In an attempt to solve the ongoing problem of fractionation of Indian lands, in 1983, Congress enacted the Indian Land Consolidation Act (ILCA). This Act restricted the inheritability and devisability of certain Indian lands that previously had been allocated to individual ownership. The U.S. Supreme Court held that the statute established a "taking" of the fundamental property right to transfer one's property by devise. Hodel v. Irving, 481 U.S. 704, 708, 107 S.Ct. 2076, 2079, 95 L.Ed.2d 668 (1987).

The Hodel Court, in dicta, suggested that it nevertheless might be possible to impose some limits on the transferrability of these interests at death:

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.... 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.

A few years later, Congress amended the escheat provisions of the Act to (1) narrow the land subject to escheat to a two percent or less interest that did not earn $100 in any of the five years previous to the date of the decedent's death; (2) require landowners to devise their interest only to any other owner of an undivided fractional interest; and (3) permit a tribe to adopt laws governing the disposition of escheatable interests, subject to the approval of the Secretary of the Interior.

This case was brought by the estate of an Indian landholder who had no blood relatives who already owned undivided fractional interests, and who therefore had no ability under the Act to confer his property upon his "logical beneficiaries."

Held: The devisability controls of the Act continue to violate the Takings Clause of the Fifth Amendment because they require a testator to choose a devisee from a limited group unlikely to contain any lineal descendants. The provisions abrogate the valuable right to devise land to a relative who does not already possess an undivided interest in the property, leaving many testators unable to transfer their land to appropriate beneficiaries.

Comment: The entire sequence of cases establishes interesting legal precedents that might be relevant, for instance, in evaluating new "elective share" statutes or other statutes delimiting the scope of one's ability to transfer property upon death. The particular result here, should it stand up on appeal, creates a new, special category of Constitutionally protected interest in the ability to endow one's family with wealth. It will be interesting to see whether this Supreme Court, in the midst of the new "family values" climate espoused by both political parties, will identify a distinct Constitutionally protected right in "family wealth transfer."

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