The United States cannot appropriate tribal lands and give them to another without rendering just compensation. Lane v. Pueblo of Santa Rosa, 249 U.S. 110, 113, (1919).

Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), expressly lays to rest any idea that issues of Indian rights are solely reserved for the Congress and that the Courts have no jurisdiction to entertain them. That case holds expressly the federal power over Indian affairs is rooted in the Constitution. The idea that Congress has exclusive plenary power over such rights no longer exists and no longer bars Courts from reaching the merits where constitutional claims are raised by an Indian tribe.

The issue in this case need not rise to Constitutional dimensions. Cobell v. Babbitt, 30 F. Supp. 2d 24 (Dist. of Col 1989), aff’d 345 U.S. App. D.C. 141, 249 F.2d 1081, finds jurisdiction of the Courts in the trust relationship that exists between the government and Indian tribes. This concept is grounded in the law of trusts, not in the Constitution, and is now a source of enforceable rights that has become a major weapon in the arsenal of Indian litigation. See Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan L. Rev. 1213 (1975), a 1982 Handbook, supra note 3, at 220-21.

Weeks v. United States, 404 F. Supp. 1325 (W.D. Okla. 1975) and Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), relied upon by the government are long and complex cases and require careful analysis if the true holding is to be identified. The facts of these cases are vastly different but do recite important principles of law that are supportive of appellant’s position here.

Delaware Tribal Business Committee, Id., makes it clear the power of Congress over Indian affairs may be plenary in nature but it is not absolute. See, i.e., United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1951). The case notes that Congress has plenary power over matters related to Indian affairs but that does not mean that all federal legislation concerning Indians is immune from judicial scrutiny. The case notes the fact Congress has plenary powers "has not deterred the Courts in this day from scrutinizing Indian legislation to determine whether it violates the equal protection component of the Fifth Amendment.", citing Morton v Mancari, 417 U.S. 535 (1974).

The Delaware case says the appropriate standard of judicial review is that the legislative judgment should not be disturbed as long as the special treatment that appears to have been given can be rationally tied to the fulfillment of some unique obligation Congress has toward Indians. Morton, Id.

In Delaware, there was an explicit finding that the omission of the Kansas Delaware from a distribution of an Indian Claims Commission award was "rationally tied" to the fulfillment of a "unique obligation" of the Congress toward the Indians. In the present case there is no rational basis from which it can be argued that an exclusion of the Little Shell Band from the proceeds of their own judgment somehow is tied to some unique obligation of Congress toward Indians.

The analysis of the majority in the Delaware case was as follows:

1. In the Delaware case, only one tribal entity prosecuted a claim before the Indian Claims Commission. That entity was "The Delaware Nation". The Court found that entity had represented all of the Delaware. The Court found the Indian Court of Claims could only adjudicate claims held by an "Indian tribe, band, or other identifiable group". In the present, case none of the other plaintiffs represented the interests of the Little Shell Band. Indeed, one of those coplaintiffs did everything it could to defeat the Little Shell claim. The Court found the Turtle Mountain Band did not represent the interests of all lineal descendants of the Little Shell Band. Consequently the Delaware case has no factual identity to the present as the Little Shell Band was expressly found to be a separate identifiable ancestral group with its own separate right to participate in the litigation.

2. In the Delaware Nation case the Act authorizing distribution specifically provided that payment would be made to the Delaware tribe of Indians residing in the Cherokee Nation "as said tribe shall in council direct." The Court said the language of the Act emphasized the clear intention of Congress that the money awarded was for the Delaware tribe as distinguished from being an award to individual Delaware Indians who had severed their relations with that tribe. Such is clearly not analogous to the present case. Here the Act expressly created a "Non-Member Pembina Descendant’s" entity. This is an entity separate and distinct from the other plaintiffs who were federally recognized Chippewa tribes.

3. In the Delaware case, the Court said it believed Congress deliberately limited the distribution plan because of substantial problems it perceived would attend if a scheme of wider distribution were devised. This is also clearly not the case here. Indeed, if the Act is read to include more persons than the lineal descendants of the Little Shell Band who prosecuted the claim distribution, problems are enhanced by the fact that the number of persons entitled to share is greatly expanded to include anyone who might establish that he or she is a Pembina descendant regardless of whether his or her ancestors were ever associated with the Little Shell Band.

In Delaware, the Court said:

"Congress chose to limit distribution of the award to the Cherokee and the Absentee Delaware’s’ in whose names the Delaware’s’ claim had been prosecuted before the Indian Claims Commission, and whom the Commission had found to represent the interests of all the Delaware’s". (Emphasis added) Delaware Tribal Business Committee v. Weeks, 430 U.S.
73 (1977).

Here the opposite circumstance is true. The Turtle Mountain Band did not prosecute the Little Shell claims. The Turtle Mountain Band and its lawyers became the Little Shell Band’s adversary during this litigation. The Little Shell Band’s claims were not based upon the same historical facts as the claims of the Turtle Mountain Band. Their claims were not coincidental with all "Non-Member Pembina Chippewa". The Turtle Mountain Band went to Court claiming its ancestors sold out too cheaply. The Little Shell Band went to Court claiming its ancestors had never sold out at all.

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