481 U.S.

704
107 S.Ct. 2076
95 L.Ed.2d 668

Donald P. HODEL, Secretary of the Interior, Appellant,

v.
Mary IRVING et al.
No. 85-637.
Argued Oct. 6, 1986.
Decided May 18, 1987.

Syllabus
As a means of ameliorating the problem of extreme fractionation of Indian
lands that, pursuant to federal statutes dating back to the end of the 19th
century, were allotted to individual Indians and held in trust by the United
States, and that, through successive generations, had been splintered into
multiple undivided interests by descent or devise, Congress enacted 207
(later amended) of the Indian Land Consolidation Act of 1983. As
originally enacted, 207 provided that no undivided fractional interest in
such lands shall descend by intestacy or devise, but, instead, shall escheat
to the tribe "if such interest represents 2 per centum or less of the total
acreage in such tract and has earned to its owner less than $100 in the
preceding year before it is due to escheat." No provision for the payment
of compensation to the owners of the interests covered by 207 was
made. Appellees are members of the Oglala Sioux Tribe and either are, or
represent, heirs or devisees of Tribe members who died while the original
terms of 207 were in effect and who owned fractional interests subject to
207. Appellees filed suit in Federal District Court, claiming that 207
resulted in a taking of property without just compensation in violation of
the Fifth Amendment. The District Court held that the statute was
constitutional, but the Court of Appeals reversed, concluding that
appellees' decedents had a right, derived from the original Sioux allotment
statute, to control disposition of their property at death, that appellees had
standing to invoke such right, and that the taking of the right without
compensation to decedents' estates violated the Fifth Amendment.
Held:

1. Appellees have standing to challenge 207, which has deprived them of

the fractional interests they otherwise would have inherited. This is
sufficient injury-in-fact to satisfy the case-or-controversy requirement of
Article III of the Constitution. Moreover, the concerns of the prudential
standing doctrine are also satisfied, even though appellees do not assert
that their own property rights have been taken unconstitutionally, but
rather that their decedents' right to pass the property at death has been
taken. For decedent Indians with trust property, federal statutes require the
Secretary of the Interior to assume the general role of the executor or
administrator of the estate in asserting the decedent's surviving claims.
Here, however, the Secretary's responsibilities in that capacity include the
administration of the statute that appellees claim is unconstitutional, so
that he cannot be expected to assert decedents' rights to the extent that
they turn on the statute's constitutionality. Under these circumstances,
appellees can appropriately serve as their decedents' representatives for
purposes of asserting the latters' Fifth Amendment rights. Pp. 711-712.
2. The original version of 207 effected a "taking" of appellees'
decedents' property without just compensation. Determination of the
question whether a governmental property regulation amounts to a
"taking" requires ad hoc factual inquiries as to such factors as the impact
of the regulation, its interference with reasonable investment-backed
expectations, and the character of the governmental action. Here, the
relative impact of 207 upon appellees' decedents can be substantial.
Even assuming, arguendo, that the income generated by the parcels in
question may be properly thought of as de minimis, their value may not
be. Although appellees' decedents retain full beneficial use of the property
during their lifetimes as well as the right to convey it inter vivos, the right
to pass on valuable property to one's heirs is itself a valuable right.
However, the extent to which any of appellees' decedents had investmentbacked expectations in passing on the property is dubious. Also weighing
weakly in favor of the statute is the fact that there is something of an
"average reciprocity of advantage," Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322, to the extent that owners
of escheatable interests maintain a nexus to the Tribe, and consolidation of
lands in the Tribe benefits Tribe members since consolidated lands are
more productive than fractionated lands. But the character of the
Government regulation here is extraordinary since it amounts to virtually
the abrogation of the right to pass on property to one's heirs, which right
has been part of the Anglo-American legal system since feudal times.
Moreover, 207 effectively abolishes both descent and devise of the
property interest even when the passing of the property to the heir might
result in consolidation of propertyas, for instance, when the heir already

owns another undivided interest in the propertywhich is the

governmental purpose sought to be advanced. Pp. 712-718.
758 F.2d 1260 (CA 8 1985), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN,
POWELL, and SCALIA, JJ., joined. BRENNAN, J., filed a concurring
opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. ---. SCALIA, J., filed a concurring opinion, in which REHNQUIST, C.J.,
and POWELL, J., joined, post, p. ----. STEVENS, J., filed an opinion
concurring in the judgment, in which WHITE, J., joined, post, p. ----.
Edwin S. Kneedler, Washington, D.C., for appellant.
Yvette Hall War Bonnett, Mission, S.D., for appellees.
Justice O'CONNOR delivered the opinion of the Court.

The question presented is whether the original version of the "escheat"

provision of the Indian Land Consolidation Act of 1983, Pub.L. 97-459, Tit. II,
96 Stat. 2519, effected a "taking" of appellees' decedents' property without just
compensation.

* Towards the end of the 19th century, Congress enacted a series of land Acts
which divided the communal reservations of Indian tribes into individual
allotments for Indians and unallotted lands for non-Indian settlement. This
legislation seems to have been in part animated by a desire to force Indians to
abandon their nomadic ways in order to "speed the Indians' assimilation into
American society," Solem v. Bartlett, 465 U.S. 463, 466, 104 S.Ct. 1161, 1164,
79 L.Ed.2d 443 (1984), and in part a result of pressure to free new lands for
further white settlement. Ibid. Two years after the enactment of the General
Allotment Act of 1887, ch. 119, 24 Stat. 388, Congress adopted a specific
statute authorizing the division of the Great Reservation of the Sioux Nation
into separate reservations and the allotment of specific tracts of reservation land
to individual Indians, conditioned on the consent of three-fourths of the adult
male Sioux. Act of Mar. 2, 1889, ch. 405, 25 Stat. 888. Under the Act, each
male Sioux head of household took 320 acres of land and most other
individuals 160 acres. 25 Stat. 890. In order to protect the allottees from the
improvident disposition of their lands to white settlers, the Sioux allotment
statute provided that the allotted lands were to be held in trust by the United
States. Id., at 891. Until 1910, the lands of deceased allottees passed to their

heirs "according to the laws of the State or Territory" where the land was
located, ibid., and after 1910, allottees were permitted to dispose of their
interests by will in accordance with regulations promulgated by the Secretary of
the Interior. 36 Stat. 856, 25 U.S.C. 373. Those regulations generally served
to protect Indian ownership of the allotted lands.
3

The policy of allotment of Indian lands quickly proved disastrous for the
Indians. Cash generated by land sales to whites was quickly dissipated, and the
Indians, rather than farming the land themselves, evolved into petty landlords,
leasing their allotted lands to white ranchers and farmers and living off the
meager rentals. Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on
S. 2480 and S. 2663 before the Senate Select Committee on Indian Affairs,
98th Cong., 2d Sess., 82-83 (1984). The failure of the allotment program
became even clearer as successive generations came to hold the allotted lands.
Thus 40-, 80-, and 160-acre parcels became splintered into multiple undivided
interests in land, with some parcels having hundreds, and many parcels having
dozens, of owners. Because the land was held in trust and often could not be
alienated or partitioned, the fractionation problem grew and grew over time.

A 1928 report commissioned by the Congress found the situation

administratively unworkable and economically wasteful. L. Meriam, Institute
for Government Research, The Problem of Indian Administration 40-41. Good,
potentially productive, land was allowed to lie fallow, amidst great poverty,
because of the difficulties of managing property held in this manner. Hearings
on H.R. 11113 before the Subcommittee on Indian Affairs of the House
Committee on Interior and Insular Affairs, 89th Cong., 2d Sess., 10 (1966)
(remarks of Rep. Aspinall). In discussing the Indian Reorganization Act of
1934, Representative Howard said:

"It is in the case of the inherited allotments, however, that the administrative
costs become incredible. . . . On allotted reservations, numerous cases exist
where the shares of each individual heir from lease money may be 1 cent a
month. Or one heir may own minute fractional shares in 30 or 40 different
allotments. The cost of leasing, bookkeeping, and distributing the proceeds in
many cases far exceeds the total income. The Indians and the Indian Service
personnel are thus trapped in a meaningless system of minute partition in which
all thought of the possible use of land to satisfy human needs is lost in a
mathematical haze of bookkeeping." 78 Cong.Rec. 11728 (1934).

In 1934, in response to arguments such as these, the Congress acknowledged

the failure of its policy and ended further allotment of Indian lands. Indian
Reorganization Act of 1934, ch. 576, 48 Stat. 984, 25 U.S.C. 461 et seq.

But the end of future allotment by itself could not prevent the further
compounding of the existing problem caused by the passage of time.
Ownership continued to fragment as succeeding generations came to hold the
property, since, in the order of things, each property owner was apt to have
more than one heir. In 1960, both the House and the Senate undertook
comprehensive studies of the problem. See House Committee on Interior and
Insular Affairs, Indian Heirship Land Study, 86th Cong., 2d Sess. (Comm.Print
1961); Senate Committee on Interior and Insular Affairs, Indian Heirship Land
Survey, 86th Cong., 2d Sess. (Comm.Print 1960-1961). These studies indicated
that one-half of the approximately 12 million acres of allotted trust lands were
held in fractionated ownership, with over 3 million acres held by more than six
heirs to a parcel. Id., at pt. 2, p. X. Further hearings were held in 1966, Hearings
on H.R. 11113, supra, but not until the Indian Land Consolidation Act of 1983
did the Congress take action to ameliorate the problem of fractionated
ownership of Indian lands.

Section 207 of the Indian Land Consolidation Actthe escheat provision at

issue in this caseprovided:

"No undivided fractional interest in any tract of trust or restricted land within a
tribe's reservation or otherwise subjected to a tribe's jurisdiction shall descedent
[sic] by intestacy or devise but shall escheat to that tribe if such interest
represents 2 per centum or less of the total acreage in such tract and has earned
to its owner less than $100 in the preceding year before it is due to escheat." 96
Stat. 2519.

10

Congress made no provision for the payment of compensation to the owners of

the interests covered by 207. The statute was signed into law on January 12,
1983, and became effective immediately.

11

The three appelleesMary Irving, Patrick Pumpkin Seed, and Eileen

Bissonetteare enrolled members of the Oglala Sioux Tribe. They are, or
represent, heirs or devisees of members of the Tribe who died in March, April,
and June 1983. Eileen Bissonette's decedent, Mary Poor Bear-Little Hoop
Cross, purported to will all her property, including property subject to 207, to
her five minor children in whose name Bissonette claims the property. Chester
Irving, Charles Leroy Pumpkin Seed, and Edgar Pumpkin Seed all died
intestate. At the time of their deaths, the four decedents owned 41 fractional
interests subject to the provisions of 207. App. 20, 22-28, 32-33, 37-39. The
Irving estate lost two interests whose value together was approximately $100;
the Bureau of Indian Affairs placed total values of approximately $2,700 on the
26 escheatable interests in the Cross estate and $1,816 on the 13 escheatable

interests in the Pumpkin Seed estates. But for 207, this property would have
passed, in the ordinary course, to appellees or those they represent.
12

Appellees filed suit in the United States District Court for the District of South
Dakota, claiming that 207 resulted in a taking of property without just
compensation in violation of the Fifth Amendment. The District Court
concluded that the statute was constitutional. It held that appellees had no
vested interest in the property of the decedents prior to their deaths and that
Congress had plenary authority to abolish the power of testamentary disposition
of Indian property and to alter the rules of intestate succession. App. to
Juris.Statement 21a-26a.

13

The Court of Appeals for the Eighth Circuit reversed. Irving v. Clark, 758 F.2d
1260 (1985). Although it agreed that appellees had no vested rights in the
decedents' property, it concluded that their decedents had a right, derived from
the original Sioux allotment statute, to control disposition of their property at
death. The Court of Appeals held that appellees had standing to invoke that
right and that the taking of that right without compensation to decedents' estates
violated the Fifth Amendment.1

II
14

The Court of Appeals concluded that appellees have standing to challenge

207. 758 F.2d, at 1267-1268. The Government does not contest this ruling. As
the Court of Appeals recognized, however, the existence of a case or
controversy is a jurisdictional prerequisite to a federal court's deliberations. Id.,
at 1267, n. 12. We are satisfied that the necessary case or controversy exists in
this case. Section 207 has deprived appellees of the fractional interests they
otherwise would have inherited. This is sufficient injury-in-fact to satisfy
Article III of the Constitution. See Singleton v. Wulff, 428 U.S. 106, 112, 96
S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976).

15

In addition to the constitutional standing requirements, we have recognized

prudential standing limitations. As the court below recognized, one of these
prudential principles is that the plaintiff generally must assert his own legal
rights and interests. 758 F.2d, at 1267-1268. That general principle, however, is
subject to exceptions. Appellees here do not assert that their own property rights
have been taken unconstitutionally, but rather that their decedents' right to pass
the property at death has been taken. Nevertheless, we have no difficulty in
finding the concerns of the prudential standing doctrine met here.

16

For obvious reasons, it has long been recognized that the surviving claims of a

16

For obvious reasons, it has long been recognized that the surviving claims of a
decedent must be pursued by a third party. At common law, a decedent's
surviving claims were prosecuted by the executor or administrator of the estate.
For Indians with trust property, statutes require the Secretary of the Interior to
assume that general role. 25 U.S.C. 371-380. The Secretary's responsibilities
in that capacity, however, include the administration of the statute that the
appellees claim is unconstitutional, see 25 U.S.C. 2202, 2209, so that he can
hardly be expected to assert appellees' decedents' rights to the extent that they
turn on that point. Under these circumstances, appellees can appropriately serve
as their decedents' representatives for purposes of asserting the latters' Fifth
Amendment rights. They are situated to pursue the claims vigorously, since
their interest in receiving the property is indissolubly linked to the decedents'
right to dispose of it by will or intestacy. A vindication of decedents' rights
would ensure that the fractional interests pass to appellees; pressing these rights
unsuccessfully would equally guarantee that appellees take nothing. In short,
permitting appellees to raise their decedents' claims is merely an extension of
the common law's provision for appointment of a decedent's representative. It is
therefore a "settled practice of the courts" not open to objection on the ground
that it permits a litigant to raise third parties' rights. Tyler v. Judges of Court of
Registration, 179 U.S. 405, 406, 21 S.Ct. 206, 207, 45 L.Ed. 252 (1900).

III
17

The Congress, acting pursuant to its broad authority to regulate the descent and
devise of Indian trust lands, Jefferson v. Fink, 247 U.S. 288, 294, 38 S.Ct. 516,
518, 62 L.Ed. 1117 (1918), enacted 207 as a means of ameliorating, over
time, the problem of extreme fractionation of certain Indian lands. By
forbidding the passing on at death of small, undivided interests in Indian lands,
Congress hoped that future generations of Indians would be able to make more
productive use of the Indians' ancestral lands. We agree with the Government
that encouraging the consolidation of Indian lands is a public purpose of high
order. The fractionation problem on Indian reservations is extraordinary and
may call for dramatic action to encourage consolidation. The SissetonWahpeton Sioux Tribe, appearing as amicus curiae in support of the Secretary
of the Interior, is a quintessential victim of fractionation. Forty-acre tracts on
the Sisseton-Wahpeton Lake Traverse Reservation, leasing for about $1,000
annually, are commonly subdivided into hundreds of undivided interests, many
of which generate only pennies a year in rent. The average tract has 196 owners
and the average owner undivided interests in 14 tracts. The administrative
headache this represents can be fathomed by examining Tract 1305, dubbed
"one of the most fractionated parcels of land in the world." Lawson, Heirship:
The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the
Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 85 (1984).

Tract 1305 is 40 acres and produces $1,080 in income annually. It is valued at

$8,000. It has 439 owners, one-third of whom receive less than $.05 in annual
rent and two-thirds of whom receive less than $1. The largest interest holder
receives $82.85 annually. The common denominator used to compute fractional
interests in the property is 3,394,923,840,000. The smallest heir receives $.01
every 177 years. If the tract were sold (assuming the 439 owners could agree)
for its estimated $8,000 value, he would be entitled to $.000418. The
administrative costs of handling this tract are estimated by the Bureau of Indian
Affairs at $17,560 annually. Id., at 86, 87. See also Comment, Too Little Land,
Too Many HeirsThe Indian Heirship Land Problem, 46 Wash.L.Rev. 709,
711-713 (1971).
18

This Court has held that the Government has considerable latitude in regulating
property rights in ways that may adversely affect the owners. See Keystone
Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 491-492, 107 S.Ct. 1232,
---- - ----, 94 L.Ed.2d 472 (1987); Penn Central Transportation Co. v. New York
City, 438 U.S. 104, 125-127, 98 S.Ct. 2646, 2659-2661, 57 L.Ed.2d 631 (1978);
Goldblatt v. Hempstead, 369 U.S. 590, 592-593, 82 S.Ct. 987, 988-989, 8
L.Ed.2d 130 (1962). The framework for examining the question whether a
regulation of property amounts to a taking requiring just compensation is firmly
established and has been regularly and recently reaffirmed. See, e.g., Keystone
Bituminous Coal Assn. v. DeBenedictis, supra, 480 U.S., at 485, 107 S.Ct., at ---; Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1004-1005, 104 S.Ct. 2862,
2873-2874, 81 L.Ed.2d 815 (1984); Hodel v. Virginia Surface Mining and
Reclamation Assn., Inc., 452 U.S. 264, 295, 101 S.Ct. 2352, 2370, 69 L.Ed.2d 1
(1981); Agins v. Tiburon, 447 U.S. 255, 260-261, 100 S.Ct. 2138, 2141, 65
L.Ed.2d 106 (1980); Kaiser Aetna v. United States, 444 U.S. 164, 174-175, 100
S.Ct. 383, 389-390, 62 L.Ed.2d 332 (1979); Penn Central Transportation Co.
v. New York City, supra, 438 U.S., at 124, 98 S.Ct., at 2659. As THE CHIEF
JUSTICE has written:

19

"[T]his Court has generally 'been unable to develop any "set formula" for
determining when "justice and fairness" require that economic injuries caused
by public action be compensated by the government, rather than remain
disproportionately concentrated on a few persons.' [Penn Central
Transportation Co. v. New York City, 438 U.S.], at 124 [98 S.Ct., at 2659].
Rather, it has examined the 'taking' question by engaging in essentially ad hoc,
factual inquiries that have identified several factorssuch as the economic
impact of the regulation, its interference with reasonable investment backed
expectations, and the character of the governmental actionthat have
particular significance. Ibid." Kaiser Aetna v. United States, supra, 444 U.S., at
175, 100 S.Ct., at 390.

20

There is no question that the relative economic impact of 207 upon the
owners of these property rights can be substantial. Section 207 provides for the
escheat of small undivided property interests that are unproductive during the
year preceding the owner's death. Even if we accept the Government's assertion
that the income generated by such parcels may be properly thought of as de
minimis, their value may not be. While the Irving estate lost two interests
whose value together was only approximately $100, the Bureau of Indian
Affairs placed total values of approximately $2,700 and $1,816 on the
escheatable interests in the Cross and Pumpkin Seed estates. See App. 20, 2128, 29-39. These are not trivial sums. There are suggestions in the legislative
history regarding the 1984 amendments to 207 that the failure to "look back"
more than one year at the income generated by the property had caused the
escheat of potentially valuable timber and mineral interests. S.Rep. No. 98-632,
p. 12 (1984); Hearing on H.J. Res. 158 before the Senate Select Committee on
Indian Affairs, 98th Cong., 2d Sess., 20, 26, 32, 75 (1984); Amendments to the
Indian Land Consolidation Act: Hearing on H.J.Res. 158 before the Senate
Select Committee on Indian Affairs, 98th Cong., 1st Sess., 8, 29 (1983). Of
course, the whole of appellees' decedents' property interests were not taken by
207. Appellees' decedents retained full beneficial use of the property during
their lifetimes as well as the right to convey it inter vivos. There is no question,
however, that the right to pass on valuable property to one's heirs is itself a
valuable right. Depending on the age of the owner, much or most of the value
of the parcel may inhere in this "remainder" interest. See 26 CFR 20.20317(f) (Table A) (1986) (value of remainder interest when life tenant is age 65 is
approximately 32% of the whole).

21

The extent to which any of appellees' decedents had "investment-backed

expectations" in passing on the property is dubious. Though it is conceivable
that some of these interests were purchased with the expectation that the
owners might pass on the remainder to their heirs at death, the property has
been held in trust for the Indians for 100 years and is overwhelmingly acquired
by gift, descent, or devise. Because of the highly fractionated ownership, the
property is generally held for lease rather than improved and used by the
owners. None of the appellees here can point to any specific investment-backed
expectations beyond the fact that their ancestors agreed to accept allotment only
after ceding to the United States large parts of the original Great Sioux
Reservation.

22

Also weighing weakly in favor of the statute is the fact that there is something
of an "average reciprocity of advantage," Pennsylvania Coal Co. v. Mahon, 260
U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 (1922), to the extent that owners
of escheatable interests maintain a nexus to the Tribe. Consolidation of Indian

lands in the Tribe benefits the members of the Tribe. All members do not own
escheatable interests, nor do all owners belong to the Tribe. Nevertheless, there
is substantial overlap between the two groups. The owners of escheatable
interests often benefit from the escheat of others' fractional interests. Moreover,
the whole benefit gained is greater than the sum of the burdens imposed since
consolidated lands are more productive than fractionated lands.
23

If we were to stop our analysis at this point, we might well find 207
constitutional. But the character of the Government regulation here is
extraordinary. In Kaiser Aetna v. United States, 444 U.S., at 176, 100 S.Ct., at
391, we emphasized that the regulation destroyed "one of the most essential
sticks in the bundle of rights that are commonly characterized as propertythe
right to exclude others." Similarly, the regulation here amounts to virtually the
abrogation of the right to pass on a certain type of propertythe small
undivided interestto one's heirs. In one form or another, the right to pass on
propertyto one's family in particularhas been part of the Anglo-American
legal system since feudal times. See United States v. Perkins, 163 U.S. 625,
627-628, 16 S.Ct. 1073, 1074, 41 L.Ed. 287 (1896). The fact that it may be
possible for the owners of these interests to effectively control disposition upon
death through complex inter vivos transactions such as revocable trusts is
simply not an adequate substitute for the rights taken, given the nature of the
property. Even the United States concedes that total abrogation of the right to
pass property is unprecedented and likely unconstitutional. Tr. of Oral Arg. 1214. Moreover, this statute effectively abolishes both descent and devise of these
property interests even when the passing of the property to the heir might result
in consolidation of propertyas for instance when the heir already owns
another undivided interest in the property.2 Cf. 25 U.S.C. 2206(b) (1982 ed.,
Supp. III). Since the escheatable interests are not, as the United States argues,
necessarily de minimis, nor, as it also argues, does the availability of inter vivos
transfer obviate the need for descent and devise, a total abrogation of these
rights cannot be upheld. But cf. Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318,
62 L.Ed.2d 210 (1979) (upholding abrogation of the right to sell endangered
eagles' parts as necessary to environmental protection regulatory scheme).

24

In holding that complete abolition of both the descent and devise of a particular
class of property may be a taking, we reaffirm the continuing vitality of the
long line of cases recognizing the States', and where appropriate, the United
States', broad authority to adjust the rules governing the descent and devise of
property without implicating the guarantees of the Just Compensation Clause.
See, e.g., Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86
L.Ed. 452 (1942); Jefferson v. Fink, 247 U.S., at 294, 38 S.Ct., at 518. The
difference in this case is the fact that both descent and devise are completely

abolished; indeed they are abolished even in circumstances when the

governmental purpose sought to be advanced, consolidation of ownership of
Indian lands, does not conflict with the further descent of the property.
25

There is little doubt that the extreme fractionation of Indian lands is a serious
public problem. It may well be appropriate for the United States to ameliorate
fractionation by means of regulating the descent and devise of Indian lands.
Surely it is permissible for the United States to prevent the owners of such
interests from further subdividing them among future heirs on pain of escheat.
See Texaco, Inc. v. Short, 454 U.S. 516, 542, 102 S.Ct. 781, 799, 70 L.Ed.2d
738 (1982) (BRENNAN, J., dissenting). It may be appropriate to minimize
further compounding of the problem by abolishing the descent of such interests
by rules of intestacy, thereby forcing the owners to formally designate an heir to
prevent escheat to the Tribe. What is certainly not appropriate is to take the
extraordinary step of abolishing both descent and devise of these property
interests even when the passing of the property to the heir might result in
consolidation of property. Accordingly, we find that this regulation, in the
words of Justice Holmes, "goes too far." Pennsylvania Coal Co. v. Mahon, 260
U.S., at 415, 43 S.Ct., at 160. The judgment of the Court of Appeals is

26

Affirmed.

27

Justice BRENNAN, with whom Justice MARSHALL and Justice

BLACKMUN join, concurring.

28

I find nothing in today's opinion that would limit Andrus v. Allard, 444 U.S. 51,
100 S.Ct. 318, 62 L.Ed.2d 210 (1979), to its facts. Indeed, largely for reasons
discussed by the Court of Appeals, I am of the view that the unique
negotiations giving rise to the property rights and expectations at issue here
make this case the unusual one. See Irving v. Clark, 758 F.2d 1260, 1266-1269,
and n. 10 (CA8 1985). Accordingly, I join the opinion of the Court.

29

Justice SCALIA, with whom THE CHIEF JUSTICE and Justice POWELL
join, concurring.

30

I join the opinion of the Court. I write separately to note that in my view the
present statute, insofar as concerns the balance between rights taken and rights
left untouched, is indistinguishable from the statute that was at issue in Andrus
v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979). Because that
comparison is determinative of whether there has been a taking, see Penn
Central Transportation Co. v. New York City, 438 U.S. 104, 136, 98 S.Ct.

2646, 2665, 57 L.Ed.2d 631 (1978); Pennsylvania Coal Co. v. Mahon, 260 U.S.
393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322 (1922), in finding a taking today our
decision effectively limits Allard to its facts.
31

Justice STEVENS, with whom Justice WHITE joins, concurring in the

judgment.

32

The Government has a legitimate interest in eliminating Indians' fractional

holdings of real property. Legislating in pursuit of this interest, the Government
might constitutionally have consolidated the fractional land interests affected by
207 of the Indian Land Consolidation Act of 1983, 96 Stat. 2519, 25 U.S.C.
2206 (1982 ed., Supp. III), in three ways: It might have purchased them; it
might have condemned them for a public purpose and paid just compensation
to their owners; or it might have left them untouched while conditioning their
descent by intestacy or devise upon their consolidation by voluntary
conveyances within a reasonable period of time.

33

Since Congress plainly did not authorize either purchase or condemnation and
the payment of just compensation, the statute is valid only if Congress, in
207, authorized the third alternative. In my opinion, therefore, the principal
question in this case is whether 207 represents a lawful exercise of the
sovereign's prerogative to condition the retention of fee simple or other
ownership interests upon the performance of a modest statutory duty within a
reasonable period of time.

34

* The Court's opinion persuasively demonstrates that the Government has a

strong interest in solving the problem of fractionated land holdings among
Indians. It also indicates that the specific escheat provision at issue in this case
was one of a long series of congressional efforts to address this problem. The
Court's examination of the legislative history, however, is incomplete. An
examination of the circumstances surrounding Congress' enactment of 207
discloses the abruptness and lack of explanation with which Congress added
the escheat section to the other provisions of the Indian Land Consolidation Act
that it enacted in 1983. See ante, at 708709.

35

In 1982, the Senate passed a special bill for the purpose of authorizing the
Devils Lake Sioux Tribe of North Dakota to adopt a land consolidation
program with the approval of the Secretary of the Interior.1 That bill provided
that the Tribe would compensate individual owners for any fractional interest
that might be acquired; the bill did not contain any provision for escheat.2

36

When the Senate bill was considered by the House Committee on Indian
Affairs, the Committee expanded the coverage of the legislation to authorize
any Indian tribe to adopt a land consolidation program with the approval of the
Secretary, and it also added 207the escheat provision at issue in this case
to the bill. H.R.Rep. No. 97-908, pp. 5, 9 (1982). 3 The Report on the House
Amendments does not specifically discuss 207. In its general explanation of
how Indian trust or restricted lands pass out of Indian ownership, resulting in a
need for statutory authorization to tribes to enact laws to prevent the erosion of
Indian land ownership, the Report unqualifiedly stated that, "if an Indian
allottee dies intestate, his heirs will inherit his property, whether they are
Indian or non-Indian." Id., at 11.

37

The House returned the amended bill to the Senate, which accepted the House
addition without hearings and without any floor discussion of 207. 128
Cong.Rec.S. 15568-S. 15570 (Dec. 19, 1982). Section 207 provided:

38

"No undivided fractional interest in any tract of trust or restricted land within a
tribe's reservation or otherwise subjected to a tribe's jurisdiction shall [descend4 ]
by intestacy or devise but shall escheat to that tribe if such interest represents 2
per centum or less of the total acreage in such tract and has earned to its owner
less than $100 in the preceding year before it is due to escheat."

39

In the text of the Act, Congress took pains to specify that fractional interests
acquired by a tribe pursuant to an approved plan must be purchased at a fair
price. See 204, 205, and 206. There is no comparable provision in 207.
The text of the Act also does not explain why Congress omitted a grace period
for consolidation of the fractional interests that were to escheat to the tribe
pursuant to that section.

40

The statute was signed into law on January 12, 1983, and became effective
immediately. On March 2, the Bureau of Indian Affairs of the Department of
the Interior issued a memorandum to all its area directors to advise them of the
enactment of 207 and to provide them with interim instructions pending the
promulgation of formal regulations. The memorandum explained:

41

"Section 207 effects a major change in testate and intestate heirship succession
for certain undivided fractional interests in trust and restricted Indian land.
Under this section, certain interests in land, as explained below, will no longer
be capable of descending by intestate succession or being devised by will. Such
property interests will, upon the death of the current owner, escheat to the tribe.
...

42

*****

43

"Because Section 207 of P.L. 97-459 constitutes a major change in Indian

heirship succession, Area Offices and Agencies are urged to provide all Indian
landowners under their jurisdiction with notice of its effects."5

44

The memorandum then explained how Indian landowners who wanted their
heirs or devisees, rather than the tribe, to acquire their fractional interests could
avoid the impact of 207. It outlined three ways by which the owner of a
fractional interest of less than two percent of a tract could enlarge that interest
to more than two percent.6

45

The three appelleesMary Irving, Patrick Pumpkin Seed, and Eileen

Bissonetteare enrolled members of the Oglala Sioux Tribe. They represent
heirs or devisees of members of the Tribe who died in March, April, and June
1983.7 At the time of their deaths, the decedents owned 41 fractional interests
subject to the provisions of 207. App. 20, 22-28, 32-33, 37-39. The size and
value of those interests varied widelythe smallest was a 1/3645 interest in a
320-acre tract, having an estimated value of only $12.30, whereas the largest
was the equivalent of 31/2 acres valued at $284.44. Id., at 22 and 23. If 207 is
valid, all of those interests escheated to the Tribe; if 207 had not been enacted
or if it is invalidthe interests would have passed to appellees.

II
46

I agree with the Court's explanation of why these appellees "can appropriately
serve as their decedents' representatives for purposes of asserting the latters'
Fifth Amendment rights." Ante, at 711712. But the reason the Court asserts
for finding that 207 effects a taking is not one that appellees press, or could
press, on behalf of their decedents. A substantial gap separates the claims that
the Court allows these appellees to advance from the rationale that the Court
ultimately finds persuasive.

47

The Court's grant of relief to appellees based on the rights of hypothetical

decedents therefore necessarily rests on the implicit adoption of an overbreadth
analysis that has heretofore been restricted to the First Amendment area. The
Court uses the language of takings jurisprudence to express its conclusion that
207 violates the Fifth Amendment, but the stated reason is that 207 "goes too
far," see ante, at 718, because it might interfere with testamentary dispositions,
or inheritances, that result in the consolidation of property interests rather than
their increased fractionation.8 That reasoning may apply to some decedents, but

it does not apply to these litigants' decedents. In one case, the property of Mary
Poor Bear-Little Hoop Cross was divided among her five children. In two other
cases, the fractional interests passed to the next generation.9 I had thought it
well settled by our precedents that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other situations
in which its application might be unconstitutional." United States v. Raines, 362
U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960) (citing cases). This rule
rests on the wisdom that the "delicate power of pronouncing an Act of
Congress unconstitutional is not to be exercised with reference to hypothetical
cases thus imagined." Id., at 22, 80 S.Ct., at 523. 10 In order to review the
judgment of the Court of Appeals granting relief to these litigants, an analysis
different from the Court's novel overbreadth approach is required.
III
48

The Secretary argues that special features of this legislation make it a

reasonable exercise of Congress' power to regulate Indian property interests.
The Secretary does not suggest that it is generally permissible to modify the
individual's presently recognized right to dispose of his property at death
without giving him a reasonable opportunity to make inter vivos dispositions
that will avoid the consequences of a newly enacted change in the laws of
intestacy and testamentary disposition. The Secretary does not even contend
that this power is unlimited as applied to the property of Indians. Rather, the
Secretary contends that 207 falls within the permissible boundaries of
legislation that may operate to limit or extinguish property rights. The Secretary
places great emphasis on the minimal value of the property interests affected by
207, the legitimacy of the governmental purpose in consolidating such
interests, and the fact that the tribe, rather than the United States, is the
beneficiary of the so-called "escheat." These points, considered in turn and as a
whole, provide absolutely no basis for reversing the judgment of the Court of
Appeals.

49

The value of a property interest does not provide a yardstick for measuring "the
scope of the dual constitutional guarantees that there be no taking of property
without just compensation, and no deprivation of property without the due
process of law." Texaco, Inc. v. Short, 454 U.S. 516, 540-541, 102 S.Ct. 781,
798, 70 L.Ed.2d 738 (1982) (BRENNAN, J., dissenting). The sovereign has no
license to take private property without paying for it and without providing its
owner with any opportunity to avoid or mitigate the consequences of the
deprivation simply because the property is relatively inexpensive. Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436437, and 438, n. 16,

102 S.Ct. 3164, 3176-3177, n. 16, 73 L.Ed.2d 868 (1982). The Fifth
Amendment draws no distinction between grand larceny and petty larceny.
50

The legitimacy of the governmental purposes served by 207 demonstrates that

the statute is not arbitrary, see Delaware Tribal Business Committee v. Weeks,
430 U.S. 73, 97 S.Ct. 911, 51 L.Ed.2d 173 (1977), and that the alleged "taking"
is for a valid "public use" within the meaning of the Fifth Amendment. Those
facts, however, do not excuse or mitigate whatever obligation to pay just
compensation arises when an otherwise constitutional enactment effects a
taking of property. Nor does it lessen the importance of giving a property owner
fair notice of a major change in the rules governing the disposition of his
property.

51

The fact that 207 provides for an "escheat" to the tribe rather than to the
United States does not change the unwarned impact of the statute on an
individual Indian who wants to leave his property to his children. The statute
takes the disposition of decedent's fractional land interests out of the control of
the decedent's will or the laws of intestate succession; whether the United
States or the tribe retains the property, the landowner's loss is the same. The
designation of the tribe as beneficiary is an essential feature, however, in two
respects. Since the tribe is the beneficiary, its own interests conflict with its
duty to bring the workings of the statute to the attention of the property owner.
In addition, the designation of the tribe as beneficiary highlights the
inappropriateness of the majority's takings analysis. The use of the term
"escheat" in 207 differs in a substantial way from the more familiar uses of
that term. At common law the property of a person who died intestate and
without lawful heirs would escheat to the sovereign; thus the doctrine provided
a mechanism for determining ownership of what otherwise would have
remained abandoned property. In contrast, under 207 the statutory escheat
supersedes the rights of claimants who would otherwise inherit the property; it
allocates property between two contending parties.

52

Section 207 differs from more conventional escheats in another important way.
It contains no provisions assuring that the property owner was given a fair
opportunity to make suitable arrangements to avoid the operation of the statute.
Legislation authorizing the escheat of unclaimed property, such as real estate,
bank accounts, and other earmarked funds, typically provides as a condition
precedent to the escheat an appropriate lapse of time and the provision of
adequate notice to make sure that the property may fairly be treated as
abandoned.11 Similarly, interpleader proceedings in District Court provide
procedural safeguards, including an opportunity to appear, for those whose
rights will be affected by the judgment. See 28 U.S.C. 1335; Fed.Rule

Civ.Proc. 22. The statute before us, in contrast, contained no such mechanism,
apparently relying on the possibility that appellees' decedents would simply
learn about the statute's consequences one way or another.
53

While 207 therefore does not qualify as an escheat of the kind recognized at
common law, it might be regarded as a statute imposing a duty on the owner of
highly fractionated interests in allotted lands to consolidate his interests with
those of other owners of similar interests. The method of enforcing such a duty
is to treat its nonperformance during the owner's lifetime as an abandonment of
the fractional interests. This release of dominion over the property might justify
its escheat to the use of the sovereign.

54

Long ago our cases made it clear that a State may treat real property as having
been abandoned if the owner fails to take certain affirmative steps to protect his
ownership interest. We relied on these cases in upholding Indiana's Mineral
Lapse Act, a statute that extinguished an interest in coal, oil, or other minerals
that had not been used for 20 years:

55

"These decisions clearly establish that the State of Indiana has the power to
enact the kind of legislation at issue. In each case, the Court upheld the power
of the State to condition the retention of a property right upon the performance
of an act within a limited period of time. In each instance, as a result of the
failure of the property owner to perform the statutory condition, an interest in
fee was deemed as a matter of law to be abandoned and to lapse." Texaco, Inc.
v. Short, 454 U.S., at 529, 102 S.Ct., at 792.

56

It is clear, however, that a statute providing for the lapse, escheat, or

abandonment of private property cannot impose conditions on continued
ownership that are unreasonable, either because they cost too much or because
the statute does not allow property owners a reasonable opportunity to perform
them and thereby to avoid the loss of their property. In the Texaco case, both
conditions were satisfied: The conditions imposed by the Indiana Legislature
were easily met,12 and the 2-year grace period included in the statute foreclosed
any argument that mineral owners did not have an adequate opportunity to
familiarize themselves with the terms of the legislation and to comply with its
provisions before their mineral interests were extinguished. As the Court
recognized in United States v. Locke, 471 U.S. 84, 106, n. 15, 105 S.Ct. 1785,
1799, n. 15, 85 L.Ed.2d 64 (1985), "[l]egislatures can enact substantive rules of
law that treat property as forfeited under conditions that the common law would
not consider sufficient to indicate abandonment ." These rules, however, are
only reasonable if they afford sufficient notice to the property owners and a
reasonable opportunity to comply. Ibid.

57

The Due Process Clause of the Fifth Amendment thus applies to 207's
determination of which acts and omissions may validly constitute an
abandonment, just as the Takings Clause applies to whether the statutory
escheat of property must be accompanied by the payment of just
compensation.13 It follows, I believe, that 207 deprived decedents of due
process of law by failing to provide an adequate "grace period" in which they
could arrange for the consolidation of fractional interests in order to avoid
abandonment. Because the statutory presumption of abandonment is invalid
under the precise facts of this case, I do not reach the ground relied upon by the
Court of Appealsthat the resulting escheat of abandoned property would
effect a taking of private property for public use without just compensation.14

58

Critical to our decision in Texaco was the fact that an owner could readily avoid
the risk of abandonment in a variety of ways,15 and the further fact that the
statute afforded the affected property owners a reasonable opportunity to
familiarize themselves with its terms and to comply with its provisions. We
explained:

59

"The first question raised is simply how a legislature must go about advising its
citizens of actions that must be taken to avoid a valid rule of law that a mineral
interest that has not been used for 20 years will be deemed to be abandoned.
The answer to this question is no different from that posed for any legislative
enactment affecting substantial rights. Generally, a legislature need do nothing
more than enact and publish the law, and afford the citizenry a reasonable
opportunity to familiarize itself with its terms and to comply. In this case, the 2year grace period included in the Indiana statute forecloses any argument that
the statute is invalid because mineral owners may not have had an opportunity
to become familiar with its terms. It is well established that persons owning
property within a State are charged with knowledge of relevant statutory
provisions affecting the control or disposition of such property." 454 U.S., at
531-532, 102 S.Ct., at 793.16

60

Assuredly Congress has ample power to require the owners of fractional

interests in allotted lands to consolidate their holdings during their lifetimes or
to face the risk that their interests will be deemed to have been abandoned. But
no such abandonment may occur unless the owners have a fair opportunity to
avoid that consequence. In this case, it is palpably clear that they were denied
such an opportunity.

61

This statute became effective the day it was signed into law. It took almost two
months for the Bureau of Indian Affairs to distribute an interim memorandum
advising its area directors of the major change in Indian heirship succession

effected by 207. Although that memorandum identified three ways in which

Indian landowners could avoid the consequences of 207, it is not reasonable
to assume that appellees' decedentswho died on March 18, March 23, April
2, and June 23, 1983had anything approaching a reasonable opportunity to
arrange for the consolidation of their respective fractional interests with those
of other owners.17 With respect to these appellees' decedents, "the time allowed
is manifestly so insufficient that the statute becomes a denial of justice." Wilson
v. Iseminger, 185 U.S. 55, 63, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902).18
62

While citizens "are presumptively charged with knowledge of the law," Atkins
v. Parker, 472 U.S. 115, 130, 105 S.Ct. 2520, 2530, 86 L.Ed.2d 81 (1985), that
presumption may not apply when "the statute does not allow a sufficient 'grace
period' to provide the persons affected by a change in the law with an adequate
opportunity to become familiar with their obligations under it." Ibid. (citing
Texaco, Inc., 454 U.S., at 532, 102 S.Ct., at 793). Unlike the foodstamp
recipients in Parker, who received a grace period of over 90 days and
individual notice of the substance of the new law, 472 U.S., at 130-131, 105
S.Ct., at 2530, the Indians affected by 207 did not receive a reasonable grace
period. Nothing in the record suggests that appellees' decedents received an
adequate opportunity to put their affairs in order.19

63

The conclusion that Congress has failed to provide appellees' decedents with a
reasonable opportunity for compliance implies no rejection of Congress'
plenary authority over the affairs and the property of Indians. The Constitution
vests Congress with plenary power "to deal with the special problems of
Indians." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41
L.Ed.2d 290 (1974). As the Secretary acknowledges, however, the
Government's plenary power over the property of Indians "is subject to
constitutional limitations." Brief for Appellant 24-25. The Due Process Clause
of the Fifth Amendment required Congress to afford reasonable notice and
opportunity for compliance to Indians that 207 would prevent fractional
interests in land from descending by intestate or testate succession.20 In
omitting any opportunity at all for owners of fractional interests to order their
affairs in light of 207, Congress has failed to afford the affected Indians the
due process of law required by the Fifth Amendment.

64

Accordingly, I concur in the judgment.

The Court of Appeals, without explanation, went on to "declare" that not only
the original version of 207, but also the amended version not before it, 25

U.S.C. 2206 (1982 ed., Supp. III), unconstitutionally took property without
compensation. Since none of the property which escheated in this case did so
pursuant to the amended version of the statute, this "declaration" is, at best,
dicta. We express no opinion on the constitutionality of 207 as amended.
2

Justice STEVENS argues that weighing in the balance the fact that 207 takes
the right to pass property even when descent or devise results in consolidation
of Indian lands amounts to an unprecedented importation of overbreadth
analysis into our Fifth Amendment jurisprudence. Post, at 724726. The basis
for this argument is his assertion that none of appellees' decedents actually
attempted to pass the property in a way that might have resulted in
consolidation. But the fact of the matter remains that before 207 was enacted
appellees' decedents had the power to pass on their property at death to those
who already owned an interest in the subject property. This right too was
abrogated by 207; each of the appellees' decedents lost this stick in their
bundles of property rights upon the enactment of 207. It is entirely proper to
note the extent of the rights taken from appellees' decedents in assessing
whether the statute passes constitutional muster under the Penn Central
balancing test. This is neither overbreadth analysis nor novel. See, e.g.,
Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U.S. 470, 493-502, 107
S.Ct. 1232, ----, 94 L.Ed.2d 472 (1987) (discussing, in general terms, the extent
of the abrogation of coal extraction rights caused by the Subsidence Act); Penn
Central Transportation Co. v. New York City, 438 U.S. 104, 136-137, 98 S.Ct.
2646, 2665, 57 L.Ed.2d 631 (1978) (discussing extent to which air rights
abrogated by the designation of Grand Central Station as a landmark, noting
that not all new construction prohibited, and noting the availability of
transferable development rights).
Justice STEVENS' objections are perhaps better directed at the question
whether there is third-party standing to challenge this statute under the Fifth
Amendment's Just Compensation Clause. But as we have shown, there is
certainly no Article III bar to permitting appellees to raise their decedents'
claims, supra, at ----, and Justice STEVENS himself concedes that prudential
considerations do not bar consideration of the Fifth Amendment claim. Post, at
724.

S. 503, 97th Cong., 2d Sess. (1982).

The Report of the Senate Select Committee on Indian Affairs described the
purpose of the bill as follows:
"The purpose of S. 503 is to authorize the purchase, sale, and exchange of lands
by the Devils Lake Sioux Tribe of the Devils Lake Sioux Reservation, North

Dakota. The bill is designed to allow the Tribe to consolidate land ownership
with the reservation in order to maximize utilization of the reservation land
base. The bill also would restrict inheritance of trust property to members of the
Tribe provided that the Tribe paid fair market value to the Secretary of the
Interior on behalf of the decedent's estate." S.Rep. No. 97-507, p. 3 (1982).
3

The House additions were themselves an amended version of H.R. 5856, the
Indian Land Consolidation Act. H.R.Rep. No. 97-908, p. 9 (1982). The House
Committee on Interior and Insular Affairs had held hearings on H.R. 5856, but
these hearings were not published. H.R. Legislative Calendar, 97th Cong., 2d
Sess., 72 (1982).
The purposes of the legislation were summarized by the House Committee on
Interior and Insular Affairs as (1) to provide mechanisms for the tribes to
consolidate their tribal landholdings; (2) to allow Indian tribes or allottees to
buy all of the fractionated interests in the tracts without having to obtain the
consent of all the owners; and (3) to keep trust lands in Indian ownership by
allowing tribes to restrict inheritance of Indian lands to Indians. H.R.Rep. No.
97-908, supra, at 9-11.

The word "descedent"an obvious errorappears in the original text. The Act
of Oct. 30, 1984, 98 Stat. 3171which is not relevant to our consideration of
this casecorrected the error by substituting the word "descend" for
"descedent" in 207. The Senate Report accompanying the Act described how
"descedent" made its way into the 1983 statute: "[T]he bill actually voted on by
the House and Senate was garbled in the printing. It was this garbled version of
Title II that was signed by the President." S.Rep. No. 98-632, p. 2 (1984).

App. to Juris. Statement 38a-39a.

The memorandum stated:

"To assure the effectiveness of a will or heirship succession under state law, any
Indian owner within the above category (if he or she is concerned that the tribe
rather than his or her heirs or devisees will take these interests) may purchase
additional interests from coowners pursuant to 25 CFR 151.7 and thereby
increase his/her ownership interest to more than two percent. Another
alternative is for such an owner to convey his/her interest to coowners or
relatives pursuant to 25 CFR 152.25 and reserve a life estate, thus retaining the
benefits of the interest while assuring its continued individual, rather than
tribal, ownership. A third alternative, if feasible, is to partition the tract in such
a way as to enlarge the owner's interest in a portion of said tract.
"Indians falling within the above category and who are presently occupying, or

in any other way using, the tract in question should especially be advised of the
aforementioned alternatives." Id., at 39a-40a.
7

Mary Irving is the daughter of Chester Irving who died on March 18, 1983, see
App. 18; Eileen Bissonette is the guardian for the five minor children of
Geraldine Mary Poor Bear-Little Hoop Cross who died on March 23, 1983, see
id., at 21; and Patrick Pumpkin Seed is the son of Charles Leroy Pumpkin Seed
who died on April 2, 1983, see id., at 34, and the nephew of Edgar Pumpkin
Seed who died on June 23, 1983.

The crux of the Court's holding is stated as follows:

"What is certainly not appropriate is to take the extraordinary step of abolishing
both descent and devise of these property interests even when the passing of the
property to the heir might result in consolidation of property. Accordingly, we
find that this regulation, in the words of Justice Holmes, 'goes too far.' " Ante,
at 718.

Patrick Pumpkin Seed was a potential heir to four pieces of property in which
both his father and his uncle had interests. However, because both his father
and his uncle had other potential heirs, the net effect of the distribution of the
uncle's and the father's estates would have been to increase the fractionalization
of their property interests. Furthermore, even if the statute were considered
invalid as applied to Patrick Pumpkin Seed, the Court does not explain why it
would also be considered invalid as applied to Mary Irving and Eileen
Bissonette.

10

We have made a limited exception to this rule when a "statute's very existence
may cause others not before the court to refrain from constitutionally protected
speech or expression." Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct.
2908, 2916, 37 L.Ed.2d 830 (1973). This exception does not apply to 207.
Even if overbreadth analysis were appropriate in a case outside of the First
Amendment area, the Court's use of it on these facts departs from precedent.
The Court generally does not grant relief unless there has been a showing that
the invalid applications of the statute represent a substantial portion of its entire
coverage. "[W]e believe that the overbreadth of a statute must not only be real,
but substantial as well, judged in relation to the statute's plainly legitimate
sweep." Id., at 615, 93 S.Ct., at 2918. See also City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 799, 104 S.Ct. 2118, 2125, 80 L.Ed.2d
772 (1984) (requirement of substantiality prevents overbreadth doctrine from
abolishing ordinary standing requirements); New York v. Ferber, 458 U.S. 747,
767-771, 102 S.Ct. 3348, 3359-3362, 73 L.Ed.2d 1113 (1982) (a law should not
be invalidated as overbroad unless it is substantially so). As I wrote in New

York v. Ferber:
"My reasons for avoiding overbreadth analysis in this case are more qualitative
than quantitative. When we follow our traditional practice of adjudicating
difficult and novel constitutional questions only in concrete factual situations,
the adjudications tend to be crafted with greater wisdom. Hypothetical rulings
are inherently treacherous and prone to lead us into unforeseen errors; they are
qualitatively less reliable than the products of case-by-case adjudication." Id.,
at 780-781, 102 S.Ct., at 3367 (opinion concurring in judgment).
Section 207 is obviously not "substantially overbroad." The notion that a
regulatory statute unrelated to freedom of expression is invalid simply because
the conditions prompting its enactment are not present in every situation to
which it applies is a startling doctrine for which the Court cites no authority.
11

For example, the Government both provides a grace period and bears an
affirmative responsibility to prevent escheat in the distribution of funds to
which enrolled members of the Peoria Tribe are statutorily entitled under 84
Stat. 688, 25 U.S.C. 1222. See 25 U.S.C. 1226 ("Any per capita share,
whether payable to a living enrollee or to the heirs or legatees of a deceased
enrollee, which the Secretary of the Interior is unable to deliver within two
years after the date the check is issued . . . shall revert to the Peoria Tribe").
State statutes governing abandoned property typically provide for a grace
period and notice. See, e.g., N.Y.Aband.Prop.Law 300-302 (McKinney 1944
and Supp.1987) (property held by banking organizations); Ill.Rev.Stat., ch.
141, 102, 112 (1985) (property held by banking or financial organizations).
Statutes governing the escheat of property of decedents intestate and without
heirs also provide for notice and an opportunity for interested parties to assert
their claims. See, e.g., Cal.Civ.Proc.Code Ann. 1420, 1423 (West 1982);
Tex.Prop.Code Ann. 71.101-71.106 (1984 and Supp.1987).

12

"It is also clear that the State has not exercised this power in an arbitrary
manner. The Indiana statute provides that a severed mineral interest shall not
terminate if its owner takes any one of three steps to establish his continuing
interest in the property. If the owner engages in actual production, or collects
rents or royalties from another person who does or proposes to do so, his
interest is protected. If the owner pays taxes, no matter how small, the interest
is secure. If the owner files a written statement of claim in the county recorder's
office, the interest remains viable. Only if none of these actions is taken for a
period of 20 years does a mineral interest lapse and revert to the surface
owner." 454 U.S., at 529, 102 S.Ct., at 792.
It would appear easier for the owner of a mineral interest to meet these

conditions than for appellees' decedents to meet the implicit conditions

imposed by 207. Paying taxes or filing a written statement of claim are simple
and unilateral acts, but an Indian owner of a fractional interest cannot
consolidate interests or collect $100 per annum from it without the willing
participation of other parties.
13

The Fifth Amendment to the Constitution provides that no person shall "be
deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation."

14

I am unable to join the Court's largely inapposite Fifth Amendment takings

analysis. As I have demonstrated, the statute, analogous to those authorizing
the escheat of abandoned property, is rooted in the sovereign's authority to
oversee and supervise the transfer of property ownership. Instead of analyzing
207 in relation to our precedents recognizing and limiting the exercise of such
authority, however, the Court ignores this line of cases, implicitly questions
their validity, and appears to invite widespread challenges under the Fifth
Amendment Takings Clause to a variety of statutes of the kind that we upheld
in Texaco v. Short.

15

See n. 12, supra.

16

Earlier in the opinion we noted that in Wilson v. Iseminger, 185 U.S. 55, 22
S.Ct. 573, 46 L.Ed.2d 804 (1902), the Court had upheld a Pennsylvania statute
that provided for the extinguishment of certain interests in realty "since the
statute contained a reasonable grace period in which owners could protect their
rights." 454 U.S., at 527, n. 21, 102 S.Ct., at 791, n. 21. We quoted the
following passage from the Wilson case:
"It may be properly conceded that all statutes of limitation must proceed on the
idea that the party has full opportunity afforded him to try his right in the
courts. A statute could not bar the existing rights of claimants without affording
this opportunity; if it should attempt to do so, it would not be a statute of
limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever
might be the purport of its provisions. It is essential that such statutes allow a
reasonable time after they take effect for the commencement of suits upon
existing causes of action; though what shall be considered a reasonable time
must be settled by the judgment of the legislature, and the courts will not
inquire into the wisdom of its decision in establishing the period of legal bar,
unless the time allowed is manifestly so insufficient that the statute becomes a
denial of justice." 185 U.S., at 62-63, 22 S.Ct., at 575.

17

The legislative history of the Indian Land Consolidation Act of 1983 is mute
with respect to 207. See n. 4, supra. This silence is illuminating; it suggests

that Indian landowners cannot reasonably be expected to have received notice

about the statute before it took effect and to have arranged their affairs
accordingly. The lack of legislative history concerning 207 also demonstrates
that Congress paid scant or no attention to whether, in light of its longstanding
fiduciary obligation to Indians, it was constitutionally required to afford a
reasonable postenactment "grace period" for compliance.
18

A statute which denies the affected party a reasonable opportunity to avoid the
consequences of noncompliance may work an injustice similar to that of invalid
retroactive legislation. In both instances, the party who "could have anticipated
the potential liability attaching to his chosen course of conduct would have
avoided the liability by altering his conduct." Usery v. Turner Elkhorn Mining
Co., 428 U.S. 1, 17, n. 16, 96 S.Ct. 2882, 2893, n. 16, 49 L.Ed.2d 752 (1976)
(citing Welch v. Henry, 305 U.S. 134, 147, 59 S.Ct. 121, 125, 83 L.Ed. 87
(1938)). See also United States v. Hemme, 476 U.S. 558, 568-569, 106 S.Ct.
2071, 2077-2078, 90 L.Ed.2d 538 (1986) (following Welch v. Henry, supra ).

19

Nothing in the record contradicts the possibility that appellees themselves only
became aware of the statute upon receiving notices that hearings had been
scheduled for the week of October 24, 1983, to determine if their Tribe had a
right through escheat to any lands that might otherwise have passed to
appellees. Irving v. Clark, 758 F.2d 1260, 1262 (CA8 1985). The notices were
issued on October 4, 1983, after the death of appellees' decedents, and therefore
afforded no opportunity for decedents to comply with 207 or for appellees to
advise their decedents of the possibility of escheat.

20

I need express no view on the constitutionality of 207 as amended by the Act

of Oct. 30, 1984, 98 Stat. 3171. All of the interests of appellees' decedents at
issue in this case are governed by the original version of 207. The decedents
all died between January 12, 1983, and October 30, 1984, the period in which
the original version of 207 was in effect. The parties in this case present no
case or controversy with respect to the application of the amended version of
207.