B-121365, OCTOBER 4, 1954, 34 COMP. GEN. 152

B-121365, OCTOBER 4, 1954, 34 COMP. GEN. 152

INDIAN AFFAIRS - PER CAPITA PAYMENTS FROM MENOMINEE TRIBAL FUND - SET OFF AGAINST INDEBTEDNESS DUE GOVERNMENT BY TRIBAL MEMBER IN ABSENCE OF A PROVISION IN THE ACT OF JUNE 17, 1954, AUTHORIZING PER CAPITA DISTRIBUTION OF MENOMINEE TRIBAL FUNDS, WHICH WOULD PRECLUDE THE GOVERNMENT FROM EXERCISING ITS RIGHT OF SET-OFF FROM FUNDS HELD IN TRUST FOR THE INDIANS, FUNDS AVAILABLE FOR PAYMENTS BY THIS ACT MAY BE APPLIED TO BE UNPAID FINE IMPOSED BY A U.S. COURT AGAINST CERTAIN INDIVIDUAL INDIANS.

ACTING COMPTROLLER GENERAL WEITZEL TO THE SECRETARY OF THE INTERIOR, OCTOBER 4, 1954:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 9, 1954, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY OF THE INTERIOR, REQUESTING A DECISION WHETHER THE AMOUNT OF $1,000 REPRESENTING A FINE IMPOSED ON EVELYN FRECHETTE, ALIAS BILLIE SPARK, MRS. JOHN DILLINGER, ANN MARTIN, EVELYN WILSON, BY A UNITED STATES DISTRICT COURT MAY BE SET OFF AGAINST THE PER CAPITA PAYMENT OF $1,500 DUE HER PURSUANT TO THE ACT OF JUNE 17, 1954, PUBLIC LAW 399, 68 STAT. 250.

THE LETTER STATES THAT YOUR DEPARTMENT WAS REQUESTED BY LETTER OF AUGUST 26 1953, FROM THE DEPARTMENT OF JUSTICE TO TAKE APPROPRIATE ACTION TO COLLECT THE FINE.

THE DOUBT IN THE MATTER APPARENTLY ARISES BY REASON OF THE FACT THAT THE UNITED STATES IS ACTING IN THE NATURE OF A TRUSTEE WITH RESPECT TO THE FUNDS FROM WHICH THE $1,500 PAYMENT IS TO BE MADE WHILE THE DEBT OF MRS. FRECHETTE IS DUE THE UNITED STATES IN ITS CAPACITY AS A SOVEREIGN RATHER THAN AS A TRUSTEE.

THE QUESTION OF WHETHER MONEYS HELD IN TRUST FOR INDIANS COULD BE APPLIED AGAINST AN INDEBTEDNESS DUE THE UNITED STATES WAS CONSIDERED BY THIS OFFICE AS FAR BACK AS 1926. THE QUESTION THERE PRESENTED WAS WHETHER THE PRO RATE SHARE OF ANNUAL INCOME OF AN ADULT OSAGE INDIAN AUTHORIZED TO BE PAID UNDER THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, COULD BE USED TO LIQUIDATE OUTSTANDING INCOME TAXES. BY DECISION OF APRIL 19, 1926, A- 13637, TO THE SECRETARY OF THE TREASURY--- COPY OF THE SECRETARY OF THE INTERIOR--- IT WAS HELD THAT THERE APPEARED NOTHING IN THE ACT OF FEBRUARY 27, 1925, 43 STAT. 1008, TO INDICATE AN INTENT TO DEPRIVE THE GOVERNMENT OF ITS RIGHT TO WITHHOLD FROM SUCH PAYMENTS AMOUNTS DUE FROM THE INDIAN TO GOVERNMENT.

BY LETTER OF DECEMBER 9, 1941, THE THEN SECRETARY OF THE INTERIOR, CITING THE 1926 DECISION, REQUESTED DECISION WHETHER A SUFFICIENT AMOUNT OF OIL AND GAS ROYALTIES ACCRUING TO CERTAIN INDIANS COULD BE WITHHELD TO SATISFY A JUDGMENT OBTAINED AGAINST THEM. IN DECISION OF JANUARY 3, 1942, B- 22470, IT WAS HELD---

THERE WOULD APPEAR TO BE NO REASON FOR NOT APPLYING TO THE PRESENT CASE WHAT WAS SAID IN THE DECISION OF APRIL 19, 1926, PARTICULARLY SINCE THERE IS NOTHING IN THE ACT OF FEBRUARY 27, 1925, PRECLUDING THE APPLICATION OF MONEYS PAYABLE TO AN INDIAN THEREUNDER TO AN INDEBTEDNESS OF THE INDIAN TO THE UNITED STATES. * * * AND, AFTER REFERRING TO THE CASE OF CHOUTEAU V. BURNET, 283 U.S. 691, CITED IN ANOTHER LETTER OF THE SECRETARY OF THE INTERIOR, IT WAS STATED: THERE IS NOTHING IN SUCH CASE WARRANTING THE CONCLUSION THAT SUCH INCOME MIGHT NOT BE APPLIED TO AN INDEBTEDNESS OWING TO THE UNITED STATES BY AN INDIAN OTHERWISE ENTITLED TO RECEIVE THE INCOME.

THERE IS NOTHING IN THE ACT OF JUNE 7, 1954, PUBLIC LAW 399, 83D CONGRESS, AUTHORIZING THE $1,500 PER CAPITA PAYMENTS TO MEMBERS OF THE MENOMINEE INDIAN TRIBE WHICH WOULD PRECLUDE THE GOVERNMENT FROM EXERCISING ITS RIGHT TO SET-OFF TO LIQUIDATE AN INDEBTEDNESS OF A MEMBER OF THE TRIBE TO THE UNITED STATES. HENCE, THERE APPEARS NO REASON FOR NOT APPLYING TO THE PRESENT CASE WHAT WAS HELD IN THE 1926 AND 1942 DECISIONS, HEREINBEFORE DISCUSSED.

ACCORDINGLY, IN ANSWER TO YOUR SPECIFIC QUESTION, YOU ARE ADVISED THAT YOUR DEPARTMENT PROPERLY MAY PAY THE FINE INVOLVED FROM THE FUNDS NOW AVAILABLE FOR THE PAYMENT OF THE $1,500 TO WHICH EVELYN FRECHETTE IS PRESENTLY ENTITLED UNDER SECTION 5 OF THE ACT OF JUNE 17, 1954, 68, STAT. 251.