481 U.S. 704 (1987)
In the late 19th century, Congress enacted a series of land acts that divided communal Indian reservations into individual allotments for Indians and unallotted lands for non-Indian settlement.1 The Act of March 2, 1889, allotted 320 acres to each male Sioux head of household and 160 acres to most other individuals on the Great Reservation of the Sioux Nation, with the allotted lands held in trust by the United States.2
Ownership of these allotted lands fragmented over successive generations into numerous undivided interests, with some parcels having hundreds of owners.3 Because the land was held in trust and often could not be alienated or partitioned, the fractionation problem grew over time.4
This created administrative difficulties and economic waste.5 A 1928 report and comprehensive 1960 House and Senate studies indicated that one-half of approximately 12 million acres of allotted trust lands were held in fractionated ownership.6 In 1983, Congress enacted the Indian Land Consolidation Act.7 Section 207 provided that no undivided fractional interest in any tract of trust or restricted land within a tribe's reservation shall descend by intestacy or devise but 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.8 The provision was signed into law on January 12, 1983, and became effective immediately, with no compensation provided to owners of escheated interests.9
Four enrolled members of the Oglala Sioux Tribe died in 1983 while owning fractional interests subject to the escheat provision.10 Chester Irving died on March 18, Mary Poor Bear-Little Hoop Cross died on March 23, Charles Leroy Pumpkin Seed died on April 2, and Edgar Pumpkin Seed died on June 23.11 Collectively the four decedents owned 41 such interests whose values included approximately $100 for the two interests lost by the Irving estate, approximately $2,700 for the 26 interests in the Cross estate, and approximately $1,816 for the 13 interests in the Pumpkin Seed estates.12
The three appellees are enrolled members of the Oglala Sioux Tribe who are or represent heirs or devisees of the decedents.13 Mary Irving is the daughter of Chester Irving, Eileen Bissonette is the guardian for the five minor children of Mary Poor Bear-Little Hoop Cross, and Patrick Pumpkin Seed is the son of Charles Leroy Pumpkin Seed and nephew of Edgar Pumpkin Seed.14 But for the escheat provision the fractional interests would have passed to the appellees or those they represent.15 Appellees filed suit in the United States District Court for the District of South Dakota claiming that the escheat provision resulted in a taking of property without just compensation in violation of the Fifth Amendment.16 The District Court granted summary judgment for the Government.17 The Court of Appeals for the Eighth Circuit reversed.18 The Supreme Court granted certiorari.19
Whether appellees have standing to assert Fifth Amendment claims on behalf of their decedents regarding the escheat provision?20
Appellees can appropriately serve as their decedents' representatives for purposes of asserting the latters' Fifth Amendment rights because their interest in receiving the property is indissolubly linked to the decedents' right to dispose of it by will or intestacy, and the Secretary cannot be expected to assert the rights.
Yes. Appellees suffered concrete injury when Section 207 deprived them of the fractional interests they otherwise would have inherited from their decedents.21 The appellees share a close relationship with the decedents as heirs and devisees whose interest in receiving the property is indissolubly linked to the decedents' right to dispose of it by will or intestacy.22 The Secretary of the Interior, who would normally represent the estates, administers the very statute challenged and thus cannot be expected to assert the decedents' rights vigorously.23
Appellees have standing to assert the Fifth Amendment claims on behalf of their decedents.24
Whether the original version of Section 207 of the Indian Land Consolidation Act of 1983 effected a taking of the decedents' property without just compensation?25
A regulation effects a taking under the Fifth Amendment when it works a complete abrogation of the right to pass property to one's heirs, a valuable stick in the bundle of property rights, as measured by the Penn Central factors of economic impact, interference with investment-backed expectations, and character of the governmental action.26 Complete abolition of both descent and devise even when consolidation might result goes too far.27
Yes. Section 207 completely abolished the right of the decedents to pass their 41 fractional interests by intestacy or devise, a right the Court has long recognized as an important stick in the bundle of property rights.28 The economic impact on the owners was dramatic, with values of approximately $100 for the Irving interests, $2,700 for the Cross interests, and $1,816 for the Pumpkin Seed interests.29 There was little reciprocity of benefit to the owners themselves.30
The character of the regulation was extraordinary because it effected a total abrogation of descent and devise even when passing the property to an heir might have resulted in consolidation.31 The availability of inter vivos transfers does not change the character of this regulation.32
The original version of Section 207 effected a taking of the decedents' property without just compensation.33
Related opinions on this issue
Joined by Justice Marshall And Justice Blackmun
Justice Brennan joined the Court's opinion but wrote separately to emphasize that the right to pass on property to one's heirs is a fundamental aspect of the ownership of property.34 The Fifth Amendment protects against the taking of property without just compensation, and the right to transmit property is part of that property interest.35 The ILCA completely extinguishes that right for certain small interests without providing any compensation.36
Brennan agreed with the Court that this constitutes a taking under the Fifth Amendment.37
Joined by The Chief Justice And Justice Powell
Justice Scalia joined the opinion of the Court.38 He wrote separately to note that in his 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 (1979).39 Because that comparison is determinative of whether there has been a taking, our decision effectively limits Allard to its facts.40
Joined by Justice White
Justice Stevens concurred in the judgment.41 He agreed 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.42 He argued that the statute is invalid because Congress failed to provide a reasonable grace period for owners to arrange consolidation of fractional interests before the escheat took effect.43 It is not reasonable to assume that appellees' decedents who died in 1983 had anything approaching a reasonable opportunity to arrange for the consolidation of their respective fractional interests.44 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.45
Accordingly, he concurred in the judgment.46