Some background on the case:
Facts: The General Allotment Act of 1887 gave each male Sioux head of household 320 acres of land and most other individuals 160 acres. Act provided that the allotted land would be held in trust by the US. Rather than farm the land, the Sioux leased the land to white farmers and lived off of the rentals. But, over time, there was a great fractionation of interests on land; therefore, a small piece of land was owned by hundreds of people. This made a bookkeeping nightmare when distributing rents to the owner. With § 207 of the Land Consolidation Act, Congress tried to say than no fractional interest of less than 2% could pass by intestacy or devise; but instead escheat to the tribe.
Issue: Does the “escheat” provision of the Indian Land Consolidation Act affect a taking of property without just compensation?
Holding: Inappropriate for the government to abolish both descent and devise of these property interests; §207 frustrated even when the passing of the property to the heir might result in the consolidation of property.
Here the right of people to pass property by hership or by will is being taken away. The court identifies the ability to pass property on after death is a valuable right which cannot be substituted by complicated intervivos measures (revocable trusts). The court holding cedes that this may be a taking, but States have great latitude to regulate the descent and devise of property.
Hodel modifies assumed complete governmental power to abolish rights to transmit that had never been tested; it only irresolutely establishes a farther boundary, does not influence any of the normal regulations found in state law on the right to transmit.
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