234
OCTOBER TERM, 1996
Syllabus
certiorari to the united states court of appeals for the ninth circuit
No. 95-1595. Argued December 2, 1996—Decided January 21, 1997
In the late Nineteenth Century, Congress initiated an Indian land program that authorized the allotment of communal Indian property to individual tribal members. This allotment program resulted in the extreme fractionation of Indian lands as allottees passed their undivided interests on to multiple heirs through descent or devise. In 1983, Congress adopted the Indian Land Consolidation Act in part to reduce fractionated ownership of allotted lands. Section 207 of the Act—the "escheat" provision—prohibited the descent or devise of fractional interests that constituted 2 percent or less of the total acreage in an allotted tract and earned less than $100 in the preceding year. Instead of passing to heirs, the interests described in § 207 would escheat to the tribe, thereby consolidating the ownership of Indian lands. Section 207 made no provision for the payment of compensation to those who held such fractional interests. In Hodel v. Irving, 481 U. S. 704, this Court invalidated the original version of § 207 on the ground that it effected a taking of private property without just compensation, in violation of the Fifth Amendment. Id., at 716-718. Considering, first, the economic impact of § 207, the Court observed that the provision's income-generation test might fail to capture the actual economic value of the land. Id., at 714. Weighing most heavily against the constitutionality of § 207, however, was the "extraordinary" character of the Government regulation, id., at 716, which amounted to the virtual abrogation of the rights of descent and devise, id., at 716-717. While Irving was pending in the Court of Appeals, Congress amended § 207. Amended § 207 differs from the original provision in three relevant respects: It looks back five years instead of one to determine the income produced from a small interest, and creates a rebuttable presumption that this income stream will continue; it permits devise of otherwise escheatable interests to persons who already own an interest in the same parcel; and it authorizes tribes to develop their own codes governing the disposition of fractional interests. The will of William Youpee, an enrolled member of the Sioux and Assiniboine Tribes, devised to respondents, all of them enrolled tribal members, his several undivided interests in allotted lands on reservations in Montana and North Dakota. Each interest was devised to a
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