MR. JUSTICE BRENNAN delivered the opinion of the Court.
An Act of Congress providing for distribution of funds to certain Delaware Indians, pursuant to an award by the Indian Claims Commission to redress a breach by the United States of an 1854 treaty, is challenged in this action by a group of Delawares excluded from the distribution. The question presented by this litigation is whether their exclusion denies them equal protection of the laws in violation of the Due Process Clause of the Fifth Amendment.
A brief history of the migrations of the Delaware Indians will serve as a helpful backdrop to the litigation.
Some Delawares, however, never joined the main body of the Delawares on the Kansas reservation. Among these was a small group that migrated to Oklahoma and settled with the Wichita and Caddo Indians. For a time during the 1850's and 1860's the Delawares in Kansas expected this group to rejoin the main body of the tribe there, but these Indians, called the "Absentee Delawares" in this suit, stayed with the Wichitas and Caddos.
By the 1850's, the main body of the Delaware Nation, together with a small number of Munsees, had assembled on the "permanent" reservation in Kansas at the confluence of the Kansas and Missouri Rivers. But the hope that the Kansas reservation would be the Delawares' last stopping place was short-lived. In 1866, the Delawares living on the reservation signed a treaty, under which they were to move to "Indian Country" in Oklahoma to live with the Cherokees.
In 1854, while they still lived on the Kansas reservation, the main body of the Delawares signed a treaty with the
Appellee Weeks, on behalf of all the Kansas Delawares, instituted this action against the United States, the Cherokee Delawares, the Absentee Delawares, and the Secretary of the Interior in the District Court for the Western District of Oklahoma, alleging that the exclusion of the Kansas Delawares from the distribution of the award constituted a denial of the equal protection of the laws guaranteed by the Due Process Clause of the Fifth Amendment. A three-judge court was convened.
Appellants differ on the issue of whether this suit presents a nonjusticiable political question because of Congress' pervasive authority, rooted in the Constitution, to control tribal property. Stated in other words, they differ on the issue of whether congressional exercise of control over tribal property is final and not subject to judicial scrutiny, since the power over distribution of tribal property has "been committed by the Constitution" to the Congress, Baker v. Carr, 369 U.S. 186, 211 (1962), and since "[t]he nonjusticiability of a political question is primarily a function of the separation of powers," id., at 210. Appellants Cherokee and Absentee Delawares, citing Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), argue that Congress' distribution plan reflects a congressional determination not subject to scrutiny by the Judicial Branch, and that the District Court therefore erred in reaching the merits of this action. Appellant Secretary of the Interior, on the other hand, submits that the plenary power
The statement in Lone Wolf, supra, at 565, that the power of Congress "has always been deemed a political one, not subject to be controlled by the judicial department of the government," however pertinent to the question then before the Court of congressional power to abrogate treaties, see generally Antoine v. Washington, 420 U.S. 194, 201-204 (1975), has not deterred this Court, particularly in this day, from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment. See, e. g., Morton v. Mancari, 417 U.S. 535 (1974). "The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute." United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion); see also United States v. Creek Nation, 295 U.S. 103, 109-110 (1935); cf. United States v. Jim, 409 U.S. 80, 82 n. 3 (1972).
The question is therefore what judicial review of Pub. L. 92-456 is appropriate in light of the broad congressional power to prescribe the distribution of property of Indian tribes. The general rule emerging from our decisions ordinarily requires the judiciary to defer to congressional determination of what is the best or most efficient use for which tribal funds should be employed. Sizemore v. Brady, 235 U.S. 441, 449 (1914). Thus, Congress may choose to differentiate among groups of Indians in the same tribe in making a distribution, Simmons v. Seelatsee, 384 U.S. 209 (1966), aff'g 244 F.Supp. 808 (ED Wash. 1965), or on the other hand to expand a class of tribal beneficiaries entitled to share in royalties from tribal lands, United States v. Jim,
We are persuaded on the record before us that Congress' omission of the appellee Kansas Delawares from the distribution under Pub. L. 92-456 was "tied rationally to the fulfillment of Congress' unique obligation toward the Indians."
First, the Kansas Delawares are not a recognized tribal entity, but are simply individual Indians with no vested rights in any tribal property. Public Law 92-456 distributes tribal rather than individually owned property, for the funds were appropriated to pay an award redressing the breach of a treaty with a tribal entity, the Delaware Nation. It was that tribal entity, represented jointly in the suit before the Indian Claims Commission by the appellants Cherokee Delawares and Absentee Delawares, that suffered from the United States' breach, and both the Commission award and the appropriation by Congress were the means of compensating that tribal entity for the wrong done to it. Indeed, the Indian Claims Commission is not empowered to hear individuals' claims, but may only adjudicate claims held by an "Indian tribe, band, or other identifiable group." 25 U. S. C. §§ 70a, 70i; see Minnesota Chippewa Tribe v. United States, 161 Ct. Cl. 258, 270-271, 315 F.2d 906, 913-914 (1963). As tribal property, the appropriated funds were subject to the exercise by Congress of its traditional broad authority over the management and distribution of lands and property held by recognized tribes, an authority "drawn both explicitly and implicitly from the Constitution itself." Morton v. Mancari,
The ancestors of the Kansas Delawares severed their relations with the tribe when they elected under the 1866 treaty to become United States citizens entitled to participate in tribal assets only to the extent of their "just proportion . . . of the cash value of the credits of said tribe . . . then held in trust by the United States." (Emphasis supplied.) We cannot say that the decision of Congress to exclude the descendants of individual Delaware Indians who ended their tribal membership and took their proportionate share of tribal property as constituted more than a century ago, and to distribute the appropriated funds only to members of or persons closely affiliated with the Cherokee and Absentee Delaware Tribes, was not "tied rationally to the fulfillment of Congress' unique obligation toward the Indians."
Second, the exclusion of the Kansas Delawares under Pub. L. 92-456 was not their first exclusion from participation in a distribution of tribal assets. In 1904 Congress appropriated $150,000 to settle claims of the Delaware Tribe of Indians, one of them arising out of another injustice done to the Delawares under the 1854 treaty, unrelated to the breach which forms the basis for the distribution under Pub. L. 92-456.
While this precedent of excluding the Kansas Delawares from the 1904 distribution does not of itself legitimate their exclusion from the present distribution statute, their earlier exclusion nevertheless indicates that Congress has historically distinguished them from the Cherokee Delawares in distributing an award based in part on a breach of the very treaty involved in this litigation.
Third, Congress deliberately limited the distribution under Pub. L. 92-456 to the Cherokee and Absentee Delawares because of substantial problems it apprehended might attend a wider distribution. H. R. 5200, the bill originally introduced to distribute the funds, had contained a "catchall" clause authorizing distribution "to include the names of all
The omission of the catchall provision from Pub. L. 92-456, as finally enacted, followed legislative hearings at which the Cherokee and Absentee Delawares testified. At these hearings they directed Congress' attention to problems that had arisen when Munsee Indians, in addition to the Kansas Delawares, had claimed eligibility under the catchall provision of the 1968 statute.
We recognize, as did the District Court, that Congress omitted the catchall provision from the present statute in order to avoid a repetition of the problems with the Munsees, and that Congress was not "made aware that the limitation of distribution to [the Cherokee and Absentee Delawares] would exclude a group which had lived on the Kansas Delaware lands and which could trace their Delaware descendancy as the Kansas Delawares do." 406 F. Supp., at 1332.
Our conclusion that the exclusion of the Kansas Delawares from distribution under Pub. L. 92-456 does not offend the Due Process Clause of the Fifth Amendment of course does not preclude Congress from revising the distribution scheme to include the Kansas Delawares. The distribution authorized by Pub. L. 92-456 has not yet occurred, and Congress has the power to revise its original allocation. United States v. Jim, 409 U. S., at 82-83.
MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE joins, concurring in part and concurring in the result.
I join Parts I and II of the Court's opinion, but otherwise I concur only in the result.
For me, the reversal of the District Court's judgment is not a result that is so inevitable and so easily and smoothly reached as a reading of Part III of the Court's opinion makes it appear. The Court's justifications for exclusion of the Kansas Delawares are not very persuasive. The first— favoritism toward tribal Indians—is undermined by the fact that Absentee Delawares who are not members of that tribe nevertheless are entitled to participate. Ante, at 82 n. 14. The second—exclusion from a prior distribution—is troublesome because it is difficult for me to see how perceived prior unfair treatment buttresses further unfairness. And I wonder about the statement, ante, at 87, that Congress "has historically
Nevertheless, having said all this, I am not persuaded that the Court errs in its conclusion. For me, the case is one of that rare type in which the argument on each side is not at all strong. With the litigation in this lukewarm posture, I conclude that we must acknowledge that there necessarily is a large measure of arbitrariness in distributing an award for a century-old wrong. One could regard the distribution as a windfall for whichever beneficiaries are now favored. In light of the difficulty in determining appropriate standards for the selection of those who are to receive the benefits, I cannot say that the distribution directed by the Congress is unreasonable and constitutionally impermissible. Congress must have a large measure of flexibility in allocating Indian awards, and what it has done here is not beyond the constitutional pale.
MR. JUSTICE STEVENS, dissenting.
At the outset of these proceedings the Indian Claims Commission noted that in accordance with the Indian Claims Commission Act any recovery for a breach of the treaties of 1829 and 1854 "must be for the benefit of all the descendants of the Delaware Nation as constituted in 1829 and 1854," Delaware Tribe of Indians v. United States, 2 Ind. Cl. Comm. 253, 270-271 (1952).
Appellees, the "Kansas Delawares," are members of the class represented by the plaintiffs in the Indian Claims Commission proceeding.
These facts are undisputed. They make it perfectly clear that the special treatment of the Kansas Delawares does not in fact represent any rational attempt at "fulfillment of Congress' unique obligation toward the Indians . . . ." Morton v. Mancari, 417 U.S. 535, 555. I think it is equally clear that each of the three hypothetical justifications for the exclusion
First, it is suggested that the Kansas Delawares were properly excluded because they terminated their membership in the tribe before the claim was reduced to judgment. But so did the Cherokees. They ceased being members of the Delaware Tribe in 1867, when they joined the Cherokee Nation.
The statutory exclusion of the Kansas Delawares from any share in the fund appropriated to pay a judgment in favor of a class to which they belong is manifestly unjust and arbitrary. Neither the actual explanation, nor any of the hypothetical explanations, is "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." But having said all this, I must confront the ultimate question whether the statute is therefore unconstitutional.
Nevertheless, four considerations persuade me that this legislative classification is invalid. First, the members of the class whose rights were adjudicated by the Indian Claims Commission have more than an ordinary interest in equal treatment.
"Whereas some years ago a good many of the Delawares went down among the Southern Indians, and as there are still about two hundred of them there, and as they have reason to believe they will return soon, it is hereby agreed that eighty acres each be set apart for them, to be allotted to them as they return . . . ."
"The funds appropriated by the Act of December 26, 1969 (83 Stat. 447, 453), to pay a judgment in favor of the petitioners, the Delaware Tribe of Indians in docket 298, and the Absentee Delaware Tribe of Western Oklahoma, and others, in docket 72, together with any interest thereon, after payment of attorney fees, litigation expenses, and such expenses as may be necessary in effecting the provisions of sections 1291 to 1297 of this title, shall be distributed as provided in such sections."
"The Secretary of the Interior shall prepare a roll of all persons who meet the following requirements:
"(a) they were born on or prior to and were living on October 3, 1972; and
"(b) they are citizens of the United States; and
"(c) (1) their name or the name of a lineal ancestor appears on the Delaware Indian per capita payroll approved by the Secretary on April 20, 1906, or
"(2) their name or the name of a lineal ancestor is on or is eligible to be on the constructed base census roll as of 1940 of the Absentee Delaware Tribe of Western Oklahoma, approved by the Secretary."
"All applications for enrollment must be filed either with the Area Director of the Bureau of Indian Affairs, Muskogee, Oklahoma, or with the Area Director of the Bureau of Indian Affairs, Anadarko, Oklahoma, on or before the last day of the fourth full month following October 3, 1972, and no application shall be accepted thereafter. The Secretary of the Interior shall give a rejection notice within sixty days after receipt of an application if the applicant is ineligible for enrollment. An appeal from a rejected application must be filed with the Area Director not later than thirty days from receipt of the notice of rejection. The Secretary shall make a final determination on each appeal not later than sixty days from the date it is filed. Each application and each appeal filed with the Area Director shall be reviewed by a committee composed of representatives of the two Oklahoma Delaware groups prior to submission of the application or appeal to the Secretary, and the committee shall advise the Area Director in writing of its judgment regarding the eligibility of the applicant."
"(a) The Secretary of the Interior shall apportion to the Absentee Delaware Tribe of Western Oklahoma, as presently constituted, so much of the judgment fund and accrued interest as the ratio of the persons enrolled pursuant to section 1292 (c) (2) of this title bears to the total number of persons enrolled pursuant to section 1292 of this title. The funds so apportioned to the Absentee Delaware Tribe of Western Oklahoma shall be placed to the credit of the tribe in the United States Treasury and shall be used in the following manner: 90 per centum of such funds shall be distributed in equal shares to each person enrolled pursuant to section 1292 (c) (2) of this title, and 10 per centum shall remain to the credit of the tribe in the United States Treasury, and may be advanced, expended, invested, or reinvested for any purpose that is authorized by the tribal governing body and approved by the Secretary of the Interior.
"(b) The funds not apportioned to the Absentee Delaware Tribe of Western Oklahoma shall be placed to the credit of the Delaware Tribe of Indians in the United States Treasury and shall be used in the following manner: 90 per centum of such funds shall be distributed in equal shares to each person enrolled pursuant to section 1292 (c) (1) of this title, and 10 per centum shall remain to the credit of the tribe in the United States Treasury and may be advanced, expended, invested, or reinvested for any purpose that is authorized by the tribal governing body: Provided, That the Secretary of the Interior shall not approve the use of the funds remaining to the credit of the tribe until the tribe has organized a legal entity which in the judgment of the Secretary adequately protects the interests of its members."
"Sums payable to living enrollees age eighteen or older or to heirs or legatees of deceased enrollees age eighteen or older shall be paid directly to such persons. Sums payable to enrollees or their heirs or legatees who are under age eighteen or who are under legal disability other than minority shall be paid in accordance with such procedures, including the establishment of trusts, as the Secretary of the Interior determines appropriate to protect the best interests of such persons."
"None of the funds distributed per capita under the provisions of sections 1291 to 1297 of this title shall be subject to Federal or State income taxes."
"The Secretary of the Interior is authorized to prescribe rules and regulations to carry out the provisions of sections 1291 to 1297 of this title."
Appellees also filed an appeal from the District Court judgment which is pending as Weeks v. Andrus, No. 75-1328. Their complaint asserted that 25 U. S. C. §§ 1181-1186 (relating to the 1818 treaty) and §§ 1291-1297 (1970 ed., Supp. V) (relating to the 1854 treaty) violated the Fifth Amendment's Due Process and Just Compensation Clauses; §§ 1181-1186, because the Cherokee Delaware class was wrongfully included in the proposed distribution under that statute; and §§ 1291-1297, because the Kansas Delaware class was wrongfully excluded and the Cherokee and Absentee Delaware classes wrongfully included in that statute's distribution. The District Court held that neither statute was unconstitutional by reason of the inclusion of the Cherokee Delaware and the Absentee Delaware classes. It is from this aspect of the District Court's decision that the appeal in No. 75-1328 is taken. In light of today's decision, the judgment of the District Court in that respect is affirmed.
The District Court conducted an extensive review of the legislative history, id., at 1330-1332, 1347-1351, and concluded:
"[T]he Congress was specifically requested by the Absentee Delawares and the Cherokee Delawares to delete the catchall provision [under which respondents would have claimed], and that Congress made the decision in response to the urging of those groups. On the record before us, we find that neither Congress nor its committees were made aware that the limitation . . . would exclude a group which had lived on the Kansas Delaware lands and which could trace their Delaware descendancy as the Kansas Delawares do. Instead the focus was on the Munsee Indian groups, including the Christian Indians, and paramount consideration was given to the Munsee situation in considering the proposed change in the distribution statute.
". . . It is distributing that the Congress was apparently not aware of the Kansas Delaware group and we are persuaded that it was not the intent of Congress to exclude a group such as the Kansas Delawares from the distribution." Id., at 1332.
In view of these undisputed findings it is also disturbing that the majority refers to a congressional "decision" to exclude the Kansas Delawares, ante, at 86.
" `On the fulfilment by the Delawares of the foregoing stipulations, all the members of the tribe registered as above provided, shall become members of the Cherokee Nation, with the same rights and immunities, and the same participation (and no other) in the national funds as native Cherokees, save as hereinbefore provided.
" `And the children hereafter born of such Delawares so incorporated into the Cherokee Nation, shall in all respects be regarded as native Cherokee.' " Id., at 202.
Aspects of the status of the Cherokee Delawares were adjudicated in Journeycake and in Delaware Indians v. Cherokee Nation, 193 U.S. 127. To be sure the Cherokee Delawares have recently reconstituted themselves as a recognized Indian tribe. This did not occur, however, until 1974, two years after Congress acted on the legislation in question.
The 1866 treaty was plainly intended to give the Kansas Delawares their proportionate interest in the proceeds of the sales made pursuant to the 1854 treaty. It is true that those proceeds were only about half as large as they would have been if the United States had fulfilled its treaty obligation, and I recognize that the unknown claim for the balance of the fair value of the tribal land was not technically "then held in trust by the United States." But surely it was the intention of the parties to the 1866 treaty to give the Kansas Delawares their fair share of the credits which should have been on the books as a result of the sale of tribal property as well as their share of the actual credits. See the discussion below, 406 F. Supp., at 1337 n. 39, and accompanying text.