389 U.S. 429, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968)
An Oregon resident died intestate in 1962, leaving an estate that included both real and personal property.1 The decedent's sole heirs, who resided in East Germany, sought to inherit under Oregon probate proceedings.2 Members of the Oregon State Land Board petitioned the probate court for escheat of the net proceeds of the estate under Oregon Revised Statutes § 111.070.3
The statute conditioned a nonresident alien's right to inherit on proof of three requirements.4 One requirement was the existence of a reciprocal right of United States citizens to take property on the same terms as citizens or inhabitants of the foreign country.5 Another was the right of United States citizens to receive payment within the United States of funds originating from estates in the foreign country.6 A third was the right of the foreign heirs to receive the proceeds without confiscation in whole or in part by the foreign government.7 The burden rested on the nonresident alien to establish these facts.8 The provision concerning confiscation had been added to the statute in 1951, expanding upon earlier general reciprocity language.9
The Oregon Supreme Court held that Article IV of the 1923 Treaty of Friendship, Commerce and Consular Rights with Germany permitted the East German heirs to take the real property but, following Clark v. Allen, did not permit them to take the personal property.10 The United States Supreme Court noted probable jurisdiction.11
In applying the statute in this and related cases, Oregon courts examined the credibility of diplomatic statements from communist-controlled countries, the discretion exercised by foreign banking authorities in issuing licenses for fund transfers, and the political structures under which foreign inheritance laws operated.12 The Department of Justice appeared as amicus curiae and stated that it did not contend the application of the statute in this case unduly interfered with the United States' conduct of foreign relations.13
Whether Oregon Revised Statutes § 111.070, as applied to East German heirs claiming an Oregon intestate estate, constitutes an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress?14
Yes. The Oregon statute conditions inheritance by nonresident aliens on proof of reciprocal rights, the right of United States citizens to receive payment within the United States, and the right to receive proceeds without confiscation, with the burden on the alien claimant.17 In applying these provisions Oregon courts have examined the credibility of diplomatic statements from communist-controlled countries, the discretion exercised by foreign banking authorities, and the political structures under which foreign inheritance laws operate.18 These inquiries into the type of governments that obtain abroad, the credibility of foreign representatives, and speculation whether rights are merely dispensations turning on the whim of officials radiate attitudes of the cold war and have more than incidental effect on foreign relations.19
Oregon Revised Statutes § 111.070, as applied to East German heirs claiming an Oregon intestate estate, constitutes an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress.20
Related opinions on this issue
Joined by Justice Brennan
Justice Stewart would go further and hold all three provisions unconstitutional on their face because each launches the State upon a prohibited voyage into a domain of exclusively federal competence.21 Any realistic attempt to apply the criteria necessarily involves Oregon courts in evaluating the administration of foreign law, the credibility of foreign diplomatic statements, and the policies of foreign governments, thereby trespassing upon an area where the Constitution contemplates that only the National Government shall operate.22 Resolution of so fundamental a constitutional issue cannot vary from day to day with the shifting winds at the State Department, and to the extent Clark v. Allen is inconsistent he would overrule it.23
Justice Harlan concurs in the result but reaches it on the treaty ground and rejects the constitutional holding as untenable.24 He would overrule Clark v. Allen's construction of the personalty provision of the 1923 treaty and hold that the treaty guarantees the right to inherit personal property from citizen decedents.25 On the constitutional question he concludes that the statute has only incidental effect on foreign relations.26
States may legislate in areas of traditional competence such as descent and distribution even when their statutes have an incidental effect on foreign relations.27 Nothing has occurred that could not have been foreseen when Clark v. Allen was decided.28
Justice White dissents and would affirm the judgment below.29 He agrees with Justice Harlan's Part IV that the Oregon statute is not an impermissible interference with foreign affairs.30 Nor is he persuaded that the Court's construction of the 1923 treaty in Clark v. Allen and of similar treaty language in earlier cases should be overruled at this late date.31
In his view the statute does not intrude upon the federal domain in any manner requiring its invalidation on foreign affairs grounds.32 He would therefore leave the treaty construction in Clark v. Allen undisturbed.33