Hodel v. Irving

Almost every case in this archive is a fight about who gets what. This one is about something more basic, and it is the reason the rest of them are possible: is the right to leave your property to somebody actually a right?

Until 1987 the answer was not obvious. Courts had said for a century that inheritance is a creature of statute — the legislature gives it, and what the legislature gives it can take away. Then Congress took it away from a small number of Oglala Sioux families, and the Supreme Court said no.

The property at issue was almost worthless. That is the point. The interests the government wiped out were valued at roughly $100, $1,816, and $2,700 across three estates — forty-one fractional shares in reservation land in South Dakota. Nine Justices agreed the government could not do it, and in the process built the constitutional floor under everything a will does.

A hundred years of arithmetic

The problem started with the General Allotment Act of 1887, the Dawes Act. Reservations held communally were carved into individual allotments — typically 80 or 160 acres — and assigned to individual tribal members. The United States held the title in trust. The allottee could use the land and could pass it on, but could not freely sell it.

Then the allottees died. Their interests descended, undivided, to all of their heirs. Those heirs died. The interests descended again. No one could easily sell, so nothing ever consolidated. Every generation multiplied the denominator.

By the 1960s the arithmetic had become genuinely absurd, and the Court said so by quoting a study reprinted in a Senate hearing. Tract 1305 was forty acres. It produced $1,080 a year and was valued at $8,000. It had 439 owners. One-third of them received less than five cents a year. Two-thirds received less than a dollar. The common denominator required to express the shares was in the billions. The Bureau of Indian Affairs estimated the cost of administering that single tract at $17,560 a year — more than twice what the land was worth.

Congress had ended allotment in 1934 with the Indian Reorganization Act. It had not undone the fractionation, and by the 1980s roughly 12 million acres of trust land sat under this problem. In January 1983 it passed the Indian Land Consolidation Act, and §207 of that Act was the blunt instrument.

The provision that simply stopped inheritance

Section 207 said that an undivided fractional interest in trust land would not descend by intestacy and could not be devised by will if it represented less than 2 percent of the tract and had earned its owner less than $100 in the preceding year. Instead it escheated to the tribe.

There was no compensation. There was no notice requirement. There was no ability to opt out by leaving the interest to a co-owner, to a child, or to anyone else. On the owner's death the interest was gone.

The appellees were Mary Irving, Patrick Pumpkin Seed, and Eileen Bissonette, members of the Oglala Sioux Tribe whose relatives died in 1983 after the Act took effect. Between them the estates held 41 escheatable interests. Bissonette appeared for the five minor children of Mary Poor Bear-Little Hoop Cross, whose estate alone contained 26 of them, worth roughly $2,700 in total.

The District of South Dakota upheld the statute. The Eighth Circuit reversed. The Secretary of the Interior took it up, and the case reached the Supreme Court as Hodel v. Irving.

Justice O'Connor, and one essential stick

Justice O'Connor delivered the opinion of the Court, joined by Chief Justice Rehnquist and Justices Brennan, Marshall, Blackmun, Powell, and Scalia. Justice Brennan concurred separately, joined by Marshall and Blackmun. Justice Scalia concurred, joined by Rehnquist and Powell. Justice Stevens, joined by Justice White, concurred in the judgment on other grounds. Nobody dissented.

The Court did not dispute that Congress had a serious problem and a legitimate purpose. The fractionation was real, the administrative burden was real, and consolidating the land served the tribes. Under the usual takings analysis the economic loss to any individual owner was small and there was no meaningful interference with investment-backed expectations.

What sank the statute was the third factor. In the Court's words, “the character of the Government regulation here is extraordinary.” Citing Kaiser Aetna v. United States, O'Connor wrote that §207 “amounts to virtually the abrogation of the right to pass on a certain type of property — the small undivided interest — to one's heirs.”

Then the sentence that gets quoted in every trusts-and-estates casebook: “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.”

The Court distinguished Andrus v. Allard, the 1979 eagle-feather case in which a ban on selling artifacts survived because the owners kept every other use. Here, the Court said, the difference is that both descent and devise are completely abolished — and abolished even where allowing the interest to pass would not have worsened the fractionation the statute existed to cure.

The owners kept full beneficial use of the land during their lives and could still convey it while alive. That was not enough. Taking the last day of ownership is still taking something.

Buying the fractions instead of cancelling them

The fractionation problem did not go away because the Court struck down the statute. It got worse. What eventually moved it was not a taking but a purchase.

The Cobell v. Salazar litigation over the government's administration of Indian trust accounts settled in 2009 for $3.4 billion, confirmed by Congress in the Claims Resolution Act of 2010. Of that, $1.9 billion funded a Trust Land Consolidation Fund — the Land Buy-Back Program for Tribal Nations, which ran from December 2012 to November 2022 and paid landowners fair market value for fractional interests they chose to sell.

By the program's close the Interior Department reported roughly $1.69 billion paid out, more than a million fractional interests acquired, and approximately a million acres restored to tribal trust ownership across dozens of reservations.

The constitutional lesson and the practical one point the same way. You can consolidate fragmented land. You have to buy it.