OCTOBER TERM, 1996
Syllabus
BABBITT, SECRETARY OF THE INTERIOR, ET AL.
v. YOUPEE ET
AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 95-1595. Argued December 2, 1996-Decided January 21,1997
In the late Nineteenth Century, Congress initiated an Indian
land program that authorized the allotment of communal Indian
property to individual tribal members. This allotment program
resulted in the extreme fractionation of Indian lands as allottees
passed their undivided interests on to multiple heirs through
descent or devise. In 1983, Congress adopted the Indian Land
Consolidation Act in part to reduce fractionated ownership of
allotted lands. Section 207 of the Act-the "escheat"
provision-prohibited the descent or devise of fractional interests
that constituted 2 percent or less of the total acreage in an
allotted tract and earned less than $100 in the preceding year.
Instead of passing to heirs, the interests described in § 207 would
escheat to the tribe, thereby consolidating the ownership of Indian
lands. Section 207 made no provision for the payment of
compensation to those who held such fractional interests. In
Hodel v.
Irving, 481 U. S. 704, this Court
invalidated the original version of § 207 on the ground that it
effected a taking of private property without just compensation, in
violation of the Fifth Amendment.
Id., at 716-718.
Considering, first, the economic impact of §207, the Court observed
that the provision's income-generation test might fail to capture
the actual economic value of the land.
Id., at 714. Weighing
most heavily against the constitutionality of § 207, however, was
the "extraordinary" character of the Government regulation, id., at
716, which amounted to the virtual abrogation of the rights of
descent and devise,
id., at 716-717. While
Irving was
pending in the Court of Appeals, Congress amended § 207. Amended §
207 differs from the original provision in three relevant respects:
It looks back five years instead of one to determine the income
produced from a small interest, and creates a rebuttable
presumption that this income stream will continue; it permits
devise of otherwise escheatable interests to persons who already
own an interest in the same parcel; and it authorizes tribes to
develop their own codes governing the disposition of fractional
interests. The will of William Youpee, an enrolled member of the
Sioux and Assiniboine Tribes, devised to respondents, all of them
enrolled tribal members, his several undivided interests in
allotted lands on reservations in Montana and North Dakota. Each
interest was devised to a
235
single descendant. Youpee's will thus perpetuated existing
fractionation, but it did not splinter ownership further by
bequeathing any single fractional interest to multiple devisees. In
a proceeding to determine claims against and heirs to Youpee's
estate, an Administrative Law Judge in the Department of the
Interior found that interests devised to each of the respondents
fell within the compass of amended § 207 and should therefore
escheat to the relevant tribal governments. Respondents, asserting
the unconstitutionality of amended § 207, appealed the order to the
Board of Indian Appeals. The Board, stating that it did not have
jurisdiction to consider respondents' constitutional claim,
dismissed the appeal. Respondents then filed this suit against the
Secretary of the Interior, alleging that amended § 207 violates the
Just Compensation Clause of the Fifth Amendment. The District Court
agreed with respondents and granted their request for declaratory
and injunctive relief. The Ninth Circuit affirmed.
Held: Amended § 207 does not cure the constitutional
deficiency this Court identified in the original version of § 207.
The Court is guided by
Irving in determining whether the
amendments to § 207 render the provision constitutional. The United
States maintains that the amendments moderate the economic impact
of the provision and temper the character of the Government's
regulation. However, the narrow revisions Congress made to § 207,
without benefit of this Court's ruling in
Irving, do not
warrant a disposition different from the one announced and
explained in
Irving. Amended § 207 permits a five-year
window rather than a one-year window to assess the
income-generating capacity of a fractional interest, and the United
States urges that this alteration substantially mitigates the
economic impact of § 207. But amended § 207 still trains on income
generated from the land, not on the value of the parcel. Even if
the income generated by such parcels may be typed
de
minimis, the value of the land may not fit that description.
481 U. S., at 714. The United States correctly comprehends that
Irving rested primarily on the "extraordinary" character of
the governmental regulation: the "virtua[l] abrogation" of the
right of descent and devise, id., at 716. The United States
contends, however, that Congress cured the fatal infirmity in § 207
when it revised the section to allow transmission of fractional
interests to successors who already own an interest in the
allotment. But this change does not rehabilitate the measure.
Amended § 207 severely restricts the right of an individual to
direct the descent of his property by shrinking drastically the
universe of possible successors. And, as the Ninth Circuit
observed, the "very limited group [of permissible devisees] is
unlikely to contain any lineal descendants."
67
F.3d 194, 199-200. Moreover, amended §207 continues to
236
restrict devise "even in circumstances when the governmental
purpose sought to be advanced, consolidation of ownership of Indian
lands, does not conflict with the further descent of the property."
481 U. S., at 718. As the United States acknowledges, giving effect
to Youpee's directive bequeathing each fractional interest to one
heir would not further fractionate Indian land holdings. The United
States' arguments that amended § 207 satisfies the Constitution's
demand because it does not diminish the owner's right to use or
enjoy property during his lifetime and does not affect the right to
transfer property at death through nonprobate means are no more
persuasive today than they were in
Irving. See id., at
716-718. The third alteration made in amended §207 also fails to
bring the provision outside the reach of this Court's holding in
Irving: Tribal codes governing disposition of escheatable
interests have apparently not been developed. Pp. 243-245.
67 F.3d
194, affirmed.
GINSBURG, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, KENNEDY, SOUTER, THOMAS,
and BREYER, JJ., joined. STEVENS, J., filed a dissenting opinion,
post, p. 246.
James A. Feldman argued the cause for petitioners.
With him on the briefs were Acting Solicitor General Dellinger,
Assistant Attorney General Schiffer, Deputy Solicitor General
Kneedler, Anne S. Almy, Robert L. Klarquist, and Andrew C.
Mergen.
Rene A. Martell argued the cause for respondents. With
him on the brief were
Daniel L. Minnis and
D. Michael
Eakin. *
JUSTICE GINSBURG delivered the opinion of the Court.
In this case, we consider for a second time the
constitutionality of an escheat-to-tribe provision of the Indian
Land Consolidation Act (ILCA). 96 Stat. 2519, as amended, 25 U. S.
C. § 2206. Specifically, we address § 207 of the ILCA, as amended
in 1984. Congress enacted the original provi-
*Briefs of
amici curiae urging affirmance were filed for
the Allottees Association and Affiliated Tribes and Bands of the
Quinault Reservation et al. by
Joel Jasperse and
Thomas
E. Luebben; and for the Pacific Legal Foundation by
James S.
Burling.
237
sion in 1983 to ameliorate the extreme fractionation problem
attending a century-old allotment policy that yielded multiple
ownership of single parcels of Indian land. Pub. L. 97-459, § 207,
96 Stat. 2519. Amended § 207 provides that certain small interests
in Indian lands will transfer-or "escheat"-to the tribe upon the
death of the owner of the interest. Pub. L. 98-608, 98 Stat. 3173.
In
Hodel v.
Irving, 481 U. S. 704 (1987),
this Court held that the original version of § 207 of the ILCA
effected a taking of private property without just compensation, in
violation of the Fifth Amendment to the United States Constitution.
Id., at 716-718. We now hold that amended § 207 does not
cure the constitutional deficiency this Court identified in the
original version of §207.
I
In the late Nineteenth Century, Congress initiated an Indian
land program that authorized the division of communal Indian
property. Pursuant to this allotment policy, some Indian land was
parcelled out to individual tribal members. Lands not allotted to
individual Indians were opened to nonIndians for settlement. See
Indian General Allotment Act of 1887, ch. 119, 24 Stat. 388.
Allotted lands were held in trust by the United States or owned by
the allottee subject to restrictions on alienation. On the death of
the allottee, the land descended according to the laws of the State
or Territory in which the land was located. 24 Stat. 389. In 1910,
Congress also provided that allottees could devise their interests
in allotted land. Act of June 25, 1910, ch. 431, § 2, 36 Stat. 856,
codified as amended, 25 U. S. C. § 373.
The allotment policy "quickly proved disastrous for the
Indians."
Irving, 481 U. S., at 707. The program produced a
dramatic decline in the amount of land in Indian hands. F. Cohen,
Handbook of Federal Indian Law 138 (1982) (hereinafter Cohen). And
as allottees passed their interests on to multiple heirs, ownership
of allotments became increasingly fractionated, with some parcels
held by dozens of owners.
238
Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S.
2480 and S. 2663 before the Senate Select Committee on Indian
Affairs, 98th Cong., 2d Sess., 77 (1984) (hereinafter Lawson). A
number of factors augmented the problem: Because Indians often died
without wills, many interests passed to multiple heirs, H. R. Rep.
No. 97-908, p. 10 (1982); Congress' allotment Acts subjected trust
lands to alienation restrictions that impeded holders of small
interests from transferring those interests, Lawson 78-79; Indian
lands were not subject to state real estate taxes, Cohen 406, which
ordinarily serve as a strong disincentive to retaining small
fractional interests in land. The fractionation problem
proliferated with each succeeding generation as multiple heirs took
undivided interests in allotments.
The administrative difficulties and economic inefficiencies
associated with multiple undivided ownership in allotted lands
gained official attention as early as 1928. See L. Meriam,
Institute for Government Research, The Problem of Indian
Administration 40-41 (1928). Governmental administration of these
fractionated interests proved costly, and individual owners of
small undivided interests could not make productive use of the
land. Congress ended further allotment in 1934. See Indian
Reorganization Act, ch. 576, 48 Stat. 984, 25 U. S. C. § 461
et
seq. But that action left the legacy in place. As most owners
had more than one heir, interests in lands already allotted
continued to splinter with each generation. In the 1960's,
congressional studies revealed that approximately half of all
allotted trust lands were held in fractionated ownership; for over
a quarter of allotted trust lands, individual allotments were held
by more than six owners to a parcel. See
Irving, 481 U. S.,
at 708709 (citing Senate Committee on Interior and Insular Affairs,
Indian Heirship Land Survey, 86th Cong., 2d Sess., pt. 2, p. x
(Comm. Print 1960-1961)).
In 1983, Congress adopted the ILCA in part to reduce
fractionated ownership of allotted lands. Pub. L. 97-459, tit.
239
II, 96 Stat. 2517. Section 207 of the ILCA-the "escheat"
provision-prohibited the descent or devise of small fractional
interests in allotments. 96 Stat. 2519.1 Instead of passing to
heirs, such fractional interests would escheat to the tribe,
thereby consolidating the ownership of Indian lands. Congress
defined the targeted fractional interest as one that both
constituted 2 percent or less of the total acreage in an allotted
tract and had earned less than $100 in the preceding year. Section
207 made no provision for the payment of compensation to those who
held such interests.
In
Hodel v.
Irving, this Court invalidated § 207
on the ground that it effected a taking of property without just
compensation, in violation of the Fifth Amendment. 481 U. S., at
716-718. The appellees in
Irving were, or represented, heirs
or devisees of members of the Oglala Sioux Tribe. But for § 207,
the appellees would have received 41 fractional interests in
allotments; under § 207, those interests would escheat to the
Tribe.
Id., at 709-710. This Court tested the legitimacy of
§ 207 by considering its economic impact, its effect on
investment-backed expectations, and the essential character of the
measure. See id., at 713-718; see also
Penn Central Transp.
Co. v.
New York City, 438 U. S. 104, 124
(1978). Turning first to the economic impact of § 207, the Court in
Irving observed that the provision's income-generation test
might fail to capture the actual economic value of the land. 481 U.
S., at 714. The Court next indicated that § 207 likely did not
interfere with investmentbacked expectations.
Id., at 715.
Key to the decision in
Irving, however, was the
"extraordinary" character of the
1 As originally enacted, § 207 provided:
"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." 96 Stat. 2519.
240
Government regulation.
Id., at 716. As this Court noted,
§ 207 amounted to the "virtua[l] abrogation of the right to pass on
a certain type of property."
Ibid. Such a complete
abrogation of the rights of descent and devise could not be upheld.
Id., at 716-717.
II
In 1984, while
Irving was still pending in the Court of
Appeals for the Eighth Circuit, Congress amended § 207. Pub. L.
96-608, § 1(4), 98 Stat. 3173.2 Amended § 207 differs from the
original escheat provision in three relevant respects. First, an
interest is considered fractional if it both
2 In 1990, Congress enacted minor revisions to § 207 that are
not relevant here. Pub. L. 101-644, §301, 104 Stat. 4666-4667.
Amended §207, codified at 25 U. S. C. § 2206, provides:
"(a) Escheat to tribe; rebuttable presumption
"No undivided interest held by a member or nonmember Indian in
any tract of trust land or restricted land within a tribe's
reservation or outside of a reservation and subject to such tribe's
jurisdiction shall descend by intestacy or devise but shall escheat
to the reservation's recognized tribal government, or if outside of
a reservation, to the recognized tribal government possessing
jurisdiction over the land if such interest represents 2 per centum
or less of the total acreage in such tract and is incapable of
earning $100 in anyone of the five years from the date of the
decedent's death. Where the fractional interest has earned to its
owner less than $100 in anyone of the five years before the
decedent's death, there shall be a rebuttable presumption that such
interest is incapable of earning $100 in anyone of the five years
following the death of the decedent.
"(b) Escheatable fractional interest
"Nothing in this section shall prohibit the devise of such an
escheatable fractional interest to any other owner of an undivided
fractional interest in such parcel or tract of trust or restricted
land.
"(c) Adoption of Indian tribal code
"Notwithstanding the provisions of subsection (a) of this
section, any Indian tribe may, subject to the approval of the
Secretary, adopt its own code of laws to govern the disposition of
interests that are escheatable under this section, and such codes
or laws shall take precedence over the escheat provisions of
subsection (a) of this section, provided, the Secretary shall not
approve any code or law that fails to accomplish the purpose of
preventing further descent or fractionation of such escheatable
interests."
241
constitutes 2 percent or less of the total acreage of the parcel
and "is incapable of earning $100 in anyone of the five years
[following the] decedent's death"-as opposed to one year before the
decedent's death in the original § 207. 25 U. S. C. § 2206(a). If
the interest earned less than $100 in anyone of five years prior to
the decedent's death, "there shall be a rebuttable presumption that
such interest is incapable of earning $100 in anyone of the five
years following the death of the decedent."
Ibid. Second, in
lieu of a total ban on devise and descent of fractional interests,
amended § 207 permits devise of an otherwise escheatable interest
to "any other owner of an undivided fractional interest in such
parcel or tract" of land. 25 U. S. C. § 2206(b). Finally, tribes
are authorized to override the provisions of amended § 207 through
the adoption of their own codes governing the disposition of
fractional interests; these codes are subject to the approval of
the Secretary of the Interior. 25 U. S. C. § 2206(c). In
Irving, "[w]e express[ed] no opinion on the
constitutionality of § 207 as amended." 481 U. S., at 710, n.
1.
Under amended § 207, the interests in this case would escheat to
tribal governments. The initiating plaintiffs, respondents here,
are the children and potential heirs of William Youpee. An enrolled
member of the Sioux and Assiniboine Tribes of the Fort Peck
Reservation in Montana, William Youpee died testate in October
1990. His will devised to respondents, all of them enrolled tribal
members, his several undivided interests in allotted trust lands on
various reservations in Montana and North Dakota. These interests,
as the Ninth Circuit reported, were valued together at $1,239.
67 F.3d
194, 199 (1995). Each interest was devised to a single
descendant. Youpee's will thus perpetuated existing fractionation,
but it did not splinter ownership further by bequeathing any single
fractional interest to multiple devisees.
In 1992, in a proceeding to determine the heirs to, and claims
against, William Youpee's estate, an Administrative
242
Law Judge (ALJ) in the Department of the Interior found that
interests devised to each of the respondents fell within the
compass of amended § 207 and should therefore escheat to the tribal
governments of the Fort Peck, Standing Rock, and Devils Lake Sioux
Reservations. App. to Pet. for Cert. 27a-40a. Respondents,
asserting the unconstitutionality of amended § 207, appealed the
ALJ's order to the Department of the Interior Board of Indian
Appeals. The Board, stating that it did not have jurisdiction to
consider respondents' constitutional claim, dismissed the
appeal.
Respondents then filed suit in the United States District Court
for the District of Montana, naming the Secretary of the Interior
as defendant, and alleging that amended § 207 of the ILCA violates
the Just Compensation Clause of the Fifth Amendment. The District
Court agreed with respondents and granted their request for
declaratory and injunctive relief. 857 F. Supp. 760, 766
(1994).
The Court of Appeals for the Ninth Circuit affirmed.
67 F.3d
194 (1995). That court carefully inspected the 1984 revisions
to § 207. Hewing closely to the reasoning of this Court in
Irving, the Ninth Circuit determined that amended § 207 did
not cure the deficiencies that rendered the original provision
unconstitutional. In particular, the Ninth Circuit observed that
amended § 207 "continue[d] to completely abolish one of the sticks
in the bundle of rights [constituting property] for a class of
Indian landowners." 67 F. 3d, at 200. The Ninth Circuit noted that
"Congress may pursue other options to achieve consolidation of ...
fractional interests," including Government purchase of the land,
condemnation for a public purpose attended by payment of just
compensation, or regulation to impede further fractionation.
Ibid. But amended § 207 could not stand, the Ninth Circuit
concluded, for the provision remained "an extraordinary and
impermissible regulation of Indian lands and effect[ed] an
unconstitutional taking without just compensation."
Ibid.
243
On the petition of the United States, we granted certiorari, 517
U. S. 1232 (1996), and now affirm.
III
In determining whether the 1984 amendments to § 207 render the
provision constitutional, we are guided by
Irving.3 The
United States maintains that the amendments, though enacted three
years prior to the
Irving decision, effectively anticipated
the concerns expressed in the Court's opinion. As already noted,
amended § 207 differs from the original in three relevant respects:
It looks back five years instead of one to determine the income
produced from a small interest, and creates a rebuttable
presumption that this income stream will continue; it permits
devise of otherwise escheatable interests to persons who already
own an interest in the same parcel; and it authorizes tribes to
develop their own codes governing the disposition of fractional
interests. These modifications, according to the United States,
rescue amended § 207 from the fate of its predecessor. The
Government maintains that the revisions moderate the economic
impact of the provision and temper the character of the
Government's regulation; the latter factor weighed most heavily
against the constitutionality of the original version of § 207.
The narrow revisions Congress made to § 207, without benefit of
our ruling in
Irving, do not warrant a disposition different
from the one this Court announced and explained in
Irving.
Amended § 207 permits a five-year window rather than a one-year
window to assess the income-generating capacity of the interest. As
the Ninth Circuit observed, however, argument that this change
substantially mitigates the economic impact of § 207 "misses the
point." 67 F. 3d, at
3 In
Irving we relied on
Penn Central Transp. Co.
v.
New York City, 438 U. S. 104 (1978).
Because we find
Irving dispositive, we do not reach
respondents' argument that amended § 207 effects a "categorical"
taking, and is therefore subject to the more stringent analysis
employed in
Lucas v.
South Carolina Coastal Council,
505 U. S. 1003
(1992).
244
199. Amended § 207 still trains on income generated from the
land, not on the value of the parcel. The Court observed in
Irving that "[e]ven if ... the income generated by such
parcels may be properly thought of as
de minimis," the value
of the land may not fit that description. 481 U. S., at 714. The
parcels at issue in
Irving were valued by the Bureau of
Indian Affairs at $2,700 and $1,816, amounts we found "not
trivial."
Ibid. The value of the disputed parcels in this
case is not of a different order; as the Ninth Circuit reported,
the value of decedent Youpee's fractional interests was $1,239. 67
F. 3d, at 199. In short, the economic impact of amended § 207 might
still be palpable.
Even if the economic impact of amended § 207 is not
significantly less than the impact of the original provision, the
United States correctly comprehends that
Irving rested
primarily on the "extraordinary" character of the governmental
regulation.
Irving stressed that the original § 207
"amount[ed] to virtually the abrogation of the right to pass on a
certain type of property-the small undivided interest-to one's
heirs." 481 U. S., at 716; see also id., at 717 ("both descent and
devise are completely abolished"). The
Irving Court further
noted that the original § 207 "effectively abolish[ed] both descent
and devise [of fractional interests] even when the passing of the
property to the heir might result in consolidation of property."
Id., at 716. As the United States construes
Irving,
Congress cured the fatal infirmity in § 207 when it revised the
section to allow transmission of fractional interests to successors
who already own an interest in the allotment.
Congress' creation of an ever-so-slight class of individuals
equipped to receive fractional interests by devise does not
suffice, under a fair reading of
Irving, to rehabilitate the
measure. Amended § 207 severely restricts the right of an
individual to direct the descent of his property. Allowing a
decedent to leave an interest only to a current owner in the
245
same parcel shrinks drastically the universe of possible
successors. And, as the Ninth Circuit observed, the "very limited
group [of permissible devisees] is unlikely to contain any lineal
descendants." 67 F. 3d, at 199-200. Moreover, amended § 207
continues to restrict devise "even in circumstances when the
governmental purpose sought to be advanced, consolidation of
ownership of Indian lands, does not conflict with the further
descent of the property."
Irving, 481 U. S., at 718. William
Youpee's will, the United States acknowledges, bequeathed each
fractional interest to one heir. Giving effect to Youpee's
directive, therefore, would not further fractionate Indian land
holdings.
The United States also contends that amended § 207 satisfies the
Constitution's demand because it does not diminish the owner's
right to use or enjoy property during his lifetime, and does not
affect the right to transfer property at death through nonprobate
means. These arguments did not persuade us in
Irving and
they are no more persuasive today. See id., at 716-718.
The third alteration made in amended § 207 also fails to bring
the provision outside the reach of this Court's holding in
Irving. Amended § 207 permits tribes to establish their own
codes to govern the disposition of fractional interests; if
approved by the Secretary of the Interior, these codes would govern
in lieu of amended § 207. See 25 U. S. C. § 2206(c). The United
States does not rely on this new provision to defend the statute.
Nor does it appear that the United States could do so at this time:
Tribal codes governing disposition of escheatable interests have
apparently not been developed. See Tr. of Oral Arg. 42-43.
***
For the reasons stated, the judgment of the Court of Appeals for
the Ninth Circuit is
Affirmed.
246
JUSTICE STEVENS, dissenting.
Section 207 of the Indian Land Consolidation Act, 25 U. S. C. §
2206, did not, in my view, effect an unconstitutional taking of
William Youpee's right to make a testamentary disposition of his
property. As I explained in
Hodel v.
Irving, 481 U. S. 704, 719-720
(1987) (opinion concurring in judgment), the Federal Government,
like a State, has a valid interest in removing legal impediments to
the productive development of real estate. For this reason, the
Court has repeatedly "upheld the power of the State to condition
the retention of a property right upon the performance of an act
within a limited period of time."
Texaco, Inc. v.
Short, 454 U.
S. 516, 529 (1982). I remain convinced that "Congress has ample
power to require the owners of fractional interests in allotted
lands to consolidate their holdings during their lifetimes or to
face the risk that their interests will be deemed to be abandoned."
Hodel, 481 U. S., at 732 (STEVENS, J., concurring in
judgment). The federal interest in minimizing the fractionated
ownership of Indian lands-and thereby paving the way to the
productive development of their property-is strong enough to
justify the legislative remedy created by § 207, provided, of
course, that affected owners have adequate notice of the
requirements of the law and an adequate opportunity to adjust their
affairs to protect against loss. See
ibid.
In my opinion, William Youpee did have such notice and
opportunity. With regard to notice, the requirements of § 207 are
set forth in the United States Code. "Generally, a legislature need
do nothing more than enact and publish the law, and afford the
citizenry a reasonable opportunity to familiarize itself with its
terms and to comply .... It is well established that persons owning
property within a [jurisdiction] are charged with knowledge of
relevant statutory provisions affecting the control or disposition
of such property."
Texaco, 454 U. S., at 531-532. Unlike the
landowners in
Hodel, Mr. Youpee also had adequate
opportunity to comply.
247
More than six years passed from the time § 207 was amended until
Mr. Youpee died on October 19, 1990 (this period spans more than
seven years if we count from the date § 207 was originally
enacted). During this time, Mr. Youpee could have realized the
value of his fractional interests (approximately $1,239) in a
variety of ways, including selling the property, giving it to his
children as a gift, or putting it in trust for them. I assume that
he failed to do so because he was not aware of the requirements of
§ 207. This loss is unfortunate. But I believe Mr. Youpee's failure
to pass on his property is the product of inadequate legal advice
rather than an unconstitutional defect in the statute. *
Accordingly, I respectfully dissent.
*Whether his heirs might have had a right to some relief from
the author of Mr. Youpee's will if the Court had upheld the statute
is not before us. Though not constitutionally required, it would
certainly seem prudent for the Government or Mr. Youpee's lawyer to
have notified him of § 207's requirements.
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