B-5100, SEPTEMBER 12, 1939, 19 COMP. GEN. 343

B-5100, SEPTEMBER 12, 1939, 19 COMP. GEN. 343

INDIAN AFFAIRS - INDIANS - PAYMENTS TO INDIAN AGENCY SUPERINTENDENTS OF MONEYS DUE - ON COMPETENT," "INCOMPETENT," AND "RESTRICTED" INDIANS DISTINGUISHED THE ACT OF FEBRUARY 25, 1933, 47 STAT. 907, PROVIDING THAT UNDER SPECIFIED CONDITIONS, MONEY ACCRUING FROM A GOVERNMENTAL AGENCY TO "INCOMPETENT ADULT INDIANS, OR MINOR INDIANS, WHO ARE RECOGNIZED WARDS OF THE FEDERAL GOVERNMENT," MAY BE PAID "TO SUCH SUPERINTENDENT * * * OF THE INDIAN SERVICE AS THE SECRETARY OF THE INTERIOR SHALL DESIGNATE, FOR THE USE OF SUCH BENEFICIARIES, OR TO BE PAID TO OR USED FOR, THE HEIRS OF SUCH DECEASED BENEFICIARIES," IS A GENERAL STATUTE DEALING WITH UNRESTRICTED PERSONAL PROPERTY OF INDIANS AND THE TERM "INCOMPETENT" AS USED THEREIN SHOULD BE GIVEN ITS GENERAL LEGAL MEANING AS INDICATING A PERSON WHO BY REASON OF NONAGE, DISEASE, WEAKNESS OF MIND, OR OTHER CAUSE, IS UNABLE TO MANAGE HIS OWN AFFAIRS, AND IN THE ABSENCE OF A SHOWING THAT AN INDIAN WAS IN FACT AN "INCOMPETENT" ADULT INDIAN, PAYMENT OF AN AMOUNT DUE HIS ESTATE TO THE SUPERINTENDENT OF THE INVOLVED INDIAN AGENCY IS NOT AUTHORIZED UNDER SAID ACT, THE FACT THAT THE INDIAN WAS A WARD OF THE FEDERAL GOVERNMENT AND THAT IT APPEARS HE DIED POSSESSED OF A TRUST ALLOTMENT OF LAND, AND OF ADDITIONAL RESTRICTED PROPERTY NONE OF WHICH COULD BE ALIENATED WITHOUT THE CONSENT OF THE SECRETARY OF THE INTERIOR, NOT BEING SUFFICIENT TO ESTABLISH THAT HE WAS AN "INCOMPETENT ADULT" INDIAN WITHIN THE REQUIREMENT OF THE ACT. TERMS "NONCOMPETENT," ,INCOMPETENT," AND "RESTRICTED" AS USED IN STATUTES RELATING TO INDIANS, DISTINGUISHED. M OF THE SUPERINTENDENT IS SUSTAINED.

COMPTROLLER GENERAL BROWN TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 12, 1939:

REFERENCE IS MADE TO A LETTER FROM THE ASSISTANT TO THE COMMISSIONER OF INDIAN AFFAIRS, FILE PROBATE 19013/39 77745/38 GFK, DATED JUNE 5, 1939, REQUESTING FURTHER CONSIDERATION OF THE CLAIM OF THE SUPERINTENDENT, YAKIMA INDIAN AGENCY, ON BEHALF OF THE UNDETERMINED HEIRS OF JAMES SEELATSEE, DECEASED, FOR PAYMENT OF $25 AS THE UNITED STATES' SHARE OF THE DIFFERENCE BETWEEN THE APPRAISED VALUE AND SALVAGE OF ONE GRADE COW SLAUGHTERED APRIL 8, 1938. THE LETTER REFERRED TO IS AS OLLOWS:

BY THE REFERENCE OF THE SUPERINTENDENT OF THE YAKIMA AGENCY, MR. M. A. JOHNSON, WE HAVE BEEN FURNISHED WITH A COPY OF YOUR LETTER OF MARCH 14 (MISC-0774540-ARW), WHEREIN YOU INFORMED THE SUPERINTENDENT THAT PAYMENT TO HIM OF A CLAIM ON BEHALF OF THE UNDETERMINED HEIRS OF JAMES SEELATSEE, DECEASED, WAS NOT AUTHORIZED. YOUR DECISION WAS BASED ON A FINDING THAT IT WAS NOT DEFINITELY ESTABLISHED THAT DECEDENT WAS AN INCOMPETENT INDIAN OR A MINOR WARD OF THE GOVERNMENT, PURSUANT TO THE REQUIREMENTS OF THE ACT OF FEBRUARY 25, 1933 (47 STAT. 907).

ACCORDING TO THE RECORD BEFORE US, JAMES SEELATSEE APPARENTLY WAS AN ADULT AT THE TIME OF HIS DEATH; THEREFORE, THE ONLY QUESTION REQUIRING FURTHER COMMENT IS WHETHER OR NOT HE WAS IN FACT AN INCOMPETENT INDIAN. THE ACTING COMPTROLLER GENERAL'S OPINION OF AUGUST 3, 1925 (5 COMP. GEN. 86), IS PERTINENT. THE SAME READS IN PART AS FOLLOWS:

"* * * IT MAY BE STATED AS A GENERAL RULE THAT THE GRANTING OF CITIZENSHIP TO INDIANS DOES NOT ALTER THE RELATIONSHIP OF GUARDIAN AND WARD BETWEEN SUCH INDIANS AND THE FEDERAL GOVERNMENT IN A CASE WHERE PROPERTY IS HELD IN TRUST FOR THEM, OR THEY ARE LIVING ON A RESERVATION SET ASIDE FOR THEIR USE, OR ARE MEMBERS OF A TRIBE OR NATION ACCORDED CERTAIN RIGHTS AND PRIVILEGES BY TREATY OR BY FEDERAL STATUTES. BUT WHERE THE INDIAN HAS NO PROPERTY HELD IN TRUST, HAS NEVER LIVED ON AN INDIAN RESERVATION, BELONGS TO NO TRIBE WITH WHICH THERE IS AN EXISTING TREATY, HAS ADOPTED THE HABITS OF CIVILIZED LIFE AND HAS BECOME A CITIZEN OF THE UNITED STATES BY VIRTUE OF AN ACT OF CONGRESS, THERE WOULD APPEAR TO BE NO RELATION OF GUARDIAN AND WARD EXISTING BETWEEN HIM AND THE GOVERNMENT.

IN THE PRESENT CASE, JAMES SEELATSEE WAS AN ALLOTTED MEMBER OF THE YAKIMA RESERVATION IN WASHINGTON, HIS ALLOTMENT NUMBER BEING NO. 1768. HE DIED POSSESSED OF THIS TRUST ALLOTMENT OF LAND. HE ALSO HAD AT THE TIME OF HIS DEATH ADDITIONAL RESTRICTED PROPERTY IN THE FORM OF INHERITED INTERESTS IN OTHER TRUST ALLOTMENTS. NONE OF THE INTERESTS COULD BE ALIENATED WITHOUT THE CONSENT OF THE SECRETARY OF THE INTERIOR. JAMES SEELATSEE WAS ENROLLED AS A MEMBER OF THE YAKIMA TRIBE OF INDIANS. HE WAS A TYPICAL INDIAN WARD AND CERTAINLY QUALIFIES AS SUCH UNDER THE DEFINITION SET OUT IN THE ACTING COMPTROLLER GENERAL'S OPINION ABOVE-QUOTED.

THE TERMS "RESTRICTED," "NONCOMPETENT," OR "INCOMPETENT" HAVE BEEN USED BY THIS DEPARTMENT AS HAVING AN IDENTICAL MEANING; THAT IS, THE DESIGNATION OF A PERSON HOLDING LAND WHICH CANNOT BE ALIENATED EXCEPT UNDER THE PROVISIONS OF THE ACT OF CONGRESS GOVERNING. IN UNITED STATES V. NEZ PERCE COUNTY, IDAHO, 267 FED. 495, IT WAS HELD THAT THE TERMS "NONCOMPETENT" AND "INCOMPETENT" ARE INCLUSIVE OF ALL INDIANS WHO ARE WITHOUT FULL POWER TO ALIENATE THEIR PROPERTY.

AN "INCOMPETENT" INDIAN MEANS, AS UNDERSTOOD BY THIS DEPARTMENT, A PERSON NOT DECLARED INCOMPETENT BY A COURT, BUT AN INDIAN WHOSE LAND IS HELD BY HIM SUBJECT TO TRUST OR RESTRICTIONS UNDER SOME ACT OF CONGRESS. UNTIL A PATENT IN FEE OR CERTIFICATE OF COMPETENCY IS ISSUED BY THE SECRETARY OF THE INTERIOR, AN INDIAN, REGARDLESS OF HIS MENTALITY, IS NOT "COMPETENT" WITH REGARD TO HIS RESTRICTED OR TRUST ALLOTMENT. ADJUDICATIONS BY STATE COURTS, WITH SOME POSSIBLE EXCEPTIONS AS TO THE OSAGE RESERVATION AND THE FIVE CIVILIZED TRIBES, OF THE INCOMPETENCY OF INDIANS HAVE NO EFFECT UPON THEIR RESTRICTED OR TRUST REAL AND PERSONAL ESTATES.

NO DOUBT THE ACT OF FEBRUARY 25, 1933, SUPRA, SUGGESTS AN EXPEDIENT COURSE OF ACTION FOR THE VARIOUS FEDERAL AGENCIES IN DISTRIBUTING SUMS OF MONEY WHICH DO NOT WARRANT SEPARATE ADMINISTRATION IN THE STATE COURTS. THE HEIRS OF JAMES SEELATSEE WILL BE DETERMINED BY THE SECRETARY OF THE INTERIOR UNDER THE ACT OF CONGRESS, DATED JUNE 25, 1910 (36 STAT. 855), AS AMENDED BY THE ACT OF FEBRUARY 14, 1913 (37 STAT. 678). UPON FINAL ACTION ON THE CASE OF JAMES SEELATSEE BY THE DEPARTMENT, THE SUPERINTENDENT OF THE YAKIMA AGENCY WILL BE FORWARDED A COPY OF THE DECISION AND THE PROPERTY DISTRIBUTED IN ACCORDANCE THEREWITH. IT IS REQUESTED THAT THE MERITS OF THE CLAIM ABOVE MENTIONED BE REEXAMINED BY YOUR OFFICE.

THE ACT OF FEBRUARY 25, 1933, 47 STAT. 907, ENTITLED "AN ACT TO AUTHORIZE THE VETERANS' ADMINISTRATION OR OTHER FEDERAL AGENCIES TO TURN OVER TO SUPERINTENDENTS OF THE INDIAN SERVICE AMOUNTS DUE INDIANS WHO ARE UNDER LEGAL DISABILITY, OR TO ESTATES OF SUCH DECEASED INDIANS," PROVIDES AS FOLLOWS:

THAT ANY MONEY ACCRUING FROM THE VETERANS' ADMINISTRATION OR OTHER GOVERNMENTAL AGENCY TO INCOMPETENT ADULT INDIANS, OR MINOR INDIANS, WHO ARE RECOGNIZED WARDS OF THE FEDERAL GOVERNMENT, FOR WHOM NO LEGAL GUARDIANS OR OTHER FIDUCIARIES HAVE BEEN APPOINTED MAY BE PAID, IN THE DISCRETION OF THE ADMINISTRATOR OF VETERANS' AFFAIRS, OR OTHER HEAD OF A GOVERNMENTAL BUREAU OR AGENCY, HAVING SUCH FUNDS FOR PAYMENT, TO SUCH SUPERINTENDENT OR OTHER BONDED OFFICER OF THE INDIAN SERVICE AS THE SECRETARY OF THE INTERIOR SHALL DESIGNATE, FOR THE USE OF SUCH BENEFICIARIES, OR TO BE PAID TO OR USED FOR, THE HEIRS OF SUCH DECEASED BENEFICIARIES, TO BE HANDLED AND ACCOUNTED FOR BY HIM WITH OTHER MONEYS UNDER HIS CONTROL, IN ACCORDANCE WITH EXISTING LAW AND THE REGULATIONS OF THE DEPARTMENT OF THE INTERIOR.

THE DECISION OF AUGUST 3, 1925, 5 COMP. GEN. 86, REFERRED TO IN THE ABOVE -QUOTED LETTER AS PERTINENT TO THE QUESTION WHETHER JAMES SEELATSEE WAS AN INCOMPETENT INDIAN, HELD THAT WHERE AN INDIAN HAS NO PROPERTY HELD IN TRUST, HAS NEVER LIVED ON AN INDIAN RESERVATION, BELONGS TO NO TRIBE WITH WHICH THERE IS AN EXISTING TREATY, HAS ADOPTED THE HABITS OF CIVILIZED LIFE AND HAS BECOME A CITIZEN OF THE UNITED STATES, THERE WOULD APPEAR TO BE NO RELATIONSHIP OF GUARDIAN AND WARD EXISTING BETWEEN HIM AND THE GOVERNMENT, AND THAT THERE IS NO OBLIGATION ON THE PART OF THE FEDERAL GOVERNMENT TO FURNISH RELIEF TO INDIANS OF SUCH CHARACTER, THE DUTY TO CARE FOR THEM DEVOLVING UPON THE LOCAL AUTHORITIES. SAID DECISION DID NOT INVOLVE THE QUESTION OF COMPETENCY OR INCOMPETENCY OF ANY INDIAN, AND IS NOT AUTHORITY FOR HOLDING THAT ALL INDIAN WARDS OF THE GOVERNMENT ARE INCOMPETENT.

THE ACT OF FEBRUARY 25, 1933, SUPRA, APPARENTLY RECOGNIZED THE FACT THAT NOT ALL INDIAN WARDS OF THE GOVERNMENT ARE INCOMPETENT BY ENUMERATING BOTH THE CONDITIONS OF WARDSHIP AND OF INCOMPETENCY. IT IS NOTED THAT SAID STATUTE IS MADE APPLICABLE NOT TO ALL INDIANS WHO ARE RECOGNIZED WARDS OF THE GOVERNMENT BUT TO ONLY THOSE WARDS WHO ARE MINORS OR WHO ARE INCOMPETENT. EVEN IF "INCOMPETENT" COULD BE CONSTRUED AS SYNONYMOUS WITH "RESTRICTED," WHICH IS A POINT AT ISSUE, IT APPEARS THAT AN INDIAN MAY BE A WARD OF THE GOVERNMENT ALTHOUGH HIS INHERITED ALLOTMENT HAS BEEN FREED OF THE ORIGINAL RESTRICTIONS AGAINST ALIENATION. SEE BRADER V. JAMES, 246 U.S. 88.

ACCORDINGLY, THE FACT THAT JAMES SEELATSEE WAS A WARD OF THE FEDERAL GOVERNMENT--- ONE OF THE ESSENTIALS TO THE APPLICATION OF THE ACT OF FEBRUARY 25, 1933--- DOES NOT OF ITSELF ESTABLISH THAT HE WAS AN "INCOMPETENT ADULT" INDIAN WITHIN THE REQUIREMENT OF THE ACT.

IN FURTHER SUPPORT OF THE CONTENTION THAT THE DECEDENT WAS AN INCOMPETENT INDIAN, IT IS STATED THAT HE DIED POSSESSED OF A TRUST ALLOTMENT OF LAND, AND OF ADDITIONAL RESTRICTED PROPERTY, NONE OF WHICH COULD BE ALIENATED WITHOUT THE CONSENT OF THE SECRETARY OF THE INTERIOR, AND THAT THE TERMS ,RESTRICTED," "NONCOMPETENT" AND "INCOMPETENT" HAVE BEEN USED BY YOUR DEPARTMENT AS HAVING AN IDENTICAL MEANING--- THAT IS, AS MEANING AN INDIAN HOLDING LAND WHICH CANNOT BE ALIENATED EXCEPT UNDER THE PROVISIONS OF THE ACT OF CONGRESS CONTROLLING. HOWEVER, IT WILL BE NOTED THAT THE COURT IN THE CASE OF UNITED STATES V. NEZ PERCE COUNTY, 267 FED. 495, CITED IN SUPPORT OF SUCH USE, WAS NOT CONSTRUING THE TERM "INCOMPETENT" BUT THE TERM "NONCOMPETENT" AS USED IN THE ACT OF MARCH 1, 1907, 34 STAT. 1018, WITH REFERENCE TO THE MODE OF SALE OR CONVEYANCE OF ALLOTMENTS OF NONCOMPETENT INDIANS. THE LANGUAGE OF THE OPINION IS SOMEWHAT CONTRADICTORY, BUT THE COURT DID STATE THAT ITS ORIGINAL UNDERSTANDING OF THE TERM "NONCOMPETENT" AS THE EQUIVALENT OF "INCOMPETENT," IMPLYING LEGAL INCAPACITY DUE TO NONAGE, IMBECILITY, OR INSANITY, WAS TOO NARROW, AND THAT THE VIEW SEEMED TO BE UNAVOIDABLE THAT CONGRESS INTENDED THE TERM "NONCOMPETENT" AS DESCRIPTIVE OF AN INDIAN HOLDING ONLY A TRUST OR RESTRICTED PATENT, OR, WHAT WAS PERHAPS THE EQUIVALENT, AN INDIAN TO WHOM, THOUGH HE MAY BE ACTUALLY COMPETENT, A CERTIFICATE OF COMPETENCY HAS NOT BEEN ISSUED BY THE SECRETARY OF THE INTERIOR.

ALTHOUGH THE COURT IN THAT CASE WENT ON TO SAY THAT WHILE AS APPLIED TO INDIANS THE TERMS ,COMPETENCY" AND "NONCOMPETENCY" OR "INCOMPETENCY" ARE USED IN THEIR ORDINARY LEGAL SENSE, THERE IS PRESUMPTION, CONCLUSIVE UPON THE COURTS, THAT UNTIL THE RESTRICTION AGAINST ALIENATION IS REMOVED THE ALLOTTEE CONTINUES TO BE AN "INCOMPETENT" INDIAN, AT LEAST INSOFAR AS CONCERNS THE LAND TO WHICH THE RESTRICTION RELATES, SUCH STATEMENT WAS NOT NECESSARY TO THE COURT'S DECISION SINCE, AS POINTED OUT ABOVE, THE CASE DID NOT INVOLVE THE MEANING OF "INCOMPETENT.' IN ANY EVENT THE AUTHORITY OF THE STATEMENT MUST BE LIMITED, AS IT WAS BY THE COURT, TO SITUATIONS INVOLVING RESTRICTED ALLOTMENTS OF LAND SUCH AS INVOLVED IN THAT CASE.

THE ACT OF FEBRUARY 25, 1933, DEALS NOT WITH RESTRICTED ALLOTMENTS OF LAND BUT WITH PERSONAL PROPERTY IN THE FORM OF PAYMENTS WHICH ORDINARILY WOULD BE MADE TO THE INDIAN HIMSELF, IF OF AGE AND CAPABLE OF MANAGING HIS AFFAIRS, OR, IF NOT SO CAPABLE, THEN ONLY TO A DULY APPOINTED LEGAL GUARDIAN OR OTHER FIDUCIARY.

CONGRESS HAS USED BOTH THE TERMS "NONCOMPETENT" AND "INCOMPETENT" IN STATUTES RELATING TO INDIANS, AND WHILE "NONCOMPETENT" MAY HAVE A TECHNICAL MEANING WHEN USED IN A STATUTE RELATING TO THE ALIENATION OF RESTRICTED ALLOTMENTS, AS INDICATED BY THE COURT IN THE CASE OF UNITED STATES V. NEZ PERCE COUNTY, REFERRED TO ABOVE,"INCOMPETENT" APPEARS TO HAVE BEEN GENERALLY EMPLOYED IN ITS ORDINARY SENSE AS INDICATING A PERSON WHO BY REASON OF NONAGE, DISEASE, WEAKNESS OF MIND, OR OTHER CAUSE, IS UNABLE TO MANAGE HIS OWN AFFAIRS. SEE SECTION 3 OF THE ACT OF APRIL 18, 1912, 37 STAT. 86, SUBJECTING TO THE JURISDICTION OF THE COUNTY COURTS OF THE STATE OF OKLAHOMA, IN PROBATE MATTERS, THE PROPERTY OF DECEASED AND OF ORPHAN MINOR, INSANE, OR OTHER INCOMPETENT ALLOTTEES OF THE OSAGE TRIBE, SUCH INCOMPETENCY BEING DETERMINED BY THE LAWS OF THE STATE OF OKLAHOMA. SEE, ALSO, SECTION 2108, REVISED STATUTES, 25 U.S.C. 159, RELATIVE TO SETTLEMENTS WITH PERSONS APPOINTED BY THE INDIAN COUNCILS TO RECEIVE MONEYS DUE TO INCOMPETENT OR ORPHAN INDIANS.

AS FOR THE ASSERTED IDENTITY OF MEANING BETWEEN THE TERMS "RESTRICTED" AND "INCOMPETENT," WHILE THERE MAY BE A CLOSE RELATION UNDER THE LAW BETWEEN A FINDING OF COMPETENCY BY THE SECRETARY OF THE INTERIOR AND THE REMOVAL OF LIMITATIONS UPON THE ALIENATION OF TRUST OR RESTRICTED ALLOTMENTS, A RESTRICTED INDIAN WHO HAS MADE NO APPLICATION FOR A CERTIFICATE OF COMPETENCY MAY NOT BE IN FACT OR IN LAW INCOMPETENT TO MANAGE HIS PERSONAL PROPERTY TO WHICH NO RESTRICTIONS ARE ATTACHED BY LAW. THIS IS ESPECIALLY RECOGNIZED IN THE LEGISLATIVE POLICY TO CONTINUE THE RESTRICTIONS ON THE ALIENATION OF ALLOTTED LANDS, WHILE OFFERING THE INDIANS INCREASED OPPORTUNITIES FOR MANAGEMENT OF THEIR TRIBAL AND BUSINESS AFFAIRS. SEE THE ACT OF JUNE 18, 1934, 48 STAT. 984. CONVERSELY, AN INDIAN WHO HAS NO INTEREST IN A TRUST OR RESTRICTED ALLOTMENT MAY BE INCOMPETENT TO MANAGE HIS OWN AFFAIRS. IN OTHER WORDS, THE TERMS "INCOMPETENT" AND "RESTRICTED" AS USED WITH REFERENCE TO INDIANS CLEARLY ARE NOT COEXTENSIVE.

THE ACT OF FEBRUARY 25, 1933, IS A GENERAL STATUTE DEALING WITH UNRESTRICTED PERSONAL PROPERTY OF INDIANS, AND THERE IS NO REASON APPARENT, IN THE PROVISIONS OF THE STATUTE OR OTHERWISE, WHY THE TERM "INCOMPETENT" AS USED THEREIN SHOULD NOT BE GIVEN ITS GENERAL LEGAL MEANING. ACCORDINGLY, IN THE ABSENCE OF A SHOWING THAT JAMES SEELATSEE WAS IN FACT AN INCOMPETENT ADULT INDIAN WITHIN THE USUAL MEANING OF THE TERM "INCOMPETENT," PAYMENT OF THE AMOUNT DUE HIS ESTATE TO THE SUPERINTENDENT OF THE YAKIMA AGENCY IS NOT AUTHORIZED UNDER THE SAID ACT OF FEBRUARY 25, 1933, AND, ON THE PRESENT RECORD, THE ACTION PREVIOUSLY TAKEN ON THE CLAI ..END :