B-126064, DEC. 30, 1955

B-126064, DEC. 30, 1955

TO MR. H. E. O-MARRA, ADMINISTRATIVE OFFICER, OFFICE OF INDIAN AFFAIRS:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1955, WITH ENCLOSURES, IN EFFECT REQUESTING RECONSIDERATION OF SETTLEMENT OF OUR OFFICE DATED SEPTEMBER 2, 1955, WHICH DISALLOWED YOUR CLAIM AS EX OFFICIO ADMINISTRATOR OF THE ESTATE OF HARRY B. SMITH, DECEASED, FOR AN AMOUNT ALLEGED TO BE DUE THE ESTATE OF THE DECEDENT FOR SALARY AS A FORMER EMPLOYEE OF THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, PARKER-DAVIS PROJECT, PHOENIX, ARIZONA. THE DECEDENT DIED INTESTATE ON OCTOBER 3, 1953.

PURSUANT TO THE PHOTOSTATIC COPY OF THE ORDER REDETERMINING THE HEIRS OF THE DECEDENT WHICH WAS TRANSMITTED WITH YOUR LETTER, IT APPEARS THAT A DETERMINATION WAS MADE THAT HARRY B. SMITH WAS SURVIVED BY THREE COUSINS AND TWO UNCLES WHO ARE THE SURVIVING HEIRS TO THE DECEDENT'S ESTATE, AND YOU URGE THAT OUR OFFICE PROCESS THE CLAIM IN FAVOR OF YOU AS ADMINISTRATIVE OFFICER, PIZA AREA FIELD OFFICE. IN THIS CONNECTION, YOUR ATTENTION IS INVITED TO 11 COMP. GEN. 266, WHEREIN IT WAS HELD, QUOTING FROM THE SYLLABUS:

"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.'

AND 11 COMP. GEN. 316, THE SYLLABUS OF WHICH READS AS FOLLOWS:

"IN CASES OF DECEASED INDIANS, WARDS OF THE GOVERNMENT, WHILE THE SUPERINTENDENT OF THE INDIAN AGENCY WHERE THE INDIAN DIED MAY BE CONSIDERED AS EX-OFFICIO ADMINISTRATOR FOR THE PURPOSE OF COLLECTING ASSETS OF THE ESTATE FROM THIRD PARTIES, THERE IS NO AUTHORITY TO PAY TO HIM AMOUNTS DUE THE ESTATE BY THE GOVERNMENT UNTIL THE HEIRS HAVE BEEN DETERMINED IN ACCORDANCE WITH LAW OR A LEGAL REPRESENTATIVE HAS BEEN APPOINTED TO TAKE CARE OF THE ASSETS OF THE ESTATE, ETC.'

COMPENSATION DUE UPON THE DEATH OF CIVILIAN EMPLOYEES OF THE UNITED STATES IS PAYABLE PURSUANT TO SECTION 1 OF THE ACT OF AUGUST 3, 1950, 64 STAT. 395. WE HAVE NO ALTERNATIVE BUT TO RESERVE THE AMOUNT DUE THE DECEDENT'S ESTATE UNTIL A CLAIM IS PRESENTED BY A PERSON ENTITLED TO TAKE UNDER THE 1950 ACT.

ACCORDINGLY, THE SETTLEMENT REFERRED TO ABOVE IS CORRECT AND UPON REVIEW IT MUST BE AND IS SUSTAINED.