341 STEWART, J., dissenting. MR. JUSTICE STEWART, dissenting. Section 2 (d) of the Clayton Act, as amended by the Robinson-Patman Act, makes it unlawful for a supplier to grant to a customer a promotional allowance which is not available to "all other customers competing in the distribution of such products or commodities." The Federal Trade Commission held that the respondent retailer had violated § 2 (d) by inducing certain of its direct suppliers to grant it promotional allowances which were not available to wholesalers who sold the suppliers' products to retailers competing with the respondent.1 The Court of Appeals refused to enforce this part of the Commission's order on the ground that the wholesalers were not customers "competing" with the respondent. We granted certiorari limited to a single question: "Whether a supplier's granting to a retailer who buys directly from it promotional allowances that are not made available to a wholesaler who resells to retailers competing with the direct-buying retailer violates Section 2 (d) of the Robinson-Patman Act." 386 U. S. 907. The Court today agrees with the Court of Appeals' answer to this question and holds that wholesalers are not customers "competing" with the respondent. But the Court nevertheless goes on to hold that § 2 (d) was violated upon a theory not argued here by either party. The theory is that retailers who are in fact customers of independent wholesalers are somehow also "customers" of the suppliers of those wholesalers. The Commission has never suggested that this case should turn on any such construction of the term "customer."2 Cf. SEC v. Chenery Corp., 318 U. S. 80. 1 In this opinion the term "respondent" refers to Fred Meyer, Inc. 2.One Commissioner attempted in vain to persuade the Commission to accept the theory which the Court today adopts: "What STEWART, J., dissenting. 390 U.S. Because the Court of Appeals was correct in rejecting the Commission's construction of § 2 (d), I would affirm its judgment. But, at the very least, the case should be remanded in order to give the respondent notice and an opportunity to defend against the novel construction of § 2 (d) under which the Court today finds the respondent to be a violator of the law. Due process requires no less. Cf. Cole v. Arkansas, 333 U. S. 196. made this practice illegal, as I see it, is that the allowances were not also made available on proportionally equal terms to Meyer's retail competitors. But that is not the Commission's view of the law." 63 F. T. C., at (Commissioner Elman, concurring in part and dissenting in part). Syllabus. POAFPYBITTY ET AL. v. SKELLY OIL CO. CERTIORARI TO THE SUPREME COURT OF OKLAHOMA. No. 65. Argued January 24, 1968. Decided March 18, 1968. Petitioners, Comanche Indians, brought this action for breach of an oil and gas lease which they had executed to respondent with the approval of the Acting Commissioner of Indian Affairs involving land which they held under trust patents issued by the United States under the General Allotment Act of 1887, as amended. That Act provided that individual Indians were to be allotted land on their reservations which the United States was to hold "in trust for the sole use and benefit of the Indian" allottees. During the 25-year trust period, which has been repeatedly extended, restricted Indian land may be sold or leased only with the consent of the Secretary of the Interior. Leasing of allotted land for mining purposes "by said allottee" is expressly authorized (25 U. S. C. § 396). The Secretary of the Interior must approve the lease but is not the lessor and cannot generally lease such land on his own authority. The Secretary has promulgated extensive regulations for the operation, development, and control of, and is empowered to cancel, the leases. A provision in the lease here involved (§ 6) authorizes the Secretary to cancel the lease "before restrictions are removed" and provides that the lessor shall have remedies for breach of contract thereafter. The trial court sustained respondent's demurrer. The Oklahoma Supreme Court affirmed, holding that the terms of the lease and Interior Department regulations precluded petitioners from suing. Held: Petitioners have standing to maintain this action. Pp. 368–376. (a) Federal restrictions preventing an Indian from selling or leasing his allotted land without the consent of the Government and the fact that the Government as guardian of the Indian can sue to protect allotments do not preclude the Indian landowner from maintaining a suit to protect his rights. Heckman v. United States, 224 U. S. 413 (1913). Pp. 368–372. (b) Nothing in the detailed regulatory scheme for supervision by the Secretary of the Interior of oil and gas leases of allotted land diminishes an Indian's right to maintain an action to protect his lease. Pp. 372-374. Opinion of the Court. 390 U.S. (c) In view of the formidable administrative problems of discharging its trust obligations over the very large number of scattered Indian allotments, the United States has supported petitioners' position that they have capacity to sue under the oil and gas lease. P. 374. (d) The Secretary's power to cancel a lease of allotted land does not foreclose less drastic relief for breaches of its terms. P. 374. (e) Section 6 of the lease does not deny all remedies otherwise available to the Indian prior to removal of federal restrictions on his power to alienate the land. P. 375. (f) Respondent's contention that the judgment should be sustained on available adequate state procedural grounds is not tenable since the Oklahoma Supreme Court's decision rested solely on federal grounds. Pp. 375-376. Reversed and remanded. Charles Hill Johns argued the cause for petitioners. With him on the briefs was Houston Bus Hill. John H. Cantrell argued the cause for respondent. With him on the brief was S. W. Wells. Solicitor General Griswold, Acting Assistant Attorney General Williams and Roger P. Marquis filed a brief for the United States, as amicus curiae, urging reversal. MR. CHIEF JUSTICE WARREN delivered the opinion of of Court. The question presented is whether petitioners, who are Comanche Indians, have standing to sue under an oil and gas lease approved by the Department of the Interior for use on land held by Indians under trust patents issued by the United States. In 1947 the Acting Commissioner of Indian Affairs approved an oil and gas lease which petitioners had executed to respondent, Skelly Oil Company, on the form prescribed by the Department of the Interior. The first well was drilled in 1956, and seven producing wells were soon completed. In 1961 petitioners retained counsel 365 • Opinion of the Court. with the approval of the Department of the Interior and brought this damage action against respondent in the District Court of Oklahoma County, Oklahoma, alleging that respondent had breached the express and implied covenants in the lease and had thereby impaired petitioners' royalties. Respondent notified the Department of the Interior and the Bureau of Indian Affairs of the litigation, but the Government made no attempt to intervene in the proceedings. The petition filed in the District Court asserted that respondent had permitted natural gas being produced from the wells to escape despite the fact that there was a pipeline less than a mile from the land. Petitioners claimed that respondent ignored their request that the gas be marketed and continued to allow the gas to be wasted in violation of the terms of the lease. The District Court sustained re 1 The Area Director of the Bureau of Indian Affairs approved a contract between petitioners and an attorney for legal services to be rendered in connection with this litigation. The Area Director has been delegated the authority to approve the employment of attorneys for individual Indians who may be compensated on a quantum meruit basis from restricted trust funds. Section 269 of Order 551 of the Commissioner of Indian Affairs, 16 Fed. Reg. 2939 (1951), as amended, 22 Fed. Reg. 6066 (1957). 2 The petition also alleged that the waste of natural gas violated § 86.3 of the Oklahoma Oil and Gas Conservation Act. Okla. Stat. Tit. 52, § 86.3 (1951). In response to a motion to require petitioners to elect between or state separately a cause of action under the lease and one based on tort, the District Court, with the approval of the parties, struck the alleged violation of the conservation statute from the petition. After petitioners announced that the petition then stated only one cause of action which sought recovery for the breach of the lease, the District Court denied the motion. 3 The lease provides: "3. In consideration of the foregoing, the lessee hereby agrees: "(f) Diligence, prevention of waste.-To exercise reasonable diligence in drilling and operating wells for oil and gas on the lands covered hereby, while such products can be secured in paying |