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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


single descendant. Youpee's will thus perpetuated existing fractionation, but it did not splinter ownership further by bequeathing any single fractional interest to multiple devisees. In a proceeding to determine claims against and heirs to Youpee's estate, an Administrative Law Judge in the Department of the Interior found that interests devised to each of the respondents fell within the compass of amended § 207 and should therefore escheat to the relevant tribal governments. Respondents, asserting the unconstitutionality of amended § 207, appealed the order to the Board of Indian Appeals. The Board, stating that it did not have jurisdiction to consider respondents' constitutional claim, dismissed the appeal. Respondents then filed this suit against the Secretary of the Interior, alleging that amended § 207 violates the Just Compensation Clause of the Fifth Amendment. The District Court agreed with respondents and granted their request for declaratory and injunctive relief. The Ninth Circuit affirmed.

Held: Amended § 207 does not cure the constitutional deficiency this Court identified in the original version of § 207. The Court is guided by Irving in determining whether the amendments to § 207 render the provision constitutional. The United States maintains that the amendments moderate the economic impact of the provision and temper the character of the Government's regulation. However, the narrow revisions Congress made to § 207, without benefit of this Court's ruling in Irving, do not warrant a disposition different from the one announced and explained in Irving. Amended § 207 permits a five-year window rather than a one-year window to assess the income-generating capacity of a fractional interest, and the United States urges that this alteration substantially mitigates the economic impact of § 207. But amended § 207 still trains on income generated from the land, not on the value of the parcel. Even if the income generated by such parcels may be typed de minimis, the value of the land may not fit that description. 481 U. S., at 714. The United States correctly comprehends that Irving rested primarily on the "extraordinary" character of the governmental regulation: the "virtua[l] abrogation" of the right of descent and devise, id., at 716. The United States contends, however, that Congress cured the fatal infirmity in § 207 when it revised the section to allow transmission of fractional interests to successors who already own an interest in the allotment. But this change does not rehabilitate the measure. Amended § 207 severely restricts the right of an individual to direct the descent of his property by shrinking drastically the universe of possible successors. And, as the Ninth Circuit observed, the "very limited group [of permissible devisees] is unlikely to contain any lineal descendants." 67 F.3d 194, 199-200. Moreover, amended §207 continues to

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