(concurring in part and dissenting in part):
I concur in part and dissent in part. I concur in that part of the majority opinion which results in upholding the distribution of funds ordered by the Congress in 25 U.S.C. §§ 1181-6 and rejecting Plaintiffs’ attacks thereon. However, I must dissent to that part of the majority opinion which declares the distribution of funds ordered by the Congress in 25 U.S.C. §§ 1291 — 7 to be void and unconstitutional.
PLENARY POWER OF CONGRESS
I consider such distribution of funds to the Indian Tribes and members on their rolls as ordered by Congress in 25 U.S.C. §§ 1291-7 to be within the plenary power of Congress in relation to Indians and not justiciable. In Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903) it was held:
“Plenary authority over the tribal relations of the Indians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.”
This ease has not been reversed and the decisions following it are too numerous to cite. However, as late as 1973 our Court of Appeals in National Indian Youth Counc., Int. Ind. Sch. Chap. v. Bruce, 485 F.2d 97 (Tenth Cir. 1973) held:
“District courts are also without jurisdiction when confronted with nonjusticiable political questions, such as determining the status of Indian tribes. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Congress has exclusive plenary legislative authority over Indians and all of their tribal relations. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299 (1903). This court has recognized the plenary power of Congress to control and manage the affairs of its Indian wards. Wolfe v. Phillips, 172 F.2d 481 (10th Cir. 1949), cert. de*1354nied 336 U.S. 968, 69 S.Ct. 941, 93 L.Ed. 1119 (1949); Taylor v. Tayrien, 51 F.2d 884 (10th Cir. 1931).”
Also see Groundhog v. Keeler, 442 F.2d 674 (Tenth Cir. 1971).
Congress did not have to create the Indian Claims Commission, 25 U.S.C. § 70 et seq., to allow Indians to present claims for redress for past Government wrongs. Nor was Congress required to appropriate and distribute funds regarding a final award recommended by the Commission. Congress by provisions in the Indian Claims Commission Act reserved unto itself the matter of determining the distribution to be made of appropriated funds in payment of awards recommended by the Commission. All of this is pursuant to the unique plenary authority of Congress over Indians. It is therefore my belief that the attacks made herein on the distributions of funds to Indians as ordered by the Acts of Congress involved herein are non-justiciable. I have not found a single case in which an Act of Congress relating to the affairs of Indians has been stricken down as being unconstitutional and void as the majority does herein.
TREATY PROVISIONS
In addition, the Treaty itself, which is the foundation of Plaintiffs’ alleged rights, gives full authority and discretion to Congress in the matter of the distribution of funds derived from the land sales when it provides in Article 8 in part as follows:
“ * * * and in distributing the funds to the (Delaware) people, due regard and encouragement shall be given to that portion of the Delawares who are competent to manage their own affairs, * * * but Congress may, at any time, and from time to time, by law, make such rules and regulations in relation to the funds arising from the sale of said lands, and the application thereof for the benefit and improvement of the Delaware people, as may, in the wisdom of that body, seem just and proper.” (Emphasis added)
Thus, Congress had treaty authority with the Delaware Nation (as well as plenary power) to use its wisdom in the distribution of the funds involved herein to the Delaware people.
APPROPRIATED FUNDS
Furthermore, I am unable to discard the proposition urged by the Defendants that the Acts of Congress under attack are appropriations of public funds within the meaning of Article 1, Section 9, Clause 7, United States Constitution, and as such may not be redesignated by the Courts under the pronouncement of United States v. Price, 116 U.S. 43, 6 S.Ct. 235, 29 L.Ed. 541 (1885). This early case and those following it teach that no discretion is vested in the Secretary of the Treasury “or in any Court” to determine the correctness of either the amount or the designee of a payment ordered by an Act of Congress. Congress by 25 U.S.C. § 70u reserved unto itself exclusive power to distribute, or to decline to distribute, the appropriated funds necessary to pay any final award recommended by the Indian Claims Commission. The’ majority opinion has the effect of ordering a redesignation of the recipients of appropriated funds from those designated by the Congress.
RATIONALITY
Also, there is the matter of whether there is rationality in the Acts passed by Congress which the majority strikes down. Ordinarily, determination and classification laws are upheld if there is a rational basis for the same. United States v. DePugh, 266 F.Supp. 453 (W.D. Mo.1967), aff’d, 393 F.2d 367 (Eighth Cir. 1986), cert. den., 393 U.S. 832, 89 S.Ct. 101, 21 L.Ed.2d 102.1 At one point in *1355this litigation I agreed (without abandoning my position regarding the plenary power of Congress, the provisions of the Treaty involved granting Congress full power regarding the distribution of funds pertaining to the sale of the Indian lands and that the funds here distributed by Congress are an appropriation of public funds) to hear evidence and arguments and receive Briefs on the rationality question. As I read the majority opinion it turns on an alleged lack of rationality or lack of a rational basis for the Congress to exclude the so-called Kansas Delawares from the distribution of funds ordered by 25 U.S.C. §§ 1291-7. I find in the record an abundance of rationality to support the distribution of funds made by Congress in these Acts and do so differently than in 25 U.S.C. §§ 1181-6.
The Indian Claims Commission is without authority to fix the distribution to be made of their recommended awards. See 25 U.S.C. § 70r as to the contents of the final determination of the Commission. “How the award is to be paid and precisely who can participate * * * are questions for Congressional and administrative determination.” Snoqualmie Tribe of Indians v. United States, 372 F.2d 951 at page 957, 178 Ct.Cl. 570 (1967); Peoria Tribe of Oklahoma v. United States, 169 Ct.Cl. 1009 at page 1011-12 (1965). But the fact is that the Commission nevertheless recommended or at least suggested to whom their recommended awards in both CD 337 and CD 72 and CD 298 should be distributed. In CD 337 the Commission announced the idea of a distribution to individuals who could establish requisite Delaware blood entitlement and did so notwithstanding the obvious fact that the lands involved were tribal lands and not individual lands.2 Congress adopted or followed this suggested distribution in its appropriation and distribution enactments and such problems, turmoil, confusion and delay ensued that these funds have not yet been fully distributed! In CD 72 and 298 the Commission recommended or suggested (and again the Congress followed the same) that the funds be distributed to the two recognized Tribes of Delaware Indians and members on their rolls which is what the Commission should have recommended or suggested and the Congress should have done in CD 337. It is believed fair to conclude that this change in attitude about distribution in both the Commissio'n and the Congress came from the problems which resulted from the earlier distribution and the realization that it was wrong. This is a rational basis for the decision of the Congress exercised in enacting 25 U.S.C. §§ 1291-7. But there is more rationality.
The so-called Kansas Delawares on the one hand and the Cherokee (or Oklahoma) Delawares and the Absentee Delawares on the other hand over 100 years ago came to a parting of the ways. The Delaware Indian Nation ceded their lands in Kansas, moved to Oklahoma from Kansas, affiliated with the Cherokee Nation in Oklahoma and the CaddoWichita Indian Tribe in Oklahoma, its individuals maintained Indian citizenship, and they have maintained tribal recognition and organization for over 100 years. On forty-one (41) occasions since removal to Oklahoma Congress has recognized these Oklahoma Delaware Tribes in legislative measures. The so-called Kansas *1356Delawares stayed in Kansas, individually took an allotment of tribal land in Kansas in fee with power of alienation, individually took their proportionate share of trust funds held by the Delaware Tribe, took United States citizenship, renounced Delaware citizenship, obtained provisions allowing their minor children to take United States citizenship (which eventually occurred) and fully divorced themselves from the Delaware Tribe which left Kansas for parts in Oklahoma. This most significant turn of events affords a rational basis for the Congress to distribute the award recommended by the Commission regarding tribal lands to these recognized Delaware Tribes and to those on the rolls of these recognized Delaware Tribes, to the exclusion of those who took land in Kansas, took their share of tribal funds and became United States citizens. In Miami Tribe of Oklahoma v. United States, 281 F.2d 202, 150 Ct.Cl. 725 (1960) it is held:
“The Indian Claims Commission found that the Indiana Miami who had remained in or who returned to Indiana without tribal consent had separated themselves from the tribe, severed their tribal relationship, and lost all right to participate in the tribal assets, funds or property. This conclusion is correct. Eastern Band of Cherokee Indians v. United States, 117 U.S. 288, 309-312, 6 S.Ct. 718, 29 L.Ed. 880; Prairie Band of Potawatomi Indians v. United States, Appeal No. 2-57, decided July 16, 1958, 165 F.Supp. 139, 143 Ct.Cl. 131 (slip opinion, pp. 12 and 20).”
And it seems to me that the majority overlooks another significant distinction which is present with reference to the distribution made by Congress in 25 U.S.C. §§ 1181-6 (which the majority upholds) and the distribution made by Congress in 25 U.S.C. §§ 1291-7 (which the majority declares to be unconstitutional and void as possessing no rational basis) which provides rationality for the later distribution being different from the earlier distribution. The distribution made in 25 U.S.C. §§ 1181-6 pertained to the sale of Delaware lands in Indiana. The distribution made in 25 U.S.C. §§ 1291 — 7 pertained to the sale of Delaware lands in Kansas. After ceding the lands in Indiana the Delawares moved to Missouri and thence to Kansas. None stayed in Indiana, none took an allotment of land in Indiana in fee, none took their proportionate share of tribal funds and none took United States citizenship. The Delawares in Kansas maintained tribal identity. Whereas, when the Kansas lands were ceded a vastly different turn of events ensued as above pointed out and which will not be repeated. This significant difference provides rationality for the distribution made in 25 U.S.C. §§ 1291-7 as distinguished from that made in the earlier distribution.
Also there was legal precedent for the distribution made by Congress in the distribution ordered in CD 72 and 298. When an award became payable to the Delaware Tribe for a strip of land in Kansas known as the Delaware “outlet” it was paid to the Oklahoma Delawares (Delaware Tribe of Indians and Absentee Delaware Tribe of Oklahoma) to the exclusion of the so-called Kansas Delawares, the same as the distribution of Congress in 25 U.S.C. §§ 1291 — 7. See United States v. Delaware Tribe of Indians, 427 F.2d 1218 (Ct.Cl.1970).
Another legal precedent for the distinction made by the Congress is the ruling in Minnesota-Chippewa Tribe v. United States, 161 Ct.Cl. 258, 315 F.2d 906 (1963) which held that public lands and public funds of Indian tribes are tribal properties and are not held in individual ownership. The majority opinion acknowledges that the so-called Kansas Delawares do not have a vested interest in the fund. This is further rationale for Congress to distribute the moneys derived from the sale of tribal lands to be paid in part (10%) to the existing and recognized Tribes and the balance to those members on the rolls of existing and recognized Tribes to the exclusion of those not members of the Tribes nor on their rolls and who over 100 years ago had taken individual allotments of tribal land in Kansas in fee simple, had taken *1357their individual proportionate part of the existing tribal funds, left the Tribe, renounced Tribal membership and took United States citizenship.
How much rationale must Congress have in exercising its plenary legislative authority regarding Indian affairs? Assuming that some rationale must be present, which is doubted as to the exercise of the unique plenary power of Congress in Indian matters, there is in any event an abundance shown by the record. Congress had before it another Bill which would have distributed CD 72 and 298 funds in exactly the same manner as the wrongful and horrendous distribution made in CD 337. Congress rejected this Bill with full knowledge that there were some people claiming Delaware ancestry and entitlement to Delaware Tribal funds who would not be included within this distribution to the two recognized Delaware Tribes in Oklahoma and those on their membership rolls. Congress distributed appropriated funds by 25 U.S.C. §§ 1291 — 7 with full knowledge that it was a different distribution from that made by 25 U.S.C. §§ 1181-6. This was not a Congressional mistake. It was deliberate Congressional action and in the face thereof the majority would strike down 25 U.S.C. §§ 1291 — 7 and advise Congress that it erred and must legislate again and in doing so must include the so-called Kansas Delawares but need not include the Munsee Delawares or the Christian Delawares or any other Delawares not belonging to the recognized Oklahoma Tribes. What will be the result if Congress declines to permit the Court to legislate for it regarding its plenary power in Indian affairs? It could be that Congress will decline to change its position for it acted rightly and within its authority or perhaps Congress will balk and refuse to distribute anything to anyone which is also within its power under the Indian Claims Commission Act. It is my belief and position that if in fact Congress has made a plain and grievous error regarding the so-called Kansas Delawares in the passage of 25 U.S.C. §§ 1291 — 7 (which I do not believe to be the case) upon petition and showing to the Congress by those aggrieved the Congress may correct the error and by virtue of its plenary power over Indian affairs the Congress is the only agency of the Government with power and authority to entertain Plaintiffs’ complaint.
. This case provides:
“This Court is governed by the fundamental rule of statutory construction that a presumption of validity attaches to an Act of Congress, and that such presumption is not lightly overcome. See, United States v. National Dairy Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) rehearing denied *1355372 U.S. 961, 83 S.Ct. 1011, 10 L.Ed.2d 13; McMahon v. City of Dubuque, Iowa, 255 F.2d 154, 160 (8th Cir. 1958) cert. den. 358 U.S. 833, 79 S.Ct. 53, 3 L.Ed.2d 70. So long as a rationally sound basis exists for the congressional determination or classification, that determination is within the constitutional power of Congress. Egan v. United States, 137 F.2d 369, 375 (8th Cir. 1943), cert. den. 320 U.S. 788, 64 S.Ct. 195, 88 L.Ed. 474; Stutz v. Bureau of Narcotics, etc., 56 F.Supp. 810, 813 (N.D.Cal.1944). It is a matter of legislative judgment. See, Kentucky Whip and Collar Co. v. Illinois Central Railroad Co., 299 U.S. 334, 57 S.Ct. 277, 81 L.Ed. 270 (1937).”
. Public lands and public funds of Indian Tribes are tribal properties and are not held in individual ownership. Minnesota-Chippewa Tribe v. United States, 315 F.2d 906, 161 Ct.Cl. 258 (1963).