*1 liquidated Accordingly, damages $4,070.40. FLSA. total I find that the Plaintiff will not be awarded. has failed to sustain his burden prov-
ing that he worked during certain times disputed by defendants. During the pe- Deductions riod for which Plaintiff is entitled to re- wage The definition of “includes covery, he paid was by the $140 Associa- the reasonable cost ... em Therefore, tion. the Association is liable ployer furnishing employee such $3,930.40 yet minus an as undeter- board, facilities, lodging, or other if such mined amount for the reasonable cost of board, lodging, or other facilities are cus the Plaintiff’s meals. tomarily employer furnished such To the extent this Discussion states employees”. 203(m). his 29 U.S.C. § either Findings of Fact or Conclusions of Law not expressly stated in the formal Regulations promulgated pursuant point out that FLSA facilities furnished Findings of Fact and/or Conclusions of primarily for the benefit or convenience Law, the same adopted are as such Find- employer should not be included ings and Conclusions as if expressly so computing wages. 29 C.F.R. 531.- § stated under the respective headings. 531.29; 3(d)(1) (2); (1975). 531.30 § § I sleeping have found as a fact that the
facilities aboard Philadelphia the M/V
and a shore-side provided station were
primarily for the benefit of the Associa
tion required because the Plaintiff was
to be on duty days for seven at a time.
Thus, lodging is wages. not includable as However, the reasonable cost of the WEEKS, Plaintiff, Wanda June
meals furnished the Plaintiff are includ- v. wages. “[Mjeals able as always re- garded primarily for the benefit and of America et UNITED STATES employee.” convenience of the 29 C.F.R. al., Defendants. 531.32(c) (1975). But the § record con- Rattler, tains insufficient evidence of the Dorothy cost of and Ruth FRAZIER meals enable me to make a proper and on behalf of all their own behalf situated, Plaintiffs, determination. evidentiary similarly hearing An those will be necessary on this issue. HATHAWAY, Individually Stanley K. Attorney’s Fees Secretary capacity as in his Where a violation of the FLSA of Amer States Interior of ica, found, the Defendant pay must rea Defendant, attorney’s sonable fees and costs of the 216(b).
action. 29 U.S.C.
No
§
evidence
Tribe of Indians et
The Delaware
presented
al.,
at the trial concerning the
Intervenors.
reasonable value of the Plaintiff’s attor
and CIV-74-368-D.
Nos. CIV-73-586-E
ney’s
must,
services. Further evidence
Court,
District
United States
therefore, be taken on this issue also.
W. D. Oklahoma.
Christian,
Estien v.
(3d
It therefore appears that at the rate per hour, the federal $1.60 minimum
wage in effect at the time of Plaintiff’s
apprenticeship, unpaid wages Plaintiff’s *6 Stephen L. Stagner
Delmer P. Friot, City, (Halley, Spra- Oklahoma Okl. Stagner Alpern, City, Oklahoma dling, & Taliaferro, Okl., and B. “Boots” Henry Mittendorf, Jr., Casey, Lane & Wash- C., counsel, briefs), D. on the ington, plaintiff for Weeks. Ghostbear, Tulsa, Okl.,
John G. Frazier and Rattler. plaintiffs Barnes, R. Duard Asst. Sol. Interior, Affairs, U. Wash- Dept, S. Adams, C., ington, D. L. and Givens City, Atty., Asst. U. S. Okl. Oklahoma Burkett, Atty., R. (William U. S. Oklaho- Okl., briefs), for City, ma on the defend- Secretary the Interior. ant Townsend, Tulsa, Okl., Bruce Miller Watts, City, Clyde J. Okl. Oklahoma Nichols, Johnson (Watts, Looney, & Okl., City, on Hayes, Oklahoma intervenors, briefs), for defendant Business The Delaware Tribal Commit- tee, and others. Rothbaum, B. J. Tomerlin Granville High (Tomerlin, Okl.
Jr., City, Oklahoma Okl., Patton, City, Oklahoma & Dela- The Absentee brief), defendant *7 Business Com- Tribe of Oklahoma ware mittee. HOLLOWAY, Judge,
Before Circuit DAUGHERTY, Judge, District and Chief EUBANKS, Judge. District MEMORANDUM OPINION HOLLOWAY, Judge. Circuit challenge These suits the constitution- of two ality first, federal statutes. The 90-508, Pub.L. 82 25 Stat. U.S.C.A. 1181-1186, determines the §§ Indian de- participate scendants in may who the distribution of an Indian Claims Commis- award redressing wrong by sion a the treaty United States under an 1818 Delawares, the Tribe. Stat. Delaware 188.1 The Delawares and Absentee in- 92-456, statute, prin- same Fifth Amendment voking second 762, Pub.L. the Stat. 1291-1297, performs ciples. 25 U.S.C.A. §§ separate a the same function for Indian seek declaratory, injunctive Plaintiffs redressing award a Claims Commission relief against mandamus distribu- breach the United States of an 1854 tions under both statutes. treaty with the Delawares. 10 Stat. in plaintiffs’ We merit challenge find 1048.2 1291—97 as an irration U.S.C.A. §§ classification, al as insofar the statute de- Indian classes of Three plaintiff the class of excludes Kansas parties the are represented scendants from participating Delawares3 in the plaintiffs represent cases. The in these the distribution of in award Kansas the Delawares. known as group Nos. Claims Commission Dockets two represent groups The defendants the relating wrong, and en Del- Cherokee known descendants join Secretary the defendant of Interior Delawares. Absentee awares from making of funds there 1181-86, relating to In 25 U.S.C.A. §§ reject all under. We other contentions Congress devised dis- wrong, concerning the Kansas Delawares permitted tributive classifications validity of that statute. classes to share all three in descendants We plaintiff do not sustain the Invoking the Fifth the award. challenge to 25 U.S.C.A. Process Clause and Delawares’ Due Amendment 86, relating wrong, to the 1818 principles incorporated §§ and equal protection 1181— Clause, preliminary injunction re- vacate it, Compensation Just straining distribution of the challenge remaining con- the Kansas Delawares the award funds of in Indian Claims stitutionality statute’s inclusion of Docket 337 redressing Commission No. these distri- the Cherokee Delawares that wrong. provisions. bution 73- plaintiff Weeks No. Civ. 1181-86, relating In 25 U.S.C.A. §§ complaint alleging 586—E her filed Congress provided dis- wrong, jurisdiction this of this court has action that permitted tributive classifications III, 2 of the Con- “under Article Section Delawares and only the Cherokee States, under stitution of the United in the share Absentee Delawares 1331 and and 5 statute, § U.S.C. U.S.C. this respect § With award. 14). seq.” para. (Complaint 701 et challenge § the consti- Kansas Delawares This three-judge court was convened to exclusion from tutionality (1) evidentiary hear case. After an specifically provisions, the distributive injunc- hearing preliminary we entered equal Process Clause under Due it, enjoining Secretary tion incorporated by defendant principles protection Clause, distributing from of the funds held Compensation and under Just appropriated by him that were Con- (2) the inclusion of Cherokee findings The Indian Claims Commission (plaintiff been Weeks’ af- awares had achieved concerning conclusions Docket No. fidavit of service of notice of class action filed wrong Treaty reported under this at 9 1975). February *8 Ind.Cl.Comm. 346. membership report of The to the court on findings February 4, 2. The Indian Claims Commission and the Kansas Delaware filed class in presently conclusions Dockets Nos. 72 and 298 con- states that ascertained mem- cerning wrong Treaty the under this bers whose identities are known total 636. reported addition, February 26, at 21 344. Ind.Cl.Comm. the affidavit of plaintiff that, receiving upon ad- Weeks states Secretary as to reported The Kansas ditional information from the Delaware class is to be composed and addresses of identities Delawares, of additional (plaintiff over 600 members per- report approximately membership 42 additional Weeks’ February on filed notice, 4, 1975). making of February, sons mailed a total As were report- of it was who identified. ed Kansas Delawares have been that notification mail of 496 Kansas Del- redress- distribution Delawares sentee judgments in Indian the satisfy to gress (5) equitable and wrong;5 the ing No. deal- Docket Claims Commission opinion This remedies. and jurisdiction wrong, Dockets and the 1818 ing with conclu- and findings our constitute will the 298, dealing with and Nos. 72 52, F.R.Civ.P.6 to Rule pursuant sions exceptions limited (with wrong specified pending the parties), agreed to all I of this action. final determination and Rattler in No. Frazier Plaintiffs BACKGROUND THE HISTORICAL complaint in their 74r-368—D filed Civ. Be- of Oklahoma. the Northern District originally Indians were The Delaware substantially the case involves cause this seaboard, by the but eastern on the matter, subject it was and parties same century they the 19th of decade second and consoli- this district transferred to One scattered. geographically were pursuant with No. Civ. 73—586—E dated ancestry, Delaware Indians of of group panel 42(a) same Rule F.R.Civ.P. to Indians, associ- had become Munsee the it. to hear was constituted Indians, later the Moravian ated Indians, or Chris- Christian as the to known a motion dis- court sustained This Munsees, had settled in Canada. and ground on tian States the miss of the United the living with were Munsees against as the Govern- Other the action group York. This in New Stockbridge suit. Other ment an unconsented Stockbridge Mun- as known summary became to and motions dismiss of the Dela- nucleus By see. and certified judgment were denied we residing principally in remaining Nation was de- ware against as action Report Ohio. See Senate action Indiana proceed to as class fendants 16402,S.Rep.No.1518, Delawares, H.R. accompanying class, plaintiff the Kansas an contains classes, 2d alia, Cong., Sess. defendant 90th against, inter Tribe of the Delaware outline (the historical of Indians Cherokee Delaware Tribe here involved groups the various Delawares) the Absentee Secretary and Cherokee (the (Defendants Absen- Tribe Oklahoma of Western cited as 4, hereinafter Ex. < Delawares’ tee Delawares).4 No question is raised Report). Senate the propriety of the class action procedure. earlier, years Several a tract granted had Spanish Government will discuss the issues under the We to certain bands Missouri (1) land in following the historical propositions: who and Ohio in Indiana Delawares background; (2) jurisdiction justicia- Mississippi. beyond the move bility; (3) validity statutory wished to exclu- moved Arkansas, the Delawares number of sion of the Kansas Delawares from dis- A later, on redressing grant, and tribution award this Texas, body but the main wrong; (4) validity of inclusions of Oklahoma until the behind remained the Cherokee Delawares the Tribe 1818,7 made in Mary’s was redressing Treaty the 1818 and 1854 both St. n wrongs, 4 and Nos. the inclusion of Ab- of fact (Findings Stat. representation noted, Class action plaintiff in this suit 5. As Kansas Delawares do proper 23(b)(1)(B) under Rule challenge and Rule inclusion of Absentee 23(b)(2), F.R.Civ.P., adjudication since with re- in distribution award re- spect to the dressing individual members classes wrong. the 1818 practical dispositive would as a matter parties the interests of the other members not objections many 6. There numerous adjudications impair substantially or exhibits offered in evidence at trial. We are impede ability protect interests, their citing reaching those exhibits relied our Secretary since defendant and the sev- findings deny objections and conclusions and generally grounds eral classes have acted on proof. unnecessary to the cited Otherwise it is *9 applicable classes, making thereby ap- to said express evidentiary rulings. propriate injunctive correspond- final relief or ing declaratory respect relief with to the classes as whole. 337, 1,n. supra Docket No. from the Choctaw Ind.Cl.Comm. Nation in the Anadar- P). 10, and Ex. Tabs A ko area of stay PI. Oklahoma to on its land tenants at (Finding as of fact will No. Delawares the Treaty, this Under 48, 337). Docket No. of this group Some their all lands to the United States ceded subsequently moved to the Kansas Res- the and in return United Indiana,7 in ervation, the majority but remained be- west land of give them agreed States Delawares, hind in Oklahoma. These to- 1, 2). appears It (Arts. Mississippi the gether with others from Kansas and only and some Munsees no Christian them, joined elsewhere that later main- in were resi- Stockbridge Munsees of the group tained identity, having chiefs and the Dela- body of the main with dence up tribal council to the present time. Indiana lands the time the Tribe at ware The descendants group, of this who (Senate Treaty by the 1818 ceded residing now among the Wichita and 8-9). supra, at Report, Anadarko, Oklahoma, Caddo Indians at to the Missouri moved The Delawares compromise class, the defendant the Ab- until they remained where tract sentee Delaware Western Tribe of Okla- Dela- year, the of that September homa, or Delawares (Finding Absentee treaty with entered into another wares 51, 337). of fact No. Docket No. States, designated was the United to the article” “supplemental aas 6,May 1854, body On the main the 327. Under terms Treaty. Stat. Delaware Tribe residing on the Kansas treaty the Dela- supplemental' this lands entered treaty with into a up temporary residence gave their wares Stat. Under this thereof, in lieu accepted in Missouri treaty, which was signed by any rep- residence, a reserva- permanent resentatives of (De- the Absentee Tribe part reserve was in Kansas. This tion 37, fendants’ Adm. 154), No. PI. Ex. cession of the Delaware payment Delawares ceded their Kansas, lands in lands, satisfy purported Indiana with certain exceptions, to the United un- obligation of the United States States. These comprised lands the so- the Dela- provide Treaty der the 1818 “outlet,” hunting called extending west- west permanent Nation a home ware mid-Kansas, ward into “resi- Nos. 5 of fact (Findings Mississippi lands” (Finding fact No. Ind. dence the trade 337). But No. Docket Cl.Comm.Dockets Nos. 72 and supra in disparity The unequal. grossly n. PI. Ex. Q). Tab theOf resi- ceded lands Indiana between value lands, part dence was reserved to the lands re- Kansas Treaty and the permanent (Art. 1), tribe as a home Treaty later be- under the 1829 ceived four sections conveyed were to be ren- judgment the basis for the came Christian Indians who had since migrat- Commission Indian Claims dered ed to Kansas living 13; and were with the distrib- No. 337. The statute in Docket Delawares in (Art. Senate Re- award, 1181— uting §§ this U.S.C.A. port, supra, 10). at remaining por- statutes of the two distribution is one tion lands, of the residence the Delaware suit. being challenged in this lands”, “trust was ceded to the United many Treaty After auction, States to sold public Tribe preceded that had proceeds going gen- the Delaware Arkansas, into Missouri, and then into (Arts. 2, 7; eral fund Finding of to on Texas, moved Oklahoma fact No. 298). Nos. 72 Dockets por- A Kansas. to them assigned land Delaware members tion sections however, However, remained Tribe, in 1856 and 1857 the group One and Texas. Government improperly sold the Oklahoma Dela- Texas to from Delawares, way its ware trust lands. It did not sell permission public obtained lands at required auction as remaining lands Ohio were 7. The concerning No claim those lands is in- ties. by separate trea- to the United States ceded volved here. *10 woman and child who should remove Treaty, as a 2 of the Article However, (Art. IV). all adult far less thereto received the Delawares result to be the given opportu- the Delawares were from realized have they should than treaty under nity of fact the to elect whether to (Findings their lands. sale of 298). or, instead, 72 and remove to rela- Nos. dissolve their 8, Dockets 4 and Nos. tions with the Tribe be- plaintiff the Delaware of time ancestors At this (Art. come of the United the defendant citizens States and of Delawares Kansas III). on residing Each adult who were Delaware thus Delawares Cherokee wrong- to The elected become a United States citizen in Kansas. lands Delaware trust to title simple Delaware was receive fee disposition of the ful the him under the basis for 80-acre tract allotted the 1860 in Kansas became lands of the Treaty, just proportion his by the Indian Claims Tribe’s judgment rendered (which in credits then held trust included Nos. in Dockets Commission of proceeds the of the sale trust stat- the other distribution the underlies lands), and his proportion pro- also the herein, 25 U.S.C.A. challenged ute of the ceeds the sale diminished re- 1291-97. §§ persons serve. Thereafter these were to 1854, the Treaty of Pursuant property no in Delaware share further portion of removed (Art. IX).8 annuities treaty had which lands the residence provided that a Treaty The also home permanent as a for them reserved registry would be made of names of reserve”). Then, aby (the “diminished thus all the Delawares who elected to 1129, the United in 12 Stat. treaty their relations and remain dissolve the diminished agreed survey States IX). (Art The in names of Delaware each to allot to reserve and and 49 minors appear reg- adults such in that reserve tract an 80-acre Indian 44). istry (PI. They are ances- Ex. addition, treaty provided I)'. (Art. In the plaintiff tors of class Kansas Dela- to be set aside tracts were that 80-acre wares.9 Delawares, certain Absentee for each of number, in who to be 200 approximated United States treaty July, expected to Kansas and to move made a Nation the Cherokee body reassemble with main civi for the relocation of provided (Art. IV). in tribe the near future Cherokee unoccupied Indians on lized entered an- into Country In 1866the Delawares Oklaho Indian lands States, 14 By United an treaty XV, other 799. Art. Stat. ma. which was to purpose of the Dela Stat. 1867 between agreement to Indian removal provide (PI. Ex. Tab and the Cherokees wares The diminished Country in Oklahoma. Tribe of the Delaware I), each individual by the to be sold register10 reserve was upon a certain enrolled who to be used proceeds with the acres a life estate acquired purchase (see of 160 acres of land in the land from the Cherokees man, Nation, Country for each Delaware 193 U.S. Indians Cherokee Rattler, plaintiffs thy Ruth Treaty 8. Article Frazier and reproduced IX of the 1866 descendancy 74-368-D, alleged lineal Appendix in Part C No. Civ. opinion. to this through Lewis named a Kansas Delaware (Plaintiffs Frazier and Rattler’s Com Ketchum Weeks, plaintiff 9. Wanda June in No. Civ. Ex, 5; para. 44), plaint, established Pi. representative 73-586-E and plaintiff partial shared in the action, class in this consolidated established (Pl. Ex. 136c and in Docket the award No. that she is a lineal descendant of one of the d). original Kansas Delaware Indians. One of the appearing names appear Register” on the “Article IX on this The names of 985 Delawares (PI. is Annie 44). Secretary (Defendants Grinter register Ex. Annie Cherokee Grinter great-grandmother They 23, pp. often Wanda June Ex. Delawares’ (Transcript Weeks Preliminary “registered Injunction Delawares.” as referred Hearing, 20, 15; Register.” 136a). PI. Ex. “1867 register PI. Ex. Doro- is referred *11 family.” the Art. 646), paid 48 L.Ed. for the head of vided S.Ct. funds,11 IX, by right for tribal and the at 796. Stat. become the Cherokee Na- members of 22, 1874, June ch. By approved an Act The tion. Delaware Indians who re- Congress appropri- 18 Stat. moved the territory Cherokee became minor children pay ated funds to all the members and citizens of the Cherokee pro- Delawares their of the adult Kansas Natioil, they but their descendants money share of the and stocks portionate group identity maintained (Findings of the United by held in trust States fact Nos. 49 and 337).12 Docket No. Tribe, Delaware and directed the the The group, descendants of this who to- to issue a fee- Secretary of the Interior day Oklahoma, reside in northeastern title to the lands allotted them simple comprise the defendant class Delaware Treaty. By this same under the 1866 Indians, Tribe of or the Cherokee Dela- all such mi- Act also declared
wares. the United nors to be citizens of adult Kan- the children of of an eliminating requirement minor the The thus immediately be- did Delawares election.13 sas at the time citizens United States come the 1866 under election parents’ their 1181-86 No. 337 —25 U.S.C.A. §§ Docket IX of the 1866 Rather, Article Treaty. in the was filed In 1951 suit they were to be provided Treaty members of by Commission two from the Claims severed temporarily considered Tribe of Oklaho- age the the Absentee Delaware attained they tribe until of all the descendants they too could ma on behalf time at which twenty-one, t,o as constituted in the Delaware Nation become citi- either an election make by wrong committed to 1818 to redress the or remove the United States zens of Treaty. under the 1818 in Oklahoma. United States- Delawares the Cherokee that the value of proportion of found just The Commission their that time Until giv- reservation was to be the lands the Kansas tribal annuities the Delaware sup- in the 1829 children’s en the United for the States
paid parents together with other plemental treaty, If thus admitted support and education. gratuitous expendi- majority, reaching payments cash upon citizenship offsets, proper to be to “all tures determined entitled were to be such minors for the was insufficient consideration pro- herein interests privileges noted, Treaty, 14 Stat. 11. As the 1866 And, previously discussed, as each Kansas provided that the United States would use proportionate Delaware was to receive his proceeds from the sale of the diminished re- (Art. IX). share of this fund purchase (Art. serve to lands Cherokee Dockets only Nos. 72 and 298 concerned IV). Actually, only the lands not allotted to improper disposition of the trust lands under the Kansas Delawares were to be sold. Treaty, the 1854 and did not concern this sale provided diminished reserve The diminished reserve consisted of land Treaty. Findings See severalty fact Nos. 2 which was held in in 80-acre allot- ments and land held in common the tribe. Treaty provided The 1866 that each Delaware deny 12. The Kansas Delawares that such tribal removing country to the Indian would receive identity has been maintained the Cherokee (in addition to the life estate in 160 acres of identity and claim instead that the land) Cherokee the “value” of his 80-acre al- of the Cherokee Delawares was lost as a reserve, plus lotment in the diminished group when became absorbed into the any improvements “value” of he had made Cherokee agree, Nation. We are unable to (Art. VI). Apparently pur- thereon Ill and and find that the Cherokee Delawares have chase of the Cherokee lands was to be made group identity, having maintained and tribal chiefs proceeds from the in common of the sale of the lands held continuously business committees until (Art. VI). IV and The residue of present time. proceeds sale of the diminished re- general pertinent provision serve to be added to the 13. The Delaware of the 1874 statute reproduced (Art. VI), already is opinion. Appendix fund in Part C of the contained to this proceeds of the sale of the trust lands. shows that claimant such provided that Indiana lands of its cession of Delawares a lineal descendant he is awarded petitioners the Delaware Na- members who were the Delaware “on behalf of $1,627,244.64 the time of constituted tion as constituted at Indians Nation “catchall” Treaty (hereafter 3, 1818.” October Treaty of time *12 clause).14 337). No. Docket Judgment, (Final permit effect was to The statute’s 1181-86 By §§ 25 U.S.C.A. Delawares, Absentee Dela- Cherokee plan payment for a distribution adopted wares, Delawares and the Kansas in Indian entered judgment this Docket, in the distribution share No. 337. Docket Commission Claims judgment No. 337 award. Some provides that Act 1181 of Section to mem- actually distributed funds were in eligible participate are persons prior to the issuance of those classes alia, bers if, inter of the award distribution injunction.15 Some preliminary of our lineal ances- name of name or the their applied pay- Indians 1500 Munsee per Delaware (1) appears on tor in Docket No. the award ments under the Chero- covers (which capita payroll participation by the denied eligible to but were is on or Delawares); (2) kee the area Affairs Bureau of Indian base census 1940 constructed on the on H.R. 5200 Before the Tribe; Hearings or level. Delaware the Absentee roll of on Indian Affairs roll census Subcomm. any available (3) on appears Comm, Interior and Insular on Secretary, House to the acceptable or records pertinent provides against April in § 14. 25 U.S.C.A. wares 21, the United States. Act of part: 33 Stat. of the suits One hunting in Kansas concerned “outlet” Secretary prepare shall The of the Interior by was ceded the Delawares to the United persons following all who meet the a roll of Treaty. under the 1854 United States See eligibility: (a) They requirements were Indians, States v. Delaware Tribe of 427 F.2d prior living September on or on bom 1218, 1229, (1970). number Ct.Cl. 385 A 21, 1968; (b) their name or the name of they of the Kansas Delawares contended that appears on the Delaware In- lineal ancestor settlement, to share in this but were entitled were denied to some of those payroll by per capita approved the Sec- dian grounds participation on similar (c) retary April on or their name or case, argued present name of a lineal ancestor is on or alia, including, inter the fact that the 1904 Act eligible to be on the constructed base census funds) (appropriating pay- directed that as of 1940 of the Absentee Delaware roll only to be made to the “Delaware ment was Oklahoma, by approved of Western Tribe the residing Tribe of Indians Na- Cherokee Interior, Secretary (d) they of the (33 222). tion” retary Stat. See Defendants Sec- lineal descendants of Indians who Ex. Ltr. of and Cherokee Delawares’ members of the Delaware Nation of were Indians 1/25/1905, 2; 3/22/1905, p. p. Ltr. of 2. As a as constituted at the time of the result, (also per capita payroll re- the 1906 Treaty (7 188), of October Stat. 1292(c)(1)) to in 25 limited § ferred the distribution of the settlement to U.S.C.A. name or a lineal ancestor the name of only those any appears on available census roll or origi- who were Delawares descendants Secretary. acceptable other records No registered Delawares nal 985 enrolled on the person eligible shall be to be enrolled e., (i. Delawares). Register the Cherokee citizen under this section who is not a Id., 8/14/1905, 1; 1/12/1906, p. Ltr. of Ltr. of States. p. 2. 15; para. Complaint, Plaintiff Weeks’ 15. See The Absentee Delawares made their claims Answer, Defendant Cherokee Delawares’ 1181(c). of the the under Absentee Delaware Tribe A 1956 Resolution § Defense, 15; para. Twelfth Defendants Secre- provides that Answer, tary para. and Absentee Delawares’ January used as 1940 census roll shall be 15; Preliminary Injunction Transcript Hear- membership. determining the base for ing, PI. Ex. 15. The “constructed base census roll” was persons taking formed to be of Delaware blood the names of ters, the names shown The claims the Cherokee Delawares were adding through per capita payroll thereto the 1906 re- made persons, 1181(b). payroll such as brothers or sis- This was com- § ferred to $150,000 eligible purpose distributing to be the 1940 cen- piled appropriated who for the (Defendants by Congress but were not listed Secre- sus roll as settlement for 4, p. 12). tary Ex. and Cherokee Delawares’ Dela- lawsuits filed the Cherokee twelve Although originally general filed as a Affairs, Cong., 2d 95-96 92d Sess. 6). issue in the (Pl. accounting, the case was 13, 1972) Ex. (March narrowed to an subsequently accounting Kansas Delawares do not plaintiff the 1854 part Treaty for that concern- right to share in the Absentees’ contest ing what was known as the Delaware relating to the 1818 Docket No. It trust lands. was conceded challenge wrong they but do the inclu- Government, found, and the Commission Delawares in the sion of Cherokee that in 1856 and 1857 the United States award, as well as distribution of this carry treaty provision out did relating wrong, to the 1854 on two the trust calling for the sale of lands at grounds. Essentially Amendment Fifth public principal auction. The issue tried argue that the inclusion of the was how much additional monies the Cherokee brought lands would have if the trust (1) in Docket No. 337 invid- of the award *13 breached, been treaty had not and the against per- discriminates those iously sold at properly lands had been auction. to share in who are entitled sons determined that amount The Commission e., (i. the Kansas award Delawares and $1,385,617.81. It further to be found Delawares), (2) and de- the Absentee that the were entitled to plaintiffs recov- of their prives persons property such (5) percent damages per er of five an- just compensation. without on the simple principal num interest sum 30, 1857 April pay- from to the date of Dockets Nos. 72 and 298 —25 31, 1969, August princi- ment. As of 1291-97 U.S.C.A. §§ pal $9,168,- sum interest plus totaled The Absentee Delawares in Docket 171.13.17 No. and the Cherokee Delawares in 298, brought separate Docket No. identi- By 25 U.S.C.A. 1291—97 Congress §§
cal
suits
the Indian Claims Commis- adopted a plan for distribution of the
general
sion for a
accounting upon all award
by
entered
the Indian Claims
Delaware treaties with the United Commission in Dockets
Nos.
and 298.
In previous proceedings
States.
the Section 1292 of the
provides
Act
only
decided,
Commission
and
had
the Court
two methods by which persons may show
agreed,
groups
of Claims had
both
they are eligible to share in the distribu-
jointly
represent
were entitled
the en-
(1)
tion:
per
the 1906
capita-payroll
Hence,
tire Delaware Tribe.16
the two embracing the
Delawares;
Cherokee
and
cases
the Commission were con-
before
(2) by the 1940 census roll of the Absen-
solidated.
tee Delawares.18
rolls,
These two
identi-
not,
The
course,
Kansas Delawares could
damages
amount of
by simple
measured
in-
base their
per capita
claims under
the 1906
terest at the
per
rate of
annum on the
5%
payroll. Their ancestors did
principal
not remove to the
$1,385,617.81
sum of
August
from
sign
Cherokee lands and
Reg-
did not
the 1867
1969 to the
payment
date of
prin-
ister of Cherokee Delawares. Nor
cipal
could the
(Final Award,
sum.
Dockets Nos. 72
Kansas Delawares claim under the
298.)
Absentees’
1940 census roll. Their claims in Docket No.
provides:
18. 25 U.S.C.A.
§
upon
were and are based
the “catchall”
Secretary
prepare
The
of the Interior shall
1181(d), since, by
clause in
fact,
§
historical
persons
a roll
following
of all
they
who meet the
are lineal descendants
of the Delaware
requirements:
Nation as constituted in 1818.
(a) they
prior
were born on or
to and were
16. See Delaware Tribe of Indians v. United
living
3, 1972;
on October
F.Supp. 391, 399,
Ct.Cl.
(b) they
States;
are citizens of the United
(1955).
September 10, 1969,
17. On
the Indian Claims
(c)(1) their name or the name of a lineal
Commission ordered that
appears
per
ancestor
on the Delaware Indian
plaintiffs
capita payroll approved by
Secretary
shall have and recover of and
judgment
April
(2)
from the defendant as a final
their name or the name
$9,168,171.13 plus
eligible
sum of
an
of a
additional
lineal ancestor
is on or is
to princi-
protection
equal
1181(b)
§
in 25 U.S.C.A.
Amendment
cal to those
Amendment.
It
under
applied
and Absen-
ples
only the Cherokee
(c), allow
which we are
claim
in the dis-
this constitutional
participate
Delawares
tee
uphold.
in Dockets Nos. persuaded
award
tribution of the
1292 contains no
72 and
Section
Delawares
also
Kansas
plaintiff
The
to 25
similar
U.S.
provision
“catchall”
from distribu-
exclusion
challenge their
would enable the
1181(d) that
C.A. §
Fifth
on another
under
§
tion
share in the
fund
Delawares
Kansas
the exclusion
ground
Amendment
—that
lineage from Delaware
showing their
their vested
taking
to a
amounts
members
who were
ancestors
compensation.
just
without
rights
wrong
under the
at the time of
tribe
challenge the in
Finally,
Treaty.19
Delawares and
the Absentee
clusion
Delawares,
to us
in the distribu
reported
the Cherokee
supra,
being
award,
again
argued
note
it
over
tion of
numbering
1292 as
against
from §
such inclusion discriminates
their exclusion
challenge
violation of
deprives
them
classification
Kansas Delawares
invidious
an
the Fifth
compensation.20
just
property
Clause
without
Process
Due
census roll as of
on the constructed base
tions authorized
U.S.C.A.
[25
§§ 1181-86
Delaware Tribe of
1291-97).
Absentee
.
.
.
n
Oklahoma,
*14
approved
They
Western
tary.
the Secre-
argue
plaintiffs’
also
that
various instru-
ments filed in this case have not asserted a
against
portion
claim
the
set aside for the
10%
Despite
statute,
the
terms of the
restrictive
body.
Absentee
plaintiff
participation
applied
Weeks
in the
denying
partial
We are
the motion for
final
(PI.
award in
Dockets
and 298
judgment.
Nos.
Ex.
Regardless of whether such waiver
136a).
application
rejected by
occurred,
Her
the
pleadings
plaintiffs
based on the
it
Affairs,
appeal
Bureau of Indian
and her
there-
is clear the
challenged
Kansas Delawares have
by
Department
from was denied
Interior
the
of the
constitutionality
the
statute and have
(PI.
4).
Ex.
enjoin
asked that' we
distribution under it.
See Plaintiffs’ Brief on Motion for Partial Final
divides the
1294 of the Act
Dockets
20. Section
Judgment for Absentee Delaware Tribe of
Nos. 72 and 298
and Cherokee
between the Absentee
funds
Oklahoma,
(filed 7/9/75);
Western
at 5
Plain-
capita
per
basis.
on a
Delawares
Proposed Findings
tiffs’
of Fact and Conclu-
apportioned
Ninety (90) percent
the funds
Law,
sions of
at
71 and 73. For reasons
paid
groups
to each of the
to be
out
two
opinion,
stated in Part V of this
we must hold
per capita
individuals on a
basis. The other
severable,
that 25 U.S.C.A.
1291-97 is not
§§
governing
remains
to the credit
10%
and that the
exclusion
unconstitutional
there-
respective
each
bodies of
of the
tribes to be
by of the Kansas
renders the
Delawares
stat-
expended
approved
Secretary.
for uses
ute invalid as a whole.
respect
objections
Delawares,
With
to the Cherokee
In addition to their other
the
to the
to all of
position
plaintiffs
claims,
plaintiff
is not clear as
Kansas Delawares’
the Ab-
provision
1294(b).
partial
in §
sentee
moved for
See Brief
Delawares have
final
10%
Support
judgment
Summary
Plaintiff in
of Motion for
under Rule 54 F.R.Civ.P. as to the
Judgment,
less,
(filed 4/16/74).
portion
at 11-12
of the
award to
of the
remain
Neverthe-
10%
stated,
plaintiffs
do
the credit of
attack the
the Absentee Delaware Tribe of
con-
stitutionality
statute,
1294(a).
pursuant
the distribution
Western Oklahoma
to §
exclusion,
position
plaintiff
least because of their
Their
ask
is that the
Kansas Dela-
enjoined.
under the
beAct
wares have waived
claim as to said 10%
1294(b)
proviso
portion
remaining
§
there
of the
credit of the
is a
that the
of the
to the
Sec-
award
retary
approve
Tribe,
shall not
point-
use of the
funds
Absentee Delaware
given
ing
by plaintiffs,
to the Cherokee Delaware
to a
Tribe until
letter introduced
the
the
from
organized
entity
legal
Affairs,
tribe has
which in
the Assistant
Department
Solicitor
judgment
Secretary .adequately
Interior,
protects
plaintiffs’
of the
coun-
(PI.
137).
the interest
informed
approv-
of its
sel
al of
Ex.
members. We have
The letter states that
been
attorneys
required
recent certificate
that the
fee
is not
Secre-
contracts
tary
finding
has
specific understanding
you
respect
made such
with
to the
do not
your
any part
judg-
Tribal Business
seek for
Committee. We are
approve
clients
of the
asked
ment
which are
Cherokee Delawares to
funds in
72 and 298
Dockets
finding,
the
issues or
are
but that function'is not within
reserved for tribal
our
use
...
appropriate
disposition
only
seq.,
in our
U.S.C.
1291 et
but rather
we
§
seek
denying
participation
per capita
this
motion for
relief.
distribu-
in the
protection, depriving
For
plaintiffs
reasons discussed
Part IV we
of due
process
agree
objections
do not
with these latter
in violation of the Fifth Amend-
(Plaintiff
of the Kansas Delawares
ment
Complaint,
to the
Weeks’
paras.
inclusion
23;
Cherokee Delawares
Plaintiffs
and the Ab-
Frazier and Ratt-
Complaint, paras.
25).
sentee
in the
ler’s
distribution of
These
complaints
averments
awards.
a-
as whole
present causes of
clearly arising
action
We turn from this
background’
factual
under the Federal Constitution and with-
legal
issues that are raised.
jurisdictional
in the
grant in 28 U.S.C.A.
Carr,
See Baker v.
§
369 U.S.
II
198-99,
82 S.Ct.
involves
substantial
are
Nations
true
It is
than
action.21
gressional rather
congressional
without
exempt from suit
v. U. Fi
States
S.
authorization. United
Kan
that the
persuaded
areWe
Co.,
309 U.S.
Guaranty
delity &
consti
substantial
present
sas
894;
v.
Turner
L.Ed.
60 S.Ct.
the Due Process
under
deserving
claims
tutional
States,
S.Ct.
248 U.S.
United
consideration
Clause—claims
may a
tribe be
291. Nor
63 L.Ed.
we
also
are
since
And
their merits.
suing tribal officers or
indirectly by
justiciable,
sued
the claims
convinced
guardian
trustee
as
the United States
the case
below,
feel
we
explained
the tribe. Barnes
1331. of
28 U.S.C.A. §
here under
properly
*16
(D.Mont.).
198,
97,
F.Supp.
100
at
82 205
U.S.
Carr, 369
v.
Baker
See
controversy
might
Paper Co.,
291,
here
de-
national
Although
be
505,
21.
414 U.S.
94 S.Ct.
membership”
impose prohibitions
38 L.Ed.2d
to “tribal
511
nominated one as
against
term,
aggregation
does
that alone
the broad sense of
of claims in class actions. Those
dispute.
decisions,, however,
The
render
it an “intra-tribal”
not
concern
23(b)(3)
Rule
recognized
opinion
present
class
itself
that
actions
Martinez
and
no obstacle to the
membership
disposition
aggregation
question of tribal
of claims when a common and
could,
legisla-
undivided
present.
a result
federal
Gallagher
funds
as
interest
is
v.
tion,
Co.,
federal
than
Continental
matter of
rather
827,
become a
Insurance
502 F.2d
831
918,
(10th Cir.);
supervision.
ment
Argument
Non-Justiciability
715:
82 S.Ct. at
Plenary
Power of
Over
Equal
Judicial standards under
the Status
Indian Tribes
developed
Protection
are well
Clause
familiar,
open
it has been
only non-justi-
Defendants
argue
since
courts
the enactment
impli-
are presented
ciable issues
due to
determine,
Fourteenth Amendment to
plenary power Congress
cation of the
particular
must,
if on the
facts
membership.
to define Indian tribal
a discrimination
policy,
reflects no
doubt, plenary
Without
authori
simply
ac-
arbitrary
capricious
but
ty
by Congress
has been exercised
from
tion.
beginning
over tribal relations of the
Moreover,
sought
the relief
Indians and the
has been
power
deemed
against
injunction
not unfamiliar. An
one,
subject
political
to control by
action-
threatened unconstitutional
governmental
judicial department. Lone Wolf
prop
officer is within
Hitchcock,
S.Ct.
U.S.
court,
equitable
see
er
remedies
299;
216, 47 L.Ed.
see also National In
Rose,
Lane v. Pueblo
110,
U.S.
Santa
Bruce,
dian Youth Council v.
485 F.2d
113-14,
L.Ed.
39 S.Ct.
Cir.). However,
(10th
arewe
cau
*17
separate remedy
of a declarato
ioned that
confusion results
“[m]uch
t
ry judgment is also familiar. Powell v.
ques
from the capacity
‘political
of the
McCormack,
486, 517-18,
395
89
U.S.
tion’ label' to obscure the need for case-
1944,
1327
relationship
whether there
element of such a
We must consider
touched
ations.
Carr,
on.
1294.23 Baker
judicial
because of
v.
369
disposition
§
is a bar to
U.S.
186, 215,
663;
691,
of the issue
82
7 L.Ed.2d
constitutional commitment
S.Ct.
see
a
Hitchcock,
also Lone Wolf v.
187
.political department,
lack
to a coordinate
U.S.
216,
23
47
S.Ct.
managea-
discoverable and
L.Ed. 299.
judicially
However, the
resolving
question,
challenge
to the classifica-
standards for
ble
tions made here
refer
of decision without an
does not
to the
impossibility
or an
relation,
guardianship
a
determination of
kind
nor to the discre-
policy
initial
discretion,
tionary
inter
exercise of
non-judicial
guardianship
for
clearly
Carr,
186,
Congress.
369
function
alia.
Baker v.
U.S.
See
663;
217,
691,
see also
82
7 L.Ed.2d
S.Ct.
on the availa
earlier
have touched
We
McCormack,
486, 518-
Powell v.
395 U.S.
deciding
for
familiar standards
bility of
19,
1944,
89
23 L.Ed.2d
S.Ct.
here.
presented
claims
the constitutional
course,
explicit
there is
constitu
Of
invoke
the claims
persuaded
areWe
ac
congressional
tional authorization for
equal protection
process
due
familiar
affairs in the
dealing
tion in
with Indian
instances
several
principles.
regulate
“To
com
provision
for
due
the merits of
courts have reached
merce
.
Indian
.
. with
g.,
E.
claims
a
sort.
process
similar
relating
Tribes.” And
the functions
Jim,
80,
409
93
States v.
U.S.
treaties conferred on the President and
282;
261,
Indian
34 L.Ed.2d
Ute
S.Ct.
2,
II,
2,
Art.
Cl.
have
Senate
§
491,
(10th
Probst,
498
Tribe v.
428 F.2d
power
often
to deal
been the source of
926, 91
Cir.),
denied,
S.Ct.
cert.
400 U.S.
with the
Morton v.
Indian Tribes. See
186;
189, 27
Simmons
Seelat
L.Ed.2d
Mancari,
535, 551-52,
417
94
U.S.
S.Ct.
808,
(E.D.Wash.
see,
F.Supp.
2474,
290;
41 L.Ed.2d
McClanahan v. Ar
mem.,
court),
(three
aff’d
1965)
judge
Commission,
izona
Tax
State
U.S.
1459,
16 L.Ed.2d
U.S.
S.Ct.
n.
L.Ed.2d
S.Ct.
480;
Steele,
McCurdy v.
see also
129;
Hitchcock,
see
Wolf v.
also Lone
(D.Utah 1973), rev’d
F.Supp.
637-38
565-66,
23 S.Ct.
U.S.
(10th
§
obligation.
government’s
statute of the
utory exclusion and
in light
inclusions
of
that the clear
constitutional
stated
established
limitations.
In Jordan
Court
that
power
over
the statute.
import
Indian
“[T]he
nature;
collected con-
plenary
had been
may
specified
affairs
be of
but
amount
involved,
regulations
it is not
the tax
trary
absolute.” United States v.
Til-
determina-
lamooks,
40, 54,
congressional
167,
329
67
that
this
U.S.
S.Ct.
of the
29;
174,
tion,
recommendation
91 L.Ed.
see also
made on
United States
Treasury, could not be
Indians,
119, 123,
Secretary
v. Klamath
304
U.S.
58
113
1219;
subsequent suit.
799,
in the
challenged
S.Ct.
82 L.Ed.
Chippewa Indi-
reason-
423,
Similar
States,
5
ans Minnesota v.
U.S. at
S.Ct.
United
301
case.
358, 375-76,
in the Price
826,
ing
U.S.
was relied on
57
81
S.Ct.
L.Ed.
1156;
Nation,
United States v. Creek
295
103, 109-10,
681,
U.S.
55 S.Ct.
79 L.Ed.
We have also noted Buchanan v.
1331; Stephens
Nation,
v. Cherokee
174
Patterson,
353,
764,
190 U.S.
23 S.Ct.
47
445, 578,
1041;
722,
U.S.
19
43 L.Ed.
S.Ct.
1093;
L.Ed.
Louisville,
United
v.
States
Cohen,
F.
Handbook of Federal
249,
358,
169 U.S.
735,
S.Ct.
42 L.Ed.
1942).
Law 91 (orig. ed.
v. United
Kruszewski
(7th Cir.),
denied,
F.2d 884
cert.
333 U.S.
880,
909,
1155,
68 S.Ct.
92 L.Ed.
Objection
to Justiciability on the
recognize
principles
of Price and Jor
Theory
Nonreviewability
cases,
dan.
however,
none of the
Appropriation Statutes
support
there
for the inference that a
statute, because it involves an appropria
Delawares advance a fi-
The Absentee
function,
tion
is unreviewable if a sub
nonjusticiable ques-
nal
argument
stantial constitutional claim is made that
appropriation
because
tions are involved
an invidious or irrational classification or
relying on Unit-
challenged,
statutes are
And,
exclusion is
made
statute.
43,
Price,
6 S.Ct.
ed
v.
116 U.S.
States
course,
the fact
the spending
v.
235,
and United States
1329.
Co., 406 U.S.
Surety
Casualty &
Aetna
III
1400,
L.Ed.2d
31
172-73,
164,
92 S.Ct.
THE EX-
OF
CONSTITUTIONALITY
78;
Belcher, 404 U.S.
768;
v.
Richardson
DEL-
THE KANSAS
CLUSION OF
231; Mc-
254, L.Ed.2d
81-84,
30
92 S.Ct.
BY 25 U.S.C.A.
AWARES
Election, 394 U.S.
v. Board
Donald
1292and 1294.
§§
1404,
739.
22 L.Ed.2d
809,
802,
89 S.Ct.
claim
Delawares
plaintiff
Kansas
partici-
barring
the exclusion
that
mind
question
the
approach
We
72
Nos.
in Dockets
pation in the award
of constitutional
presumption
ful
wrong, is
the 1854
298, redressing
Flemming v.
carries.
the statute
that
ty
Due
the
under
invidious
irrational and
1367,
603, 617,
4
80 S.Ct.
Nestor, 363 U.S.
protection
Clause,
equal
Process
noted,
award in
As
1435.
L.Ed.2d
therein;
also
incorporated
principles
to redress
and 298 seeks
Nos. 72
Dockets
indi-
their vested
the statute takes
that
from
tribe
the Delaware
wrong
a
just compensation.
rights
vidual
without
in 1856
lands
sales of tribal
improper
claim,
first
plaintiffs’
We find merit
Kansas
the excluded
1857. Since
with their unlaw-
agreeing
however
descendancy from
trace their
Delawares
theory.24
taking
ful
time, a sub
of that
injured tribe as
rationality
as to
question
stantial
assessing the claim of the
turn, there
raised. We
the exclusion is
fore,
that
the exclusion
Kansas Delawares
justifications
to the various
and invidious
amounts to an irrational
classification,
suggested
been
that have
classifications
equal protection
we follow
McDonald
be conceived.
may
Fourteenth
principles applied under the
809,
802,
Election,
89
394 U.S.
Board of
Weinberger v. Wies
Amendment. See
739.
1404, 22 L.Ed.2d
S.Ct.
636,
2,
enfeld,
n.
95
420
638
S.Ct.
U.S.
1225,
514, Johnson v. Robin
43 L.Ed.2d
there
argue
4,
The defendants
son,
361,
364-65 & n.
U.S.
S.Ct.
serve
justifications
several
1160,
suspect
made
in connection
de-
lay
among
things,
other
question
controversy,
While
no
and
we have
of
Munsees,33
directed at the
statutory
before us mak-
interpretation
opinion,
Appendix
Part B.
of Mr.
30. See
to this
See Letter
Townsend
Statement
supra.
of
cited
Mr. Rochmes
n. 28
Treaty,
Article
10 Stat.
31. See
13 of the
Proposed
Defendants’ Consolidated
32. See
Law, p. 63
Findings
Fact
Conclusions
3, 1975).
(as amended Oct.
less,
perhaps
ment officials no
The testimo-
Kansas Delawares.
at the
more,
ones.
than mediocre
approximately
indicated that
ny
shared
the earlier
also
We are
unconvinced
redressing the
337 award
Docket No.
spu
rationale of avoidance of
suggested
(Transcript
Preliminary
wrong
1292 re
§
rious claims.
It is true
103-04,
15),
PI. Ex.
Hearing,
Injunction
existing 1906
1940 rolls.
fers to two
history before us re-
legislative
potential
However,
suggested
spu
delay
or contro-
complaints
flects no
not eliminated since the
claims is
rious
participa-
with the
versy in connection
were not con
of entitlement
standards
these Kansas Delawares
tion
objective
compass of
within the
fined
of that award.
Secretary
was required
records.
prepare
1292 to
a distribution roll of
Moreover,
response to re §
living on October
who
Absentees
delay, the
to avoid
for deadlines
quests
citizens, and who
were United States
for distribution
providing
enactment
show that:
award in could
and 298
Nos. 72
the Dockets
ap
four months for
cluded limitations
(2) their name or the name of a lineal
enrollment,
days
for re
plications for
eligible
ancestor is on or is
to be on
Secretary,
days
ap
jection by
the constructed base census roll as of
days
for determination
peal, and
1940 of the Absentee Delaware Tribe
pro
1293. This
appeal,
§
an
U.S.C.A.
Oklahoma,
approved
of Western
delay
controversy
against
tection
(25
Secretary.
U.S.C.A.
*23
argu
of defendants’
the substance
moots
1292(c)(2))
§
sug
circumstances the
ments.
In these
1292 crite-
It is clear that under
§
of administrative
considerations
gested
apply
Delaware could
ria an Absentee
support the exclusion
cannot
convenience
par-
for enrollment under
and
§
argu
The
of the Kansas Delawares.
of
award if
take in the distribution
view of the
ments must fall in
admoni
his name
that
or that of
he could show
645,
Illinois,
Stanley
tion
U.S.
was on or was “eli-
his “lineal ancestor”
1208, 1215,
656,
34. to be roll of and Absentee made Caddos prepara- applications 1293 to an Area Director. The not listed. The method of § but were Secretary are considered under base census roll as of tion of the “constructed eligibility 1292 criteria to determine for list- the Absentee Delaware Tribe of West- § 1940 of Secretary ing persons approved of on the distribution roll of entitled ern Oklahoma Interior,” 1181(c), is describ- § to share in the distribution of the award. 25 U.S.C.A. accompanying Report Senate H.R. ed in the preparation 35. The method of of the Absentee 1518, Cong., (S.Rep. 90th follows No. 16402 as in- “constructed base census roll as of 1940” Secretary (1968) (Defendants 2d Sess. 12 listing persons cluded shown to be of Dela- 4)): Delawares’ Ex. Cherokee eligible ware blood who were to be on the 2496; Stanley v. Illi- 635-37, 94 S.Ct. spurious at prevention 1208, 92 S.Ct. nois, legitimate gov 405 U.S. recognized as claims is Reed, 404 U.S. 551; Reed v. in connection L.Ed.2d 76, ernmental interest L.Ed.2d Jimenez v. Weinber 92 S.Ct. classifications. See 628, 636, 94 S.Ct. ger, 417 U.S. Second, argued before it was however, Here, as in Jime L.Ed.2d 363. nez, proper the court of the statute is to create the effect limitation reason unequally. are treated subclasses which Delawares Cherokee award of the Absentee example, members For in the is found Absentee Delaware subclass can show entitlement award of Indian Claims Commission final by proof of Delaware lin participate argu and 298. The in Dockets Nos. 72 roll, any independent through eage, whereas the award in Dock ment is that “eligible” that an ancestor was proof petitioners was made to “the et No. 337 the constructed base census roll as be on the Delaware Nation of on behalf of In 1940, although not listed. But mem at the time dians as constituted subclass, consisting other bers of the 3, 1818”, Treaty of the award in October Delawares, like the Kansas are de those Dockets Nos. 72 and 298 was made to showing to make a opportunity nied “plaintiffs,” who were the Cherokee through proof entitlement of Dela Absentee Delawares. way suggest on the lineage ware agree inference We cannot with the ed rationale that statute furthers the drawn from the form of award. prevention spurious interest of claims. finding its first of fact in Dockets Nos. po untenable “since the The rationale is 298 the stated: Commission exactly claims is spurious tential for same as to both subclasses.” Jimenez v. Plaintiffs, Absentee Delaware Weinberger, supra, U.S. et al. in Docket Tribe of Oklahoma No. at 2501.36 S.Ct. Delaware Tribe of and the Indians in Docket No. are entitled under Thus, in the us, circumstances before August the Act of 60 Stat. we agree cannot that considerations of *24 jointly represent the entire the avoidance potential fraud, of delay against Delaware Tribe in its claim and controversy, or of easing administra- States, (emphasis added) the United burdens, tive justify the discriminatory exclusion of the Kansas Delawares. opinion See the addition the Commis- Jimenez v. Weinberger, supra, 417 (2 its earlier U.S. sion refers to determination Membership problem in 36. The dimensions the Absentee Delaware viewed from governed by adopted by groups Tribe is a resolution the numbers of the three involved do 22, 1956, ap- the tribe on December not indicate that the Kansas Delawares would proved by Acting present the Assistant more Commission- difficulties than the other July 30, groups. er on provides 1957. The It was resolution testified before us that the January 1, 1940, that the census roll shall Bureau of Indian be Affairs has advised that 7,765 determining 1,808 used as the base for member- Cherokee Delawares and Absentee ship approved participation in the tribe. That roll is the Delawares had census of been the preliminary Wichita and in Affiliated Bands of the award at the Indians time March, (Caddo Delaware). injunction hearing (Transcript and Absentee In con- structing Preliminary Injunction Hearing, the base census roll referred to in PI. Ex. 15). noted, 1(c) proposed bill, reported section As earlier it the has been the tribe approximately has taken us that the identities from the 1940 roll the names of persons plaintiff shown Kansas Delawares were known to the to be of Delaware blood and (see supra). Approximately persons, Weeks note 3 has included the names of such as sisters, eligible shared the Docket No. brothers and who were to be award, according testimony (Tran- on the 1940 roll but were not listed. The script Preliminary Injunction Hearing, yet 103- approved base roll which has not been . 04). And, complaints delay lists as stated the as to 331 individuals. The executive commit- groups, membership
tee were related to the Munsee not to estimates that the the roll as of January 1, 1967, approximately Kansas Delawares. will contain 800 names. property lands are Tribal communal 253), “these two Ind.Cl.Comm. the have individual members no represent jointly to entitled groups interest separate pass which can 21 Ind.Cl. Tribe.” Delaware the entire longer their descendants who no 344, 345. Comm. the group. (Id. members of at 913) ca- representative the finding of The proceedings At least in such the Indian groups plaintiff in which pacity requires Act Claims Commission pro- fully with accords brought suit made, the awards be not to individual Indian Claims by the out cedure laid descendants of tribal members at Act, 60 Stat. U.S. Commission taking, time of the but to the func- The Commission’s 70-70v. C.A. §§ (Id. entity today. or entities hearing 914) and determin- as defined tion is any “on behalf ing claims court’s opinions since Min group band, other identifiable tribe, Chippewa make it nesota clear that the 70a. 25 U.S.C.A. § Indians” of American Commission’s functions are limited to identify the basically to This function identifying injured tribal entity, entity, making plain injured tribal making plain wrong the time of the injured wrong and the time of injured group. Cherokee See Freed v. Freedmen group. Cherokee men v. United 195 Ct.Cl. 39, 52. ances- States, 195 Ct.Cl. “[T]he (1971). The court has stated that claim, present- group tral ‘owns’ is to leave Commission are before Com- groups day Indian agents its of the compo decision of the ancestral only on behalf mission injured sition of tribe and the desig Chip- Band of Turtle Mountain entity.” of those participate nation entitled to States, 490 F.2d v. United pewa Indians judgment. Id. (1974). In view 935, 954, 203 Ct.Cl. In Red Lake & Pembina Bands Tur- pro- finding and of the Commission’s Band Chippewa Indians, tle Mountain the refer- we must read scheme cedural 355 F.2d 928 (1965), Ct.Cl. in the Commis- “plaintiffs” ence to the the court discussed the Minnesota Chip- 72 and 298 Dockets Nos. award in sion’s pewa case and others and the Commis- ca- in a representative them being as proper sion’s function: of the entire behalf pacity on that, The court held since the claim for the 1854 compensation Nation entity, was on behalf the award wrong. entity, run to the not to must individu- argu offer a related Defendants persons al or descendants. This was to requires the law that awards ment that clear, first, it that the claim is make of the Indian Claims Commission demand, group and, an individual *25 existing Indian Tribes and not made to second, nothing that in the Indian to individual descendants of the tribe as bars cur- Claims Commission Act time of wrong, rely it existed at the represented rent member of group ing Chippewa Minnesota Tribe v. on benefiting requires from inclu- or States, 161 Ct.Cl. United F.2d sion of descendants who are not now sug purported This rule of law is questions such members. Those gested as a rational basis for the statuto open by left the Act. The determina- ry con disagree, exclusion. We must of ‘how paid tions to be award is cluding that the Court of Claims deci precisely who participate can an support position sions not of de do Congressional award’ remains for fendant. administrative determination —the In- Congress point- dian Claims Act standing Before the defendants Commission extra-judicial Chippewa wholly ed statements Minnesota aside from that States, Tribe v. United 315 F.2d resolution. Peoria Tribe of Indians 913-14, States, (1971)37 161 Cta. 258 The form supra. United of the supra. Statement of Mr. Rochmes cited n. See the also do in its final Commission should pre-determine award should injured identity decision—the of the from benefit will who persons entity. tribal That is well within the do if might it group to the award —as authority of court Commission un- to de- binding references there (see der the Claims Act Commission compa- or past members scendants McGhee, Yuchi, Red Lake and Pembi- the decree. individualization rable Bands, na and the other decisions cited added) (emphasis supra), entity and it will be that whose v. United Freedmen in Cherokee And composition will be decided Con- (1971), the court States, 195 Ct.Cl. (Id. designee. 52) at gress or its the func- the limitations clear made n ‘ * * * * * * the Court the Commission
tions of again: of Claims The award say itself need not in pre- in this problem separate A third cise terms that it is for the benefit of composi- topics is the related family of the Cherokee Nation “as it existed or group or particular entity tion of the was (or constituted before 1893 from made un- award is favor an in whose 1872-1893)” long so plain as it is that Act— the Claims Commission der is the time and the group in- individuals, classes of specific whether volved. The other govern- branches of saying they subgroups persons, or ment can then composition decide the components or are members of the Cherokee tribe as of that peri- partic- are entitled to prevailing group (Id. od. 52) (emphasis added.) ques- Those judgment. in the ipate also See Turtle Mountain Band of held, consistently from we have tions Chippewa Indians v. under the litigation beginning of F.2d (1974). Ct.Cl. 426 competence Act, beyond to be Hence, we are satisfied that the Com- court; this the Commission not extend to authority mission’s does for au- Congress or are reserved its designating the beneficiaries resolution administrative thorized why This is further reason we awards. 46) (Id. at paid. when the award not intend feel the Commission did or ****** designation of the Cherokee and make right is to settle tion in a in name. Since entitled sion’s vidual the other branches at totally We have 48) (emphasis [******] award or ground of such of, judgment any group or judgment should entity excluded, participate or always taken entity disputes membership to which under the Act money, the Commis- either the restrictive added.) from a (at person claiming a as to membership. *26 right to share on not bar pains to assure least urging before in, (or the composi- the form of award colorably) its an indi- not be nature agent) group goes (Id. tribal ty of the exclusion lies the Kansas Delawares by voluntarily to share in future Delaware tribal classifications made here as a rational basis for the nation of beneficiaries of the Commis- sion’s nor the decisions of the Court of Claims relied on bears on the sentative entity. of the award in Dockets Absentee Delawares and that its reference Third, merely awards; membership pursuant defendants capacity this case neither in the sense of their electing argue they may as the gave up any right to the question Congress. in the fact that Nos. 72 and to sever that rationali- injured beneficiaries “plaintiffs” the award to Article not serve statutory repre- assets desig- their is to protective third device Treaty The with the Delaware IX of the 1866 as the Indians, 793, now and make clear—as we do 14 796.38 Stat. granted to each of the Dela- point There shall
38. Defendants
to the last sentence of Ar-
citizens,
pat-
have thus become
describing
by
wares who
IX
ticle
the effect of an election
simple for the lands heretofore
ent
in fee
a Delaware to become a United States citizen:
nation,
wards
and de-
persuaded
any
that
who are
not
We are
upon
wholly
protection
its
pendent
of rights
waiver or surrender
previous
Trapp,
v.
faith.” Choate
U.S.
good
Delawares with
the Kansas
prejudices
565,
941;
56 L.Ed.
IX
see
Article
of the
S.Ct.
to this award.
respect
194,
Washington,
v.
any Antoine
U.S.
provided that
Treaty expressly
129;
43 L.Ed.2d
a citizen
electing to become
S.Ct.
Delaware
Oklahoma,
“just
v.
397 U.S.
pro
and his
Choctaw Nation
patents
receive
would
bonds,
involved legislative power by Congress per- impel such result and treaty does not statutory mits the exclusion the Kan- showing was no that there participation sas Delawares from in the wrong done were aware victims award. of the Delaware them in sale lands. construction, Again, construing treaty being instead of “The it, as liberal; expressions, the Indians would have strict, doubtful understood Oklahoma, supra, in favor of the Choctaw Nation being instead of resolved 1328, the States, U.S. at inference to be resolved in fa S.Ct. United pow- use of this reserved made people, vor a weak and defenseless and, them, allotted to if do not remove Dockets Nos. 72 and 298 were or surrendered nation, pro by with the their rata share waived of all earlier acts of their or ancestors by property annuities and trust held the intent of the 1874 statute and the 1866 them, Treaty provisions. United States for the division to be made under the direction of the President of persons after What which such has disposes been said also of a relat- point concerning shall cease to ed be members of the Delaware Article IX of the 1866 tribe, Treaty. participate argued not shall It is further in IX Article limited the councils, their property nor share in their just proportion to their annuities. credits “then held in trust the United (emphasis Defendants contend that a added), similar States” precludes severance membership membership asserting any rights rights funds, thereafter to such (18 including was made statute Again, Stat. award here. the infer- 175) to as Kansas Delawares who were ence of a minors waiver or right surrender of a disagree, arguing 1866. Plaintiffs future redress the award is untenable. This severing treaty provision did statute have effect of impel likewise does not such membership interpretation, minors’ an the Delaware Tribe. and it would violate the cit- long-standing However we feel we ed need not resolve this canon of construction of Indi- question disagreement And, view of our an noted, treaties. with the there was no *27 position showing defendants’ basic by that adults’ or mi- awareness the Indians of the rights wrong. nors’ in connection with the award in 1338 statute com- by area this sustained, unjustified. Ar- er must be the Due safeguards of ports have to reserved or cannot be said
ticle 8
we are convinced
For
Process Clause.
Indian
power
prejudice
to
conferred
abrogate
to
power
congressional
that the
to constitutional
regard
rights without
by the limita-
is circumscribed
treaties
have earlier noted that
limitations. We
Constitution.
parts of the
in other
tions
Congress
regu-
to
plenary power
Indians,
Klamath
v.
United States
See
subject
affairs is
to constitu-
late Indian
799;
123,
see
58 S.Ct.
304 U.S.
supra,
limitations, see United
tional
States v.
Tillamooks,
v.
329
also
States
Indians,
119, 123,
United
304
Klamath
U.S.
58
29;
167,
54,
91 L.Ed.
40,
1219;
67 S.Ct.
U.S.
799, 82 L.Ed.
see also United
S.Ct.
629,
Steele,
F.Supp.
637
353
McCurdy v.
Tillamooks,
40, 54,
v.
329
67
States
U.S.
grounds,
rev’d on other
(D.Utah),
29;
& n. 12
167,
McCurdy
91 L.Ed.
S.Ct.
v.
Cir.).
(10th
F.2d 653
629,
506
Steele,
637
F.Supp.
353
& n. 12
(D.Utah),
grounds,
other
rev’d on
506
the dis
Moreover, we feel
Cir.).
(10th
The provisions
F.2d 653
whether
over
parties
between
pute
may
Article 8 likewise
not be construed
were conferred on
rights”
any “vested
power
to reserve a
immune from consti-
by the treaties
Kansas Delawares
tutional
limitations.
dispose of this
to
resolved
need not be
Fifth,
say
plenary
defendants
that the
concerning
power
to
argument
power
Congress
over Indian tribes
plaintiffs’ constitu
amend treaties.
property
by
and tribal
cannot be limited
Process
the Due
claim under
tional
prevent
repeal
or
treaties
so
to
principles
equal protection
Clause
amendment
a later statute. Defend-
“vested
on a
grounded
not be
need
provisions
ants contend that
1339 at the time injured dancy from the tribe also Defendants contend in 1854. wrongful wrong. the historic repre- described rolls reference to the lands in 1856 and sales of the tribe’s recog- exercise of congressional sents a the amount of re- 1857 diminished membership tribal power to define nized established which had been sulting fund the distribution. De- purposes See “people” for the benefit of the Delaware Proposed Find- fendants’ Consolidated treaty with the by Article 7 of the 1854 Law, at ings of Fact and Conclusions 1048, 1050, treaty tribe, as the 100, 104, 105, Stat. 113.40 We are unable pp. further, And makes clear. repeatedly accept propositions these rational re-en- position is the Kansas Delawares’ justification for the exclusion. treaty the 1866 forced Article IX of point that from the We start 793, tribe, 796, recog- with the 14 Stat. Act and Commission the Indian Claims right, inter the Kansas Delawares’ nizing neutral, not underlying policies its alia, take electing United States pattern of distri favoring any particular “just proportion” of citizenship, to their awards. See bution of the Commission’s then held in trust the tribal credits States, v. United Freedmen Cherokee that would the United States—credits 39, (1971). Neverthe 46-52 195 Ct.Cl. proper measure of have included the less, remembered it must be lands, from of the trust payment sales injured ancestral of the claim is that tribe. wrong but for the to the day groups are before present tribe made to question The award in only on behalf of the Commission wrong to the entire redress historic Mountain Band entity. Turtle ancestral treaty, the 1854 Delaware Tribe under States, v. Indians United Chippewa and the Cherokee and Absentee Dela- 954, (1974). 935, 490 F.2d 203 Ct.Cl. “the entire Del- representing wares were provision of some the absence While against aware Tribe in its claim right of individual contrary, 1, Findings of Fact United States.” See property gener Indians to share in tribal 24, 298, 72 and 23 and Dockets Nos. membership, see ally depends on 344; opinion Ind. Cl.Comm. said dock- 753, v. 283 U.S. Halbert 345, ets, 347. The Ind.Cl.Comm. 1389; 762-63, 615, 75 L.Ed. S.Ct. are descendants of Kansas Delawares 82, Jim, v. United States U.S. tribe and some 300 injured ancestral we are con 34 L.Ed.2d S.Ct. in the award recently of them shared of awards under vinced that distribution No. 337 for under the Act in Docket wrongs is not con the Act for historic wrong of 1818. similar historic ownership, trolled technical rules descent and distribution. Distribution In view of the redress which disposition, consistent congressional was the goal of the statute and the applied limitations with constitutional award, and in view of the Kansas Dela light of the Indian purposes standing being equal wares’ in the con Act, the treaties and Claims Commission goal text of that to that of the Absentee injury to the relief the award affords for groups and Cherokee Delaware benefit the ancestral tribe. ed, Jimenez v. Weinberger, U.S. the Kan- In this instance the claim of 363; S.Ct. L.Ed.2d Unit sas participation Delawares to ed Department Agriculture States award has the foundation of descen- Moreno, 528, 537, U.S. S.Ct. actuality, However, 1292(c)(2) membership modem tribal for distribution under § person one groups, only of the benefited the Absentee Del- such need that his lineal show awares, statutory eligible is not be on the followed in the ancestor’s name is on distri- 1292(c)(2). bution under 25 constructed the Absentees g., U.S.C.A. base census roll of § E. person may partici- July born as of in which after must have case he thus ‘/s pate though recognized has less blood in in the distribution he order to be as a member Vs than Delaware blood. Absentee Delaware Tribe. See Defendant Absentee Delawares’ Ex. 9 and 28. *29 1340 OF DISTRIBUTION 782, sustain the we cannot
37 L.Ed.2d
'
AWARDS
THE
arbitrary
the
and
unequal classification
history,
the
Against
makes.
exclusion it
ar-
further
Delawares
Kansas
Plaintiff
involved,
the
the statutes and
treaties
are not
Delawares
the Cherokee
gue that
two “modern
designation
the
of the
in
in the
participate
to
awards
entitled
the
of
groups” for exclusive distribution
72
Nos.
or Dockets
either Docket No. 337
reflecting no
is a discrimination
award
298,
providing
statutes
and
and that the
arbitrary
capri-
and
simply
but
policy,
awards,
U.S.
25
of both
distribution
Carr, supra,
v.
369
cious action. Baker
1291-92, violate
and
C.A.
1181-86
§§
226,
691.
U.S.
82 S.Ct.
as
rights insofar
their Fifth Amendment
actually
in
We
the
Delawares
doubt that
include
they
the Cherokee
both
exclusion of
of
intended or realized that
the
for distribution
provisions
that
the
claim
group such as the Kansas Delawares
also
Plaintiffs
awards.
event,
re-
the
to
would result. But in
not entitled
are
Delawares
Absentee
no
72
sulting
rests on
Nos.
unequal treatment
in Dockets
share in the award
legiti-
wrong.
to a
rationally
298,
foundation
related
to the 1854
relating
the
governmental
serving
mate
interest
statute
say that
the distribution
They
97,
v. Wein-
purposes
award,
of the Act. Jimenez
25 U.S.C.A. §§
that
1291—
636-38,
berger,
628,
94
rights
S.Ct.
U.S.
Amendment
their Fifth
violates
363;
2496,
v.
Weinberger
see
L.Ed.2d
Dela-
it
the Absentee
as
includes
insofar
Salfi,
749, 769, 95 S.Ct.
422 U.S.
wares.41
522;
L.Ed.2d
States
disagree
positions
We
with these
Moreno,
v.
Department
Agriculture
of
taken
Delawares
con
413 U.S.
93 S.Ct.
challenged
clude that
782;
Casualty &
L.Ed.2d
Weber v. Aetna
provisions
are valid insofar as
in
Co.,
164, 172-73,
Surety
U.S.
S.Ct.
Delaw
cluded
Cherokee and Absentee
768;
L.Ed.2d
Richardson
ares.42
Belcher,
78, 81-84,
404 U.S.
S.Ct.
L.Ed.2d 231.
30.
of the Cherokee
The Inclusion
Giving
statutory
classification
Delawares
constitutionality
we
presumption of
as
the Cherokee
Plaintiffs first claim that
must,
justifications
considering
all
Indians
Delawares are Cherokee
classification,
for the
we nevertheless
share
right
hence have no
blood and
resulting
must hold that the
exclusion
They
in
Tribe.
awards
the Delaware
the Kansas
violates the fun-
Delawares
argue that the Delawares who removed
equal
process
pro-
damentals of due
Territory
contemplated
as
the Indian
tection.
793, (/. e.,
Treaty
14 Stat.
IV
Delawares”)
in
“registered
became
VALIDITY OF THE CHALLENGED
Nation un
corporated into the Cherokee
OF THE CHEROKEE
INCLUSIONS
Agreement be
der
1867 Articles of
THE AB-
(Pl.
AND
DELAWARES
tween the Cherokees and Delawares
IN
DELAWARES
I).43
SENTEE
The
Tab
Kansas Delawares
Ex.
may
challenge
right
challenges
of the
ditional
statute
Plaintiffs do
41.
However,
unnecessary.
in
the award
as
because
viewed
share
Absentee
desirability
redressing
prompt
all of
the breach
of a
decision on
No.
Docket
issues,
economy
Proposed Finding
Treaty.
these constitutional
See Plaintiffs’
efforts,
31;
Support
feel
these
we
should decide all
Brief of Plaintiff
we
Fact No.
80;
Summary Judgment at
Plain-
claims on
merits.
Motion for
2.
Issues at
Reply
Constitutional
Brief on
tiffs’
Agreement
the Delawares
between
provided
part
as follows:
the Cherokees
of our conclu-
result
as a
realize
We
by the Delawares of the
the fulfillment
On
made
classifications
III
in Part
sion
stipulations,
foregoing
members of
all
V that
in Part
invalid,
our conclusion
are
tribe, registered
provided, shall
as above
invalid
1291-97
§§
U.S.C.A.
must hold
we
Nation,
of the Cherokee
become members
plaintiffs’ ad-
whole, our consideration
aas
an Indian
Commission award to
Claims
the 1867
contend
effect of
all
injured
lineal
descendants
was to abolish the
Agreement
stated,
regis
tribe. As
the claim to redress
political entity,
Tribe
under the
is that of the
individually becoming
Act
ancestral
tered Delawares
day groups
tribe and
present
and the
before
citizens
the Cherokee Nation
only on
the Commission
behalf of the
registered Delawares
*30
of these
children
entity. Turtle
ancestral
Mountain Band
becoming native blood
thereafter born
States,
Indians v. United
Cherokees,
Chippewa
citing Cherokee Nation v.
196,
55,
(1974).
ther that in the Delawares, participating kee 98, par- §§ to U.S.C.A. pursuant 991— receiving payments awards here are not Claims the award ticipated in participation tribes, of two but some 173 of No. Docket Commission compensation brings Tribe, in these awards $14,000,000 to the Cherokee when earlier circumstances based on partici- from 101.4 § C.F.R. barred of another members their ancestors were here. question awards in the pating least injured tribe—or at part pertinent regulation provides conclude. rationally so could that: rights in holding equal An Indian policy event the But in pay- can share or more tribes two changed by stat may regulation bewill them and only one of ments ute, limitations subject to constitutional *31 he which tribe elect with required to apply to an exercise which we feel do relinquish and to wishes to be enrolled legisla over congressional power to payments to writing his claims in of constitu tion. We see no violation the other. change from a arising tional limitations sharing in two tribal policy concerning in maintain broadly, plaintiffs More benefits. tribal eligibility for against this rule dual policy. standing public long is a
benefits
States, 52 F.2d
Mandler v. United
The Inclusion of the Absentee
See
Cohen, Handbook
713,
(10th Cir.); F.
714
Delawares
Law,
(orig. ed.
137
Federal Indian
fur-
Delawares
plaintiff
Kansas
principles the
1942).
these
In view of
Delawares
argue
ther
that the Absentee
ra-
is no
assert there
Kansas Delawares
in distribu-
may
validly
not be
included
decision
congressional
basis for the
tional
72 and
Dockets Nos.
tion of the award in
to
Delawares
permitting the Cherokee
They
wrong.
1854
redressing
298
the
the Dela-
to redress
in the award
share
ancestors
say that
the Absentees’
1818 and 1854.
wrongs of
ware
body of the Delaware
not with the main
wrong
1854
at
the
tribe
the time of
own
disagree. By its
We must
of the 1854
by
were not harmed
breach
in cir
applies
101.4
terms 25 C.F.R. §
equal Treaty.45
holds
where an Indian
Essentially they
cumstances
contend that
pre
tribes
rights in two or more
entitlement to the benefit
treaty
of a
made to two to
sharing
payments
compensation
vents
in
for its
depends
breach
the
controlling over
dis on
tribes. Even if
residency with the tribal entity at the
statutes,
regula-
policy
tribution
the
time of entering into the treaty and at
States,
awards,
grandparents.
v. United
Halbert
there was a sufficient nexus between
753,
615,
(1931).
injured
U.S.
51 S.Ct.
an-
We are *32 cating that recog- Indians who the Absentees were that arguments. It is true nized as relationship sepa members of the tribe its sever their tribal body to main right in 1854. Article IV the tribe lose See of rate from Tribe the 1860 Treaty Miami between the participate in tribal assets. States, Tribe, F.2d States and the Delaware 12 of v. United Stat. Oklahoma 1129, 1130-31; However,
202, 213, (1960). S.Rep.No.1518, 90th 150 Ct.Cl. Moreover, Cong., (1968).47 a main 2d from Sess. 7—11 group an Indian absent wrong may time of a we body tribal at the note that the of Claims found Court as retain by the tribe from its of the tribal recognized still be examination histo- may have ing membership, ry policy that “the rule of the Dela- award redress participate in an had claim to wares was and been to [in 1854] Delaware ing wrong recognize everywhere, to the tribe. all Delawares who States, 128 identity had as Dela- Tribe of Indians v. United maintained their (Letter objection 46. Plaintiffs cite Pl.Ex. 32 from John G. an as to There was authentication Pratt, Agent, Murphy, above, plaintiffs’ ap- U.S. Indian to Thomas of exhibit cited Supt. Affairs, 14, 1868) sup- July Nevertheless, pears good. in to be even con- port proposition. They allege sidering exhibit, of this further the our conclusion remains portion that arguments Absentees rejecting plaintiffs’ received no of the the same in in paid body annuities treaty to the main provisions of the tribe view of the docu- and other participate treaty and did not adequate of the ments cited which serve as an tribe, accruing body benefits to the main of the rational basis for the decision of to citing supra; (Letter Pl.Ex. 145-B Pl.Ex. include the Absentees in the distribution Murphy, from John G. Pratt to Thomas Nov. award. 27, 1866); (Letter Pl.Ex. 64 McKi- from A. H. sick, Rector, Agent, Supt. Wichita say Treaty to May Elias The defendants Affairs, 21, 1857, excerpt Indian port Oct. from Re- between the United States and the Dela- Affairs, Tribe, 1857); the Comm’r of Indian ware 12 Stat. is evidence of such a Allotment, (Excerpt contemporaneous “Registry, Pl.Ex. understanding from as to the Valuation, etc., Reserve, structure of Delaware Diminished tribe. Delaware Article I of Treaty, July 4, 1866”). treaty particular, that ar- referred back to Article 11 of the gue fund, Treaty, that Delaware into national 10 Stat. which had provided proceeds which the possible survey for from the sale of lands future Treaty placed, paid assignment under the 1854 individual of the residence lands per capita Treaty. out left to the Delaware to the members of Delawares under the 1854 provide nation 1893 and never Article I went that the Absentees on to lands that those any part surveyed received should fund. now be such “and each member questions These effect. continued in wares, Dela- of the tribe.” as members remaining disputes be- lead us v. United of Indians ware Tribe parties. tween at 399. supra, F.Supp. plain- if First, that argue defendants per view feel this We of their taking allegations of a tiffs’ Congress also was suasive, and that the compensation and just without property drawing the it entitled consider true, they may process are due without statutes, the oth along with from the money to recover entitled Thus, although evidence. historical er their com- present and must Treasury conclu are not materials the historical sive, in the Court of a suit in such plaint position support for there is They courts. in the district Claims or recog in 1854 tribe conferring point U.S.C.A. § members nized the Absentees of Claims on the Court jurisdiction we cannot circumstances In these tribe. the United against claims hear Indian basis no rational Congress had say the States; Act, to the Tucker 28 U.S.C.A. Absentees the inclusion for 1491, granting jurisdiction that court § the award for distribution provisions against claims the United States wrong. to redress the Constitution, among oth- on founded conferred jurisdiction things; er by 28 U.S.C.A. the district courts V for amounts claims 1346 to hear such § EQUITABLE JURISDICTION $10,000. ar- exceeding Defendants AND REMEDIES question only that the constitutional gue challenged stat- is whether presented Having classifica- concluded their re- plaintiffs of deprived have utes tions made 25 U.S.C.A. 1291—97 §§ forums; is no to those there sort redressing distribution of the award to recover remedies such foreclosure of wrong, in the resulting exclusion there; injunc- and that by actions law Delawares, invalid, it re- of the statute *33 tive relief and invalidation proper mains to remedies consider citing Re- improper, therefore be would portions and to determine whether other Cases, Act Reorganization gional Rail may upheld be distribution statute assigned land, annuities, rights the Delaware tribe there shall be full to tribal included eighty accruing containing tract of land acres . .” and interest to Dela- trust funds 1129, treaties, Treaty, including Article IV of 1860 12 Stat. wares under former 1130-31, provision Treaty. went on to make for 1854 following However, plaintiffs Absentee in the terms: that Article IV assert Treaty offer to allow the the 1860 was not an many years ago good Whereas some Absentees to share in the Delaware national among the South- went the Delawares down they returned, only if of an fund but an offer Indians, two are still about ern and as there they eighty if to acre allotment each Absentee there, they and have hundred of them as event, any urge plaintiffs returned. that the soon, they it is will return reason believe not, fact, response did in in Absentees return agreed hereby eighty set acres each be that treaty, opportunity offered thus them, apart to them as for to be allotted rejoin forfeiting refusing and the tribe return, they is- to be then certificates right in Plaintiffs cite to receive land Kansas. them, in the same manner as sued to support of this Pl.Exs. 32 and 145-B conten- reservation, and now in ev- those within the Further, argue plaintiffs that the 1860 tion. ery govemed“by respect the same rules to be Treaty under the control- is irrelevant because govern- prescribed regulations for the cases, ling merely being recognized part aas preceding ment of lands reserved grounds or is sufficient of the tribe Nation not articles, they the allotments that until return claim to share in to establish the Absentees’ (sic) apart belong to the nation set proceeds relating breach of the 1854 common. Treaty, citing of Potawatomi Indi- Prairie Band Treaty, that, by 1860 this Defendants contend States, 139, F.Supp. supra, 165 ans v. United class the ancestors of the Absentee 131, Miami Tribe of Oklahoma 143 Ct.Cl. recognized of the Delaware as members were 202, supra, 150 281 F.2d v. United rights all other Tribe with co-extensive Ct.Cl. They allege rights these tribal members.
1345
102,
335,
419
specific
U.S.
42
er
monetary compensation
S.Ct.
L.Ed.2d
on be-
320; United
Causby,
States v.
half
any plaintiff
or the
U.S.
class of Kan-
256,
1062,
1206;
sas
As explained earlier,
S.Ct.
L.Ed.
Delawares.
Kincaid,
95,
Hurley
uphold
plaintiffs’
v.
while we
U.S.
S.Ct.
claim un-
267, 76
der the
L.Ed. 637.
Due
See Defendants’ Con
Process Clause and equal
protection
solidated Proposed Findings
principles
of Fact
incorporated by it,
Law,
pp.
Conclusions of
at
grounded
71 - 75.48
constitutional claim
on ir-
rational classifications is available with-
Regional
We feel that reliance on
Rail
premise
out the
of property or viested
Cases, supra, is mis
Reorganization Act
rights in the award.49 We do not feel
admittedly
placed. The case involved
plaintiffs
any
have
property
such
rights
existing property
of the rail com
vested rights in the award as may
panies,
their owners and claimants
premise a constitutional claim entitling
against
bankrupt
estates. The Court
them specific
monetary recovery un-
major
being
defined the
issues as
wheth
der the Tucker
pointed
Act. As
out be-
er an action at law under the Tucker Act
low, after the award
subsequently determines the beneficiar-
is entered
any deficien
will be available to recover
cy of constitutional dimension in com
ies of the
may
award and there
not be a
allegedly to
pensation
takings
for the
constitutional
monetary
claim for
recov-
Act,
affected
and if the Tucker
ery with respect to the award as entered.
available,
remedy
Act
whether it is
Jim,
80, 83,
Cf. United
v.
States
409 U.S.
121,
adequate. 419
U.S. at
S.Ct. 335.
93 S.Ct.
However, the case no we plaintiffs involved Since conclude that question property rights here have no or vested existence of obvious award, property rights rights or vested we feel that have no parties, remedy specific at law for monetary various id. 95 S.Ct. re- Act, remedy covery Act under the Tucker although Tucker *34 monetary for recovery they good protection held available for do have a claim for any inadequacy compensation against under the irrational statutory classifi- reorganization procedures. the Act’s persuaded On cation and exclusion. We are contrary, plain uphold the we feel that here the we and should consider that con- right have vested property grant tiffs no stitutional claim on merits and its relief, equitable declaratory the Indian award in Claims Commission there and, hence, remedy question being remedy no to recov- no full adequate at argue plaintiffs 48. Defendants arbitrary discrimination, relying could main invidious tain a class action in States, the Court 1264, of on Claims un Fredrick v. United 507 F.2d procedures analogous der (Ct.Cl.), saying those plain under Rule that all claims of 23 F.R.Civ.P. See put Quinault Allottee tiffs must Associa be before the of Court Claims. States, 1272, tion v. Again, however, 453 F.2d 197 Ct.Cl. the Fredrick case involved a they say multiplicity 134. Thus statutory right no claim employment of of a suits inequitable and no other monetary like recovery distinguishes result would oc it from by litigation forum, cur in that rights or in our a case where district no such in the award court suit under 28 U.S.C.A. exist. § 1346. argue that the Court of Claims Defendants 49. to claims of give plenary consideration does Jimenez v. in an invalid underinclusion. a prompt no to avoid
law and
reason
628, 637, 94
Weinberger, 417 U.S.
S.Ct.
& Tube Co.
Youngstown Sheet
decision.
circum
2496, 41
363.
In such
585,
L.Ed.2d
579,
72 S.Ct.
Sawyer,
v.
343 U.S.
alterna
general
two
1153;
stances there are
Diesel
863,
Aircraft &
96 L.Ed.
see
may
the statute
752, 780,
the court
declare
67 tives:
Hirsch,
Corp. v.
331 U.S.
whole,
may
as
or it
extend its
invalid
1493,
1796.
91 L.Ed.
S.Ct.
coverage
aggrieved
to include those
plain
the
conclusion
Our
Welsh v. United
the exclusion.
See
property
vested or
tiffs «here have no
States,
90 S.Ct.
U.S.
claim,
award,
is
rights in the
as
J.,
(Harlan,
concurring);
not think there should tribes, there are. know the Bureau maintains the funds the two between people those either think that all the exclusion of non-Delawares. We eligible are for are on those rolls or Discretion effect another division at which very the rolls at times requested by has been the Bureau of made. the rolls were Indian Affairs Bureau . . . The do you proposes Mr. Edmondson. If not among to conduct a search any there are you Stockbridge-Munsee think would have no Community of objection including eligi- as an to our Wisconsin for those descendants of the person he is a lineal prove “Emigrant who, ble who can New York Indians” it asserted, who was a descendant someone “were Delawares who had previously member of the Delaware Nation in absented themselves from participated and who had not body the main of the tribe” and also to judgment? who, other tribal hypothe- search for others it is sized, “may also be descendants of you I Mr. Roehmes. think would members of the Delaware Nation in tougher have to draft than standards 1854”. suppositions These are not that, people because the Bureau have based on fact. I was associated already they to us that made it known counsel in the Emi- plaintiffs for the people who we think intend to include case, grant New York Indian and am clearly are not Delawares were familiar with the evidence adduced in Nation part of the Delaware as of that case. . . . There was no evi- that time. dence among of Delawares the Emi- they Mr. would Edmondson. Then grant New York Indians. . prove they have to descend- suppositions Even if these ants of Delawares. fact, based on justify would not Mr. Roehmes. Yes. But Bu- position. Bureau’s The Indian already reau is saved with the [sic] Claims Commission Act is intended ex- proof, as example, the Chris- pressly for existing the benefit of In- tian Munsees were Delawares as of tribes, dian bands and other identifia- time. this And we think the evidence groups, ble and a search for individual which saves them would not save [sic] may descendants who have elected to a court and would not save [sic] [sic] change their tribal affiliation is un- you, perhaps, (emphasis added) warranted. B [******] point Defendants to several state- The Delaware tribes are particularly legislative history ments in the concerned opinion expressed with an they rely showing as representatives. Bureau might eliminating was aware that it opinion This is the group that a some lineal descendants 1854 Del- Kansas, Munsee living Indians enacting aware Nation in the narrower sometimes known as the Christian In- provisions dians, of 25 1292. The § U.S.C.A. sometimes the Christian Munsees, first is contained in the Statement of recently and more as the Roehmes, attorney Munsees, Louis L. for the Chippewa are entitled to be group, (attached regarded Cherokee as Delaware the purpose Hearings, supra the House sharing Subcomm. n. judgment in Delaware ff). funds, 27 at 45 particularly in Dockets 72 added) and 298. (emphasis reads, part, That Statement as fol- lows: point Defendants to the mention of “oth- support statement is submitted in This ers” who may also be descendants of and Absentee Dela- [Cherokee members of the Delaware Nation in on H.R. 5200. position tribes’ However,
ware] Mr. Roehmes states *37 supposition that thereafter individuals who other There are also such any “other” descendants of there are of members lineal descendants The fact.” statement “is not based on it was as consti- the Delaware Nation question of the a whole on pres- focuses are not in but who tuted various Munsee In- possible inclusion of either of the ently with affiliated in Nos. 72 and while dians Dockets Some we groups. Oklahoma Delaware making to Kansas Dela- believe, no reference with Stock- are affiliated lineal or of descendants in any group Community wares Wiscon- bridge-Munsee the Delaware of true of Nation members not affiliated with sin and others are excluded be from the might in 1854 who super- under federal any group tribal of “lineal de- judgment by amalgamation deletion vision. In view of Mr. Roehmes tes- provision. scendants” with other Indians of Delawares the House Subcommit- tified later before many unique complex and the Affairs, to which this tee Indian identifying in problems encountered made, all true de- was statement this the ultimate beneficiaries Delaware Nation of scendants of the of the award, history Delaware a brief enclosed, 1854 who not affiliated with another had (emphasis added) Nation judgment in a to participated tribe or earlier, that this agree cannot We another would be covered tribe e., to “others” (i. Departmental reference proposed provision not lineal affiliated other descendants Cherokee and Absentee Delawares. See served as group) any no- Part A Appendix. of this the existence of the Congress tice to Delawares, especially view Kansas A second statement to which defend- Department history the the fact that the ants in a refer is contained letter from extensively to dealt report attached its Reed, Nathaniel P. Assistant Secretary with Munsee affiliations. W. Interior, of the Caspar to Weinber- Department its stated history ger, Director, Management Office 10): (Id. Budget, September dated which Department states the views of majority The of Delaware Indians the Interior on H.R. 14267. That letter Kansas reserve who on to the moved discusses the differences between H.R. theBy terms of remained until and, 14267 and H.R. 5200 in regard to agreement April an concluded solely H.R. upon 14267’s reliance between these rolls, “Although, and 1940 states: Oklahoma, Cherokee unfortunately, they two do not [the rolls] territory Indian to removed include a few Delaware descendants who today as Cherokee Dela- and reside Oklahoma, Oklahoma, do not reside in we consider (em- ware northeastern them to however, acceptable rolls.” We note added) phasis this letter was written exhibits defend- From other this and after passed H.R. had both houses finding that: request ants a Department give to aware, for- from 1968 Congress was the Interior’s recommendation as to ward, appropriation and dis- that the whether approve the President should it which enacted tribution legislation the bill. Awards pay the Final Third, in both Indian defendants Claims Commission point report a written Docket No. 337 by the Claims Commission Department of the Interi- Dock- Commission and Indian Claims included in the House Re- port provide ets would accompanying H.R. Nos. 72 and (the bill who could person payment every distribution of the award in Docket 337), No. ‘Dela- be, ethnologically, Department wherein the claim stated of Interior’s (H.R.Rep.No.1555, Department ware’. 92d Cong., 2d Sess. leg- part 3—1 (1968) (Defendants Report Congress, Secretary Report No. House 3)): Cherokee islative history Delawares’ Ex. *38 during Affairs, which occurred Indian Sess., the Re- Congress, 90th 2d subcommittee the course of Senate accompanied H.R. port which for legislation on hearings eventually became Pub- the Bill which 298, at 72 and Nos. in Dockets the award 1181-86) (25 U.S.C. lic Law 90-508 presided: Bellmon which Senator 3)No. reflects (Sec. of Int. and D.T.I. know, I pay- you provide the Bill would Bellmon. As that Senator aware and I am ‘majority’ modern-day from Oklahoma ment to am oppose S. groups Delaware Delaware Indians. that both was H.R. but favor Findings of Fact Proposed Defendants’ give you by the House. Can approved (as Law, amend- p. 63 Conclusions ’ favoring S. reasoning for your me 3, 1975). ed Oct. H.R. 14267? the 1968 or We are that persuaded not bined, cate (25 who were lineal descendants Delaware tribe. 92— (Defendants (the bill for mittee Dockets Nos. 72 and Delawares’ Ex. ment group preparation of the updated roll [of The recommendations of Defendants also cite the House Com- U.S.C.A. §§ statement any legislative history, support such Report accompanying [of awareness that such 92d distribution of the award Secretary Cong., therein that 6)): 1291-97) would exclude Interior] the Kansas Delawares an inference or indi- 298) 2d the 1972 statute and Cherokee Sess. or both regarding the (H.R.Rep.No. of the 1854 H.R. 14267 emphasize Depart- (1972) com- in judgment. persons excluded ference, gates basis information say. excluded under H.R. 14267 have been included ity of However, quite small. Mr. Mr. Senator Senator [******] for the can tell We think the it Crow. Crow. perhaps, being I think Bellmon. Bellmon. Do as to how We can’t see objections you I more than 200 It think the is in that from much in number would be Do most difficult the definition of many would be S. sharing in the you better than I. you 1067? primary dif- any possibil- tribal dele- S. know the have people.50 1067? would any those in the participated who had Hearings on S. S. S. Docket No. were not judgment] S. 2298 Before the Subcomm. on Indian adopted by the because committee Comm, Affairs of the Senate Interior they opposed by both strenuously Affairs, and Insular Cong., 92d 2d Sess. concerned, of the Indian groups 21, 1972) (Pl.Ex. 5). 38-39 (July Defend- is, position Indian opinion ants assert colloquy this demon- committee, (em- a defensible one. strates that both the Senate phasis added) House were aware that the distribution However, above, as stated it does statute would not possible include all appear that the House was Committee Delaware claimants. position” aware that it “Indian We note Senator question Bellmon’s termed in the defensible would result ex- Mr. Crow further in the same hearing. persons clusion of lineal descendants of Id. at 40. who were the Delaware members of Tribe Kansas in 1854. Senator Bellmon. If the were to take action which pointed excluded Finally, defendants have the non-Oklahoma Delawares colloquy from following between Senator sharing Crow, judgment, you this do then see Bellmon and Mr. John O. any possible legal future implications Acting the Bureau of Commissioner essentially H.R. 14267 it existed in 1854. 1067 would have will be recalled that S. It bill enacted. updated include roll No. 337 the Docket Nation as lineal descendants of the that gates made wares” that were Indians: supra) that would exclusion homa. tee. To the Delaware Tribal Business Commit- tee Bruce Miller sis Snake Subsequent Mr. Crow. Mr. Mr. Townsend. Mr. (to [******] added) reference, supra) the federal Delaware Tribe of which *39 impression who is President (to my right same have been the “non-Oklahoma testimony Mr. which Townsend, government? hearing makes it Crow being was Chairman, Senator were the Munsee that made Chairman, I included by tribal Western Okla- Mr. Lawrence considered for of the Absen- Chairman of reference, Bellmon (empha- I don’t. persons Dela- clear dele- am S. would be their track record the chances are nil. they did not respond gation, I whether bushes to get them filed 1966. They did tered, promulgated, by the unilateral action of but there have cations filed. The Bureau beat beast any problems that could face the Bureau of would has home and has grown than but I I say say been way my anybody be a this that because of the fact that way of knowledge or now. the Bureau. interested would of not puppy litigation legal problem who reason of the fact that been these not say any is not in instituting respond any that of into to I can see has been fos- and, those my an attorney, based 1,552 brought —if Affairs, that could ferocious as far as brief in brought people appli- none, there upon fur- liti- it ther discussing than When first the matter S. 1067 was introduced States, their into the counsel subsequent of the United to that Senate time. No one present at that time that problems there were at the House of Representatives latent did come Subcommittee on In- dian They hearing fore until didn’t Affairs a later time. in 1968. No member very long. take Id. at 42. Munsee Tribe was it Tribe, and of a foreign as Mr. Crow has ware ence Senator The crux goes. [******] [******] between the matters, Id. at 44. Bellmon. the various names group of Indians that departmental stated, matter is the differ- . is the Munsee his inclusion report, which Dela- your question implies. lawsuit, but I don’t think this is what yer, have or passed over into this March. No mem- hearing last November which was bers present at House. Of possibility the March draw representatives course, anyone up Munsee the House Subcommittee of a meritorious lawsuit a meeting paper Tribe, at can I don’t foresee those and call go nor did before the to a law- meetings they ait in this matter. Only one further question. This is tough one, I sure, am all Senator Bellmon. Mr. Snake. you. But if Congress moves ahead to Chairman, Mr. Snake. Mr. I am of approve legislation along the lines of the same opinion. Since all of these the House-passed bill, which would ex- claims have been in hearing, we have clude the Delawares, non-Oklahoma never to this any date had Munsee to the Munsees, from sharing in its testify. I So am opinion of the same present judgment, you do foresee any any there would not be lawsuit. future legal implications for the feder- Id. at 69-71. government? al added) (emphasis C Chairman, I Mr. Townsend. Mr. am an I attorney at law and don’t know (14 Article IX of the Treaty Stat. gives greater this any insight me 796) provides: until shall support education stipulated IX. It Article is also twenty-one years, the age attain Secretary of Interior shall to elect remove shall after each registry made of cause a to be a citizen of his tribe or to become to all of names of said who States, pro- as hereinbefore United the vided, re- have elected dissolve if to citizen- thus admitted lations and become citizens all the privi- ship, shall be entitled States, provided in this trea- provided for leges and interests herein names, ty, ages, with the and sex of family. any the head of the Should family members of of each aforesaid, arriving age minor as Delawares, present said certified twenty-one years, electing copy judge of the same become a citizen of the United district court of the United States elected, having adult so Kansas, cause the district *40 admitted, be he shall not be fail to of the copy to be filed in the office the compelled remove, but Secre- affairs, commissioner of after tary provide prop- of the Interior shall Delawares, being which of said protection of er for the guardianship adults, may appear the before said and of rights his and interests those court, judge open and make the granted be family. his There shall proof same and same oath of take the the who have thus each of allegiance provided by law as is for fee citizens, simple patent become aliens, the naturalization and of also allotted to for the lands heretofore proof make court, to the of satisfaction said them, and, if not remove with they do sufficiently intelligent that he is nation, rata share of all pro the their prudent and to control his own affairs property by held annuities and trust interests, and adopted he has the them, the United States for the divi- life, habits of civilized and has been the direction of sion to be made under support, years, able to five for at least the the United President of family; himself and when he shall re- shall cease to persons after which such ceive a certificate of the same under tribe, members the Delaware of court; the of the seal and on said the participate in and shall not further
filing of the said certificate the of- councils, share in their prop- their nor fice of the of Indian commissioner af- erty or annuities. fairs, the said Delaware Indian shall be constituted a citizen of the United 146, 175) (18 The Act of 1874 Stat. States, and be entitled to receive a payment for of appropriated an amount patent power in fee with simple, of fund, general the interest on alienation, for the land heretofore al- then added: him, just proportion, lotted to and his bonds, amount, in cash or in of the cash to enable Sec- value For this tribe, pay of the credits of to the principal retary said of the Interior interest, and then by in trust Indians who held children of the Delaware States; also, United as the became citizens of the States same received, ninth arti- may be of the proportion provisions his of under treaty July of proceeds of the sale of lands the Delaware under cle of fourth, sixty-six, provisions eighteen of this hundred treaty, when he shall Betsey Zeigler, cease to be a and the children of member said tribe. her citi- Whereupon completing all of the minor who died before children provisions of said zenship of those who under the have become citizens article, share of shall their proportionate be construed to have elected to held in trust money sever their and stocks connection said tribe the Delaware being, time for and be entitled the United States Indians, fifty-four just proportion thousand their of the tribe of annuities tribe, fourteen dollars and paid to be to the head five hundred and cents, twenty- twenty-three to be family expended their DAUGHERTY, Judge Chief District forty- hundred and thousand four one dissenting in (concurring part and seven cents shall be eight dollars money-credits part): from the deducted tribe, thirty-three thousand
said
part.
and dissent in
I
part
I concur in
cents,
sixty-six dollars and sixteen
majority opin-
part
concur in that
equitably
taken
from their sever-
to be
upholding
results in
the distri-
ion which
stock, shall be transferred
al kinds of
Congress
of funds ordered
bution
Secretary
Treasury
rejecting
in 25
1181-6 and
U.S.C. §§
property
of the United
become
However, I
Plaintiffs’ attacks thereon.
Provided,
if the
That
Secre-
States:
part
majority
must dissent to
determine,
so
tary of the Interior shall
the distribution of
opinion which declares
hereby appropriated
the whole amount
in 25
funds ordered
the money-credits
be taken from
shall
void
uncon-
1291—7 to be
U.S.C. §§
tribe,
Secretary of the Inte-
stitutional.
the funds from which
designate
rior to
Provided,
amounts shall be taken:
said
PLENARY POWER OF CONGRESS
persons,
That in the case of deceased
I consider such distribution
funds to
Secretary of the Interior shall
the Indian Tribes and members on their
payment
legal repre-
make
Congress in 25
U.S.C.
rolls
ordered
sentatives;
Delaware children
and said
plenary pow-
within the
1291-7 to be
§§
*41
to be citizens of
hereby
are
declared
in relation to Indians and
Congress
er of
rights,
with all the
the United
justiciable.
In Lone Wolf v. Hitch-
not
such;
and immunities of
privileges,
cock,
553,
216,
23
47 L.Ed.
187 U.S.
S.Ct.
the Interior is
Secretary
and the
of
(1903) it
held:
was
and directed to
hereby authorized
authority over the
“Plenary
patents
fee-simple
cause
to issue in
of the Indians has been exer-
relations
persons
said
for the lands allotted to
beginning,
from the
by Congress
cised
them;
and
case of the decease of
always been
power
and the
has
any
persons,
patents
of said
said
the,
one,
subject
political
deemed a
shall issue in the names of such de-
judicial depart-
by
be controlled
the
persons, including
ceased
said Bet-
government.”
ment of
sey Zeigler, and the title to
lands
and the
This ease has not been reversed
patents
in such
shall inure
designated
it are too numerous
following
decisions
heirs,
to and become vested in
isees,
dev-
However,
cite.
as late as 1973 our
said
assignees
or
of
deceased
Indian
Appeals
of
in National
Court
patentees,
if the
had
patent
as
issued
Counc.,
Chap. v.
Youth
Int. Ind. Sch.
life;
person during
to the deceased
Bruce,
(Tenth
1973)
decline to
the appropriated
PROVISIONS
TREATY
funds necessary
pay any
to
final award
recommended
the Indian Claims Com-
itself,
addition,
Treaty
which is
In
the
mission. The’ majority opinion has the
alleged
Plaintiffs’
the foundation of
effect of ordering
redesignation
authority
gives full
and discretion
rights,
recipients of appropriated funds from
the matter of the distri-
Congress
to
in
designated by
Congress.
those
of funds derived from
land
bution
Article 8 in
provides
when it
in
sales
RATIONALITY
part as follows:
“ * * *
Also,
distributing
and in
matter of whether
there is the
due
(Delaware) people,
rationality
passed by
funds to the
there
in the Acts
encouragement shall
regard and
be Congress
majority
which the
strikes
given
portion
to that
of the Delawares
Ordinarily,
down.
determination and
manage
to
their
competent
who are
upheld
are
classification laws
if there is
* * *
affairs,
Congress
own
but
a rational
for the same.
basis
United
time,
time to
may,
at
and from
DePugh,
F.Supp.
(W.D.
v.
States
law,
time, by
reg-
aff’d,
make such rules and
Mo.1967),
F.2d
(Eighth
Cir.
the funds aris- 1986),
den.,
in relation to
ulations
cert.
393 U.S.
89 S.Ct.
lands,
of said
At
ing
point
from the sale
present, which is doubted power unique plenary of Con- cise matters,
gress any Indian there is in shown an abundance
event it another Congress had before
record. have distributed CD
Bill which would exactly the man- 298 funds in same George BROWN, Petitioner, Melvin and horrendous dis- wrongful ner as the Congress made re- tribution in CD jected knowledge Bill with full this PARRATT, Warden, Robert F. claiming Dela- people there some Respondent. ancestry entitlement Dela- ware would Tribal who not be in- ware funds No. CV74-L-191. cluded within this distribution to the two Court, States District Tribes in recognized Delaware Oklahoma D. Nebraska. membership those on their rolls. appropriated funds Congress distributed 16, 1975. Sept. with full knowl- by 25 U.S.C. 1291—7 §§ edge that it was a different distribution made 25 U.S.C. 1181-6.
from that §§ Congressional
This was mistake. Congressional action
It was deliberate majority in the thereof the face
would strike down 25 U.S.C. 1291—7 §§ it Congress
and advise erred and legislate and in again doing
must so include Dela-
must the so-called Kansas but include
wares need not the Munsee or the or Christian Delawares belonging other Delawares not recognized Tribes. What Oklahoma Congress if
will be result declines to
permit legislate the Court to for it re-
garding plenary power its af- It that Congress
fairs? will could position to change
decline its for it acted
rightly authority per- within its
haps Congress will balk and refuse to anything anyone
distribute which is
also within its under the Indian power Act. It my
Claims Commission belief position that if in fact has plain grievous regard- error
made
ing so-called Kansas Delawares passage of 25 1291—7 U.S.C. §§
(which case) I do not to be the believe