(dissenting).
With all due respect for the view of my colleagues, I am impelled to dissent, largely for the reasons expressed by the district court in granting defendants’ motion for summary judgment. Eskra v. Morton, 380 F.Supp. 205 (W.D.Wis.1974).
Plaintiff’s half-sisters, Faye Gable and llene Hollen, each received a Vsoth share of their great-aunt’s estate. At oral argument, plaintiff’s counsel stated that Constance Eskra’s share in the estate, if awarded, would be approximately $33. Plaintiff was barred from any share in the estate because of 25 U.S.C. §§ 348 and 464, which incorporate by reference Wisconsin’s Heirship of Illegitimates Statute, Wis.Stat. § 237.06 (1969), since repealed. (See notes 2, 4 and 5 of majority opinion).
According to the parties, there are between 300 and 500 estates involving interests in Indian trust property located in Wisconsin which have not been administered or probated by the United States Department of the Interior, where the decedents died before April 1, 1971, the effective date of the successor Wisconsin statute. Of said estates, a number involve illegitimate heirs who would inherit through their mothers except for the effect of Section 237.06 of the Wisconsin statutes. That number has not been determined. 380 F.Supp. at 208.
The Secretary of the Interior established a two-tier administrative process in Indian probate. An initial determination was first made against plaintiff’s claim by a hearing examiner. An appeal was taken from his decision to the Board of Indian Appeals. That decision was also adverse to plaintiff. Estate of Florence Bluesky Vessel, 1 IBIA 312 (Sept. 27, 1972). The Board’s decision is treated as the decision of the Secretary. In the district court, both parties agreed to the material facts as found in the administrative decision and therefore filed cross-motions for summary judgment.
Plaintiff asserted that 25 U.S.C. §§ 348 and 464 (note 2 of majority opinion), by incorporating Section 237.06 of the Wisconsin statutes, invidiously discri*16minated between legitímate and illegitimate Indian children and also invidiously discriminated between two classes of Indian children since illegitimate Indian children would be able to inherit through their mothers in some states and not in others. Consequently, the statutes were said to violate the concept of equal protection under the law guaranteed as to the states explicitly by the Fourteenth Amendment and as to the federal Government by the Due Process Clause of the Fifth Amendment. See Jimenez v. Weinberger, 417 U.S. 628, 637, 94 S.Ct. 2496, 41 L.Ed.2d 363, and cases cited therein.
The district court, in a thoughtful and thorough opinion, granted defendants’ motion for summary judgment and dismissed the action on the merits. 380 F.Supp. at 219. The court first held that it had jurisdiction of the controversy under Section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 702. 380 F.Supp. at 209 — 213. Next it held that the action could be maintained as a class action under Rule 23(b)(2) of the Federal Rules of Civil Procedure. 380 F.Supp. at 213. The constitutional arguments were then resolved in favor of defendants. For the reasons given in the district court’s opinion, I would affirm, while adding some discussion of my own.
With respect to the plaintiff’s principal argument on appeal that Wisconsin Statute § 237.06, and therefore the incorporating federal statutes 25 U.S.C. §§ 348 and 464, violate the concept of equal protection by discriminating as to certain rights of heirship between legitimate and illegitimate children, the reasoning of the district court’s opinion is sufficient. See 380 F.Supp. at 213 — 219.1 Judge Doyle correctly concluded that the decision in Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, controls. In Labine the Court held that Louisiana could “discriminate” between legitimate and illegitimate children in its intestacy statutes. In recognizing that the laws of descent are historically a prerogative of the states, consigned to them by the Constitution, the Court implicitly applied a standard of “minimum rationality” to test the constitutionality of the statutes under the equal protection clause.2 The majority upheld the statutes without embracing their philosophy, stating “We cannot say that Louisiana’s policy provides a perfect or even a desirable solution or the one we would have provided for the problem of property rights of illegitimate children.” 401 U.S. at 539, 91 S.Ct. at 1021. But the Justices could not conclude that the statutory scheme was irrational and therefore concluded that it must be upheld. *17Similarly, the Wisconsin statute at issue here may not be the wisest solution. Nonetheless it is a rational choice,3 one having a foundation in legitimate state goals of “promoting family life and of directing the disposition of property left within the State.” 401 U.S. at 536, 91 S.Ct. at 1019.
Plaintiff raises a second equal protection argument in this Court, however, which is not discussed in the district court opinion. Plaintiff asserts that 25 U.S.C. §§ 348 and 464, by incorporating the succession laws of the state. where the land is located, violate the equal protection concept of the due process clause of the Fifth Amendment by discriminating between two classes of illegitimate children, those who live in states whose laws permit collateral inheritance for illegitimates and whose laws restrict such heirship rights of illegitimates.4 On page 25 of plaintiff’s main brief, this secondary equal protection argument is summarized as follows:
“In summary, the classification for purposes of inheritance contained in 25 U.S.C. §§ 348 and 464 which results in illegitimate Indian children being able to inherit through their mothers in some states but not in others is without rational basis and constitutes invidious discrimination between two classes of illegitimate Indian children in violation of the equal protection provisions of the due process clause of the Fifth Amendment to the United States Constitution.”
Plaintiff’s principal authority advanced for this proposition is Jimenez v. Weinberger, supra. Under the Social Security Act, one class of illegitimate children is deemed entitled to disability insurance benefits without any showing of dependency upon their disabled parent if state law permits them to inherit from the wage-earner parent, if their illegitimacy results solely from formal defects in their parents’ ceremonial marriage, or if they are legitimated in accordance with state law. All other illegitimate children born after the date of disability fall into a class conclusively denied benefits. The Supreme Court held this statutory scheme violated the equal protection of the laws guaranteed by the Fifth Amendment because it was not reasonably related to the only valid federal governmental interest considered, preventing specious benefit claims, “since the potential for spurious claims is exactly the same as to both subclasses” (417 U.S. at 636, 94 S.Ct. at 2501). Here though, as explained in the opinion below, Wisconsin had a valid governmental interest in attempting to satisfy the presumed intent of an intestate decedent to exclude illegitimates (380 F.Supp. at 217 — 219). Since it has historically been the legitimate field of the states to provide for intestate succession, Congress could reasonably turn to state law to provide for the succession to property *18within the various states that belonged to intestate Indians, provided that, as here, the particular state intestacy law does not violate the equal protection clause of the Fourteenth Amendment.
Paraphrasing language from Hanover National Bank v. Moyses, 186 U.S. 181, 190, 22 S.Ct. 857, 861, 46 L.Ed. 1113, upholding the bankruptcy law provision that refers to state laws to determine exemption from creditors, the instant Congressional scheme passes constitutional muster because “The general operation of the law [here 25 U.S.C. §§ 348 and 464] is uniform although it may result in certain particulars differently in different states.” The bankruptcy analogy is apt because the Constitution requires that the bankruptcy laws of Congress must be uniform. Jimenez does not hold that a federal statute would violate the equal protection clause where classes might be affected differently because of the Congressional reference to the laws of the various states. In any event, the force of plaintiff’s argument is diminished because plaintiff’s inheritance rights would be the same if 25 U.S.C. §§ 348 and 464 had not been enacted and state law controlled.
In sum, Congress’ decision to apply the laws of the state where the land is located is uniformly applied; it creates no classes of itself. Furthermore, there are several possible rational bases for the Congressional scheme of incorporation of state law, including Congressional considerations of federalism, the interests of each state in a uniform scheme for intestate devolution of its land, and perhaps the notion that each state may be best able to discern the wishes of those who die intestate while owning land within that state. Congress has not acted without a rational basis in enacting 25 U.S.C. §§ 348 and 464. See generally, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393.
Plaintiff’s final position is that 25 U.S.C. § 371 should be interpreted to permit illegitimate Indian children to inherit through their mothers as well as their fathers.5 The Government correctly states that the primary purpose of this statute is to provide for legitimation of the issue of two Indian parents by means of finding an Indian custom marriage. See Attocknie v. Udall, 261 F.Supp. 876, 883 (W.D.Okl.1966), reversed on other grounds, 390 F.2d 636 (10th Cir. 1968). Plaintiff has not attempted to show that her father, Robert Kliebert, was an Indian and that he and her mother “cohabited together as husband and wife according to the custom and manner of Indian life” within the purview of this statute. The settled administrative construction of the underscored portion of this statute does not permit an illegitimate Indian child to inherit through his mother. As stated in a well reasoned opinion of Warner Gardner, then Solicitor of the Department of the Interior,
“In my opinion these words cannot confer upon Isaac Thatcher a status of legitimacy which would permit him to represent his mother in this estate. These words make illegitimates the legitimate issue of their fathers for certain purposes connected with the descent of restricted Indian estates but there is nothing in the section to indicate that any modification of the State laws with respect to the rights of illegitimates to inherit from or through *19their mothers was intended by Congress.” (58 I.D. 149 (October 14, 1942)).
Furthermore, the district court correctly held that since the issue as to 25 U.S.C. § 371 was not previously raised in the administrative proceedings, there was no jurisdiction to consider it under Section 10 of the Administrative Procedure Act, 5 U.S.C. § 702. See 380 F.Supp. at 210, n. 7.
In my view, the summary judgment for defendants should be affirmed.6
. The district court relied principally on Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288, in deciding plaintiff’s principal equal protection argument. Plaintiff suggests strongly that Labine is distinguishable from the case at hand because Labine did not involve an “insurmountable barrier” to the securing of rights denied the illegitimate and the Wisconsin statute, plaintiff alleges, does create such a barrier.
It is-true that the Court in Labine mentioned the absence of an “insurmountable barrier.” 401 U.S. at 539, 91 S.Ct. 1017. The Court noted that the disabilities of illegitimacy in Labine could have been erased if the father had legitimatized the child by marrying the mother, thus securing the child’s right to inherit. (Idem.) While I do not think the insurmountable barrier point in Labine to be crucial to the holding there, I note that the last phrase of the Wisconsin statute under attack here provides for the child born illegitimate to inherit from his parents’ collateral relatives if the parents legitimatize the child by marriage in accord with Wisconsin law. Thus, even if the “insurmountable barrier” point in Labine was crucial, the Wisconsin statute’s barrier is not insurmountable.
. See McDonald v. Board of Election Commissioners, 394 U.S. 802, 809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739, where the Court described the “minimum rationality” test by stating:
“The distinctions drawn by a challenged statute must bear some rational relationship to a legitimate state end and will be set aside as violative of the Equal Protection Clause only if based on reasons totally unrelated to the pursuit of that goal. Legislatures are presumed to have acted constitutionally even if source materials normally resorted to .for ascertaining their grounds for action are otherwise silent, and their statutory classifications will be set aside only if no grounds can be conceived to justify them.”
. The majority argues by analogy that because the state cannot discriminate on the basis of race, religion or political affiliation in its intestacy statutes, it should not be able to discriminate on the basis of legitimacy or illegitimacy (p. 14 supra). The analogy is faulty: classifications based on the former criteria are constitutionally impermissible either because they impinge fundamental rights, e. g., Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169, or because they are inherently suspect, e. g., Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010. In either case, the statute is subjected to strict judicial scrutiny and must be justified by a compelling state interest. See Gunther, Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv.L.Rev. 1 (1972); Developments in the Law — Equal Protection, 82 Harv. L.Rev. 1065 (1969). As Labine demonstrates, classifications based on lineage are neither inherently irrational nor to be subjected to strict judicial scrutiny.
. For example, according to plaintiff, if Florence Vessel’s land was situated in Michigan upon her death, plaintiff would inherit despite her illegitimacy, but if the great-aunt’s land was located in Minnesota or Wisconsin, two other states where much Chippewa Indian restricted and trust property is located, she would not inherit.
. 25 U.S.C. § 371 provides:
"For the purpose of determining the descent of land to the heirs of any deceased Indian under the provisions of section 348 of this title, whenever any male and female Indian shall have cohabited together as husband and wife according to the custom and manner of Indian life the issue of such cohabitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together, and every Indian child, otherwise illegitimate, shall for such purpose be taken and deemed to be the legitimate issue of the father of such child: Provided, That the provisions of this section and sections 331, 336 and 397 of this title shall not be held or construed as to apply to the lands commonly called and known as the ‘Cherokee Outlet.’ ” (Emphasis added.)
. The supplemental authorities cited by plaintiff under Circuit Rule 29 have been examined without persuading me of the incorrectness of the decision below.