Irving v. Clark

• Citation: 758 F.2d 1260
• Decision Date: 29 March 1985
• Docket Number: No. 84-1094,84-1094
• Parties: Mary IRVING, Patrick Pumpkin Seed, Eileen Bissonette as Guardian for Duane Cross, Miguel Cross, Hope Cross, Anthony Cross, Faith Cross, and all others similarly situated, Appellants, v. William P. CLARK, Secretary, Department of Interior and his Agents, Assigns, and Successors in Office, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1260

758 F.2d 1260

Mary IRVING, Patrick Pumpkin Seed, Eileen Bissonette as Guardian for Duane Cross, Miguel Cross, Hope Cross, Anthony Cross, Faith Cross, and all others similarly situated Appellants, v. William P. CLARK, Secretary, Department of Interior and his Agents, Assigns, and Successors in Office, Appellees.

No. 84-1094.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 8, 1984.

Decided March 29, 1985.

Yvette Hall War Bonnet, Mission, S.D., for appellants.

Blake A. Watson, Dept. of Justice, Washington, D.C., for appellees.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The issue before us is the constitutionality of 25 U.S.C. Sec. 2206 (1982), ¹ which provides that de minimis shares of land allotted in trust to individual members of the Oglala Sioux Tribe may not pass by intestacy or devise but instead escheat to that tribe. The designated heirs and devisees of three deceased tribe members argue that this statute deprives them of property without just compensation in violation of the fifth amendment. The district court found the provision constitutional. We reverse.

The lands at issue in this case were allotted to individual members of the Oglala Sioux Tribe, to be held in trust for those individuals by the United States, pursuant to congressional Indian land policies of the late 1800's and early 1900's. Act of Mar. 2, 1889, ch. 405, 25 Stat. 888. ² These and subsequent policies, however, resulted in the lands frequently being jointly owned by such large numbers of individuals with undivided fractional interests that the tracts could not be made productive. In an attempt to alleviate this problem, Congress in 1983 enacted the Indian Land Consolidation Act, Pub.L. No. 97-459, tit. II, 96 Stat. 2515, 2517 (1983), 25 U.S.C. Secs. 2201-2211 (1982) (amended by Act of Oct. 30, 1984, Pub.L. No. 98-608, 98 Stat. 3171). See H.R.Rep. No. 908, 97th Cong., 2d Sess. 13, reprinted in 1982 U.S.Code Cong. & Ad.News 4415, 4422-23; S.Rep. No. 632, 98th Cong., 2d Sess. 2-3, 10-11 (1984), U.S.Code Cong. & Admin.News 5470, 5471-5473, 5479-5480; see generally Too Little Land, Too Many Heirs--The Indian Heirship Land Problem, 46 Wash.L.Rev. 709 (1971). This Act includes a provision aimed at reducing further multiplication of ownership upon the death of current interest-holders:

No undivided fractional interest in any tract of trust or restricted land within a tribe's reservation or otherwise subjected to a tribe's jurisdiction shall descedent [sic] by intestacy or devise but shall escheat to that tribe if such interest represents 2 per centum or less of the total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat.

25 U.S.C. Sec. 2206 (as originally enacted).

Mary Irving, Patrick Pumpkin Seed, and Duane, Miguel, Hope, Anthony, and Faith Cross (hereafter "Irving"), members of the Oglala Sioux Tribe, all had parents or uncles as to whom they were potential heirs or named devisees die within six months after the Indian Land Consolidation Act was passed. Upon receiving notice that a hearing had been scheduled for the week of October 24, 1983, to determine if the Oglala Tribe had a right through escheat to any lands of her decedent that might otherwise have passed to her, Irving filed this suit in district court. Her complaint requested preliminary and permanent injunctions against enforcement by the Department of Interior of section 2206 with a declaratory judgment that the provision was unconstitutional as authorizing seizure of her property without the just compensation required by the fifth amendment. The district court restrained the government from proceeding under the escheat provision for a time but then consolidated the preliminary and permanent injunction issues and denied relief, holding that Irving had only an expectancy of heirship, which could be altered by intervening legislation, and not a vested property right, which would have been entitled to constitutional protection.

It is clear that the vested property rights of individual Indians are "secured and enforced to the same extent and in the same way" as the equivalent rights of other citizens. Choate v. Trapp, 224 U.S. 665, 677, 32 S.Ct. 565, 570, 56 L.Ed. 941 (1912); see Morrow v. United States, 243 F. 854 (8th Cir.1917). It is also clear, however, that Congress may alter and condition rights that have not yet vested in individual Indians, see Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 96 S.Ct. 1793, 48 L.Ed.2d 274 (1976); United States v. Jim, 409 U.S. 80, 93 S.Ct. 261, 34 L.Ed.2d 282 (1972) (per curiam), and that the right to receive property by inheritance or devise does not attain the dignity of a property right entitled to the protection of the fifth amendment taking clause. ³ 5 G. Thompson, Commentaries on the Modern Law of Real Property Sec. 2405, at 199 (J. Grimes ed. 1979); id. Sec. 2406, at 211; id. Sec. 2411, at 240; see also Jefferson v. Fink, 247 U.S. 288, 294, 38 S.Ct. 516, 518, 62 L.Ed. 1117 (1918); Simmons v. Eagle Seelatsee, 244 F.Supp. 808, 814 n. 11 (E.D.Wash.1965), aff'd per curiam, 384 U.S. 209, 86 S.Ct. 1459, 16 L.Ed.2d 480 (1966). Cf. L. Simes & A. Smith, The Law of Future Interests Sec. 1, at 3-4 (2d ed. 1956) (possibility of taking property by inheritance or devise does not constitute "future interest" because the prospective taker is not considered to have any part of the present ownership interest). Irving on appeal thus asserts two theories by which she allegedly acquired fifth amendment rights in the questioned lands in her decedent's estate--first, that her interest vested upon the death of her ancestor while the escheat provision could operate only subsequent to that time; and second, that the language of the initial allotments of Indian land to Oglala tribe members around 1900 created vested interests in potential heirs, including her, under the common law or as a matter of contract.

I.

Irving's first argument relies on a disingenuous and excessively technical construction of certain words in section 2206. "Escheat," Irving reasons, denotes the operation by which the government acquires the right to an estate left vacant because the possessor has died intestate without heirs. Therefore, when heirs exist, their rights vest instantly at death, before the state can take any interest, and the use of the term "escheat" in section 2206 is a "subterfuge" for the taking without compensation of Irving's already vested property rights.

The statute, however, on its face contemplates the existence of heirs or even devisees, and Congress earlier had already provided that certain Indian lands were to escheat to the tribe, as opposed to the state or federal government, when the possessor died without heirs. 25 U.S.C. Sec. 373a (1982). "Escheat," then, seemingly was not intended to have in section 2206 the limited meaning ascribed to it by Irving. A statute should be construed to make sense, see Griffin v. Oceanic Contractors, 458 U.S. 564, 575, 102 S.Ct. 3245, 3252, 73 L.Ed.2d 973 (1982), and so as to support, rather than defeat, its constitutionality. Crowell v. Benson, 285 U.S. 22, 46, 52 S.Ct. 285, 290, 76 L.Ed. 598 (1932). The sensible reading of section 2206 is that Congress, exercising its power as sovereign ⁴ to control disposition of property at death, declared a limited class of property rights incapable of so passing. See Irving Trust Co. v. Day, 314 U.S. 556, 562, 62 S.Ct. 398, 401, 86 L.Ed. 452 (1942); Mager v. Grima, 49 U.S. (8 How.) 490, 12 L.Ed. 1168 (1850); 5 G. Thompson, supra, Sec. 2406, at 212; 5A G. Thompson, Commentaries on the Modern Law of Real Property Sec. 2607, at 354 (J. Grimes ed. 1978). Thus, no interest within the purview of the statute could ever have vested in Irving.

This interpretation is supported by a comparison of the language of section 2206 with that of the immediately preceding section of the Indian Land Consolidation Act, 25 U.S.C. Sec. 2205, as originally enacted. Section 2206 commands that no Indian lands within its purview "shall descedent [sic] by intestacy or devise"; section 2205 in contrast provides that, upon appropriate action by a given tribe, nonmembers of that tribe and non-Indians "shall not be entitled to receive by devise or descent" (emphasis added) any interest in allotted individual trust land. Congress in the legislative history expressly stated that section 2205 was not intended as a restriction on the testamentary power of Indians and that interests were to pass according to will if the tribe did not exercise its right to acquire the land by paying fair market value. H.R.Rep. 908, 97th Cong., 2d Sess. 9, reprinted in 1982 U.S.Code Cong. & Ad.News 4415, 4418; see also 25 U.S.C. Sec. 2205(a)(3). Given the differing language and the failure in section 2206 to provide for compensation, it is fair to infer that Congress in that section, in contrast to its intent in section 2205, did presume to limit the power of disposition at death as to certain lands. ⁵

Such an interpretation further is not inconsistent with the presence of the term "escheat," which, to use the definition cited by Irving, is "[a] reversion of property to the state in consequence of a want of any individual competent to inherit." Black's Law Dictionary 488 (5th ed. 1979) (emphasis added). Irving limits the meaning of "any individual competent to inherit" to "heirs"; but since "heirs" themselves are identified and ordered by the sovereign, 5 G. Thompson, supra, Sec. 2405, at 202, 240, ⁶ there seems no reason why the sovereign could not use the terminology "escheat" in purporting to make parties incompetent to inherit for reasons other than lack of a sufficient degree of relationship. "Escheat" historically was used to refer to the operation by which a sovereign acquired title to land due to, for example, the possessor's...