240
Opinion of the Court
Government regulation. Id., at 716. As this Court noted, § 207 amounted to the "virtua[l] abrogation of the right to pass on a certain type of property." Ibid. Such a complete abrogation of the rights of descent and devise could not be upheld. Id., at 716-717.
II
In 1984, while Irving was still pending in the Court of Appeals for the Eighth Circuit, Congress amended § 207. Pub. L. 96-608, § 1(4), 98 Stat. 3173.2 Amended § 207 differs from the original escheat provision in three relevant respects. First, an interest is considered fractional if it both
2 In 1990, Congress enacted minor revisions to § 207 that are not relevant here. Pub. L. 101-644, § 301, 104 Stat. 4666-4667. Amended § 207, codified at 25 U. S. C. § 2206, provides:
"(a) Escheat to tribe; rebuttable presumption "No undivided interest held by a member or nonmember Indian in any tract of trust land or restricted land within a tribe's reservation or outside of a reservation and subject to such tribe's jurisdiction shall descend by intestacy or devise but shall escheat to the reservation's recognized tribal government, or if outside of a reservation, to the recognized tribal government possessing jurisdiction over the land if such interest represents 2 per centum or less of the total acreage in such tract and is incapable of earning $100 in any one of the five years from the date of the decedent's death. Where the fractional interest has earned to its owner less than $100 in any one of the five years before the decedent's death, there shall be a rebuttable presumption that such interest is incapable of earning $100 in any one of the five years following the death of the decedent.
"(b) Escheatable fractional interest "Nothing in this section shall prohibit the devise of such an escheatable fractional interest to any other owner of an undivided fractional interest in such parcel or tract of trust or restricted land.
"(c) Adoption of Indian tribal code "Notwithstanding the provisions of subsection (a) of this section, any Indian tribe may, subject to the approval of the Secretary, adopt its own code of laws to govern the disposition of interests that are escheatable under this section, and such codes or laws shall take precedence over the escheat provisions of subsection (a) of this section, provided, the Secretary shall not approve any code or law that fails to accomplish the purpose of preventing further descent or fractionation of such escheatable interests."
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