGS, AND OTHER SIMILAR MATTERS, TO INCLUDE SUCH ACTUAL AND NECESSARY TRAVELING EXPENSES, CLERICAL HIRE, STENOGRAPHIC EXPENSE, AND THE LIKE AS MAY BE PROPERLY REQUIRED FOR THE PROSECUTION OF THE CASES: PROVIDED, THAT SUCH EXPENSE SHALL BE PAID FROM AVAILABLE TRIBAL FUNDS BELONGING TO THE SAID INDIAN CLAIMANTS, PARTY OF THE FIRST PART, AND WITH THE FURTHER PROVISION THAT ALL SUCH EXPENDITURES SHALL BE ITEMIZED AND VERIFIED BY THE PARTIES OF THE SECOND PART, AND SHALL BE ACCOMPANIED BY PROPER VOUCHERS, AND SHALL BE PAID ONLY UPON THE APPROVAL OF THE SECRETARY OF THE INTERIOR OR AN OFFICER DESIGNATED BY HIM.

IT MUST BE CONCEDED THERE IS NO SPECIFIC LIMITATION IN THIS CONTRACT ON TRAVELING EXPENSES, BUT THERE IS A GENERAL LIMITATION UPON SUCH EXPENSES, AND THERE IS NO SPECIFIC AUTHORITY IN THE CONTRACT FOR THE PAYMENT OF EXPENSES OF WITNESSES ATTENDING CONFERENCES WITH THE ATTORNEYS ON THE RESERVATION, INCLUDING MEALS. INASMUCH AS THE CONTRACT RECITES THAT IT IS MADE PURSUANT TO SECTIONS 2103, 2104, 2105, AND 2106 OF THE REVISED STATUTES OF THE UNITED STATES, THAT PROVISION OF THE CONTRACT JUST QUOTED MUST BE CONSTRUED IN THE LIGHT OF THOSE STATUTES.

SECTION 2103 PROVIDES THAT NO AGREEMENT SHALL BE MADE BY ANY PERSON WITH ANY TRIBE OF INDIANS FOR THE PAYMENT OF ANY MONEY OR OTHER THING OF VALUE GROWING OUT OF OR IN REFERENCE TO CLAIMS UNDER ANY LAWS OR TREATIES WITH THE UNITED STATES UNLESS SUCH CONTRACT OR AGREEMENT BE EXECUTED IN WRITING BEFORE A JUDGE OF A COURT OF RECORD AND BEAR THE APPROVAL OF THE SECRETARY OF THE INTERIOR AND THE COMMISSIONER OF INDIAN AFFAIRS. THIS SECTION FURTHER PROVIDES THAT SUCH CONTRACTS AND AGREEMENTS SHALL STATE THE TIME WHEN AND PLACE WHERE MADE, THE PARTICULAR PURPOSE FOR WHICH MADE, THE SPECIAL THING OR THINGS TO BE DONE, THE BASIS OF THE CLAIM, THE SOURCE FROM WHICH IT IS TO BE COLLECTED, THE DISPOSITION TO BE MADE OF IT WHEN COLLECTED, THE AMOUNT OF THE FEE IN ALL CASES; AND IF ANY CONTINGENT MATTER OR CONDITION CONSTITUTES A PART OF THE CONTRACT OR AGREEMENT, IT SHALL BE SPECIFICALLY SET FORTH.

SECTION 2105 PROVIDES THAT ANY PERSON RECEIVING SUCH INDIAN MONEY CONTRARY TO LAW SHALL BE SUBJECT TO A FINE AND IMPRISONMENT, TOGETHER WITH A FORFEITURE OF THE MONEY SO RECEIVED. THIS SECTION FURTHER PROVIDES THAT ANY UNITED STATES ATTORNEY WHO FAILS TO PROSECUTE SUCH CASES SHALL BE REMOVED FROM OFFICE, AND THAT ANY OTHER PERSON IN THE EMPLOYMENT OF THE UNITED STATES WHO SHALL, IN VIOLATION OF THE PROVISIONS OF SECTIONS 2103 AND 2104, ADVISE, SANCTION, OR IN ANY WAY AID IN MAKING SUCH PAYMENTS AS ARE THEREIN PROHIBITED SHALL, IN ADDITION TO THE PUNISHMENT DISMISSED FROM THE SERVICE OF THE UNITED STATES, AND BE FOREVER DISQUALIFIED FROM HOLDING ANY OFFICE OF PROFIT OR TRUST UNDER THE SAME.

THE STRINGENCY OF THESE STATUTES SHOWS CLEARLY THAT IT WAS THE INTENT OF CONGRESS TO SAFEGUARD THE TRIBAL MONEY AND PROPERTY OF INDIANS. SUCH INTENTION IS ENTIRELY CONSISTENT WITH THE RELATION EXISTING BETWEEN THE UNITED STATES AND THE INDIAN TRIBES. THE SUPREME COURT HAS REPEATEDLY HELD THAT INDIANS ARE THE WARDS OF THE GOVERNMENT. THEY ARE STILL WARDS SO FAR AS THE OBLIGATION ON THE UNITED STATES TO PROTECT THEIR PROPERTY RIGHTS IS CONCERNED.

IN THE LIGHT OF THE FOREGOING STATUTES, AND THE PROVISION OF THE CONTRACT LAST QUOTED, WHICH SAYS THE ATTORNEYS SHALL ALSO BE ALLOWED SUCH ACTUAL AND NECESSARY EXPENSES IN CONNECTION WITH THE PRINTING OF BRIEFS, COURT COSTS AND PROCEEDINGS, AND OTHER SIMILAR MATTERS, INCLUDING ACTUAL AND NECESSARY TRAVELING EXPENSES, CLERICAL HIRE, AND STENOGRAPHIC SERVICES, IT MUST BE HELD THERE IS A LIMITATION UPON THE EXPENDITURES FOR WHICH THE ATTORNEYS MAY BE REIMBURSED.

THE EXPENDITURE FOR MEALS FOR THE PERSONS INTERVIEWED CAN NOT BE PROPERLY INCLUDED EITHER UNDER ACTUAL AND NECESSARY TRAVELING EXPENSES, CLERICAL HIRE, OR STENOGRAPHIC SERVICES. THE EXPRESSION ACTUAL AND NECESSARY TRAVELING EXPENSES AS HERE USED REFERS TO THE TRAVELING EXPENSES OF THE ATTORNEYS, WHILE CLERICAL HIRE AND STENOGRAPHIC SERVICES ARE SO REMOTELY CONNECTED WITH THE EXPENDITURE IN QUESTION AS TO ENTIRELY REMOVE IT FROM THOSE PROVISIONS OF THE CONTRACT. SO IF THERE BE AUTHORITY TO MAKE THE ALLOWANCE, IT MUST BE FOUND UNDER THAT PROVISION WHICH PROVIDES THAT THE ATTORNEYS SHALL ALSO BE ALLOWED SUCH ACTUAL EXPENSES AS ARE STRICTLY NECESSARY OR PROPER IN CONNECTION WITH THE PRINTING OF BRIEFS, COURT COSTS AND PROCEEDINGS, AND OTHER SIMILAR MATTERS. SECTION 2103, REVISED STATUTES, AMONG OTHER THINGS, PROVIDES THAT IF ANY CONTINGENT MATTER OR CONDITION CONSTITUTES A PART OF THE CONTRACT OR AGREEMENT IT SHALL BE SPECIFICALLY SET FORTH. WHEN THAT PROVISION OF THE CONTRACT ALLOWING ATTORNEYS ACTUAL EXPENSES AND OTHER SIMILAR MATTERS IS MEASURED BY THE STATUTORY STANDARD REQUIRING THAT ALL CONTINGENT MATTERS SHALL BE SPECIFICALLY SET FORTH, IT MUST BE HELD THERE IS NO AUTHORITY IN THE CONTRACT FOR THE ALLOWANCE.

CLAIMANT STATES IN HIS LETTER OF JANUARY 23, 1925, THAT THE ITEM OF $37.22 EXPENDED FOR MEALS COVERS CASES WHERE IT WAS NECESSARY FOR HIM TO SECURE INFORMATION FROM MEMBERS OF THE TRIBE IN CONNECTION WITH THE WORK CONTEMPLATED IN THE CONTRACT. GRANTING IT WAS NECESSARY FOR THE ATTORNEYS TO CONFER WITH INDIAN WITNESSES ON THE RESERVATION, THE CONTRACT FAILS TO MAKE SPECIFIC PROVISION FOR THE PAYMENT OF THE EXPENSES OF WITNESSES INCURRED IN ATTENDING THE CONFERENCE. NO SUCH PROVISION CAN BE READ INTO THE CONTRACT BY ANY OFFICER OF THE UNITED STATES, AND TO MAKE THE PAYMENT IN QUESTION WOULD BE A CLEAR VIOLATION OF SECTION 2105,REVISED STATUTES, AND SUBJECT THE OFFENDER TO A FINE AND IMPRISONMENT.

IT WAS HELD IN 6 COMP. DEC. 850, IN CONSTRUING AN ATTORNEY'S CONTRACT WITH THE NEW YORK INDIANS UNDER THE PROVISIONS OF SECTION 2103, REVISED STATUTES, THAT THE APPROVAL BY THE SECRETARY OF THE INTERIOR AND THE COMMISSIONER OF INDIAN AFFAIRS OF A CONTRACT WITH INDIANS DOES NOT PRECLUDE INQUIRY INTO THE QUESTION WHETHER SAID CONTRACT COMPLIES IN OTHER RESPECTS WITH THE PROVISIONS OF THE ACT. IN A DECISION OF DECEMBER 11, 1925, 5 COMP. GEN. 424, WITH REFERENCE TO SAID SECTION, IT WAS HELD:

THE FACT THAT THE INDIANS IN COUNCIL AUTHORIZED THE EMPLOYMENT AND WISH THE AMOUNT PAID AND THAT THE COMMISSIONER OF INDIAN AFFAIRS HAS APPROVED THE CLAIM DOES NOT FULFILL THE REQUIREMENTS OF THE STATUTE.

SEE ALSO 18 OP.ATTY.GEN. 497, IN WHICH THE FOLLOWING LANGUAGE IS USED:

THE QUESTION NOW PRESENTED IS WHETHER THE APPROVAL OF THE CONTRACT BY THE BUSINESS COMMITTEE OF THE CITIZEN POTTAWATOMIES SUPPLIES THE DEFECT ON WHICH THE OPINION ABOVE REFERRED WAS TO BE GIVEN. THE LAW (REV.STAT., SEC. 2103) UNDER WHICH THIS WHOLE PROCEEDING IS SUPPOSED TO HAVE BEEN CARRIED ON IS VERY EXPLICIT, AND LEAVES NO MARGIN OF DISCRETION TO THE SECRETARY OF THE INTERIOR. THE LAW MUST BE LITERALLY COMPLIED WITH, AND NOTHING CAN BE TAKEN BY INTENDMENT, NOR CAN THE SECRETARY DISPENSE WITH ANY OF ITS REQUIREMENTS.

IN THE LIGHT OF ALL THE FACTS IN THIS CASE, THE CONTRACTS, AND THE PROVISIONS OF THE STATUTES HEREIN MENTIONED, IT MUST BE HELD THE REIMBURSEMENT CAN NOT BE MADE. ACCORDINGLY, THE CLAIM FOR $37.22 IS DISALLOWED.