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).1 In due course the Commission found *92that the 1854 treaty had been breached in 1856 and 1857 when the United States disposed of the tribal lands in Kansas by private, not public, sale for about half their fair value. The opinion accompanying the judgment of the Commission reiterated that the named plaintiffs “were entitled jointly to represent the entire Delaware Tribe,” Absentee Delaware Tribe of Oklahoma v. United States, 21 Ind. Cl. Comm. 344, 345 (1969). Thereafter, Congress appropriated the amount required by the judgment, 83 Stat. 447, 453, and adopted the distribution statute at issue here, which was intended to satisfy that judgment, 25 U. S. C. §§ 1291-1297 (1970 ed., Supp. V).
Appellees, the “Kansas Delawares,” are members of the class represented by the plaintiffs in the Indian Claims Commission proceeding.2 There is no question about the fact that they are actual lineal descendants of members of the Delaware Tribe of 1854. Nor is there any question about the fact that their exclusion from the distribution statute is the consequence of a malfunction of the legislative process rather than a deliberate choice by Congress. At the urging of appellants Congress adopted an amendment to the bill in order to be sure that descendants of the Munsees—who had not been members of the Delaware Tribe since prior to 1818— would not participate in the award. Unfortunately, the amendment had the unintended consequence of also excluding the Kansas Delawares, whose ancestors were members of *93the tribe in 1854 and who suffered precisely the same wrong as those whose descendants will share in the award on a per capita basis.3
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 *94of the Kansas Delawares advanced by the majority merely emphasizes the lack of any rational explanation for the legislative malfunction because each of the justifications would, if valid, require a different classification.
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.4 Moreover, some of those who would share in the distribution on behalf of the Absentee Delawares are not members of that tribe.5 Resignation from the tribe after the time of the wrong does not provide a consistent basis for treating the Kansas Delawares differently from the Cherokees or the Absentees.6
*95Second, it is pointed out that the Kansas Delawares did not participate in the $150,000 distribution appropriated by Congress in 1904 to settle a claim arising out of another breach of the 1854 treaty. But neither did the Absentee Delawares. The reason is perfectly clear. The claim involved in that settlement had been asserted pursuant to a special provision in a Cherokee allotment statute designed to resolve all claims which “the Cherokee tribe, or any band thereof, . . . may have against the United States . . . ." 32 Stat. 726. Obviously, only the Cherokee Delawares could qualify as a band of the Cherokee Tribe. That precedent does not provide any basis for treating the Kansas Delawares differently from the Absentee Delawares, or for differentiating among Delawares in a proceeding brought on behalf of all descendants of the Delaware Nation as constituted in 1829 and 1854.7
*96Third, it is said that the amendment excluding the Kansas Delawares from the award is valid because (a) it was intended to exclude the Munsees, and (b) there were valid reasons for excluding the Munsees. The Munsees were the object of special legislative concern because the processing of their claims under a 1968 distribution statute had created administrative burdens and delay. They were properly excluded because their ancestors were not members of the tribe when the wrong occurred. Neither of these reasons has any relevance to the Kansas Delawares. They are admittedly lineal descendants of victims of the wrong and they had shared in the 1968 award in such an orderly manner that Congress was not even aware of their separate status. It is thus ironic—perhaps even perverse—to justify the special treatment of the Kansas Delawares by including them in a class whose other members were properly excluded from the award for reasons which have no application whatsoever to the Kansas Delawares. Because the Kansas Delawares were so administratively inoffensive that they literally became invisible they will fail to share in the distribution as a result of a decision to avoid administrative difficulty.
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.
*97Improbable as the possibility seems, I am not prepared to say that if Congress had actually reviewed the status of the Kansas Delawares, it might not have found some principled basis for treating them differently from other Delawares. And it is clear that the discrimination, far from evidencing actual discriminatory intent, is the consequence of a legislative accident, perhaps caused by nothing more than the unfortunate fact that Congress is too busy to do all of its work as carefully as it should. I must also acknowledge that Congress followed accepted legislative procedures in enacting the statute. Finally, I am most reluctant to suggest that the constitutionality of legislation should turn on the actual motivation, or the lack thereof, of the legislators who participated in the legislative process. Perhaps, therefore, the Court is following a wise course in declining to intervene in an area where the greatest deference is due Congress.
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.8 Second, there is no need for any discrimination at all within this class of litigants; this, therefore, is not a case in which the need to draw some line may justify the otherwise arbitrary character of the particular line which has been drawn.9 Third, no principled justification for the particular *98discrimination against the Kansas Delawares has been identified. And fourth, there is no reason to believe that the discrimination is the product of an actual legislative choice.10 Under these circumstances I conclude that there has been a deprivation of property without the “due process of lawmaking” that the Fifth Amendment guarantees.11
Aff’d as to parties, 130 Ct. Cl. 782, 128 F. Supp. 391 (1955). The Commission relied on a contemporaneous holding of the Court of Claims to *92the same effect, McGhee v. Creek Nation, 122 Ct. Cl. 380, 388, 392, 396 (1962), cert. denied, 344 U. S. 856. That court, charged by statute with interpreting the Indian Claims Commission Act and reviewing the actions of the Commission, 25 U. S. C. § 70s, continues to adhere to this view: “[T]he ancestral group 'owns’ the claim, and present-day Indian groups are before the Commission only on behalf of the ancestral entity.” Turtle Mountain Band of Chippewa Indians v. United States, 203 Ct. Cl. 426, 458, 490 F. 2d 935, 954 (1974).
Indeed, a Kansas Delaware was chairman of the plaintiffs’ business committee when the suit was filed in the Indian Claims Commission in 1951. Brief for Appellees 22.
The words “Kansas Delaware” do not appear in the legislative history of 25 U. S. C. §§ 1291-1297 (1970 ed., Supp. V). The court below noted: “There is evidence in our record that at least some of the Cherokee and Absentee Delawares, themselves, were unaware of the existence of the Kansas Delawares at the time they testified before Congress. Mr. Townsend, the chairman of the Delaware Tribal Business Committee (Cherokee Delaware) and one of the principal witnesses before Congress urging the adoption of a distribution scheme utilizing only the 1906 and 1940 rolls, testified in the course of this litigation that he was unaware of the existence of the Kansas Delawares . . . .” Weeks v. United States, 406 F. Supp. 1309, 1331 n. 29 (WD Okla. 1975).
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 disturbing 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.
Articles of Agreement between the Cherokee Nation and the Delaware Tribe, Apr. 8, 1867, quoted in the Statement of the Case in Cherokee Nation v. Journeycake, 155 U. S. 196, 199-202. The agreement states, in part:
“ '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 Cherokees.'” 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.
A person must have at least one-eighth Delaware blood in order to be recognized as a member of the Absentee Delaware Tribe. No such limitation exists as to the Absentee section of the distribution statute, 25 U. S. C. § 1292 (c) (2) (1970 ed., Supp. V). Weeks v. United States, 406 F. Supp. 1309, 1339 n. 40.
It would be manifestly unjust to read the treaty of 1866, which led *95to the resignation of the Kansas Delawares, as providing an affirmative justification for depriving their descendants of their rightful share of the recovery based on the proceeds that should have been obtained from the sale of the tribal lands in 1856 and 1857. The 1866 treaty expressly provided that upon becoming a citizen of the United States each member was “entitled to receive a patent in fee-simple, with power of alienation, for the land heretofore allotted to him, and his just proportion, in cash or in bonds, of the cash value of the credits of said tribe, principal and interest, then held in trust by the United States . . . .” 14 Stat. 796.
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.
The more relevant precedent is the 1968 statute distributing the proceeds of the award based on the breach of the 1818 treaty, ante, at 88. All Delawares, including the Kansas Delawares, who traced their ancestry *96to membership in the tribe in 1818, participated in that award. That award, like this one, but unlike the 1904 appropriation, was in satisfaction of an Indian Claims Commission judgment. Thus the more recent and more relevant congressional precedent supports inclusion of the Kansas Delawares, not exclusion.
The fact that the legislative action under review is the culmination of a quasi-judicial proceeding brought on behalf of the entire class distinguishes this legislation from policy decisions of general applicability. Cf. Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668, 680 (1976) (Stevens, J., dissenting). Moreover, “ ‘Congress’ unique obligation toward the Indians,’ ” ante, at 85, surely includes a special responsibility to deal fairly with similarly situated Indians.
Cf. Mathews v. Diaz, 426 U. S. 67, 82-84; Louisville Gas Co. v. Coleman, 277 U. S. 32, 41 (Holmes, J., dissenting).
See Mathews v. Lucas, 427 U. S. 495, 516; Weinberger v. Wiesenfeld, 420 U. S. 636, 648 n. 16; Flemming v. Nestor, 363 U. S. 603, 611; cf. McDonald v. Board of Election Comm’rs, 394 U. S. 802, 809; Baker v. Carr, 369 U. S. 186, 226; Royster Guano Co. v. Virginia, 253 U. S. 412, 415-416.
Although I am indebted to Professor Linde for the phrase, I cannot fairly claim that my conclusion is compelled by the analysis in his illuminating article, Due Process of Lawmaking, 55 Neb. L. Rev. 197 (1976).