B-102508-OM April 18, 1951

B-102508-OM April 18, 1951

Chief, Claims Divisions

Forwarded herewith are the papers transmitted by Paul D. Banning, Chief Disbursing Officer, Tresury Department, relative to the claims of William A. Cornish and Paul M. Niebell, for attornes' fees awarded by the Indian Claims Commission is the case of the The Chickasaw Nation v. United States, No. 23, together with copy of Office letter of this date to the claimants. No action is required at this time.

Comptroller General of the United States

Enclosures

The Honorable The Secretary of the Treasury

My dear Mr. Secretary:

With reference to vouchers Nos. 493885 and 493886 of the Bureau of Indian Affairs, Department of the Interior, which were referred to the Claims Division of the Office for direct settlement by letter dated March 30, 1951, from the Chief Disbursing Officer, Treasury Department, file reference CD:ACC, there is enclosed herewith a copy of Office decision of this date, B-102508, to the payees named therein.

Sincerely yours,

Acting Comptroller General of the United States

Enclosure

Examination of the records of the Indian Claims Commission discloses that the Petition for Intervention was filed as alleged, and that the same was denied orally by the Commission at a hearing held March 6, 1951. Thereafter, by letter dated March 19, counsel for the intervenors transmitted to the Commission a draft of an orderembodying this action, together with a notice of appeal thereform; but, by letter of March 26 both of said papers were returned without filing, by reason of objection by the Commission to the form of the order transmitted, a suggested revision of such order being enclosed, with the statement, "you will of course have three months from the date of the order within which to prepare and file your notice." Information has since been received that the Commission on its own motion entered an order on April 6, 1951, embodying its oral ruling of March 6.

Section 20(b) of the act of August 13, 1946, supra (25 U.S.C. 705), provides that "At any time within three months from the date of the filing of the determination of the Commission with the clerk either party may appeal from the determination of the Commission to the Court of Claims, which Court shall have exclusive jurisdiction to affirm, modify, or set aside such final determination."

While it may be argued--as you have constanded in informal discussions of the matter with representatives of this Office--that the "determination" from which the right of appeal is created by the above sections, is only the final determination, made under section 19 Stat. 1054, of the claim "against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians," of which the Commission is given jurisdiction by section 2, 60 Stat.1053 it nevertheless is the fact that the question so presented, being one involving the jurisdiction of the Court of Claims, is for determination by that tribural rather than by this Office. However strong the doubt may be as to that question, or as to whether the refusal of the Commission to permit interrention was such as action as to be reviewable, it is not the function of this Office either to decide, or to attempt to anticipate the decision of the courts, with respect thereto.

Authority for payment of the vouchers in your favor rests solely upon the order of the Commission, which is in the nature of a judgement of a judicial body of special and limited jurisdiction. So long as that judgement remains subject to possible review or modification, payment thereof would be at the risk oc the officer accomplishing it. See United States v. Bercherling, 185 U.S. 225; People Trust Compan v. United States, 38C. Cls. 359.

It has been the uniform practice of the Office to issue warrants for payments of judgements against the United States only after expiration of the time within which review of such judgments could be applied for, or after definite and binding waiver of the right to apply therefor; in fact, such a restriction is customarily contained in the set appropriating funds for such payments, as it was in the action above referred to. In accordance with that practice it does not appear that payment of the vouvhers here involved could properly be authorized until the expiration of three months from April 6, 1951, or until disposition of any appeal taken therefrom. Whether an appeal may properly be taken is, as above stated, a question within the exclusive jurisdiction of the Court of Claims, and, in view of the express notice given by the intervenare of their intention to attempt to appeal, there appears no alternative to awaiting the result of such motion, even though the motive of the intervenors may be, as you have contended, solely to obstruct and embarrass you. Cf. Pacific Railroad v. Ketchup, 101 U.S. 289.

Very truly yours,

Comptroller General of the United States