U.S. Supreme Court Hodel v. Irving, 481
U.S. 704 (1987) Hodel v. Irving No. 85-637 Argued October 6,
1986 Decided May 18, 1987 481
U.S. 704 APPEAL FROM THE UNITED STATES COURT
OF APPEALS FOR THE EIGHTH CIRCUIT 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originally enacted, § 207 provided that no undivided fractional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 percentum 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 Page 481 U. S. 705 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. 481 U. S.
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
investment-backed 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 , 260 U. S. 415 ,
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 property -- as, for instance,
when the heir already owns another undivided interest in the
property -- which is the governmental purpose sought to be
advanced. Pp. 481 U. S.
712 -718.

															758 F.2d 1260, 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. 481 U. S. 718 .
SCALIA, J., filed a concurring opinion, in which REHNQUIST, C.J.,
and POWELL, J., joined, post, p. 481 U. S.
719 . Page 481 U. S. 706 STEVENS, J., filed an opinion concurring in the judgment, in
which WHITE, J., joined, post, p. 481 U. S.
719 .

															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. I 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 , 465 U. S. 466 (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 Page 481 U. S. 707 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.

															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 Page 481 U. S. 708 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 Page 481 U. S. 709 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 Act -- the escheat
provision at issue in this case -- provided:

															"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 percentum 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. 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.

															The three appellees -- Mary Irving, Patrick Pumpkin Seed, and
Eileen Bissonette -- are 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 Page 481 U. S. 710 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.

															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.

															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. [ Footnote 1 ] Page 481 U. S. 711 II 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 , 428 U. S. 112 (1976).

															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.

															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 Page 481 U. S. 712 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 , 179 U. S. 406 (1900). III 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 , 247 U. S. 294 (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
Sisseton-Wahpeton 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 Page 481 U. S. 713 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 Heirs -- The Indian
Heirship Land Problem, 46 Wash.L.Rev. 709, 711-713 (1971).

															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 , 480 U. S.
491 -492 (1987); Penn Central Transportation Co. v.
New York City, 438 U. S. 104 , 438 U. S.
125 -127 (1978); Goldblatt v. Hempstead, 369 U. S. 590 , 369 U. S.
592 -593 (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, at 480 U. S. 485 ; Ruckelshaus v. Monsanto Co., 467 U.
S. 986 , 467 U. S.
1004 -1005 (1984); Hodel v. Virginia Surface Mining
and Reclamation Assn., Inc., 452 U. S. 264 , 452 U. S. 295 (1981); Agins v. Tiburon, 447 U.
S. 255 , 447 U. S.
260 -261 (1980); Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S.
174 -175 (1979); Penn Central Transportation
Co. Page 481 U. S. 714 v. New York City, supra, at 438 U. S. 124 .
As THE CHIEF JUSTICE has written:

															"[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 438 U. S. 124 . Rather, it
has examined the 'taking' question by engaging in essentially ad hoc, factual inquiries that have identified several
factors -- such as the economic impact of the regulation, its
interference with reasonable investment-backed expectations, and
the character of the governmental action -- that have particular
significance. Ibid. " Kaiser-Aetna v. United States, supra, at 444 U. S.
175 .

															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, 21-28, 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 Page 481 U. S. 715 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 §
20.2031-7(f) (Table A) (1986) (value of remainder interest when
life tenant is age 65 is approximately 32% of the whole).

															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.

															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 , 260 U. S. 415 (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 Page 481 U. S. 716 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.

															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 444 U. S. 176 ,
we emphasized that the regulation destroyed "one of the most
essential sticks in the bundle of rights that are commonly
characterized as property -- the right to exclude others."
Similarly, the regulation here amounts to virtually the abrogation
of the right to pass on a certain type of property -- the small
undivided interest -- to one's heirs. In one form or another, the
right to pass on property -- to one's family in particular -- has
been part of the Anglo-American legal system since feudal times. See United States v. Perkins, 163 U.
S. 625 , 163 U. S.
627 -628 (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.
12-14. 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 property --
as for instance when the heir already owns another undivided
interest in the property. [ Footnote
2 ] Cf. 25 U.S.C. Page 481 U. S. 717 § 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 (1979) (upholding abrogation of the right to sell
endangered eagles' parts as necessary to environmental protection
regulatory scheme).

															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 , 314 U. S. 562 (1942); Jefferson v. Fink, 247 U.S. at 247 U. S. 294 .
The difference in this case is the fact that both descent and
devise are completely abolished; Page 481 U. S. 718 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.

															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 , 454 U. S. 542 (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 260 U. S. 415 .
The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ]

															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.

															[ Footnote 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 481 U. S.
724 -726. 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 , 480 U. S.
493 -502 (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 , 438 U. S.
136 -137 (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 481 U. S. 711 ,
and JUSTICE STEVENS himself concedes that prudential considerations
do not bar consideration of the Fifth Amendment claim. Post at 481 U. S.
724 .

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, concurring.

															I find nothing in today's opinion that would limit Andrus v.
Allard, 444 U. S. 51 (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. Page 481 U. S. 719 JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE POWELL
join, concurring.

															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 (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 , 438 U. S. 136 (1978); Pennsylvania Coal Co. v. Mahon, 260 U.
S. 393 , 260 U. S. 413 (1922), in finding a taking today, our decision effectively limits Allard to its facts.

															JUSTICE STEVENS, with whom JUSTICE WHITE joins, concurring in
the judgment.

															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.

															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. Page 481 U. S. 720 I 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 481 U. S.
708 -709.

															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. [ Footnote 2/1 ] 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. [ Footnote 2/2 ]

															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 § 207 -- the escheat provision at issue in this case --
to the bill. H.R.Rep. No. 97-908, pp. 5, 9 Page 481 U. S. 721 (1982). [ Footnote 2/3 ] 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.

															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. 32466-32468 (1982). Section 207
provided:

															"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 [descend [ Footnote 2/4 ]] by intestacy or devise but shall escheat
to that tribe if such interest represents 2 percentum or less of
the Page 481 U. S. 722 total acreage in such tract and has earned to its owner less
than $100 in the preceding year before it is due to escheat."

															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.

															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:

															"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. . . ."

															" * * * *" "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. [ Footnote
2/5 ]"

															The memorandum then explained how Indian landowners who wanted
their heirs or devisees, rather than the tribe, to Page 481 U. S. 723 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. [ Footnote 2/6 ]

															The three appellees -- Mary Irving, Patrick Pumpkin Seed, and
Eileen Bissonette -- are 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. [ Footnote 2/7 ] 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 widely -- the smallest was a l/3645 interest in a 320-acre
tract, having an estimated value of only $12.30, whereas the
largest was the equivalent of 3 1/2 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 invalid -- the interests would have passed to
appellees. Page 481 U. S. 724 II 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 481 U. S.
711 -712. 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.

															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 481 U. S. 718 ,
because it might interfere with testamentary dispositions, or
inheritances, that result in the consolidation of property
interests, rather than their increased fractionation. [ Footnote 2/8 ] 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. [ Footnote 2/9 ] I had thought it
well-settled Page 481 U. S. 725 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 , 362 U. S. 21 (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 362 U. S. 22 .
[ Footnote 2/10 ] In order to Page 481 U. S. 726 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 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.

															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 , 454 U. S.
540 -541 (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 , 458 U. S.
436 -437, Page 481 U. S. 727 and 458 U. S. 438 ,
n. 16 (1982). The Fifth Amendment draws no distinction between
grand larceny and.petty larceny.

															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 (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.

															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. Page 481 U. S. 728 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. [ Footnote 2/11 ] 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.

															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 Page 481 U. S. 729 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.

															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:

															"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 454 U. S.
529 .

															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, [ Footnote 2/12 ] Page 481 U. S. 730 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 , 471 U. S. 106 ,
n. 15 (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. 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. [ Footnote 2/13 ] 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 Appeals -- that the resulting
escheat of Page 481 U. S. 731 abandoned property would effect a taking of private property for
public use without just compensation. [ Footnote 2/14 ]

															Critical to our decision in Texaco was the fact that an
owner could readily avoid the risk of abandonment in a variety of
ways, [ Footnote 2/15 ] 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:

															"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 2-year 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 Page 481 U. S. 732 control or disposition of such property."

															454 U.S. at 454 U. S.
531 -532. [ Footnote
2/16 ]

															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.

															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' decedents -- who died on March
18, March 23, April 2, and June 23, 1983 -- had anything
approaching a reasonable Page 481 U. S. 733 opportunity to arrange for the consolidation of their respective
fractional interests with those of other owners. [ Footnote 2/17 ] 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 , 185 U. S. 63 (1902). [ Footnote 2/18 ]

															While citizens "are presumptively charged with knowledge of the
law," Atkins v. Parker, 472 U. S. 115 , 472 U. S. 130 (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 454 U. S.
532 ). Unlike the food stamp 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 472 U. S.
130 -131, 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. [ Footnote
2/19 ] Page 481 U. S. 734 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 , 417 U. S. 551 (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. [ Footnote 2/20 ] 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.

															Accordingly, I concur in the judgment.

															[ Footnote 2/1 ]

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

															[ Footnote 2/2 ]

															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).

															[ Footnote 2/3 ]

															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.

															[ Footnote 2/4 ]

															The word "descedent" -- an obvious error -- appears in the
original text. The Act of Oct. 30, 1984, 98 Stat. 3171 -- which is
not relevant to our consideration of this case -- corrected 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).

															[ Footnote 2/5 ]

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

															[ Footnote 2/6 ]

															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 26 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 26 CFR 162.26 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.

															[ Footnote 2/7 ]

															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.

															[ Footnote 2/8 ]

															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 481 U. S.
718 .

															[ Footnote 2/9 ]

															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.

															[ Footnote 2/10 ]

															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 , 413 U. S. 612 (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 413 U. S. 615 . See also City Council of Los Angeles v. Taxpayers for
Vincent, 466 U. S. 789 , 466 U. S. 799 (1984) (requirement of substantiality prevents overbreadth doctrine
from abolishing ordinary standing requirements); New York v.
Ferber, 458 U. S. 747 , 458 U. S.
767 -771 (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 458 U. S.
780 -781 (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.

															[ Footnote 2/11 ]

															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. § 1226. 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 (1986) (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).

															[ Footnote 2/12 ]

															"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 454 U. S.
529 .

															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.

															[ Footnote 2/13 ]

															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."

															[ Footnote 2/14 ]

															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. [ Footnote 2/15 ] See 481
U.S. 704 fn2/12|>n. 12, supra. [ Footnote 2/16 ]

															Earlier in the opinion, we noted that, in Wilson v.
Iseminger, 185 U. S. 55 (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 454 U. S. 527 ,
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 185 U. S.
62 -63.

															[ Footnote 2/17 ]

															The legislative history of the Indian Land Consolidation Act of
1983 is mute with respect to § 207. See 481
U.S. 704 fn2/4|>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.

															[ Footnote 2/18 ]

															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 , 428 U. S. 17 , n.
16 (1976) (citing Welch v. Henry, 305 U.
S. 134 , 305 U. S. 147 (1938)). See also United States v. Hemme, 476 U.
S. 558 , 476 U. S.
568 -569 (1986) (following Welch v. Henry,
supra ).

															[ Footnote 2/19 ]

															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.

															[ Footnote 2/20 ]

															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.

Summary:
Here is a summary of the case:

**Background:**
- Indian lands were allotted to individual Indians and held in trust by the US government, leading to extreme fractionation over generations.
- To address this, Congress enacted § 207 of the Indian Land Consolidation Act of 1983, which provided that small undivided fractional interests in such lands would escheat to the tribe instead of passing by intestacy or devise.
- Appellees are members or representatives of the Oglala Sioux Tribe, claiming that § 207 resulted in a taking of property without just compensation, violating the Fifth Amendment.

**Issue:**
- Whether appellees have standing to challenge § 207, and whether § 207 unconstitutionally took property rights from Indian landowners without just compensation.

**Holding:**
- The Supreme Court held that appellees have standing to challenge § 207 as they were deprived of fractional interests they would have inherited.
- On the merits, the Court found that § 207 did unconstitutionally take property rights from Indian landowners without providing a reasonable post-enactment period to avoid the consequences of non-compliance.

**Outcome:**
- The Supreme Court affirmed the Court of Appeals' decision, finding that § 207, as originally enacted, violated the Fifth Amendment.