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August 26, 1965

Joseph SIMMONS, Jr., David Simmons, Clarence Tougaw and Viola Tougaw, and those similarly situated, Plaintiffs,
Chief EAGLE SEELATSEE, individually and as Chairman of the Yakima Tribal Council, and the Yakima Tribal Council of the Confederated Bands and Tribes of the Yakima Nation, Defendants

The opinion of the court was delivered by: POPE

The plaintiffs here brought this action by filing a complaint against the Yakima Tribal Council above named and the Chairman thereof. The complaint alleges that plaintiffs are the children and grandchildren of one Joseph Simmons, Sr., who is a member of the Yakima Indian Nation and an enrolled member of the tribe who died May 2, 1960, owning certain interests in Yakima Indian Allotments on the Yakima Indian Reservation in the State of Washington; that they have been denied any interest in the said property of Joseph Simmons, Sr., and denied the right to inherit the same notwithstanding the fact that under the laws of the State of Washington, they would be entitled to inherit his property; *fn1" and that this denial has been pursuant to the provisions of the Act of August 9, 1946, 60 Stat. 968 (25 U.S.C. § 607), § 7 of which provides: "After August 9, 1946, only enrolled members of the Yakima Tribes of one-fourth or more blood of such tribes shall take by inheritance or by will any interest in that part of the restricted or trust estate of a deceased member of such tribes which came to the decedent through his membership in such tribes or which consists of any interest in or the rents, issues, or profits from an allotment of land within the Yakima Reservation or within the area ceded by the treaty of June 9, 1855 (12 Stat. 951) * * *."

 These allegations are amplified further by what we deem to be amendments of the complaint. During the pendency of the case and prior to the hearing on the several motions to dismiss, plaintiffs filed an affidavit setting forth verbatim certain orders made by the Department of Interior for the purpose of disclosing that the Secretary of the Interior, through his Examiner of Inheritance, *fn2" rejected plaintiffs' claim of heirship. *fn3"

 These amendments further showed that this rejection of claim of heirship was based on the provisions of § 7, the section here under attack. On August 21, 1964, the Examiner advised plaintiffs' counsel as follows: "We have taken considerable testimony and have the family of the decedent established. However, under the Act of August 9, 1946, (60 Stat. 968; 25 USC 607, Section 7), of which you are no doubt fully aware, the relatives of Joseph Simmons, Sr., have been unable to qualify under the above Act to inherit Yakima Indian trust property."

 We are therefore confronted with allegations of these facts: the Secretary of the Interior has denied plaintiffs' claim of heirship, and he has denied it on the basis of their inability to meet the requirement of "one-fourth or more blood" of the Yakima Tribes, as required by § 7.

 The complaint further alleges that said § 7 is void and unconstitutional for two reasons: first, it is alleged that the Act is wanting in due process because it bears no reasonable relation to the guardianship the United States has over Indians; that it restricts the free choice of Yakima enrollees in prospective spouses and confiscates the Indians' property; and second, it is claimed that the quoted section is unconstitutional because it is "based on a criterion of race contrary to the provisions of the Fifth Amendment to the United States Constitution," citing Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884. *fn4"

 The named defendants appeared by motion to dismiss for failure to state a claim upon which relief can be granted, and upon various other grounds including the assertion that the court was without jurisdiction over the subject matter of the action since the power of determining plaintiffs' rights to inherit was within the exclusive jurisdiction of the Secretary of the Interior; that there was no jurisdiction over the person of the defendants, who were not amenable to suit or to service of process; and that both the Secretary of the Interior and the United States are indispensable parties to the action and the United States moreover had not given its consent to a suit of this character.

 The United States, acting through the Attorney General and at his direction, moved the court for leave to intervene and such leave was granted. The petition in intervention of the United States adopted the position of the defendants taken in their motion to dismiss and in effect joined in support of that motion and filed a memorandum of points and authorities in support of such motion.

 Because the complaint challenged the constitutionality of the section of the Act above mentioned, a three-judge court was assembled. The case was argued and submitted upon the motion to dismiss made by the defendants and thus joined in by the United States.

 We agree that as the complaint was filed there was an absence of an indispensable party, either the Secretary of the Interior, or the United States. But it must be noted that the United States has intervened here, and, as counsel advised us at the hearing, has done so for all purposes.

 As we inquire whether on this record we can reach the merits of this case we are confronted with two statutory provisions. One is § 1 of the Act of August 15, 1894, c. 290, 28 Stat. 305 (25 U.S.C. § 345) set forth in the margin, *fn5" which provides in substance that a person who is in whole or in part of Indian blood or descent - who is entitled to an allotment or who claims to have been unlawfully denied or excluded from any allotment may litigate his rights and claims in the proper district court of the United States, naming the United States as party defendant.

 The important question at this point arises from the second and later enactment of the Act of June 25, 1910, c. 431, § 1, 36 Stat. 855 (25 U.S.C. § 372). This section provides that when an Indian to whom an allotment has been made dies before the expiration of the trust period "the Secretary of the Interior, upon notice and hearing, under such rules as he may prescribe, shall ascertain the legal heirs of such decedent, and his decision thereon shall be final and conclusive."

 As was noted in Arenas v. United States, 9 Cir., 197 F.2d 418, 420, "the enactment of June 25, 1910 operated to withdraw from the courts jurisdiction to ascertain the heirs of the dead allottees holding under trust patents", citing Hallowell v. Commons, 239 U.S. 506, 36 S. Ct. 202, 60 L. Ed. 409, United States v. Bowling, 256 U.S. 484, 487, 41 S. Ct. 561, 65 L. Ed. 1054, and other cases.

 If we apply that rule literally, if we say, using the words of the last mentioned Act that the decision here of the Secretary shall be "final and conclusive", and at the same time recognize that there is here a substantial question of constitutional law, then we would be holding that the Secretary could act in an unconstitutional manner, and that his action could ...

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