B-168395, JAN. 23, 1970

B-168395: Jan 23, 1970

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AFTER RETIREMENT AS CIVIL SERVICE EMPLOYEE WAS IMMEDIATELY EMPLOYED AS TRIBAL EMPLOYEE AND HAD DEDUCTIONS FOR RETIREMENT ANNUITY WITHHELD MAY NOT HAVE CLAIM FOR REFUND PAID FROM FUNDS OF UNITED STATES BUT MATTER SHOULD BE FOR CONSIDERATION BY TRIBAL ORGANIZATION. SINCE ALL TRIBAL FUNDS TO CREDIT OF TRIBE HAVE BEEN RELINQUISHED. THE FACTS ARE THAT MR. WAS REEMPLOYED THE FOLLOWING DAY NOVEMBER 1. HE RECEIVED THE SAME RATE OF PAY AND FICA DEDUCTIONS WERE WITHHELD FROM HIS PAY UNTIL MAY 5. A DECISION WAS MADE THAT EMPLOYEES WHO RETIRE FROM REGULAR CIVIL SERVICE POSITIONS AT THE MENOMINEE INDIAN MILLS SHALL HAVE A DEDUCTION MADE FROM THEIR SALARY FOR THE AMOUNT OF THEIR RETIREMENT IF THEY SHOULD BE REEMPLOYED AS A MILL'S EMPLOYEE.

B-168395, JAN. 23, 1970

CIVIL PAY--WITHHELD RETIREMENT DEDUCTIONS--INDIAN TRIBAL FUNDS DECISION TO CERTIFYING OFFICER OF BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, CONCERNING CLAIM OF FORMER EMPLOYEE OF BUREAU OF INDIAN AFFAIRS FOR DEDUCTIONS FROM RETIREMENT WHILE EMPLOYED BY MENOMINEE TRIBE. A SUPERINTENDENT OF LOGGING AT MENOMINEE INDIAN RESERVATION WHO, AFTER RETIREMENT AS CIVIL SERVICE EMPLOYEE WAS IMMEDIATELY EMPLOYED AS TRIBAL EMPLOYEE AND HAD DEDUCTIONS FOR RETIREMENT ANNUITY WITHHELD MAY NOT HAVE CLAIM FOR REFUND PAID FROM FUNDS OF UNITED STATES BUT MATTER SHOULD BE FOR CONSIDERATION BY TRIBAL ORGANIZATION, MENOMINEE ENTERPRISES, INC. SINCE ALL TRIBAL FUNDS TO CREDIT OF TRIBE HAVE BEEN RELINQUISHED.

TO MR. FRANK A. LIMPOUCH:

ON NOVEMBER 14, 1969, YOU FORWARDED TO US THE LETTER DATED JUNE 2, 1969, WITH ENCLOSURES, FROM THE LAW FIRM OF WILKINSON, CRAGUN AND BARKER, SUBMITTING A CLAIM FOR $12,474.11 IN BEHALF OF MR. JAMES J. CALDWELL, A MENOMINEE INDIAN AND FORMER EMPLOYEE OF THE BUREAU OF INDIAN AFFAIRS. YOU REQUEST OUR DECISION AS TO THE LEGALITY OF THE CLAIM AND THE PROPRIETY OF CERTIFYING A VOUCHER FOR PAYMENT IN FAVOR OF MR. CALDWELL.

IN THOSE RESPECTS YOU SUBMITTED COPIES OF THE CORRESPONDENCE BETWEEN THE BUREAU AND THE CIVIL SERVICE COMMISSION TOGETHER WITH EVIDENCE OF MR. CALDWELL'S EARNINGS DURING EACH WEEK OF THE PERIOD NOVEMBER 8, 1957, THROUGH MARCH 25, 1961. YOUR LETTER SUMMARIZES THE CASE AS FOLLOWS:

"BRIEFLY, THE FACTS ARE THAT MR. CALDWELL, SUPERINTENDENT OF LOGGING, GS- 10, $6,725 PER ANNUM, EMPLOYED AT THE MENOMINEE INDIAN MILLS, RETIRED EFFECTIVE OCTOBER 31, 1957, AND WAS REEMPLOYED THE FOLLOWING DAY NOVEMBER 1, 1957, AS A TRIBAL EMPLOYEE TO PERFORM THE SAME DUTIES. HE RECEIVED THE SAME RATE OF PAY AND FICA DEDUCTIONS WERE WITHHELD FROM HIS PAY UNTIL MAY 5, 1958.

"BECAUSE OF THE PECULIAR CIRCUMSTANCES INVOLVED IN THE TERMINATION OF THE MENOMINEE INDIANS AND THE STATUS OF THE EMPLOYEES, A DECISION WAS MADE THAT EMPLOYEES WHO RETIRE FROM REGULAR CIVIL SERVICE POSITIONS AT THE MENOMINEE INDIAN MILLS SHALL HAVE A DEDUCTION MADE FROM THEIR SALARY FOR THE AMOUNT OF THEIR RETIREMENT IF THEY SHOULD BE REEMPLOYED AS A MILL'S EMPLOYEE.

"IN VIEW OF THIS DECISION MR. CALDWELL'S WEEKLY PAY WAS REDUCED BY THE AMOUNT OF HIS ANNUITY EFFECTIVE MAY 5, 1958, AND FICA DEDUCTIONS WERE SUSPENDED ON THAT DATE. NO ADJUSTMENTS WERE MADE FOR THE PERIOD NOVEMBER 1, 1957, TO MAY 5, 1958. MR. CALDWELL WAS FINALLY SEPARATED MARCH 25, 1961. BECAUSE OF THE ABOVE MENTIONED DECISION MR. CALDWELL CLAIMS A REIMBURSEMENT OF $12,474.11 ($82.61 PER WEEK FOR 151 WEEKS, NOVEMBER 1, 1957 - MARCH 25, 1961). ALL PERTINENT RECORDS ARE ENCLOSED."

THE PERSONNEL ACTION DATED OCTOBER 21, 1957, "RETIREMENT (OPTIONAL)" EFFECTIVE OCTOBER 31, 1957, SHOWS THAT MR. CALDWELL HAD BEEN EMPLOYED IN GRADE GS-301-10, $6,725 PER ANNUM, AND THAT HIS SALARY HAD BEEN PAID FROM THE ACCOUNT "14 X 7384 MENOMINEE FOUR PERCENT FUND (TRUST FUND)" IMMEDIATELY PRIOR TO HIS RETIREMENT SUBJECT TO THE CIVIL SERVICE RETIREMENT ACT.

OUR FILES SHOW THAT THE TRUST FUND EXPENDITURE ACCOUNT "14 X 7384" WAS PRESCRIBED FOR THE PURPOSES OF THE LOGGING AND LUMBER OPERATIONS AUTHORIZED UNDER THE ACT OF MARCH 28, 1908, 35 STAT. 51, AS AMENDED. THAT ACT IN SOME RESPECTS SUPERSEDED THE ACT OF JUNE 12, 1890, 26 STAT. 146. AS TO COMPENSATION OF SAWMILL PERSONNEL, SECTION 1 OF THE 1890 ACT IN PART AUTHORIZED THE SECRETARY OF THE INTERIOR TO APPOINT A SUPERINTENDENT OF LOGGING AND TO FIX HIS RATE OF COMPENSATION. THE 1908 ACT CONTAINED NO PROVISION INCONSISTENT WITH THAT PROVISION AND, THEREFORE, IT WOULD APPEAR THAT THE SECRETARY'S AUTHORITY IN THAT RESPECT REMAINED IN EFFECT. SECTION 3 OF THE 1908 ACT PROVIDED IN PART THAT THE NET PROCEEDS OF THE SALE OF THE LUMBER AND OTHER MATERIAL MANUFACTURED FROM THE LOGGED TIMBER ON THE MENOMINEE INDIAN RESERVATION "SHALL BE DEPOSITED IN THE TREASURY OF THE UNITED STATES TO THE CREDIT OF THE TRIBE ENTITLED TO THE SAME;" THAT SUCH DEPOSITED PROCEEDS SHALL BEAR INTEREST AT THE RATE OF 4 PERCENT PER ANNUM, AND THAT SUCH INTEREST SHALL BE USED FOR THE BENEFIT OF THE INDIANS. SECTION 4 OF THE 1908 ACT AUTHORIZED THE SECRETARY OF THE INTERIOR "TO PAY, OUT OF FUNDS OF THE TRIBE OF INDIANS LOCATED UPON SAID RESERVATION," THE NECESSARY EXPENSES OF THE LUMBER OPERATIONS PROVIDED FOR IN THE 1908 ACT.

IT APPEARS THAT DURING THE YEARS SUBSEQUENT TO THE ABOVE ACTS MR. CALDWELL AND OTHERS WHO PERFORMED SUPERVISORY DUTIES WERE CONSIDERED ADMINISTRATIVELY TO BE EXERCISING A FEDERAL FUNCTION AS CIVILIAN EMPLOYEES OF THE BUREAU OF INDIAN AFFAIRS. THE PURPOSE OF PUBLIC LAW 83-399, APPROVED JUNE 17, 1954, AS AMENDED (25 U.S.C. 891-902) WAS TO PROVIDE FOR AN "ORDERLY TERMINATION OF FEDERAL SUPERVISION OVER THE PROPERTY AND MEMBERS OF THE MENOMINEE INDIAN TRIBE OF WISCONSIN." WHILE THE AMENDMENTS OF THAT ACT EXTENDED THE PERIOD AND THE PROCEDURAL REQUIREMENTS WHEREBY FEDERAL RESPONSIBILITY FOR RENDERING SUPERVISORY SERVICES TO THE TRIBE WOULD FINALLY CEASE, WE FIND NO PROVISION THEREIN AND NO INDICATION IN THE LEGISLATIVE HISTORY CONCERNING THE GRADUAL CONVERSION OF THE STATUS OF SUPERVISORS OF THE MANUAL LABORERS IN THE TIMBER CUTTING AND MANUFACTURE OF LUMBER AND OTHER MATERIAL AT THE SAWMILL.

WE UNDERSTAND THAT MR. CALDWELL'S PAY AND THE OPERATING EXPENSES OF THE MENOMINEE SAWMILL WERE PAID FROM TRIBAL FUNDS AND THAT THE ADDITIONAL PAY CLAIMED WOULD, TO THE EXTENT FOUND DUE, BE PAYABLE FROM TRIBAL FUNDS.

THE ADMINISTRATIVE DETERMINATION THAT ON AND AFTER MR. CALDWELL'S RETIREMENT IN 1957 HE WAS NOT A FEDERAL EMPLOYEE WILL NOT BE QUESTIONED BY OUR OFFICE. THEREFORE, WE FURTHER EXPRESS THE OPINION THAT AFTER HIS RETIREMENT IN 1957 HIS WEEKLY PAY ON AND AFTER NOVEMBER 1, 1957, SHOULD NOT HAVE BEEN SUBJECT TO A REDUCTION IN THE AMOUNT OF HIS ANNUITY.

IN THE CIRCUMSTANCES, WE KNOW OF NO AUTHORITY WHEREBY A VOUCHER MAY BE PROCESSED AGAINST FUNDS OF THE UNITED STATES AS SUGGESTED BY THE LAST PARAGRAPH (NOT QUOTED) OF YOUR LETTER. THE COMPENSATION OF MR. CALDWELL FOR DUTIES PERFORMED DURING THE ABOVE PERIOD, INCLUDING ANY AMOUNT NOW FOUND TO BE DUE AS ABOVE INDICATED, WOULD BE FOR PAYMENT FROM TRIBAL FUNDS. WE UNDERSTAND THAT ALL OF SUCH FUNDS WHICH WERE ON DEPOSIT IN THE UNITED STATES TREASURY AND STANDING TO THE CREDIT OF THE TRIBE ON APRIL 30, 1961, HAVE SUBSEQUENTLY BEEN RELINQUISHED TO THE MENOMINEE TRIBAL ORGANIZATION WHICH WAS ESTABLISHED PURSUANT TO THE ABOVE ACT OF 1954 AS AMENDED. THUS, IT APPEARS THAT MR. CALDWELL'S PRESENT CLAIM PROPERLY SHOULD HAVE BEEN SUBMITTED TO THE TRIBAL ORGANIZATION, MENOMINEE ENTERPRISES, INC.

THE PAPERS, INCLUDING THE ATTORNEY'S LETTER OF JUNE 2, 1969, WHICH ACCOMPANIED YOUR LETTER ARE RETURNED HEREWITH.