A-88368, SEPTEMBER 9, 1937, 17 COMP. GEN. 226

A-88368, SEPTEMBER 9, 1937, 17 COMP. GEN. 226

INDIAN AFFAIRS--- REPAIRS AND IMPROVEMENTS TO LANDS OF INCOMPETENT ADULT AND ORPHAN MINOR INDIANS--- PAYMENT DIRECT TO CONTRACTORS VERSUS PAYMENT THROUGH GUARDIANS PAYMENT FOR REPAIRS AND IMPROVEMENTS ON LANDS OF RESTRICTED OSAGE INDIANS --- ALLOTTED INCOMPETENT ADULTS AND UNALLOTTED ORPHAN MINORS--- MAY BE MADE DIRECT TO THE CONTRACTORS INVOLVED IF DETERMINED BY THE SECRETARY OF THE INTERIOR THAT SUCH PROCEDURE IS PREFERABLE TO THAT OF MAKING PAYMENT THROUGH THE GUARDIANS.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE INTERIOR, SEPTEMBER 9, 1937:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13, 1937, AS FOLLOWS:

THERE ARE ENCLOSED COPIES OF LETTERS FROM C. L. ELLIS, SUPERINTENDENT OF THE OSAGE INDIAN AGENCY, TOGETHER WITH ONE ADDRESSED TO HIM BY G. B. FULTON, OSAGE TRIBAL ATTORNEY, REGARDING DIRECT PAYMENT FOR REPAIRS AND IMPROVEMENTS ON THE LANDS OF RESTRICTED OSAGE INDIANS UNDER LEGAL GUARDIANSHIP. THE CASES UNDER CONSIDERATION INVOLVE OSAGE INDIANS ALLOTTED AND UNALLOTTED, THE LATTER BEING ORPHAN MINORS.

IN CONNECTION WITH THE REPAIRS OR IMPROVEMENTS ON THE LANDS OF SUCH INDIANS, THE OSAGE AGENCY MAKES THE NECESSARY INVESTIGATION TO DETERMINE THE NECESSITY FOR THE IMPROVEMENTS, PROVIDES THE PLANS AND SPECIFICATIONS, SUPERVISES THE WORK, AND ON COMPLETION APPROVES PAYMENT OF THE CHARGES. IN OTHER WORDS, THE AGENCY TAKES FULL RESPONSIBILITY, SUBJECT TO APPROVAL BY THIS DEPARTMENT, OF ALL REPAIRS AND IMPROVEMENTS AND PAYMENT THEREFOR. THE TRIBAL ATTORNEY IN HIS LETTER QUOTES THE PROVISIONS OF THE LAW GOVERNING PAYMENT OF FUNDS OF INDIANS UNDER GUARDIANSHIP. IN ADDITION TO THE PROVISIONS REFERRED TO, ATTENTION IS INVITED TO SECTION 5 OF THE ACT OF MARCH 2, 1929 (45 STAT. 1478), WHICH READS:

"THE RESTRICTIONS CONCERNING LANDS AND FUNDS OF ALLOTTED OSAGE INDIANS, AS PROVIDED IN THIS ACT AND ALL PRIOR ACTS NOW IN FORCE, SHALL APPLY TO UNALLOTTED OSAGE INDIANS BORN SINCE JULY 1, 1907, OR AFTER THE PASSAGE OF THIS ACT, AND TO THEIR HEIRS OF OSAGE INDIAN BLOOD, EXCEPT THAT THE PROVISIONS OF SECTION 6 OF THE ACT OF CONGRESS APPROVED FEBRUARY 27, 1925, WITH REFERENCE TO THE VALIDITY OF CONTRACTS FOR DEBT, SHALL NOT APPLY TO ANY ALLOTTED OR UNALLOTTED OSAGE INDIAN OF LESS THAN ONE-HALF DEGREE INDIAN BLOOD.'

THIS DEPARTMENT HAS HERETOFORE AUTHORIZED PAYMENT DIRECT TO THE CONTRACTOR UNDER THE PROVISIONS OF SECTION 1 OF THE ACT OF FEBRUARY 27, 1925 (43 STAT. 1008), WHICH AUTHORIZES THE SECRETARY OF THE INTERIOR TO EXPEND THE SAME (THE ACCUMULATED FUNDS OF RESTRICTED MEMBERS OF THE OSAGE TRIBE) FOR THE BENEFIT OF SUCH MEMBERS.

IT IS BELIEVED ADMINISTRATIVELY ADVISABLE IN THOSE CASES MENTIONED ABOVE TO MAKE PAYMENT DIRECT, AND IN VIEW OF THE QUESTION RAISED BY THE SUPERINTENDENT, WE SHALL BE GLAD AT YOUR CONVENIENCE TO HAVE A DECISION AS TO WHETHER OR NOT DIRECT PAYMENT CAN BE MADE IN THE CASES ABOVE MENTIONED AND SIMILAR CASES.

THE LETTER FROM THE OSAGE TRIBAL ATTORNEY DATED JULY 12, 1937, IS AS FOLLOWS:

ON MAY 27, 1937, YOU FORWARDED TO THE COMMISSIONER OF INDIAN AFFAIRS AN APPLICATION FOR THE WITHDRAWAL OF $884.00 FROM THE SURPLUS FUNDS OF MARGARET GOODE, OSAGE ALLOTTEE NO. 319, TO PAY FOR CERTAIN REPAIRS ON THE PROPERTY OF THE WARD. YOU RECOMMENDED APPROVAL OF THE APPLICATION ,DISBURSEMENT TO BE MADE TO THE GUARDIAN.' ON JUNE 24, 1937, THIS APPLICATION WAS APPROVED BY MR. FRED H. DAIKER, ACTING COMMISSIONER OF INDIAN AFFAIRS, WITH THE DIRECTION,"PAYMENT TO BE MADE DIRECT AND NOT THROUGH GUARDIAN.'

ON JUNE 9, 1937, YOU FORWARDED TO THE COMMISSIONER OF INDIAN AFFAIRS AN APPLICATION FOR THE WITHDRAWAL OF $962.00 FROM THE ACCOUNTS OF THE FOUR MALONE MINORS (ONE-FOURTH FROM EACH ACCOUNT) FOR PAINTING AND REPAIRING CERTAIN PROPERTY OWNED BY THE WARDS. YOU RECOMMENDED APPROVAL OF THE APPLICATION,"DISBURSEMENT TO BE MADE TO THE GUARDIAN.' ON JUNE 24, 1937, THIS APPLICATION WAS APPROVED BY MR. FRED H. DAIKER, ACTING COMMISSIONER OF INDIAN AFFAIRS, WITH THE DIRECTION THAT PAYMENT BE MADE "1/4TH FROM EACH ACCOUNT; DISBURSEMENT TO BE MADE DIRECT AND NOT TO THE ARDIAN.'

THESE TWO AUTHORITIES WERE RETURNED TO THIS AGENCY AND MR. D. GENTRY, SPECIAL DISBURSING AGENT, IS NOW REQUESTING ADVICE AS TO WHETHER THE PAYMENTS MAY BE MADE IN ACCORDANCE WITH THE INSTRUCTIONS AND AT THE SAME TIME BE MADE LEGALLY.

MARGARET GOODE IS A FULL BLOOD ADULT OSAGE INDIAN WHO HAS NEVER RECEIVED A CERTIFICATE OF COMPETENCY AND IS UNDER THE GUARDIANSHIP OF A. F. STEPHENSON.

SECTION 1 OF THE ACT OF CONGRESS OF FEBRUARY 27, 1925 (43 STAT. 1008), PROVIDES IN PART:

"AND SO LONG AS THE ACCUMULATED INCOME IS SUFFICIENT THE SECRETARY OF THE INTERIOR SHALL CAUSE TO BE PAID TO THE ADULT MEMBERS OF SAID TRIBE NOT HAVING A CERTIFICATE OF COMPETENCY $1,000 QUARTERLY, EXCEPT WHERE SUCH ADULT MEMBERS HAVE LEGAL GUARDIANS, IN WHICH CASE THE AMOUNTS PROVIDED FOR HEREIN MAY BE PAID TO THE LEGAL GUARDIAN OR DIRECT TO SUCH INDIAN IN THE DISCRETION OF THE SECRETARY OF THE INTERIOR * * *.' THE SAME SECTION OF THE ACT FURTHER PROVIDES THAT THE SECRETARY OF THE INTERIOR SHALL INVEST THE "SURPLUS" OF ADULT INDIANS IN CERTAIN CLASSES OF INVESTMENTS "OR EXPEND THE SAME FOR THE BENEFIT OF SUCH MEMBER, SUCH EXPENDITURES * * * TO BE MADE UNDER SUCH RESTRICTIONS, RULES, AND REGULATIONS AS HE MAY PRESCRIBE.'

IT IS BELIEVED THAT UNDER THIS CLAUSE OF THE ACT THE SECRETARY OF THE INTERIOR WOULD HAVE AUTHORITY TO DISREGARD THE GUARDIAN AND MAKE THE PAYMENT DIRECT TO THE INDIAN. THE TRANSACTION COULD BE SUPERVISED BY THIS AGENCY BY DRAWING A CHECK FOR THE REQUIRED AMOUNT AGAINST THE INDIAN'S ACCOUNT, THEN HAVE THE INDIAN ENDORSE THE CHECK AND THE AGENCY TURN OVER THE CHECK TO THE CONTRACTOR AFTER THE REPAIRS HAVE BEEN APPROVED BY OUR CONSTRUCTION DEPARTMENT.

IT IS OBSERVED, HOWEVER, THAT MARGARET GOODE IS ACTUALLY MENTALLY INCOMPETENT AND WOULD NOT HAVE SUFFICIENT MENTALITY TO UNDERSTAND WHAT SHE WAS DOING WHEN SHE ENDORSED THE CHECK AND FOR THAT REASON IT IS QUESTIONABLE WHETHER SUCH ENDORSEMENT WOULD BE A VALID ONE. IT IS ASSUMED THAT HER ACTUAL MENTAL INCOMPETENCY AND THE FACT THAT IT IS CUSTOMARY TO MAKE SPECIAL DISBURSEMENTS THROUGH THE GUARDIANSHIP WHERE QUARTERLY ALLOWANCES ARE TURNED OVER TO THE GUARDIAN ARE THE REASONS WHY YOU RECOMMENDED THAT THIS DISBURSEMENT BE MADE THROUGH THE GUARDIAN.

RALPH MALONE, VIRGIL MALONE, ROBERT MALONE, AND ANGIE MALONE ARE UNALLOTTED ORPHAN MINOR OSAGE INDIANS UNDER THE GUARDIANSHIP OF MRS. R. M. WILLIAMS.

SECTION 3 OF THE ACT OF CONGRESS OF APRIL 18, 1912 (37 STAT. 86), PROVIDES IN PART:

"THAT NO GUARDIAN SHALL BE APPOINTED FOR A MINOR WHOSE PARENTS ARE LIVING, UNLESS THE ESTATE OF SAID MINOR IS BEING WASTED OR MISUSED BY SUCH PARENTS.'

BOTH PARENTS OF THESE CHILDREN ARE DEAD. THE CHILDREN ARE ORPHANS, AND, THEREFORE, A LEGAL GUARDIANSHIP IS NECESSARY.

SECTION 1 OF THE ACT OF CONGRESS OF FEBRUARY 27, 1925, PROVIDES THAT THE SECRETARY OF THE INTERIOR---

"SHALL CAUSE TO BE PAID FOR THE MAINTENANCE AND EDUCATION, TO EITHER ONE OF THE PARENTS OR LEGAL GUARDIANS ACTUALLY HAVING PERSONALLY IN CHARGE ENROLLED OR UNENROLLED MINOR MEMBERS" , ETC.

I DO NOT FIND ANY AUTHORITY FOR DISREGARDING THE GUARDIAN IN THE CASE OF ORPHAN MINORS (AS IN THE CASE OF ADULTS OR MINORS WITH LIVING PARENTS). FOR THESE REASONS IT IS BELIEVED THAT THIS DISBURSEMENT SHOULD BE MADE THROUGH THE GUARDIAN IN ORDER FOR IT TO BE A LEGAL DISBURSEMENT.

THE SAME SECTION OF THE ACT PROVIDES:

"ALL PAYMENTS TO LEGAL GUARDIANS OF OSAGE INDIANS SHALL BE EXPENDED SUBJECT TO THE JOINT APPROVAL IN WRITING OF THE COURT AND THE SUPERINTENDENT OF THE OSAGE AGENCY.'

UNDER THIS SECTION IF THE MONEY IS TURNED OVER TO THE GUARDIAN HE WOULD NOT HAVE LEGAL AUTHORITY TO SPEND IT WITHOUT THE APPROVAL OF THE SUPERINTENDENT. THE MONEY WOULD NOT BE TURNED OVER TO THE GUARDIAN, AND THE EXPENDITURE WOULD NOT BE APPROVED BY THE SUPERINTENDENT UNDER THE ABOVE ACT UNLESS AND UNTIL THE REPAIR WORK HAD FIRST BEEN EXAMINED AND APPROVED BY OUR CONSTRUCTION DEPARTMENT. HOWEVER, IT IS BELIEVED THAT THERE IS NO AUTHORITY FOR MAKING A DISBURSEMENT OUT OF THE ACCOUNT OF THESE MINORS TO THE CONTRACTOR WITHOUT IT PASSING THROUGH THE HANDS OF THE GUARDIAN.

IN ADDITION TO THE PROVISIONS OF LAW QUOTED IN THE TWO LETTERS, SUPRA, IT IS ALSO PROVIDED IN SECTION 1 OF THE ACT OF FEBRUARY 27, 1925 (43 STAT. 1009), THAT THE EXCESS OF CERTAIN FUNDS THERETOFORE PAID THE GUARDIAN OF BOTH ADULT AND MINOR INDIANS AND THE PROPERTY ACQUIRED WITH SUCH EXCESS "SHALL BE DELIVERED TO THE SECRETARY OF THE INTERIOR BY THEM, TO BE HELD BY HIM OR DISPOSED OF BY HIM AS HE SHALL DEEM TO BE FOR THE BEST INTEREST OF THE MEMBERS TO WHOM THE SAME BELONGS.'

THIS PROVISION AS WELL AS OTHER PROVISIONS IN SAID ACT OF 1925 WOULD APPEAR TO INDICATE THAT THE LEGAL GUARDIAN OF AN INDIAN--- WHETHER THE INDIAN BE AN INCOMPETENT ADULT OR A MINOR--- IS RESPONSIBLE AND ACCOUNTABLE ONLY FOR MONEYS AND PROPERTY PAID OR TURNED OVER TO HIM TO BE USED FOR THE BENEFIT OF HIS WARD AS AUTHORIZED BY LAW AND SUBJECT TO THE GENERAL SUPERVISION OF THE SECRETARY OF THE INTERIOR. ALL OTHER FUNDS AND PROPERTY OF THE INDIAN UNDER GUARDIANSHIP REMAIN UNDER THE CONTROL OF AND MANAGEMENT BY THE SECRETARY OF THE INTERIOR FOR THE BENEFIT OF SAID INDIAN. THEREFORE, AS TO SUCH FUNDS BELONGING TO AN INDIAN UNDER GUARDIANSHIP AS HAVE NOT BEEN PAID TO THE GUARDIAN BUT ARE HELD BY THE SECRETARY OF THE INTERIOR, THERE APPEARS NO REASON WHY THEY MAY NOT BE USED FOR THE BENEFIT OF THE INDIAN WITHOUT PASSING THROUGH THE HANDS OF THE GUARDIAN. THE PRIMARY CONCERN OF THE GOVERNMENT IS TO OBTAIN A GOOD ACQUITTANCE FOR PAYMENTS MADE ON BEHALF OF AN INDIAN UNDER GUARDIANSHIP FROM FUNDS BELONGING TO SUCH INDIAN, AND SINCE UNDER THE LAW THE SECRETARY IS AUTHORIZED TO USE DIRECTLY SUCH FUNDS HELD BY HIM FOR THE BENEFIT OF SAID INDIAN THERE APPEARS NO REASON WHY IN THE CASES SUCH AS YOU PRESENT PAYMENT SHOULD NOT BE DIRECT TO THE CONTRACTORS IF YOU DETERMINE ADMINISTRATIVELY THAT SUCH PROCEDURE IS PREFERABLE TO THAT OF MAKING PAYMENT THROUGH THE GUARDIANS.