Escheat of Indian Land as a Fifth Amendment Taking in Hodel v. Irving: A New Approach to Inheritance?
Year: 1989
Type: article
Abstract: compensation. 2 There may be instances, however, in which one's interest in specific property is so small as to raise a question whether any accompanying property rights exist at all.In these cases, the issue arises whether the fifth amendment proscribes the taking of such property without just compensation.The United States Supreme Court addressed this issue in the context of fractionated 3 Indian lands in Hodel v. Irving.'The fractionation of Indian land resulted from federal land policies that controlled reservation territory dating back to the late 1800s.5 Under the General Allotment Act, 6 individual tribe members received tracts of tribal land, called allotments, with a restriction against alienation.7 When an owner died without a will, as most Indians did, 8 the land was divided among the heirs according to state intestate succession rules.9 Courts allowed partition of the land only if all the heirs agreed.'"Often heirs could not be located, some heirs were not informed that they owned a land interest, or some landowners would not agree to sell due to fear that the allotment would be sold to a non-Indian.I' As a result of these problems, ownership of the allotments became progressively fragmented with each succeeding generation. 12In 1983, Congress passed the Indian Land Consolidation Act 3 to consolidate these overly fractionated Indian land allotments."4Sec-2.U.S. CONST.amend.V (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.").3. Indian land allotments, held in trust for individual Indians by the United States government, often could not be alienated or partitioned.Hodel v. Irving, 481 U.S. 704, 707 (1987).Over time, the parcels of land became splintered into undivided fractionated interests, with some parcels having hundreds of joint owners.Id. at 707-09, 712-13; see infra notes 5-11 & 21-34 and accompanying text.
Author: Schmid, Suzanne S.
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W7139661014