Hodel v. Irving

481 U. S. 704

May 18, 1987

Due to some horrible legislation passed in the 1800s, Indian tribal lands were ridiculously splintered between owners by the 1980s. Forty acre tracts often had literally hundreds of separate owners due to subdivision in wills over several generations. Congress finally passed a law that made very small land interests revert to the tribe upon the death of the owners. The law did not compensate those who would have been the new owners. Mary Irving of the Sioux tribe claimed that this violated the takings clause.

Unanimously, the Court agreed that the law was unconstitutional. O’Connor wrote for seven Justices who thought the takings clause had been violated. The land that Mary Irving and others had been denied the right to own was in some cases worth a few thousand dollars. More than that, the law’s total destruction of a persons right to will property to an heir was said to be without precedent in American law. Even though government interest in preventing further Indian land fractionalization was compelling, O’Connor said that the law simply went too far.

Stevens, joined by White, concurred in judgment. He did not think the law ran afoul with the takings clause, but did think it was a due process violation. The law went into effect immediately upon signature. Owners of the land at issue had no notice, and no opportunity to take any workaround measures to insure that their heirs were not deprived of the land’s financial value. Scalia and Brennan both threw in one paragraph concurrences. Scalia, joined by Rehnquist and Powell, said that the decision effectively nullified a more pro-government takings clause decision called Allard. Brennan, joined by Marshall and Blackmun, said that Allard’s logic had not been nullified at all. I’m too lazy to read Allard for myself, so I have no idea who’s right.

I agree with the majority opinion, and have little to add to it. It is worthy of mention that Hodel contains one of the greatest names in Supreme Court history: a member of the Sioux tribe called Mary Poor Bear-Little Hoop Cross. The decision also points out (quite hilariously) that the law at issue had a glaring typo: “descedent” where “descend” should have been.


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