B-124906, OCT. 14, 1955

B-124906, OCT. 14, 1955

TO THE HONORABLE SECRETARY OF THE INTERIOR:

REFERENCE IS MADE TO LETTER OF JULY 25, 1955, AND ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE INTERIOR REQUESTING A DECISION AS TO THE CONSTITUTIONALITY OF A PROVISO IN THE DEPARTMENT OF THE INTERIOR AND RELATED AGENCIES APPROPRIATION ACT, 1956, APPROPRIATING $100,000 FROM FUNDS IN THE TREASURY CREDITED TO THE INDIANS OF CALIFORNIA. THIS FUND WAS ESTABLISHED WITH THE PROCEEDS OF A JUDGMENT AGAINST THE UNITED STATES IN FAVOR OF THE INDIANS OF CALIFORNIA PURSUANT TO THE PROVISIONS OF THE ACT OF MAY 18, 1928 (25 U.S.C. 656).

THE PROVISO IN QUESTION IS AS FOLLOWS:

" * * * PROVIDED FURTHER, THAT NOT TO EXCEED $100,000 FROM THE FUNDS CREDITED TO THE INDIANS OF CALIFORNIA UNDER THE ACT OF MAY 18, 1928 (45 STAT. 602), FOR THE EXPENSES OF MOVING AND RELOCATING HOUSES AVAILABLE TO SAID INDIANS UNDER THE ACT OF AUGUST 2, 1954 (68 STAT. 590, 613), BUT NOT MORE THAN $300 MAY BE EXPENDED FOR ANY ONE HOUSE * * *.'

THE ABOVE REFERRED TO ACT OF AUGUST 2, 1954 (HOUSING ACT OF 1954), PROVIDES, IN PART, 68 STAT. 645, AS FOLLOWS:

"SEC. 613. UPON A CERTIFICATION BY THE SECRETARY OF THE INTERIOR THAT ANY SURPLUS HOUSING, CLASSIFIED BY THE ADMINISTRATOR AS DEMOUNTABLE, IN THE AREA OF SAN DIEGO, CALIFORNIA, IS NEEDED TO PROVIDE DWELLING ACCOMMODATIONS FOR MEMBERS OF A TRIBE OF INDIANS IN RIVERSIDE COUNTY OR SAN DIEGO COUNTY OR IMPERIAL COUNTY, CALIFORNIA, THE ADMINISTRATOR IS HEREBY AUTHORIZED, NOTWITHSTANDING ANY OTHER PROVISION OF LAW, TO TRANSFER AND CONVEY SUCH HOUSING WITHOUT CONSIDERATION TO SUCH TRIBE, THE MEMBERS THEREOF, OR THE SECRETARY OF THE INTERIOR IN TRUST THEREFOR, AS THE SECRETARY MAY PRESCRIBE; PROVIDED, THAT THE TERM HOUSING AS USED IN THIS SECTION SHALL NOT INCLUDE LAND.'

IT APPEARS THAT THE ASSISTANT SECRETARY'S REQUEST FOR OUR OPINION AS TO THE CONSTITUTIONALITY OF THE APPROPRIATION PROVISO WAS PROMPTED BY A LETTER TO YOUR DEPARTMENT FROM A LAW FIRM RETAINED BY SOME INDIANS ENROLLED AS INDIANS OF CALIFORNIA PROTESTING AGAINST THE USE OF MONEYS IN THE JUDGMENT FUND FOR THE PURPOSE SPECIFIED BY CONGRESS IN SUCH PROVISO. THE ASSISTANT SECRETARY, IN THE LETTER OF JULY 25, STATES THAT THE "HOUSING ACT OF 1954 PROVIDES A BENEFIT FOR INDIANS WITHIN THE STATED COUNTIES WITHOUT REGARD TO ENROLLMENT AS INDIANS OF CALIFORNIA," APPARENTLY INFERRING THAT INDIANS IN THE THREE COUNTIES OTHER THAN THOSE DEFINED IN THE ACT OF MAY 18, 1928, AS AMENDED, AS INDIANS OF CALIFORNIA WOULD BE ENTITLED TO THE BENEFITS PROVIDED IN THE APPROPRIATION PROVISO IN QUESTION.

CONGRESS PROVIDED IN THE ACT OF MAY 18, 1928 (25 U.S.C. 656) THAT ANY JUDGMENT RECOVERED BY THE INDIANS OF CALIFORNIA THEREUNDER WOULD BE SUBJECT TO APPROPRIATION "FOR EDUCATION, HEALTH, INDUSTRIAL, AND OTHER PURPOSES FOR THE BENEFIT OF SAID INDIANS, INCLUDING THE PURCHASE OF LAND AND BUILDING OF HOMES * * *.' MOREOVER, AS INDICATED IN THE ASSISTANT SECRETARY'S LETTER, THE UNITED STATES SUPREME COURT IN SIMEMORE V. BRADY, 235 U.S. 441--- A CASE INVOLVING THE DUE PROCESS CHANSE OF THE CONSTITUTION--- HELD, IN EFFECT, THAT CONGRESS HAS PLENARY POWER TO DEAL WITH TRIBAL PROPERTY--- AS DISTINGUISHED FROM AN INDIVIDUAL INDIAN'S OWN PROPERTY--- OF INDIAN TRIBES, IF SUCH TRIBES ARE WARDS OF THE GOVERNMENT. THUS, IT DOES NOT APPEAR THAT THE APPROPRIATION FOR THE PURPOSE IN QUESTION IS IMPROPER. HOWEVER, BE THAT AS IT MAY IT MUST BE STATED THAT THE POSITION OF THE GENERAL ACCOUNTING OFFICE AS AN AGENT OF THE CONGRESS MUST BE TO ACCORD FULL EFFECT TO THE LAWS ENACTED BY THE CONGRESS SO LONG AS THEY REMAIN UNCHANGED BY LEGISLATIVE ACTION AND UNIMPAIRED BY JUDICIAL DETERMINATION. IT IS NOT A PROPER FUNCTION OF OUR OFFICE TO QUESTION THE CONSTITUTIONALITY OF AN ACTION OF THE CONGRESS.

ACCORDINGLY, WE HAVE TO ADVISE THAT WE WILL NOT QUESTION THE CONSTITUTIONALITY OF THE INVOLVED APPROPRIATION PROVISO.

WITH RESPECT TO THE INFERENCE IN THE ASSISTANT SECRETARY'S LETTER, THAT THE HOUSING ACT OF 1954 PROVIDES A BENEFIT FOR ALL INDIANS WITHIN THE STATED COUNTIES WITHOUT REGARD TO WHETHER THEY ARE ENROLLED AS "INDIANS OF CALIFORNIA," THAT ACT IN AND OF ITSELF HAS NO RELATION TO THE JUDGMENT FUND OF THE "INDIANS OF CALIFORNIA.' IT IS THE PROVISO IN THE APPROPRIATION ACT THAT DETERMINES WHICH INDIANS ARE ENTITLED TO THE BENEFIT OF THE $100,000 APPROPRIATED THEREIN. THAT AMOUNT IS APPROPRIATED FROM THE FUNDS CREDITED TO THE "INDIANS OF CALIFORNIA" UNDER THE ACT OF MAY 18, 1928, FOR "EXPENSES OF MOVING AND RELOCATING HOUSES AVAILABLE TO SAID INDIANS.' THE WORD "SAID" OBVIOUSLY REFERS TO "INDIANS OF CALIFORNIA" WITHIN THE MEANING OF THAT PHRASE AS DEFINED IN THE ACT OF MAY 18, 1928. HENCE, IT MUST BE HELD THAT INDIANS NOT ENCOMPASSED BY THE ACT OF MAY 18, 1928, AS AMENDED, ARE NOT ENTITLED TO THE BENEFITS PROVIDED BY THE APPROPRIATION PROVISO IN QUESTION.