MEMORANDUM OPINION This matter comes before the court on cross-motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. The Seminole Indian Tribe of Florida, Osceola, and the Dosar Barkus and Bruner Bands of the Seminole Nation of Oklahoma attack the validity of the Oklahoma use or distribution plan ("Oklahoma plan") filed with Congress on April 4, 1978 on the ground that defendant Secretary of the Interior failed to comply with Sections 3 (a) (2) and 2 (a) of the Distribution of Judgment Funds ("DFA"), codified at 25 U.S.C. SS 1403 (a) (2), 1402 (a), in preparing the plan. The plaintiffs ask the court to declare that the Oklahoma plan is null and void and to enjoin the Secretary from implementing the disputed plan in any manner. The issues now before the court have been ably briefed by the parties on both sides. For the reasons set forth below, the court concludes that the plaintiffs are entitled to judgment as a matter of law on their claim regarding the DFA's deadline for plan submissions and holds that the Oklahoma plan is void as untimely. The events giving rise to this litigation are undisputed. On April 27, 1976, the Indian Claims Commission approved a compromise settlement and entered a final award in the amount of $16,000,000 "on behalf of the Seminole Nation as it existed in Florida on September 18, 1823." Seminole Indians of the State of Florida and Seminole Nation of Oklahoma v. United States, 38 Ind. Cl. Comm. 91 (Docket Nos. 73 and 151, Consolidated). Congress appropriated monies in satisfaction of the award by Act of June 1, 1975, 90 Stat. 597, and the judgment fund thereupon became subject to the DFA, which sets forth a procedure for the preparation of "use or distribution" plans for award funds. Pursuant to 25 C.F.R. $ 60.3, the Bureau of Indian Affairs conducted research to determine the present-day beneficiaries of the "Seminole Nation as it existed in Florida on September 18, 1823." The Bureau's report designated three Florida Seminole entities 1/ and the Seminole Nation of Oklahoma as beneficiaries, and proposed to divide shares in the judgment fund between the Oklahoma and Florida Seminoles on the basis of their respective numbers as of 1906 (Oklahoma) and 1914 (Florida). Adopting this recommendation, the Secretary provided for a final division of 75.4041 for the Oklahoma Seminoles and 24.5961 for all Florida Seminoles. 1/ The Seminoles in Florida consist of two organized tribes, the Seminole Indian Tribe of Florida and the Miccosukee Tribe of Florida, and a third group referred to as the "traditional" or "unaffiliated" Seminoles of Florida. Def. Ex. 1, Background Statement, pp. 4-5. After the division was approved, the Bureau invited the beneficiaries of the fund to submit use or distribution proposals for their anticipated shares. No use or distribution proposal was received from any of the various components of the Florida Seminoles. The Oklahoma Seminoles, however, submitted a use or distribution proposal, and a hearing of record on the proposal was held on June 30, 1977. By letter dated August 4, 1977, the Acting Deputy Commissioner of Indian Affairs advised the Congress of the problem plaguing the Seminole award distribution and of the Department's decision to approach these problems by submitting legislation proposed by the Secretary pursuant to 25 U.S.c. $ 1402(a). As circumstances developed, two bills (S. 2000 and S. 2188) were introduced before the Department could make its proposal. In a March 1, 1978 legislative report, the Assistant Secretary of Indian Affairs recommended that S. 2000, as amended, be treated as the Department's proposal. On April 24, 1978, the Assistant Secretary of Indian Affairs sent to Congress the Oklahoma plan challenged in this litigation. As ro House of Congress adopted a resolution disapproving the plan, it became effective on June 19, 1978 under the provisions of 25 U.S.C. S 1405 (a). The Bureau has invested the Florida Seminole share of the fund pending the submission of use or distribution proposals by the three affected entities. The plaintiffs assail the validity of the Oklahoma plan on three principal grounds. First, the plaintiffs allege that the submission of the plan to Congress is void because the Secretary did not hold hearings of record for the Florida Seminole entities pursuant to Section 3(a) (2) of the DFA, 25 U.S.c. S Second, the plaintiffs contend that the plan is 1403 (a) (2). invalid because the Secretary did not submit it to Congress within 180 days after the date Congress appropriated monies in satisfaction of the judgment, as is required by Section 2 (a) of the DFA, 25 U.S.C. S 1402 (a). Third, the plaintiffs argue that, by endorsing proposed legislation in Congress, the Secretary exhausted his power under Section 2(a), id., to submit the Department's own plan for congressional approval. The "hearing of record" requirement is set forth in Section 3(a) (2) of the DFA, which provides that, prior to final plan preparation, the Secretary shall: hold a hearing of record, after appropriate public notice, to obtain the testimony of leaders and members of the Indian tribe which may receive any portion, or be affected by the use or distribution, of such funds... 25 U.S.C. S 1403 (a) (2). The Secretary has "bifurcated" the proceedings involved in the development of use or distribution plans under the DFA. First, the Secretary designates the beneficiaries of a particular plan and, if there is more than one tribe, decides on the division of funds among the designated beneficiaries. 25 C.F.R. $ 60.3(a). According to the Secretary, these preliminary determinations are "administrative" in nature and do not form part of the use or distribution of such funds. The Secretary consequently maintains that no hearing of record pursuant to 25 U.S.C. S 1403 (a) (2) and the implementing regulation, 25 C.F.R. S 60.4, is required until after the division is approved when, in the second phase of the bifurcated proceeding, the different tribes submit use or distribution proposals for the application of their fund share. __2/ Under the Secretary's "Use or distribution" means any utilization or 25 C.F.R. § 60.1 (m.). refused to submit use or distribution proposals. 3/ The plaintiffs, on the other hand, contend that, far from being a threshold determination of beneficiary entitlement, the decision to divide funds among competing tribes or groups is an integral part of the use and distribution of the funds and may be made by the Secretary only if he observes the procedural protections of the DFA, including the right of the Indians to a hearing of record. -_4/ It is a well-settled principle that administrative interpretations of statutes are entitled to great deference, see Zuber v. Allen, 396 U.S. 168, 192-93 (1969), and that "[plarticularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a 3/ Although the Secretary did not grant the Florida Seminoles a hearing of record, it appears that the Florida Tribe, at least, was involved in the division process. The Supplementary Results of Research Report of May 21, 1977 states that Seminole informants assisted the Department in determining the date of death of various Seminoles and that the Florida Tribe produced a draft reconstructed 1914 roll under a Bureau of Indian Affairs contract. Def. Ex. lb, P. 2. 4/The Seminole Indian Tribe of Florida alone among the plaintiffs argues that the Secretary lacks the power to divide an award. Whatever may have been the Secretary's power of division before 1973, the passage of the DFA in that year was "designed to delegate much of the function of the Congress (in disbursing Indian judgment fur.ds] to the Secretary of the Interior while maintaining ample Congressional oversight." H. R. Rep. No. 377, 93d Cong., 1st Sess. 5, reprinted in [1973] U.S. Code Cong. Ad. News 2311, 2313. As discussed infra, the process of division is closely related to that of designating beneficiaries and, in the court's view, is part of the "function" Congress wished the Department to undertake pursuant to the DFA. |