Give or Take an Acre: Property Norms and the Indian Land Consolidation Act

Iowa Law Review

Volumn 85, Issue 2, 2000, Pages 595-661

  Guzman, Katheleen R ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0034386164     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (323)

1. Ch. 119, 24 Stat. 388 (1887) (codified as amended at 25 U.S.C. §§ 331-334, 339, 341, 342, 348, 349, 354, 381 (1999)). While allotment had been employed since the mid-1850's, the Act was the first time it was imposed outside of consensual, negotiated treaties. FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 613 (R. Strickland ed., 1982). The Act was often implemented through individual treaties and provided the prototype for other allotment acts applicable to a specific tribe. See generally infra Part II (exploring the Act's pre-conditions and effects).
2. How that "wing" was later taken is a different tale told in Andrus v. Allard, 444 U.S. 51 (1979) (permitting ban on the sale of eagle feathers by an Indian tribe) and discussed infra notes 100-02 and accompanying text.
3. Thomas Jefferson's notion of civilized democracy, inextricably connected to agriculture, provided the foundation for allotment. "Protestant evangelism fused with the Jeffersonian ideal of the yeoman farmer in a vision that saw the conversion of the Indian to property ownership as not merely a cultural but a spiritual transformation." FERGUS BORDEWICH, KILLING THE WHITE MAN'S INDIAN 38-39 (1996); see infra notes 34-37 and accompanying text (exploring the invoked justifications for replacing tribal property with private property).
4. Although the General Allotment Act was touted as the "pulverizing engine for breaking up the tribal mass," Merrill E. Gates, Opening Address, 18 Proc. Ann. Meeting Lake Mohonk Conf. Friends Indian 16 (1900), it appears that the motives of its proponent, Senator Henry L. Dawes, were irreproachable. In Dawes's words, We are blind, we are deaf, we are insane if we do not take cognizance of the fact that there are forces in this land driving on [the settlers] with a determination to possess every acre of [Indian] land, and [the Indians] will lose it unless we work and declare that the original owner of this land shall, before every acre disappears from under him forever, have 160 acres of it when he shall be fitted to become a citizen of the United States. Id.; see ANN. REP. OF THE COMMISSIONER OF INDIAN AFFAIRS (Sept. 28, 1886) [hereinafter ANN. REP.]. The United States Supreme Court acknowledges this duality of motive. "[The General Allotment Act] seems to have been in part animated by a desire to force Indians to abandon their nomadic ways in order to 'speed the Indians' assimilation into American society' and in part a result of pressure to free new lands for further white settlement." Hodel v. Irving, 481 U.S. 704, 706 (1987) (quoting Solem v. Bartlett, 465 U.S. 463, 466 (1984)) (citations omitted); see infra notes 34-37 and accompanying text (detailing pressures leading to allotment).
5. See BORDEWICH, supra note 3, at 38-39 (explaining the foundation of allotment).
6. See infra Part II.B. (detailing economic effects of allotment). For more in-depth discussion of the continuing role of allotment and its assimilationist underpinnings in modern sovereignty and territory jurisprudence, see Judith V. Royster, The Legacy of Allotment, 27 ARIZ. ST. L.J. 1 (1995).
7. Burdensome administrative prerequisites to inter vivos transactions and initial prohibitions on testamentary ones meant that few allottees exercised transfer rights, forcing the allotment through intestacy to potentially numerous heirs as tenants in common. "First, testate sucession was not permitted for many allottees until 1910. 25 U.S.C. 373. Even after wills were permitted, many Native Americans did not write them, again subjecting allotments to the intestacy scheme of the jurisdiction within which they were located." Alex Tallchief Skibine, In the U.S. Supreme Court: The Limits on the Government's Power to Regulate the Right to Distribute Property by Devise and Descent, Nov. 27, 1996, available in 1996 WL 680722.
8. Paul E. Frye, "A Travesty of a Mockery of a Sham": The Federal Trust Duty and Indian Self-Determination, SPECIAL INST. ON NAT. RESOURCES DEV. & ENVTL. REG. IN INDIAN COUNTRY 2B-13, Paper No. 2B (Rocky Mtn. Min. L. Found. 1999).
9. 100 power. Interview with Q. Michael Jones, National Director for the Land Titles and Records Division, Department of the Interior, Bureau of Indian Affairs (Dec. 5, 1996).
10. Lynn H. Slade, Presentation, The Federal Trust Responsibility in a Self-Determination Era, SPECIAL INST. ON NAT. RESOURCES DEV. & ENVTL. REG. IN INDIAN COUNTRY, Paper No. 2A (Rocky Mtn. Min. L. Found. 1999). That sentiment captured the conference consensus, where allotted lands were characterized as "the chaff of federal Indian policy" whose leasing was often "just better off not tried." Comments of conference participants, regional solicitor Timothy Vollman and attorney Michael Webster, respectively.
11. Indian Land Consolidation Act of 1983, Pub. L. No. 97-459, 96 Stat. 2519 (codified as amended at 25 U.S.C. § 2206 (1994)).
12. Ute v. Utah, 935 F. Supp. 1473 (D. Utah 1996), citing H.R. REP. No. 97-908, at 5 (1997), reprinted in 1982 U.S.C.C.A.N. 4415, 4416.
13. 481 U.S. 704 (1987).
14. 519 U.S. 234 (1997).
15. See infra note 67 (elaborating on the Supreme Court's holding in each case). See generally Part III (assessing the constitutionality of forced escheat under tradition takings principles).
16. Michael Heller, The Boundaries of Private Property, 108 YALE L.J. 1163, 1213-17 (1999) [hereinafter Heller, Boundaries]; Chris Schwab, Case Note, 65 TENN. L. REV. 805 (1998).
17. Michael Heller, The Boundaries of Private Property, 108 YALE L.J. 1163, 1213-17 (1999) [hereinafter Heller, Boundaries]; Chris Schwab, Case Note, 65 TENN. L. REV. 805 (1998).
18. See, e.g., Ronald Chester, Essay: Is the Right to Devise Property Constitutionally Protected? - The Strange Case of Hodel v. Irving, 24 Sw. U. L. REV. 1195, 1197 (1995); Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1662-65 (1988); Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1621- 25 (1988); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714, 1728 (1988).
19. See, e.g., Ronald Chester, Essay: Is the Right to Devise Property Constitutionally Protected? - The Strange Case of Hodel v. Irving, 24 Sw. U. L. REV. 1195, 1197 (1995); Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1662-65 (1988); Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1621- 25 (1988); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714, 1728 (1988).
20. See, e.g., Ronald Chester, Essay: Is the Right to Devise Property Constitutionally Protected? - The Strange Case of Hodel v. Irving, 24 Sw. U. L. REV. 1195, 1197 (1995); Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1662-65 (1988); Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1621-25 (1988); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714, 1728 (1988).
21. See, e.g., Ronald Chester, Essay: Is the Right to Devise Property Constitutionally Protected? - The Strange Case of Hodel v. Irving, 24 Sw. U. L. REV. 1195, 1197 (1995); Douglas W. Kmiec, The Original Understanding of the Taking Clause Is Neither Weak Nor Obtuse, 88 COLUM. L. REV. 1630, 1662-65 (1988); Frank Michelman, Takings, 1987, 88 COLUM. L. REV. 1600, 1621- 25 (1988); T. Nicolaus Tideman, Takings, Moral Evolution, and Justice, 88 COLUM. L. REV. 1714, 1728 (1988).
22. Chester, supra note 17, at 1197, 1198.
23. JESSE DUKEMINIER & STANLEY JOHANSON, WILLS, TRUSTS, AND ESTATES, TEACHER'S MANUAL 274 (5th ed. 1995).
24. Kmiec, supra note 17, at 1664.
25. Daniel Kornstein, Inheritance: A Constitutionally Protected Right?, 36 RUTGERS L. REV. 741, 743, 745-46 (1984) (commenting pre-Youpee and Irving on whether restricting inheritance would equal a taking).
26. See, e.g., E. Gary Spitko, Gone but Not Conforming: Protecting the Abhorrent Testator from Majoritarian Cultural Norms Through Minority-Culture Arbitration, 49 CASE W. RES. L. REV. 275, 302 n.132, 314 (1998) (citing Irving and Youpee as illustrating pervasive cultural bias and disregard for minority values); Rebecca Tsosie, American Indians and the Politics of Recognition: Soifer on Law, Pluralism, and Group Identity, 22 L. & Soc. INQUIRY 359, 371 (1997) (reviewing ARIAM SOIFER, LAW AND THE COMPANY WE KEEP (1995)) (noting the Irving Court's willingness to "sacrifice group claims to property to the Anglo-American norm of individual private property rights").
27. See, e.g., E. Gary Spitko, Gone but Not Conforming: Protecting the Abhorrent Testator from Majoritarian Cultural Norms Through Minority-Culture Arbitration, 49 CASE W. RES. L. REV. 275, 302 n.132, 314 (1998) (citing Irving and Youpee as illustrating pervasive cultural bias and disregard for minority values); Rebecca Tsosie, American Indians and the Politics of Recognition: Soifer on Law, Pluralism, and Group Identity, 22 L. & Soc. INQUIRY 359, 371 (1997) (reviewing ARIAM SOIFER, LAW AND THE COMPANY WE KEEP (1995)) (noting the Irving Court's willingness to "sacrifice group claims to property to the Anglo-American norm of individual private property rights").
28. See, e.g., E. Gary Spitko, Gone but Not Conforming: Protecting the Abhorrent Testator from Majoritarian Cultural Norms Through Minority-Culture Arbitration, 49 CASE W. RES. L. REV. 275, 302 n.132, 314 (1998) (citing Irving and Youpee as illustrating pervasive cultural bias and disregard for minority values); Rebecca Tsosie, American Indians and the Politics of Recognition: Soifer on Law, Pluralism, and Group Identity, 22 L. & Soc. INQUIRY 359, 371 (1997) (reviewing ARIAM SOIFER, LAW AND THE COMPANY WE KEEP (1995)) (noting the Irving Court's willingness to "sacrifice group claims to property to the Anglo-American norm of individual private property rights").
29. LAWRENCE W. WAGGONER ET AL., FAMILY PROPERTY LAW 11 (1997) (labeling the Court's treatment of the takings issue as applied to American Indian law as "disquieting, interfer[ing], and assimilat[ionist]").
30. Chester, supra note 17, at 1202.
31. This economic perspective presumably inspired most of the aforementioned criticism, emanating as it did from the "taking" perspective. If so, academic reaction might signify less endorsement of the ILCA in means and ends than a rejection of current taking jurisprudence in theory and application. Within roughly the last decade, a series of Supreme Court decisions has curtailed land use regulation, reflecting the broader property rights struggle between absolutists versus relativists. One's view depends on a number of political positions, including the propriety of redistributive legislation and the Supreme Court's role in striking it. See, e.g., Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation, 72 OR. L. REV. 603 (1993) (critiquing current taking jurisprudence and previewing its probable direction); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995) ( asserting that the Court should integrate economic interests into a broader jurisprudence of constitutional rights); Molly S. McUsic, The Ghost of Lochner: Modern Takings Doctrine and Its Impact on Economic Legislation, 76 B.U. L. REV. 605 (1996) (analyzing the Lochnerian aspects of the Court's new takings doctrine); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988) (observing that the classical liberal conception of property is incompletely embodied in the Court's recent jurisprudence).
32. This economic perspective presumably inspired most of the aforementioned criticism, emanating as it did from the "taking" perspective. If so, academic reaction might signify less endorsement of the ILCA in means and ends than a rejection of current taking jurisprudence in theory and application. Within roughly the last decade, a series of Supreme Court decisions has curtailed land use regulation, reflecting the broader property rights struggle between absolutists versus relativists. One's view depends on a number of political positions, including the propriety of redistributive legislation and the Supreme Court's role in striking it. See, e.g., Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation, 72 OR. L. REV. 603 (1993) (critiquing current taking jurisprudence and previewing its probable direction); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995) ( asserting that the Court should integrate economic interests into a broader jurisprudence of constitutional rights); Molly S. McUsic, The Ghost of Lochner: Modern Takings Doctrine and Its Impact on Economic Legislation, 76 B.U. L. REV. 605 (1996) (analyzing the Lochnerian aspects of the Court's new takings doctrine); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988) (observing that the classical liberal conception of property is incompletely embodied in the Court's recent jurisprudence).
33. This economic perspective presumably inspired most of the aforementioned criticism, emanating as it did from the "taking" perspective. If so, academic reaction might signify less endorsement of the ILCA in means and ends than a rejection of current taking jurisprudence in theory and application. Within roughly the last decade, a series of Supreme Court decisions has curtailed land use regulation, reflecting the broader property rights struggle between absolutists versus relativists. One's view depends on a number of political positions, including the propriety of redistributive legislation and the Supreme Court's role in striking it. See, e.g., Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation, 72 OR. L. REV. 603 (1993) (critiquing current taking jurisprudence and previewing its probable direction); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995) ( asserting that the Court should integrate economic interests into a broader jurisprudence of constitutional rights); Molly S. McUsic, The Ghost of Lochner: Modern Takings Doctrine and Its Impact on Economic Legislation, 76 B.U. L. REV. 605 (1996) (analyzing the Lochnerian aspects of the Court's new takings doctrine); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988) (observing that the classical liberal conception of property is incompletely embodied in the Court's recent jurisprudence).
34. This economic perspective presumably inspired most of the aforementioned criticism, emanating as it did from the "taking" perspective. If so, academic reaction might signify less endorsement of the ILCA in means and ends than a rejection of current taking jurisprudence in theory and application. Within roughly the last decade, a series of Supreme Court decisions has curtailed land use regulation, reflecting the broader property rights struggle between absolutists versus relativists. One's view depends on a number of political positions, including the propriety of redistributive legislation and the Supreme Court's role in striking it. See, e.g., Bruce W. Burton, Regulatory Takings and the Shape of Things to Come: Harbingers of a Takings Clause Reconstellation, 72 OR. L. REV. 603 (1993) (critiquing current taking jurisprudence and previewing its probable direction); Richard E. Levy, Escaping Lochner's Shadow: Toward a Coherent Jurisprudence of Economic Rights, 73 N.C. L. REV. 329, 331, 339-41 (1995) ( asserting that the Court should integrate economic interests into a broader jurisprudence of constitutional rights); Molly S. McUsic, The Ghost of Lochner: Modern Takings Doctrine and Its Impact on Economic Legislation, 76 B.U. L. REV. 605 (1996) (analyzing the Lochnerian aspects of the Court's new takings doctrine); Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667, 1671-84 (1988) (observing that the classical liberal conception of property is incompletely embodied in the Court's recent jurisprudence).
35. See Michael A. Heller & James E. Krier, Deterrence and Distribution in the Law of Takings, 112 HARV. L. REV. 997, 997 (1999) (arguing for a return to and uncoupling of the purposes of the Takings Clause - efficiency and justice).
36. The ILCA thus inverts the general charge levied against the judicial system within the realm of testamentary freedom: "Generally, individuals have 'freedom' to distribute their property along carefully delineated channels in accordance with prevailing norms." Melanie B. Leslie, The Myth of Testamentary Freedom, 38 ARIZ. L. REV. 235, 273 (1996).
37. As discussed in Part VI, tribes may of course create their own escheat or consolidation policies if they so choose. Notably, even tribes benefitting from the consolidation opposed it in principle. See Amicus Brief of the Allottees Association et al., filed on behalf of Respondents at 12, Babbit v. Youpee, 519 U.S. 234 (1997) (No. 95-1595).
38. 21 U.S. (8 Wheat.) 543 (1823).
39. Id. at 550-58.
40. The discovery of gold at Sutter's Mill resulted in thousands traveling across the plains and converging upon California in 1848. Carl J. Mayer, The 1872 Mining Law: Historical Origins of the Discovery Rule, 53 U. CHI. L. REV. 624, 638 (1986).
41. This was effected through persuasion- or coercion-induced treaties. The tribes ceded the bulk of their land to the United States Government reserving smaller portions to themselves. See ANGIE DEBO, AND STILL THE WATERS RUN: THE BETRAYAL OF THE FIVE CIVILIZED TRIBES (2d ed. 1984) (detailing the travails of the Five Civilized Tribes during the removal and reservation eras).
42. KIRKE KICKINGBIRD & KAREN DUCHENEAUX, ONE HUNDRED MILLION ACRES at xxi, 14-15 (1972).
43. AMERICANIZING THE AMERICAN INDIANS: WRITINGS BY THE "FRIENDS OF THE INDIAN" 1888-1900, at 80-140 (Francis Paul Prucha ed., 1978).
44. "The main purpose of [allotment legislation] is not to help the Indians . . . so much as it is to provide a method for getting at the valuable Indian lands and opening them up to white settlement . . . . [W]hen the Indian is smothered out, as he will be under the operation of this bill, the investment will revert to the national Treasury, and the Indian, in the long run, will be none the better for it." H.R. REP. No. 46-1576, at 7-10 (1880) (predecessor legislation to the Dawes Act), cited in Amicus Brief for the Respondents, Babbitt v. Youpee, 519 U.S. 234 (1997) (No. 95-1595), available in 1996 WL 528318, at *7 n.3.
45. LEWIS MERIAM, INST. FOR GOV'T RESEARCH, THE PROBLEM OF INDIAN ADMINISTRATION 19 (1928) [hereinafter THE MERIAM REPORT].
46. Professor Angie Debo discusses how the Five Civilized Tribes (the Cherokee, Creek, Choctaw, Chickasaw, and Seminole), which were exempted from the General Allotment Act, nevertheless suffered their own versions of allotment imposed in part under threat of gun and as "punishment" for siding with the south in the civil war. Allottees acquired restricted rather than trust fees, meaning they owned legal and equitable title to the tract subject to transfer restraints. See, e.g., DEBO, supra note 32 (tracing the history of five tribes through removal, reservation, and allotment policies).
47. See, e.g., Act of Mar. 2, 1889, ch. 405, 25 Stat. 888 (1889) (allotting Sioux reservation).
48. General Allotment Act of 1887, ch. 119, 24 Stat. 388 (1887). By contrast, the members of tribes excepted from the Act (most notably, the "five civilized tribes") were issued "restricted allotments" or fee patents subject to restrictions against alienation without secretarial approval. See Act of Mar. 1, 1901, ch. 676, 31 Stat. 861, supplemented by Act of June 30, 1902, ch. 1323, 32 Stat. 500 (Creek); Act of Mar. 1, 1901, ch. 675, 31 Stat. 848, supplemented by Act of July 1, 1902, ch. 1375, 32 Stat. 716 (Cherokee); Act of July 1, 1898, ch. 542, 30 Stat. 567, supplemented by Act of June 2, 1900, ch. 610, 31 Stat. 250 (Seminole); Act of June 28, 1898, ch. 517, § 29, 30 Stat. 495, 505, supplemented by Act of July 1, 1902, ch. 1362, 32 Stat. 641 (Choctaw and Chickasaw).
49. The trust period was designed with education and protection in mind: to protect the individual from state taxation and permit the allottee to learn economical management and cultivation of the land. See generally THE MERIAM REPORT, supra note 36.
50. 25 U.S.C. §§ 379, 404, 464, 483 (1994); 25 C.F.R. § 152.17 (1998). Pursuant to the Appropriations Act of June 21, 1906, ch. 3504, 34 Stat. 325, 326 (codified at 25 U.S.C. § 391 (1994)) and the Indian Reorganization Act, ch. 576, 48 Stat. 984 (codified at 25 U.S.C. §§ 461-479 (1994)), the Interior Department has extended the trust period on allotted lands indefinitely. See 25 C.F.R. ch. I app. at 655 (1998) (citing executive orders and acts of Congress that have continued the trust period of Indian land).
51. JANET A. MCDONNELL, THE DISPOSSESSION OF THE AMERICAN INDIAN 1887-1934, at 6 (1991). The fairness of allotment's implementation usually hinged on the reservation's agent and was often woefully lacking. Allotted land was often arid and worthless, unsuitable for farming or much else. Negligence and corruption abounded as choice tracts of land were withheld from allotment or transferred to the wives or children of whites. Jd.
52. COHEN, supra note 1, at 138. Recent data indicates that the United States government holds approximately 55 million acres in trust for tribes and individual members. Stanley J. Czerwinski, Native American Housing - Homeownership Opportunities in Trust Lands Are Limited, GAO REP., Feb. 24, 1998.
53. General Allotment Act of 1887, ch. 119, 24 Stat. 388.
54. While Congress could permit the issuance of a fee prior to the expiration of the trust period, see H.R. REP. No. 59-1558, at 2 (1906), this was particularly so after the Burke Act of 1906, ch. 2348, 34 Stat. 182 (codified at 25 U.S.C. § 349 (1993 & Supp. 1999)), which, inter alia, permitted the Secretary of the Interior to make competency determinations and issue fee patents at any time thereafter. Soon thereafter, "competency commissions" were established to rove Indian Country and force fees upon such allottees. See Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987) (discussing practice and holding on procedural grounds that transactions stemming from "forced fees" could not be set aside); 1 FRANCIS PAUL PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS 295-305 (1984) (noting how allotment policy shifted from protecting Indians to speeding the alienation of their lands).
55. See generally MCDONNELL, supra note 42; CHARLES WILKINSON, AMERICAN INDIANS, TIME AND THE LAW 20 (1986).
56. In fact, some argue that the reverse actually happened where allottees determined that leasing or selling the land was more fruitful than individually working it. This is the premise developed by Leonard A. Carlson, Land Allotment and the Decline of American Indian Farming, in 18 EXPLORATIONS IN ECONOMIC HISTORY 128-54 (1981).
57. Jennifer Roback, Exchange, Sovereignty, and Indian-Anglo Relations, in PROPERTY RIGHTS AND INDIAN ECONOMIES 23 (Terry L. Anderson ed., 1992)
58. See THE MERIAM REPORT, supra note 36, at 779-98 (detailing the Act's inadequacies).
59. Also known as the Wheeler-Howard Act, 25 U.S.C.A. §§ 461-79 (West 1983).
60. Readjustment of Indian Affairs: Hearings on H.R. 7902 of the House Comm. on Indian Affairs, 73d Cong. 117-18 (1934), cited in Petitioner's Brief at 17, Babbitt v. Youpee, 519 U.S. 234 (1997) (No. 95-1595). Commissioner Collier might have spoken too optimistically when referring to the Indians as "the landlord class." Their circumstances more closely resembled that of the medieval serfs: able to use "their" land but dependant on the overlord (the government) for protection, ironically forced into a form of the very feudal economy that the settlers sought to escape.
61. A "commons" exists where many owners may use but not exclude others from a given resource; the familiar "tragedy" results from the disincentive to minimize negative externalities caused by overuse and resource depletion. See Harold Demsetz, Towards a Theory of Property Rights, 57 AM. ECON. REV. 347 (1967) (positing emergence of private property where governmental and economic shifts render benefits of appropriation higher than costs). Professor Michael Heller defines "anticommons" property as the converse - many owners enjoying a right to exclude others from a scarce resource such that no one has an "effective" privilege of use. To the extent that underuse results, a tragedy of the anticommons occurs. See Heller, Boundaries, supra note 16, at 1213-17 (arguing that the Irving and Youpee cases "entrench" a tragedy of the anticommons by protecting right to devise fractionated interests in allotted lands); Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 622, 685-87 (1998) [hereinafter Heller, The Tragedy of the Anticommons] (characterizing fractionated allotments as anticommons and arguing that the reservations were not privatized enough). But is the under-development of allotted lands really a tragedy? See Stephen R. Munster, The Special Case of Property Rights in Umbilical Cord Blood for Transplantation, 51 RUTGERS L. REV. 493, 549 (1999) (noting within the biomedical patents context that "anticommons property is not necessarily tragic" as not all sub-optimal consumption need be so viewed). The construction of optimal versus sub-optimal "consumption" of land appears driven by a thoroughly economic perspective.
62. A "commons" exists where many owners may use but not exclude others from a given resource; the familiar "tragedy" results from the disincentive to minimize negative externalities caused by overuse and resource depletion. See Harold Demsetz, Towards a Theory of Property Rights, 57 AM. ECON. REV. 347 (1967) (positing emergence of private property where governmental and economic shifts render benefits of appropriation higher than costs). Professor Michael Heller defines "anticommons" property as the converse - many owners enjoying a right to exclude others from a scarce resource such that no one has an "effective" privilege of use. To the extent that underuse results, a tragedy of the anticommons occurs. See Heller, Boundaries, supra note 16, at 1213-17 (arguing that the Irving and Youpee cases "entrench" a tragedy of the anticommons by protecting right to devise fractionated interests in allotted lands); Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 622, 685-87 (1998) [hereinafter Heller, The Tragedy of the Anticommons] (characterizing fractionated allotments as anticommons and arguing that the reservations were not privatized enough). But is the under-development of allotted lands really a tragedy? See Stephen R. Munster, The Special Case of Property Rights in Umbilical Cord Blood for Transplantation, 51 RUTGERS L. REV. 493, 549 (1999) (noting within the biomedical patents context that "anticommons property is not necessarily tragic" as not all sub-optimal consumption need be so viewed). The construction of optimal versus sub-optimal "consumption" of land appears driven by a thoroughly economic perspective.
63. A "commons" exists where many owners may use but not exclude others from a given resource; the familiar "tragedy" results from the disincentive to minimize negative externalities caused by overuse and resource depletion. See Harold Demsetz, Towards a Theory of Property Rights, 57 AM. ECON. REV. 347 (1967) (positing emergence of private property where governmental and economic shifts render benefits of appropriation higher than costs). Professor Michael Heller defines "anticommons" property as the converse - many owners enjoying a right to exclude others from a scarce resource such that no one has an "effective" privilege of use. To the extent that underuse results, a tragedy of the anticommons occurs. See Heller, Boundaries, supra note 16, at 1213-17 (arguing that the Irving and Youpee cases "entrench" a tragedy of the anticommons by protecting right to devise fractionated interests in allotted lands); Michael A. Heller, The Tragedy of the Anticommons: Property in the Transition from Marx to Markets, 111 HARV. L. REV. 622, 685-87 (1998) [hereinafter Heller, The Tragedy of the Anticommons] (characterizing fractionated allotments as anticommons and arguing that the reservations were not privatized enough). But is the under-development of allotted lands really a tragedy? See Stephen R. Munster, The Special Case of Property Rights in Umbilical Cord Blood for Transplantation, 51 RUTGERS L. REV. 493, 549 (1999) (noting within the biomedical patents context that "anticommons property is not necessarily tragic" as not all sub-optimal consumption need be so viewed). The construction of optimal versus sub-optimal "consumption" of land appears driven by a thoroughly economic perspective.
64. See, e.g., Moore v. Foshee, 38 So. 2d 10 (Ala. 1948) (deed); Schank v. North Am. Royalties, Inc., 201 N.W.2d 419 (N.D. 1972) (lease). The transferee acquires the transferor's interest and cannot exclude non-participating cotenants from equivalent possessory rights. The lessor usually must account to the other cotenants for rents or profits received from third parties or non-rent income derived through property exploitation. See Lichtenfels v. Bridgeview Coal Co., 496 A.2d 782 (Pa. Super. Ct. 1985) (requiring accounting to co-owners for profits from development); White v. Smyth, 214 S.W.2d 967 (Tex. 1948) (same). Mineral leases work similarly since subsurface estates are usually jointly owned. While a handful of states requires unanimous cotenant consent before mineral development, see Law v. Heck Oil Co., 145 S.E. 601 (W. Va. 1928), most jurisdictions permit any single cotenant or cotenant's lessee, irrespective of ownership percentage, to develop the mineral estate without the others' consent or even over their objection. Non-lessor cotenants are then entitled to an accounting for profits (proportionate production less proportionate operating costs) - no slight risk for the developing cotenant who shoulders all costs should the well fail to produce. See Prairie Oil & Gas Co. v. Allen, 2 F.2d 566-74 (8th Cir. 1924) (holding a non-lessor cotenant entitled to an accounting); Enron Oil & Gas Co. v. Worth, 947 P.2d 610 (Okla. Ct. App. 1997) (holding permission of cotenant for exploration unnecessary).
65. Act of Aug. 9, 1955, ch. 615, 69 Stat. 539 (codified as amended at 25 U.S.C. § 415 (1999)) (non-mining allotment lease); Allotted Lands Leasing Act of 1909, ch. 263, 35 Stat. 783 (codified as amended at 25 U.S.C. § 396 (1999)) (mining allotment lease); McClanahan v. Hodel, 14 Indian L. Rptr. 3113 (D.N. Mo. 1987). See generally Reid Peyton Chambers & Monroe E. Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 STAN. L. REV. 1061 (1974) (reviewing the history of leasing policy and the scope of federal duties regarding leasing Indian trust land). Leasing without unanimous consent is permitted in limited circumstances. Under a 1955 amendment to 25 U.S.C. § 396, the Secretary may execute allotment mining leases to the "highest responsible qualified bidder" without unanimous consent when the allottee is deceased and his or her successors have not yet been determined and/or located. Act of August 9, 1955, ch. 615, § 3, 69 Stat. 540. The Act does not specifically apply where the interest holder is identified and located but withholds consent, although it does reference an earlier Act authorizing leasing by BIA superintendents when the allotted lands "are not in use by any of the heirs and the heirs have not been able during a three-months' period to agree upon a lease by reason of the number of heirs, their absence from the reservation, or for other cause . . . ." Act of August 9, 1955, ch. 615, § 2, 69 Stat. 539 (codified at 25 U.S.C. § 415a (1994)) (referencing Act of July 8, 1940, ch. 554, 54 Stat. 745 (codified at 25 U.S.C. § 380 (1994))). The Secretary of the Interior can sell allotted land timber upon request by owners of a majority interest or to prevent catastrophic loss. 25 U.S.C. § 406. The Secretary may also represent undetermined or missing cotenants. Id. Mineral leasing of Five Tribes allotted lands is governed by a different scheme, specifics of which are found at Act of August 4, 1947, ch. 458, § 1, 61 Stat. 731 and 25 C.F.R. pt. 174 (1980). See generally Timothy Vollmann & Sharon Blackwell, "Fatally Flawed": State Court Approval of Conveyances by Indians of the Five Civilized Tribes - Time for Legislative Reform, 25 TULSA L.J. 1 (1989) (outlining statutory framework and procedures for state court approval of leases and conveyances). As the unanimity requirement places allotments at a competitive disadvantage in both attracting investors and securing favorable lease terms, recent legislation attempts congressional relief for some tribes. See, e.g., Act of July 7, 1998, Pub. L. No. 105-188, 112 Stat. 620 (1998) (allowing allotments on Fort Berthold Reservation, North Dakota to be leased upon majority consent and non-consenting owners are entitled to share of rents and royalties). Other legislation sponsored by the Department of the Interior seeks to extend such majority consent rules to other allotted lands. See H.R. 2743, 105th Cong., § 219 (1997); 25 U.S.C.A. § 3715(c)(2)(A) (1994) (allowing majority interest owners in trust or restricted land to enter agricultural surface lease binding minority interests).
66. Act of Aug. 9, 1955, ch. 615, 69 Stat. 539 (codified as amended at 25 U.S.C. § 415 (1999)) (non-mining allotment lease); Allotted Lands Leasing Act of 1909, ch. 263, 35 Stat. 783 (codified as amended at 25 U.S.C. § 396 (1999)) (mining allotment lease); McClanahan v. Hodel, 14 Indian L. Rptr. 3113 (D.N. Mo. 1987). See generally Reid Peyton Chambers & Monroe E. Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 STAN. L. REV. 1061 (1974) (reviewing the history of leasing policy and the scope of federal duties regarding leasing Indian trust land). Leasing without unanimous consent is permitted in limited circumstances. Under a 1955 amendment to 25 U.S.C. § 396, the Secretary may execute allotment mining leases to the "highest responsible qualified bidder" without unanimous consent when the allottee is deceased and his or her successors have not yet been determined and/or located. Act of August 9, 1955, ch. 615, § 3, 69 Stat. 540. The Act does not specifically apply where the interest holder is identified and located but withholds consent, although it does reference an earlier Act authorizing leasing by BIA superintendents when the allotted lands "are not in use by any of the heirs and the heirs have not been able during a three-months' period to agree upon a lease by reason of the number of heirs, their absence from the reservation, or for other cause . . . ." Act of August 9, 1955, ch. 615, § 2, 69 Stat. 539 (codified at 25 U.S.C. § 415a (1994)) (referencing Act of July 8, 1940, ch. 554, 54 Stat. 745 (codified at 25 U.S.C. § 380 (1994))). The Secretary of the Interior can sell allotted land timber upon request by owners of a majority interest or to prevent catastrophic loss. 25 U.S.C. § 406. The Secretary may also represent undetermined or missing cotenants. Id. Mineral leasing of Five Tribes allotted lands is governed by a different scheme, specifics of which are found at Act of August 4, 1947, ch. 458, § 1, 61 Stat. 731 and 25 C.F.R. pt. 174 (1980). See generally Timothy Vollmann & Sharon Blackwell, "Fatally Flawed": State Court Approval of Conveyances by Indians of the Five Civilized Tribes - Time for Legislative Reform, 25 TULSA L.J. 1 (1989) (outlining statutory framework and procedures for state court approval of leases and conveyances). As the unanimity requirement places allotments at a competitive disadvantage in both attracting investors and securing favorable lease terms, recent legislation attempts congressional relief for some tribes. See, e.g., Act of July 7, 1998, Pub. L. No. 105-188, 112 Stat. 620 (1998) (allowing allotments on Fort Berthold Reservation, North Dakota to be leased upon majority consent and non-consenting owners are entitled to share of rents and royalties). Other legislation sponsored by the Department of the Interior seeks to extend such majority consent rules to other allotted lands. See H.R. 2743, 105th Cong., § 219 (1997); 25 U.S.C.A. § 3715(c)(2)(A) (1994) (allowing majority interest owners in trust or restricted land to enter agricultural surface lease binding minority interests).
67. Normally, any single cotenant may dissolve the concurrent estate through partition by sale (division of proceeds) or in kind (division of property). By contrast, allotments cannot be partitioned at all unless all cotenants agree. Act of May 14, 1948, ch. 293, 62 Stat. 236 (codified at 25 U.S.C. § 483 (1994)) (enabling secretary to partition allotments subject to the Indian Reorganization Act "upon approval of the Indian owners," construed to require the application of all co-owners in 25 C.F.R. § 121.33 (1980)). But see Sampson v. Andrus, 483 F. Supp. 240 (D.S.D. 1980) (granting Secretary discretion to authorize allotment partition upon the application of any single co-owner). These rules are generally construed inapplicable to restricted fees, which can be partitioned only upon the voluntary action of all owners. 25 C.F.R. § 121.33(b).
68. An adverse possessor cannot acquire title to lands allotted under the General Allotment Act where the United States government still holds legal title, but can do so against restricted fees of members of the Five Tribes. Act of April 12, 1926, § 2, 44 Stat. 239.
69. Marketable Record Title Acts, which bar any interest created before the "root of title," do not apply to interests held by the United States (therefore are inapplicable to trust allotments) and usually do not apply to restricted fees either unless they are considered a true statute of limitations. See Mobbs v. City of Lehigh, 655 P.2d 547, 551 (Okla. 1982) (holding a state marketable record title act not a statute of limitations, as it barred the property right itself rather than merely the remedy for its infringement).
70. Generally, neither trust nor restricted allotments, nor income derived therefrom, are subject to taxation. COHEN, supra note 1, at 391-99, 418-29. This removes the normal incentive to transfer or consolidate a real property interest whenever tax burdens exceed property revenue, and also removes the possibility for tax sale.
71. General Allotment Act of Feb. 8, 1887, ch. 119, 24 Stat. 388 (codified as amended at 25 U.S.C. § 331 (1999)).
72. These problems led solicitor Timothy Vollman to comment that "mineral leases of allotted lands are virtually unknown in the last twelve years." Presentation of Timothy Vollman, Federal Approval of Mineral Development on Indian Lands, SPECIAL INST. ON NAT. RESOURCES DEV. & ENVTL. REG. IN INDIAN COUNTRY, Paper No. 9 (Rocky Mtn. Min. L. Found. 1999).
73. See Heller, The Tragedy of the Anticommons, supra note 52, at 685-87 (arguing that inefficiency resulted not due to privatizing the reservation, but because it was not privatized enough - too many controls were retained by the federal government; too many cotenants now have "veto power" over actions by other cotenants).
74. Inadequacies allegedly exist throughout the negotiation, contract, and oversight stages, resulting in lease terms with depressed rent or royalty payments and a failure to properly account for mineral production, determine value, and collect and remit payments. See Alan R. Taradash, Natural Resource Royalty Management and Accounting: Special Issues Associated with Valuation and Royalty Accounting for Production from Indian Lands, Past, Current, and Proposed Oil and Gas Valuation Regulations, SPECIAL INST. ON NAT. RESOURCES DEV. & ENVTL. REG. IN INDIAN COUNTRY 8-14 to 8-20, Paper No. 8 (Rocky Mtn. Min. L. Found. 1999). For an excellent case study detailing such failures on state trust management on Navajo land, see Richard J. Ansson, Jr., The Navajo Nation's Aneth Extension and the Utah Navajo Trust Fund: Who Should Govern the Fund After Years of Misuse?, 14 T.M. COOLEY L. REV. 555 (1997). See also infra note 153 and accompanying text.
75. Inadequacies allegedly exist throughout the negotiation, contract, and oversight stages, resulting in lease terms with depressed rent or royalty payments and a failure to properly account for mineral production, determine value, and collect and remit payments. See Alan R. Taradash, Natural Resource Royalty Management and Accounting: Special Issues Associated with Valuation and Royalty Accounting for Production from Indian Lands, Past, Current, and Proposed Oil and Gas Valuation Regulations, SPECIAL INST. ON NAT. RESOURCES DEV. & ENVTL. REG. IN INDIAN COUNTRY 8-14 to 8-20, Paper No. 8 (Rocky Mtn. Min. L. Found. 1999). For an excellent case study detailing such failures on state trust management on Navajo land, see Richard J. Ansson, Jr., The Navajo Nation's Aneth Extension and the Utah Navajo Trust Fund: Who Should Govern the Fund After Years of Misuse?, 14 T.M. COOLEY L. REV. 555 (1997). See also infra note 153 and accompanying text.
76. The Bureau of Indian Affairs (BIA) is charged with maintaining ownership records, 25 C.F.R. § 150 (1986); probating estates, 25 U.S.C. §§ 372-373 (1994); 25 C.F.R. pt. 15; entering leases, 25 C.F.R. §§ 162, 212; and distributing proceeds. Under conservative General Accounting Office estimates, the BIA spends between $40,000,000 and $30,000,000 per year performing such functions, and up to 75% of its realty budget is funneled toward management of the 12 most fractionated allotments. Brief for the Petitioners at 17 n.7, Babbitt v. Youpee, 519 U.S. 234 (1997) (No. 95-1595).
77. Hodel v. Irving, 481 U.S. 704, 713 (1987).
78. Ute v. Utah, 935 F. Supp. 1473, 1504 (1996) (citing H.R. REP. No. 97-908, at 5 (1982), reprinted in 1982 U.S.C.C.A.N. 4415, 4416).
79. The original ILCA was first challenged in Irving v. Clark, 758 F.2d 1260 (8th Cir. 1984). The Circuit Court rejected the heirs'/beneficiaries' claim that their own inheritances had been unconstitutionally taken, but sustained their claim by reworking it to allege the taking of their ancestors'/testators' right to devise. Id. at 1264. While the case was on appeal to the Supreme Court but before that Court rendered its decision, Congress amended the ILCA as set forth in the text. The Supreme Court in Model v. Irving, 481 U.S. 704 (1987), nevertheless avoided considering the amended version of the ILCA and affirmed the lower court to hold it unconstitutional. The amended version of the ILCA was first challenged in Youpee v. Babbitt, 857 F. Supp. 760 (D. Mont. 1994), where the court held that the changes did little to alleviate the harshness of the Act. Id. at 765. That decision was affirmed on appeal in Youpee v. Babbitt, 67 F.3d 194 (9th Cir. 1995), with the court holding that the ILCA continued to abrogate both descent and devise rights of certain allottees. Id. at 199-200. Thereafter but before the Supreme Court rendered its decision, a United States district court in Klauser v. Babbitt, 918 F. Supp. 274 (W.D. Wis. 1996) held that the amended ILCA was in fact constitutional in permitting certain rights to devise. Id. at 280-81. The Supreme Court again settled the issue the following year, when Babbitt v. Youpee, 519 U.S. 234 (1997), reaffirmed that the amended ILCA remained invalid under the Fifth Amendment. Id. at 237.
80. Before Hodel v. Irving, 481 U.S. 704 (1987), the Supreme Court had not found a regulatory taking since Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (holding a regulation that goes "too far" may be a taking for which just compensation is owed).
81. See Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942) ("Rights of succession to property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction."). See generally Chester, supra note 17, at 1195-96 (discussing the assumption throughout United States formation and history that inheritance was a privilege accorded by government rather than an inherent right); Kornstein, supra note 21, at 747-67 (discussing the philosophical and historical roots of inheritance, including the positivist view that it is a legal construction).
82. Congress's power over Indian affairs, rooted in the Indian Commerce Clause, art. I, Sec. 8, cl. 3 of the United States Constitution, is considered plenary even where its actions invade or abrogate rights created by other federal bodies. See Lone Wolf v. Hitchcock, 187 U.S. 553, 568 (1903) (holding treaties ineffective to the extent that they limit Congress's future power over Indian affairs); United States v. Kagama, 118 U.S. 375, 382-83 (1886) (although representing broad exercise of Congressional power over internal tribal affairs, applying Major Crimes Act to crimes by Indians against Indians justified by the tribes' dependant status on the federal government). See generally COHEN, supra note 1, at 207-12 (describing the allotment system).
83. U.S. CONST, amend. V.
84. Theoretically, the "taking" must also be for "public use." State appropriation for private use would be invalid under substantive due process, as even payment of just compensation would not appease the takings clause. Nevertheless, courts read the "public use" requirement quite broadly. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984) (permitting transfer of fee interests from landlords to private tenants "to attack certain perceived evils of concentrated property ownership in Hawaii - a legitimate public purpose"); Berman v. Parker, 348 U.S. 26, 32 (1954) (asserting that public use exists if regulation has ultimate "public purpose"). Establishing each element does not necessarily render the governmental assertion of power unconstitutional, but instead requires that either compensation be paid to the affected property owners or the legislation be abandoned (entitling the affected property owners to compensation for the "temporary taking" while the legislation was in effect). First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 314-19 (1987). The plaintiffs in Irving and Youpee sought injunctions against the enforcement of the escheat provisions and a declaratory judgment of its unconstitutionality. Irving v. Clark, 758 F.2d 1260, 1261 (1985); Youpee v. Babbitt, 857 F. Supp. 760, 761 (1994).
85. Kornstein, supra note 21, at 745-46 (finding no constitutionally grounded right of inheritance). Kornstein offers his comments on the interrelationship of inheritance rights and the Fifth Amendment within a larger effort to locate inheritance rights within constitutional provisions. His takings discussion is quite brief; he in fact introduces the issue by stating that "some theories merit only brief mention in the search for a constitutional right of inheritance" and ultimately finds takings analysis "unpromising." Id. at 745. Nevertheless, the structure and contents of Kornstein's arguments have been picked up by others criticizing the Irving and Youpee cases and nicely frames the usual arguments made. See, e.g., Klauser v. Babbitt, 918 F. Supp. 274, 277 (1996) (invoking Kornstein's article in holding that amended ILCA did not violate the Fifth Amendment).
86. See Kornstein, supra note 21, at 745. The problem might be that the Court seems to have "spent too much energy trying to define a taking, and too little defining [the] property" to which it should and does apply. JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND CONTROL LAW 417 (1998).
87. See infra notes 134-36, 159-62, 173-74 (discussing testamentary freedom as an essential right).
88. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 98-100 (1977) (asserting that laypersons view property as "thing-ownership").
89. An "'[e]xpectancy' is the bare hope of succession to the property of another, such as may be entertained by an heir apparent. Such a hope is inchoate. It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist." In re Estate of Wilson, 610 N.E.2d 851 (Ind. App. 1993) (stating that neither heir nor beneficiary holds any constitutionally protectable interest prior to death of testator or intestate); Johnson v. Breeding, 90 S.W. 545 (Tenn. 1975).
90. As Blackstone comments, "naturally speaking, the instant a man ceases to be, he ceases to have any dominion . . . . All property must therefore cease upon death. . . ." WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAWS OF ENGLAND 10 (1775) (continuing, however, by asserting the necessity of succession schemes to preserve peace and avoid "endless disturbances").
91. See generally Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939) (recapitulating the property rights identified by theorist Leon Duguit). Scholars alternately lament or applaud that splintered characterization and its results. See Thomas C. Grey, The Disintegration of Property, in 12 NOMOS: PROPERTY 69, 81 (J. Roland Pennock & John W. Chapman eds., 1980) (noting and lamenting the atomization of property as reducing its centrality to modern life); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (applauding increased classifications for their "intrinsic value as mental tools" as well as because "more than ever before" they constitute "part of the formal foundation of judicial reasoning and decision"); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 (proposing to explicate Hohfeld's scheme by placing it in its historical context); see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980) (tracing the transformation of the concept of property from the revolutionary period to the modern period). For recent critique on traditional conceptions of property, see JOHN CHRISTMAN, THE MYTH OF PROPERTY 47-139 (1994) (arguing that ownership "cannot be disaggregated to any extent into its component parts") and Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) (arguing that property is metaphorically identified with "wielding the male organ" and "controlling, protecting, or entering the female body").
92. See generally Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939) (recapitulating the property rights identified by theorist Leon Duguit). Scholars alternately lament or applaud that splintered characterization and its results. See Thomas C. Grey, The Disintegration of Property, in 12 NOMOS: PROPERTY 69, 81 (J. Roland Pennock & John W. Chapman eds., 1980) (noting and lamenting the atomization of property as reducing its centrality to modern life); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (applauding increased classifications for their "intrinsic value as mental tools" as well as because "more than ever before" they constitute "part of the formal foundation of judicial reasoning and decision"); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 (proposing to explicate Hohfeld's scheme by placing it in its historical context); see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980) (tracing the transformation of the concept of property from the revolutionary period to the modern period). For recent critique on traditional conceptions of property, see JOHN CHRISTMAN, THE MYTH OF PROPERTY 47-139 (1994) (arguing that ownership "cannot be disaggregated to any extent into its component parts") and Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) (arguing that property is metaphorically identified with "wielding the male organ" and "controlling, protecting, or entering the female body").
93. See generally Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939) (recapitulating the property rights identified by theorist Leon Duguit). Scholars alternately lament or applaud that splintered characterization and its results. See Thomas C. Grey, The Disintegration of Property, in 12 NOMOS: PROPERTY 69, 81 (J. Roland Pennock & John W. Chapman eds., 1980) (noting and lamenting the atomization of property as reducing its centrality to modern life); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (applauding increased classifications for their "intrinsic value as mental tools" as well as because "more than ever before" they constitute "part of the formal foundation of judicial reasoning and decision"); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 (proposing to explicate Hohfeld's scheme by placing it in its historical context); see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980) (tracing the transformation of the concept of property from the revolutionary period to the modern period). For recent critique on traditional conceptions of property, see JOHN CHRISTMAN, THE MYTH OF PROPERTY 47-139 (1994) (arguing that ownership "cannot be disaggregated to any extent into its component parts") and Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) (arguing that property is metaphorically identified with "wielding the male organ" and "controlling, protecting, or entering the female body").
94. See generally Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939) (recapitulating the property rights identified by theorist Leon Duguit). Scholars alternately lament or applaud that splintered characterization and its results. See Thomas C. Grey, The Disintegration of Property, in 12 NOMOS: PROPERTY 69, 81 (J. Roland Pennock & John W. Chapman eds., 1980) (noting and lamenting the atomization of property as reducing its centrality to modern life); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (applauding increased classifications for their "intrinsic value as mental tools" as well as because "more than ever before" they constitute "part of the formal foundation of judicial reasoning and decision"); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 (proposing to explicate Hohfeld's scheme by placing it in its historical context); see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980) (tracing the transformation of the concept of property from the revolutionary period to the modern period). For recent critique on traditional conceptions of
95. See generally Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939) (recapitulating the property rights identified by theorist Leon Duguit). Scholars alternately lament or applaud that splintered characterization and its results. See Thomas C. Grey, The Disintegration of Property, in 12 NOMOS: PROPERTY 69, 81 (J. Roland Pennock & John W. Chapman eds., 1980) (noting and lamenting the atomization of property as reducing its centrality to modern life); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (applauding increased classifications for their "intrinsic value as mental tools" as well as because "more than ever before" they constitute "part of the formal foundation of judicial reasoning and decision"); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 (proposing to explicate Hohfeld's scheme by placing it in its historical context); see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980) (tracing the transformation of the concept of property from the revolutionary period to the modern period). For recent critique on traditional conceptions of property, see JOHN CHRISTMAN, THE MYTH OF PROPERTY 47-139 (1994) (arguing that ownership "cannot be disaggregated to any extent into its component parts") and Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) (arguing that property is metaphorically identified with "wielding the male organ" and "controlling, protecting, or entering the female body").
96. See generally Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939) (recapitulating the property rights identified by theorist Leon Duguit). Scholars alternately lament or applaud that splintered characterization and its results. See Thomas C. Grey, The Disintegration of Property, in 12 NOMOS: PROPERTY 69, 81 (J. Roland Pennock & John W. Chapman eds., 1980) (noting and lamenting the atomization of property as reducing its centrality to modern life); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (applauding increased classifications for their "intrinsic value as mental tools" as well as because "more than ever before" they constitute "part of the formal foundation of judicial reasoning and decision"); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 (proposing to explicate Hohfeld's scheme by placing it in its historical context); see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980) (tracing the transformation of the concept of property from the revolutionary period to the modern period). For recent critique on traditional conceptions of property, see JOHN CHRISTMAN, THE MYTH OF PROPERTY 47-139 (1994) (arguing that ownership "cannot be disaggregated to any extent into its component parts") and Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) (arguing that property is metaphorically identified with "wielding the male organ" and "controlling, protecting, or entering the female body").
97. See generally Roscoe Pound, The Law of Property and Recent Juristic Thought, 25 A.B.A. J. 993, 997 (1939) (recapitulating the property rights identified by theorist Leon Duguit). Scholars alternately lament or applaud that splintered characterization and its results. See Thomas C. Grey, The Disintegration of Property, in 12 NOMOS: PROPERTY 69, 81 (J. Roland Pennock & John W. Chapman eds., 1980) (noting and lamenting the atomization of property as reducing its centrality to modern life); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917) (applauding increased classifications for their "intrinsic value as mental tools" as well as because "more than ever before" they constitute "part of the formal foundation of judicial reasoning and decision"); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975 (proposing to explicate Hohfeld's scheme by placing it in its historical context); see also Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980) (tracing the transformation of the concept of property from the revolutionary period to the modern period). For recent critique on traditional conceptions of property, see JOHN CHRISTMAN, THE MYTH OF PROPERTY 47-139 (1994) (arguing that ownership "cannot be disaggregated to any extent into its component parts") and Jeanne L. Schroeder, Chix Nix Bundle-O-Stix: A Feminist Critique of the Disaggregation of Property, 93 MICH. L. REV. 239 (1994) (arguing that property is metaphorically identified with "wielding the male organ" and "controlling, protecting, or entering the female body").
98. See Radin, supra note 25, at 1671-84 (introducing term "conceptual severance").
99. But see infra note 119 and accompanying text (discussing the Court's ostensible rejection of conceptual severance in the takings arena).
100. The Youpee plaintiffs obviously learned lessons from precedent. As potential devisees or heirs, the Irving plaintiffs originally argued that the ILCA took their property directly rather than that of their decedents. Irving v. Clark, 758 F.2d 1260, 1264-66 (8th Cir. 1985). After the U.S. District Court for the District of South Dakota denied relief, the Eighth Circuit reversed after a bit of fancy reworking of the plaintiffs' essential claim to bring it within a third-party theory. See id. at 1266-68 & n.11 (acknowledging "some question" over whether plaintiffs sufficiently presented this possible claim).
101. Kornstein, supra note 21, at 745.
102. Functioning in many respects like a juridical person, the estate as a legal entity mediates and enforces those rights.
103. If a successful takings claim challenges legislation on its face, compensation is calculated from the date of the law's enactment. If legislation is deemed a taking as applied to a specific property owner, compensation is due from that application forward. JUERGENSMEYER & ROBERTS, supra note 73, at 444; see Gregory M. Stein, Pinpointing the Beginning and Ending of a Temporary Regulatory Taking, 70 WASH. L. REV. 953 (1995) (providing excellent insight into when a regulation becomes a taking, particularly within the context of state and municipal land use regulation).
104. Acquisition rights in intestacy or under a will vest as property upon the decedent's death. See In re Bevilacqua's Estate, 191 P.2d 752, 755 (Cal. 1948) (holding that, as purely statutory, succession rights may be "changed, limited or abolished by the Legislature at any time prior to the death of the ancestor") (emphasis added); In re Estate of Micheel, 577 N.W.2d 407, 410 (Iowa 1998) (finding that expectancy vests at ancestor's death; parties' rights are determined in accordance with law at testator's death, not at execution of will); In re Estate of Carlson, 457 N.W.2d 789, 791-92 (Minn. App. 1990) (finding that upon vesting of inheritance right, later changes in law cannot affect potential heir status). The interest would be vested subject to total divestment (clear property) rather than contingent (property that might never vest) or a mere expectancy (non-property). The potential divesting exists because the value of the underlying property interest transferred is subject to depletion and perhaps total loss (i.e., "abatement") if the decedent's collectible debts exceed assets. See, e.g., UNIF. PROBATE CODE § 3-902 (amended 1993) (setting forth abatement scheme if estate is insufficient to pay all creditors and beneficiaries). See generally WILLIAM M. McGOVERN, JR. ET AL., WILLS, TRUSTS AND ESTATES 407-20 (1988) (discussing abatement and tax allocation approaches). Even a single heir to a decedent's entire estate might ultimately acquire nothing depending on the intestate's debt position.
105. Klauser v. Babbitt, 918 F. Supp. 274, 275 (W.D. Wis. 1996) ("[P]laintiff . . . asks the court [to find the ILCA unconstitutional] as the act applies to interests in real property owned by his deceased grandmother."). Note, however, that the court's language does not delimit whether the act "as applied" means at any time the decedent owned the interest or the specific time of her death.
106. A key clue would have existed had the Court barred an ILCA takings claim based on the statute of limitations, suggesting when and to whom the injury in fact occurred.
107. Focusing on the loss of the recipients over those of the decedents holds theoretical and practical implications. Doing so strengthens the ILCA's characterization as a taking. As the limits on "dead hand control" illustrate, it is more legal (and palatable) for takings law to be concerned with the property rights of the living over those of the dead. Moreover, direct loss is infinitely more tangible than loss mediated through a decedent's estate. See Heller, Boundaries, supra note 16, at 1217 (noting the "familiar cognitive bias" to value things in hand over mere expectancies). Focusing on the taker's loss renders the ILCA more appropriative (thus more likely a taking) than regulatory. Practical differences could include whether the estate or the recipient bears the costs and benefits of litigation and interest generated by the condemned property.
108. See supra note 55 and accompanying text (discussing leasing and transfer rights of allotted parcels). For example, suppose that immediately upon X's intestate death, a squatter moves onto the property and depletes the corpus. Upon a determination of heirship, X's heirs will have the right to oust that trespasser (assuming X's administrator has not already done so). More significantly, X's heirs would be able to recover the value of the harm to the property prior to their acquisition to title. In other words, X's heirs would be able to enforce legal rights against the stranger (i.e., would own property) from X's death onward, not merely from the date their interest was actually determined and transferred to them.
109. I would limit the term "recipient status" to anyone who survived the decedent and who remained a beneficiary of a valid will or "next-of-kin" under state statutes at the decedent's death.
110. Had the ILCA left testamentary freedom intact and only changed the results of intestacy, I think it would have been constitutional, taking no transfer rights and thus no acquisition rights. Beneficiaries would remain able to acquire the property, but heirs in intestacy would not. Note the point being made: the entire ILCA was found unconstitutional. Disappointed heirs under the ILCA's application therefore benefitted greatly from its breadth, by being able to claim the same "taking" as disappointed beneficiaries. Although the Court did not overtly make the distinction, I would distinguish between the rights of heirs, whose status is entirely conferred through statute, and the rights of beneficiaries, whose status (although enforced through statute) is conferred through specific property owners' intent.
111. Support for the proposition arguably inheres in cases assigning limited property status to expectancy rights. See, e.g., Von Bulow v. Von Bulow, 634 F. Supp. 1284, 1308 (S.D.N.Y. 1986) (explaining that New York recognizes expectancy interests as transferable property interests); In re Estate of Dawes, 891 S.W.2d 510, 522-26 (Mo. App. 1994) (protecting expectancy interest by imposing constructive trust); Stein v. Brown, 480 N.E.2d 1121, 1123 (Ohio 1985) (renouncing inheritance post-death can be set aside as a fraudulent transfer); Hale v. Badouh, 975 S.W.2d 419, 422 (Tex. App. 1998) (enforcing transfer or assignment of expectancy notwithstanding its potential extinguishment by the testator or by operation of law). But see In re Estate of Baird, 933 P.2d 1031, 1035 (Wash. 1997) (holding that the heir held no interest to disclaim prior to death of intestate ancestor).
112. Again, this would not mean that any regulation of either right would equal a taking, but merely that the threshold question of whether private property existed could be met.
113. See Loretta v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (holding that even slight and temporary physical invasion of private property constitutes a taking).
114. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (noting that a court need not balance factors of public policy and scope of regulation before finding a taking where regulation deprives a property owner of all economically viable use).
115. See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).
116. One might even argue that neither the Lucas nor the Penn Central analysis should apply within this context. Both cases developed tests and standards for determining whether land use regulation constitutes a taking. To the extent that the ILCA did not regulate "use" at all but only "transfer," perhaps an entirely different approach should apply, unconstrained by the confines of the Court's extant jurisprudence. Nevertheless, because the Court has previously invoked these rules in analyzing the takings constitutionality of market inalienability and deathtime transferability, I approach the ILCA through a similar course.
117. See generally Jed Rubenfeld, Usings, 102 YALK L.J. 1077 (1993) (comparing Andrus v. Allard, 444 U.S. 51 (1979) (permitting ban on tribal sale of lawfully acquired eagle feathers) with Model v. Irving, 481 U.S. 704 (1987)).
118. See generally Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730 (1998) (positioning the "right to exclude" as the sine qua non of property and illustrating how the right to devise at death directly derives therefrom).
119. The Court carefully highlighted in Andrus that although the tribes were prevented from making the most profitable use of their property, the challenged regulations did not compel its surrender, and instead (and to the Court, "crucially") preserved owners' rights to possess, transport, donate, and devise it. Andrus, 444 U.S. at 66. Indeed, the Court noted that owners could still derive economic benefit from the eagle artifacts should, for example, its owners "exhibit the artifacts for an admissions charge." Id.
120. For example, if A and B hold Blackacre in joint rather than common tenancy, A's testamentary transfer of the property to C is ineffective to accomplish the desired result and B survives to Blackacre as the sole remaining joint tenant.
121. Although intestacy statutes are normally viewed as a default for failure to exercise testamentary freedom, some owners consciously choose intestacy, presumably because they know and endorse its specific results.
122. The same result would occur where a state manipulated the intestacy scheme to a certain end and denied a competent testator the right to devise property unencumbered by superior claims.
123. See generally In re O'Connor's Estate, 252 N.W. 826 (Neb. 1934).
124. For an extended discussion of the technical definition of "escheat" and its role in conferring vested rights on heirs/beneficiaries, see Irving v. Clark, 758 F.2d 1260, 1263-64 (8th Cir. 1985).
125. The case of Quileute Indian Tribe v. Lujan, No. C91-558C, 1992 WL 605423 (W.D. Wash. Aug. 28, 1992), affd in Quileute Indian Tribe v. Babbitt, 18 F.3d 1456 (1994), provides an indirect example of such a scenario. There, the intestate's estate included escheatable interests in trust land on the Makah, Quinault, and Quileute reservations; although the decedent was a member of the Makah Tribe, much of his property was passing to tribes to which neither he nor (presumably) his lineal descendents belonged.
126. See Dolan v. City of Tigard, 512 U.S. 374 (1994) (holding that a forced dedication constituted a taking); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (holding that a deprivation of total use can equal a compensable taking); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (holding that an outright taking of a public access easement would violate the Takings Clause). Interestingly, while Lucas is often cited as the first time since Pennsylvania Coal that the Supreme Court found that regulation went "too far," Hodel v. Irving, 481 U.S. 704 (1987), actually did so in 1987, and without the benefit of the Lucas-created categorical taking.
127. See Lucas, 505 U.S. at 1003. If the plaintiff can establish a total reduction in economic viability, a presumptive taking has occurred which the state cannot "balance away" through competing concerns. The state can only avoid the compensation requirement if the regulation was permissible anyway under background principles of property law or restrictions inhering in the property owner's title. Id. at 1022-23.
128. See, e.g., id. at 1016 n.7 ("[T]He rhetorical force of our 'deprivation of all economically feasible use' rule is greater than its precision, since the rule does not make clear the 'property interest' against which the loss of value is to be measured."); Frank I. Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 HARV. L. REV. 1165, 1192 (1967) ("The difficulty [of determining diminution in value] is aggravated when the question is raised of how to define 'the particular thing' whose value is to furnish the denominator of the fraction.").
129. Radin, supra note 25, at 1674-78. To Radin, the practice involves delineating a property interest consisting of just what the government action has removed from the owner, and then asserting that the particular whole thing has been permanently taken. Thus, this strategy hypothetically or conceptually "severs" from the whole bundle of rights just those strands that are interfered with by the regulation, and then hypothetically or conceptually construes those strands in the aggregate as a separate whole thing. Id. at 1676.
130. Michelman, supra note 17, at 1618.
131. See McUsic, supra note 25, at 627 (citing, inter alia, Gregory S. Alexander, Takings, Narratives, and Power, 88 COLUM. L. REV. 1752 (1988)). As Professor Radin argues, the property interest ends up "consisting of just what the government action has removed from the owner." Radin, supra note 25, at 674-78.
132. Depending on how narrowly one parses entitlements, the cases either reflect rights-chopping or the further chopping of those already chopped.
133. The point remains relevant, however, for analyzing regulation under the balancing approach. "Distinct investment-backed expectations are a factor in both Lucas-type total deprivation cases and Penn Central-type partial deprivations . . . in defining the proper unit of property used to measure the economic impact of a regulation." JUERGENSMEYER & ROBERTS, supra note 73, at 436-37.
134. Note, however, the belief by some theorists that this conceptual image is fading. "As the bundle-of-rights image waxes in judicial decisionmaking, it is waning in property theory. In separate conversations, Gregory Alexander suggested that a new metaphor is due, and Brian Simpson argued that the time has come for a rigorous philosophical analysis that takes apart Hohfeld and Honoré." Heller, Boundaries, supra note 16, at 1194 n.162; see J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 819 (1996) ("I believe in giving dead concepts [such as the bundle of rights metaphor] a decent burial.").
135. See infra note 147 and accompanying text (discussing the valuation of transfer rights). Although the discussion exceeds the present issue, not all regulation is a taking demanding compensation notwithstanding the theoretical implications that conceptual severance suggests. Depending on the facts, the right regulated might not be "property"; it might not be "privately owned"; conceptual severance might not reduce the entitlement's value to zero, shifting analysis to a Penn Central balancing approach and permitting competing social welfare claims to factor in; or "just" compensation might be little to none.
136. See, e.g., Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987) (rejecting the severance approach urged by Justice Rehnquist's dissent); Andrus v Allard, 444 U.S. 51, 65-66 (1979) ("[A]t least where an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety."); Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130 (1978) ("'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.").
137. Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (holding that physical intrusion is a taking no matter how slight or temporary the physical intrusion or economic result).
138. Kaiser Aetna v. United States, 444 U.S. 164 (1979) (imposing public navigational servitude on private marina equals taking).
139. Perhaps Andrus v. Allard either spoke precipitously or was wrongly decided after all. Professor Michelman gently chides the Supreme Court for failing to reconcile Irving with Andrus. He notes "[t]he tug of war among the six Justices who joined Justice O'Connor's opinion for the Court in Model v. Irving over where that opinion leaves [Andrus v. Allard] . . . a question upon which Justice O'Connor herself kept the discretion of the Sphynx." Michelman, supra note 17, at 1600 n.2(iii); see Hodel v. Irving, 481 U.S. 704, 718 (1987) (Brennan, J., joined by Marshall & Blackmun, J.J., concurring) (arguing that Irving does not limit Andrus to its facts); id. at 719 (Scalia, J., joined by Rehnquist, C.J., & Powell, JJ., concurring) (stating that Irving limits Andrus to its facts).
140. See supra Part II.A (discussing the unique rights-composition of reservation and allotment lands).
141. 438 U.S. 104 (1978).
142. Id. at 124.
143. Id. The Court elaborated on this last factor in Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987), by requiring that a land use regulation '"substantially advance legitimate state interests.'" Id. at 485 (quoting Agins v. City of Tiburon, 447 U.S. 225, 260 (1980)). The Court also added the "economically viable use" and "public purpose" tests to the equation. Agins, 447 U.S. at 260.
144. Irving, 481 U.S. at 712.
145. Id. at 714.
146. See Kmiec, supra note 17, at 1664 (noting that "it cannot be fairly said that the case was properly decided even under Penn Central").
147. See id. (citing Irving, 481 U.S. at 715).
148. Professor Mandelker notes that "the Court is confused about the meaning of this term, federal and state courts divide on how to apply it, and its role in taking law remains a puzzle." Daniel R. Mandelker, Investment-Backed Expectations in Taking Law, 27 URB. LAW. 215, 215 (1995); see Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L. REV. 91, 107 (1995) ( "The net outcome of all of the Court's efforts [in defining the term] is that the meaning of [investment-backed expectations] remains uncertain, rendering its effectiveness as a legal doctrine questionable at best.") (citing Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369, 1370 (1993)).
149. Professor Mandelker notes that "the Court is confused about the meaning of this term, federal and state courts divide on how to apply it, and its role in taking law remains a puzzle." Daniel R. Mandelker, Investment-Backed Expectations in Taking Law, 27 URB. LAW. 215, 215 (1995); see Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L. REV. 91, 107 (1995) ( "The net outcome of all of the Court's efforts [in defining the term] is that the meaning of [investment-backed expectations] remains uncertain, rendering its effectiveness as a legal doctrine questionable at best.") (citing Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369, 1370 (1993)).
150. Professor Mandelker notes that "the Court is confused about the meaning of this term, federal and state courts divide on how to apply it, and its role in taking law remains a puzzle." Daniel R. Mandelker, Investment-Backed Expectations in Taking Law, 27 URB. LAW. 215, 215 (1995); see Lynda J. Oswald, Cornering the Quark: Investment-Backed Expectations and Economically Viable Uses in Takings Analysis, 70 WASH. L. REV. 91, 107 (1995) ( "The net outcome of all of the Court's efforts [in defining the term] is that the meaning of [investment-backed expectations] remains uncertain, rendering its effectiveness as a legal doctrine questionable at best.") (citing Richard A. Epstein, Lucas v. South Carolina Coastal Council: A Tangled Web of Expectations, 45 STAN. L. REV. 1369, 1370 (1993)).
151. Oswald, supra note 131, at 99-115.
152. Choate v. Trapp, 224 U.S. 665, 669-72 (1912) (holding that tax exemption on allotment is "a property right" incident to the land which vested in allottees pursuant to the statute and the patents); County of Thurston v. Andrus, 586 F.2d 1212 (8th Cir. 1978) (noting that vested original allottees' rights may pass to their successors in interest).
153. In the positivist tradition, Jeremy Bentham defines property metaphysically as established expectations of deriving advantage from a thing and solely a creature of law. To Bentham, "[p]roperty and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases." JEREMY BENTHAM, PRINCIPLES OF THE CIVIL CODE, THEORY OF LEGISLATION 111-13 (Dumont ed., Hildreth trans., 1864). Whatever truths inhere in Bentham's assertion (from a legal realist's perspective, there are many), its reactionary invocation to a takings claim is politically costly and suspect. See Phillips v. Washington Legal Found., 524 U.S. 156 (1998) (casting as "specious" state's argument that interest earned on IOLTA account is "governmentally created value," thus not property for takings purposes); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980) (finding that interest earned on an interpleader fund is property subject to the Takings Clause).
154. See In re Estate of Foss, 202 A.2d 554, 558 (Me. 1964) (reaffirming that testamentary freedom is among "the most sacred rights attached to property"); BLACK'S LAW DICTIONARY 1475 (6th ed. 1990) (defining testamentary freedom as "the highest right a man can have to anything").
155. See Chester, supra note 17, at 1195-96 (citing prevalent utilitarian-based perspective that rights to transmit or receive property at death were "civil" instead of "natural," but noting the competing view, gaining strength, that inheritance or some component thereof is a natural right - a "short step" away from its constitutional protection). See generally WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAW OF ENGLAND 11 (1775) ("[T]he universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions [either by will or by statute]."); SUSAN REYNOLDS, FIEFS AND VASSALS (1994) (outlining the historical importance of deathtime transfers).
156. See Chester, supra note 17, at 1195-96 (citing prevalent utilitarian-based perspective that rights to transmit or receive property at death were "civil" instead of "natural," but noting the competing view, gaining strength, that inheritance or some component thereof is a natural right - a "short step" away from its constitutional protection). See generally WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAW OF ENGLAND 11 (1775) ("[T]he universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions [either by will or by statute]."); SUSAN REYNOLDS, FIEFS AND VASSALS (1994) (outlining the historical importance of deathtime transfers).
157. BORDEWICH, supra note 3, at 118.
158. See Kaiser Aetna v. United States, 444 U.S. 164, 180 (1979) (disallowing, on constitutional grounds, the government's attempt to create a public easement in private land partially premised upon government's failure to exact servitude when initially granting development rights to private owner).
159. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-15 (1992) (stating that property owners "necessarily" expect periodic regulation); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) (explaining that for government to properly function, it must interfere with property rights, but there are obvious limits to this power).
160. Discussing the Supreme Court's recent takings jurisprudence, the comments of David Coursen, senior takings counsel in the Office of General Counsel, instruct: There is a critical distinction [] between expectations regarding title and ownership, and expectations regarding regulation. You expect . . . that property will be regulated from time to time as the government exercises its police power, and you live with that kind of regulation. And when you acquire property, you acquire it subject to the full body of law that's in place at the time you acquire it[.] But the plurality concluded that was a line of reasoning that didn't work very well for ownership[,] while your expectations with regard to regulation are that it will increase. You do not have an expectation that the government will pass a law whose operation will mean that although you used to own the property, you no longer do. That's a different kind of thing. I think if you look back at all the Supreme Court taking findings, you will find that that reasoning is almost invariably in operation. The Fifteenth Annual Judicial Conference of the United States Court of Appeals for die Fifth Circuit, 180 F.R.D. 467, 684-86 (1997).
161. Mandelker, supra note 131, at 218.
162. Notwithstanding the non-pecuniary "labor" (rent-seeking) occasionally expended in ensuring that one is the recipient of such a donative transfer.
163. Hodel v. Irving, 481 U.S. 704, 715 (1987).
164. Id. (noting that many of the allottees' ancestors "agreed to accept allotment only after ceding to the United States large parts of the original Great Sioux Reservation").
165. The Penn Central holding suggests this view. Plaintiffs sued for inverse condemnation after being barred from erecting a multi-story office building over their "landmark" property. By characterizing as "quite simply untenable" their assertion that the regulation prevented exploitation of a property interest they had believed was available, the Court suggests that subjective, "non-exploited" intentions will not support a takings claim. Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 130 (1978). Daniel Mandelker nevertheless notes the Court's apparent willingness to modify that rule if a landowner's subjective intent is nevertheless "primary." Mandelker, supra note 131, at 217. As he continues, however, the case "did not state whether a landowner's primary expectations are determined at the time he purchases his land or at some date later in time. The reliance on use as a terminal to defeat the taking claim suggests [the Court] may have meant the primary expectation at the date of purchase is decisive." Id. at 217 n.12.
166. Kmiec, supra note 17, at 1664.
167. The sum of each entitlement value (except for transfer) should approximate the fair market value of the property itself less the "bonus" value of fully bundling all entitlements, thus maximizing control and flexibility over land use decisions.
168. For cases discussing how the taking of mere cents can constitute a taking, see Phillips v. Washington Legal Found., 524 U.S. 156 (1998) and Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155 (1980).
169. Hodel v. Irving, 481 U.S. 704, 714 (1987) (emphasis added).
170. Id. at 709. The Youpee Court agreed. Babbitt v. Youpee, 519 U.S. 234, 243 (1997). Notwithstanding a four-year increase in the window within which to assess the income-generating capacity of the property interest, the amended ILCA did little to mitigate the economic impact of the Act. As the Court explained, amended section 207 still "train[ed] on the income generated from the land, not on the value of the parcel." Id. at 244.
171. The value of the 2% interests scheduled for escheat ranged from $100 to $2,700. That amount could be even higher depending on the size of the original allotment tract. See Amicus Brief for Respondents, Babbitt v. Youpee, 519 U.S. 234 (1997) (No. 95-1595), available in 1996 WL 528318, at *14 (discussing 640-acre allotments on Colville Reservation).
172. Indian Trust Fund Mgmt.: Testimony Before the Subcomm. on Env't, Energy and Nat. Resources of the House Comm. on Gov't Operations, 103d Cong. (1994) (statement of Rebecca Adamson, President, First Nations Dev. Institute) [hereinafter Hearings on the Mgmt. of Indian Trust Funds], available in 1994 WL 519908. The ponderosa pine is typically harvested every 40 years. Between 1960 and 1990, its value grew from $25 to $400 per 1000 board feet, with an estimated increase to $1,000 by the year 2020. Id. at *7. Ms. Adamson thus urged that "[a]ppraised and potential land values [] be considered when lands become eligible for escheat, not earned income alone." Id.
173. For detailed accounts of mismanagement estimating that tribes had lost more than $330 million in the last decade alone, see SPECIAL COMM. ON INVESTIGATIONS OF THE SENATE SELECT COMM. ON INDIAN AFFAIRS, FINAL REPORT AND LEGISLATIVE RECOMMENDATIONS, S. REP. No. 216-105 (1st Sess. 1989). Professor Mary Christina Wood unequivocally makes the point: Although the [duty to maximize return to the Indian beneficiary] seems obvious, the government has utterly failed to meet this duty in many instances, causing staggering losses to Indian beneficiaries. A 1989 Senate special-committee report concluded that governmental mismanagement had left tribal resources subject to "outright theft by unscrupulous private companies." Indeed, mismanagement is evident in nearly every area, including mineral leasing, oil and gas leasing, timber operations, and agricultural and grazing leasing. Mary Christina Wood, Protecting the Attributes of Native Sovereignty: A New Trust Paradigm for Federal Actions Affecting Tribal Lands and Resources, 1995 UTAH L. REV. 109, 162-63 (citations omitted). Additionally, Cobell v. Babbitt, 188 F.R.D. 122 (D.C. 1999) involves a class action suit brought against federal government for alleged mismanagement of individual Indian money trust accounts resulting in loss exceeding $10,000,000,000.
174. Professor Michael Heller provides intriguing perspective in noting colleague Don Herzog's suggestion that "non-use need not be viewed as tragic." Heller, The Tragedy of the Anticommons, supra note 52, at 687 & n.319. Herzog suggests that the General Allotment Act, although fueled by capitalism and entrepreneurship, might actually promote stewardship given the difficulties of efficiently using fractionated lands. "This alternative view suggests that the idea of 'underuse' may assume the values of a pre-existing market economy." Id.
175. "Essentially" because technically, the right is not an easement at all; the ability to use one's own property never is. RICHARD R. POWELL, POWELL ON REAL PROPERTY 597 (1968).
176. Paradoxically, those who might argue that the ILCA was constitutional as no value was taken would presumably also argue that a total development ban prohibiting construction but preserving all other use was constitutional as "real value remained." Justice Blackmun's dissent in Lucas illustrates: "Petitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer. State courts frequently have recognized that land has economic value where the only residual economic uses are recreation or camping." Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1044 (1991) (Blackmun, J., dissenting); see Maureen Straub Kordesh, I Will Build My House with Sticks: The Splintering of Property Interests Under the Fifth Amendment May Be Hazardous to Private Property, 20 HARV. ENVTL. L. REV. 397, 452-53, 462-63 (critiquing Lucas by noting that the property owner retained many property rights such as erecting non-permanent structures like trailers or tents, yet critiquing Irving by finding that "the Court inadvertently protected not a property principle, but rather the status of the native populations as victims of the market").
177. For extended treatment of the non-economic value of land to its Indian owner, see infra Part V.A and accompanying notes.
178. Babbit v. Youpee, 519 U.S. 234, 244 (1997).
179. Irving Trust Co. v. Day, 314 U.S. 556, 562 (1942); see Mager v. Grima, 49 U.S. (8 How.) 489, 493 (1850) (holding that a state may regulate manner and terms upon which real or personal property may be transferred by will); Decker v. American Univ., 20 N.W.2d 466, 470 (Iowa 1945) (holding that neither state nor Federal Constitution guarantees individual's right to control or dispose of property after death); Hall v. Vallandingham, 540 A.2d 1162, 1164 (Md. Ct. Spec. App. 1988) (stating that the right to receive property by devise or descent is privilege granted by state).
180. "Property owners have the nearly unrestricted right to dispose of their property as they please." RESTATEMENT THIRD OF PROPERTY § 10.1 cmt. A (1996).
181. See UNIF. PROBATE CODE §§ 2-201 to -214 (amended 1993), 8 U.L.A. 102-32 (1998) (providing for surviving spouse's election to take up to 50% of augmented estate depending on length of marriage).
182. Sub rosa limits arguably exist in judges' and juries' tendency to uphold will challenges brought by disinherited "natural objects of the decedent's bounty," forcing the decedent's estate through intestacy and to that disappointed heir. See generally Leslie, supra note 27, at 235 (presenting the failure of the justice system to effectuate wills exhibiting non-conforming values); Spitko, supra note 22, at 275 (discussing the challenges faced by minority testators in a legal system biased against non-traditional testamentary dispositions).
183. Escheat guarantees no reciprocal advantage except in the abstract conception that what benefits a group benefits its members. However, the individual losing the interest may not belong to that tribe or even self-identify as Indian, and "a member's right to tribal property is no more than prospective and inchoate unless federal or tribal law recognizes a more definite right." COHEN, supra note 1, at 606.
184. Hodel v. Irving, 481 U.S. 704, 715-16 (1987).
185. The merits of at-death versus inter vivos transfers consist of owners' retaining full lifetime rights in the property, including the ability to change intended recipients. Demerits include the time, expense, and inefficiency of probate. Will substitutes, i.e., life insurance, joint and pension accounts, and revocable trusts, permit owners the relative best of both worlds: property control during life, probate avoidance at death. See generally John H. Langbein, The Nonprobate Revolution and the Future of the Law of Succession, 97 HARV. L. REV. 1108 (1984) (discussing will substitutes and proposing that they are harbingers of succession law's future).
186. Alexander M. Meiklejohn, Contractual and Donative Capacity, 39 CASE W. RES. L. REV. 307, 356 (1988-89).
187. This difficulty could of course be overcome were the government willing to infuse its BIA budget with capital to cover educational and estate planning opportunities.
188. See Skibine, supra note 7, at *1 (discussing legal and socioculturel dimensions contributing to fractionation).
189. See Shelley v. Kraemer, 334 U.S. 1 (1968) (holding that racially restrictive covenants are unenforceable); Capitol Fed. Sav. & Loan Ass'n v. Smith, 316 P.3d 252 (Colo. 1957) (holding racially restrictive executory interests unenforceable).
190. See Bromley v. McCaughn, 280 U.S. 124, 139 (1929) (upholding federal gift tax); New York Trust Co. v. Eisner, 256 U.S. 345, 350 (1921) (upholding federal estate tax).
191. For example, charitable deductions or contributions, or reducing a capital gains burden on the donee of rapidly appreciating property.
192. Broadly, status is conferred on donors through gift-giving and patronage. Individually, donors can manipulate or induce behavior through the promise of a future gift or by the reminder of a past gift. See Paul W. Tappan, The Sociology of Inheritance, in SOCIAL MEANING OF LEGAL CONCEPTS (Edmond N. Cahn ed., 1952).
193. See Lawrence Zelenak, The Reification of Metaphor: Income Taxes, Consumption Taxes and Human Capital, 51 TAX L. REV. 1 (1995) (noting savings disincentive of death taxes on transferors). Because tax rates never reach 100%, the savings disincentive would skyrocket were there no mechanism through which to transfer the property at all.
194. See infra Part V.B (discussing testamentary freedom and restraints thereon within the tribal context).
195. See supra notes 100-08 and accompanying text (contrasting lifetime and deathtime restrictions).
196. "Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand." Heller & Krier, supra note 26, at 997. Other scholars note that "[t]he absence of consistent standards has made the constitutional protection of property susceptible to change, as different social and judicial outlooks have gained power over time." JUERGENSMEYER & ROBERTS, supra note 73, at 414. For example, since the 1970s, judicial and legislative branches of government have been quite active in the takings field and increasingly solicitous of private property rights; "[p]roperty owners have surely found a new friend" in the Court. Dolan v. City of Tigard, 512 U.S. 374, 405 (1994) (Stevens, J., dissenting). There are no guarantees that the friendship will continue.
197. See WILLIAM FISCHEL, THE ECONOMICS OF ZONING LAWS 150-230 (1985) (explaining how and why the takings clause hould be used as a reform device); Robert Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977) (discussing the legal and economic impacts of growth control devices developed by municipalities); William A. Fischel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 1581 (1988) (discussing an economic-utilitarian approach to land use regulation). But see Rubenfeld, supra note 99, at 1106, 1131-34 (noting that "the interpolation of economic analysis into takings law has been a wish consummated far more in the commentary than in the case law").
198. See WILLIAM FISCHEL, THE ECONOMICS OF ZONING LAWS 150-230 (1985) (explaining how and why the takings clause hould be used as a reform device); Robert Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977) (discussing the legal and economic impacts of growth control devices developed by municipalities); William A. Fischel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 1581 (1988) (discussing an economic-utilitarian approach to land use regulation). But see Rubenfeld, supra note 99, at 1106, 1131-34 (noting that "the interpolation of economic analysis into takings law has been a wish consummated far more in the commentary than in the case law").
199. See WILLIAM FISCHEL, THE ECONOMICS OF ZONING LAWS 150-230 (1985) (explaining how and why the takings clause hould be used as a reform device); Robert Ellickson, Suburban Growth Controls: An Economic and Legal Analysis, 86 YALE L.J. 385 (1977) (discussing the legal and economic impacts of growth control devices developed by municipalities); William A. Fischel, Introduction: Utilitarian Balancing and Formalism in Takings, 88 COLUM. L. REV. 1581 (1988) (discussing an economic-utilitarian approach to land use regulation). But see Rubenfeld, supra note 99, at 1106, 1131-34 (noting that "the interpolation of economic analysis into takings law has been a wish consummated far more in the commentary than in the case law").
200. See Central Ariz. Water Conservation Dist. v. United States EPA, 990 F.2d 1531, 1534 (1993) (discussing attempts to explore pareto optimal solutions to emissions regulation at tribal generating station). Perhaps the most influential article tying takings with efficiency is Michelman, supra note 111, at 1230-33, which notes that courts' compensation determinations do not always flow from what utility or fairness would suggest. For more recent treatment of the issue, see David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. REV. 1243 (1997) (employing Kaldor-Hicks efficiency concepts whereby a transaction is efficient if dollar gains to the winners exceeds dollar costs to the losers); John Burritt McArthur, Cost Responsibility or Regulatory Indulgence for Electricity's Stranded Costs? 47 AM. U. L. REV. 775 (1998) (recognizing hidden pareto arguments in courts' decisions); Oswald, supra note 131, at 93 (recognizing the "prominence" of economic factors in ad hoc balancing).
201. See Central Ariz. Water Conservation Dist. v. United States EPA, 990 F.2d 1531, 1534 (1993) (discussing attempts to explore pareto optimal solutions to emissions regulation at tribal generating station). Perhaps the most influential article tying takings with efficiency is Michelman, supra note 111, at 1230-33, which notes that courts' compensation determinations do not always flow from what utility or fairness would suggest. For more recent treatment of the issue, see David A. Dana, Land Use Regulation in an Age of Heightened Scrutiny, 75 N.C. L. REV. 1243 (1997) (employing Kaldor-Hicks efficiency concepts whereby a transaction is efficient if dollar gains to the winners exceeds dollar costs to the losers); John Burritt McArthur, Cost Responsibility or Regulatory Indulgence for Electricity's Stranded Costs? 47 AM. U. L. REV. 775 (1998) (recognizing hidden pareto arguments in courts' decisions); Oswald, supra note 131, at 93 (recognizing the "prominence" of economic factors in ad hoc balancing).
202. Professor Michelman seems to capture the argument through considering "demoralization costs" in his takings analysis. Although cast in economic jargon, the term might be loosely analogized to the types of sociological factors suffered by the allottees here. See Michelman, supra note 110, at 1230-33.
203. See Chris Schwab, Constitutional Law - Fifth Amendment Just Compensation Clause - Escheat of Indian Trust Lands, 65 TENN. L. REV. 805, 825-27 (1998) (arguing that the technical difficulties of applying takings law to the ILCA led the Court to invoke its "fundamental rights" aspects when comparing the ends sought by the regulation with the means employed).
204. Legislation that only violates the takings clause remains constitutionally permissible, as takings theory (1) implies legislative power to so act as long as just compensation is paid and (2) sets a fairly low bar in terms of proper legislative goals. The requirement of "public use" rings hollow given its legal conflation with any public purpose. Upon passing the takings test, it is the rare property regulation indeed that will run afoul of a means-ends review under the Due Process Clause, which denies the regulatory power altogether rather than conditioning it upon the payment of just compensation. The two clauses seem and are distinct: one seems more a property rule, the other, a liability rule. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1092 (1972) (explaining that an entitlement is protected by a property rule if one who desires that entitlement must negotiate a voluntary transaction on the seller's terms, and that an entitlement is protected by a liability rule if one who desires that entitlement may take it irrespective of its owner's volition upon paying some objective value). Nevertheless, recent Supreme Court decisions reflect an increased willingness to invalidate development exactions as takings after applying the means-ends review traditionally reserved for substantive due process analysis. See Dolan v. City of Tigard, 512 U.S. 374 (1994) (requiring review of nexus between state interest and permit conditions); Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) (holding that avoiding payment of just compensation requires means "substantially related" to legitimate state goals); Agins v. Tiburon, 447 U.S. 255 (1980) (stating that an ordinance that does not substantially advance legitimate state interests would be a taking).
205. For example, responding to a developer's claim that a regulation effected a taking, the court responded that '"[s]ubstantive due process' has the distinct disadvantage, from plaintiffs' perspective, of having been abolished in the late 1930s when the Supreme Court threw over Lochner." Gosnell v. City of Troy, 59 F.3d 654, 657 (7th Cir. 1995), cited in JUERGENSMEYER & ROBERTS, supra note 73, at 461.
206. See supra Part V.A (discussing individual Indians' spiritual, historical, geographical, and sociological ties to the land).
207. ROBERT ELLICKSON ET AL., PERSPECTIVES ON PROPERTY LAW at xii (1995). To be fair, all three would probably prefer to limit rather than expand the factors considered in analyzing regulation under the Takings Clause. Economic theory counsels that clear rules, sometimes at the expense of fairness, are more efficient and more desirable than ambiguous or contextualized ones. See Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 604-05 (1988); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697 (1988). But see Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 55-56 (1990) (discussing how narrative can explain actions not motivated by utility-maximizing preference explained in game theory).
208. ROBERT ELLICKSON ET AL., PERSPECTIVES ON PROPERTY LAW at xii (1995). To be fair, all three would probably prefer to limit rather than expand the factors considered in analyzing regulation under the Takings Clause. Economic theory counsels that clear rules, sometimes at the expense of fairness, are more efficient and more desirable than ambiguous or contextualized ones. See Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 604-05 (1988); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697 (1988). But see Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 55-56 (1990) (discussing how narrative can explain actions not motivated by utility-maximizing preference explained in game theory).
209. ROBERT ELLICKSON ET AL., PERSPECTIVES ON PROPERTY LAW at xii (1995). To be fair, all three would probably prefer to limit rather than expand the factors considered in analyzing regulation under the Takings Clause. Economic theory counsels that clear rules, sometimes at the expense of fairness, are more efficient and more desirable than ambiguous or contextualized ones. See Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 604-05 (1988); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697 (1988). But see Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 55-56 (1990) (discussing how narrative can explain actions not motivated by utility-maximizing preference explained in game theory).
210. ROBERT ELLICKSON ET AL., PERSPECTIVES ON PROPERTY LAW at xii (1995). To be fair, all three would probably prefer to limit rather than expand the factors considered in analyzing regulation under the Takings Clause. Economic theory counsels that clear rules, sometimes at the expense of fairness, are more efficient and more desirable than ambiguous or contextualized ones. See Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577, 604-05 (1988); Susan Rose-Ackerman, Against Ad Hocery: A Comment on Michelman, 88 COLUM. L. REV. 1697 (1988). But see Carol M. Rose, Property as Storytelling: Perspectives from Game Theory, Narrative Theory, Feminist Theory, 2 YALE J.L. & HUMAN. 37, 55-56 (1990) (discussing how narrative can explain actions not motivated by utility-maximizing preference explained in game theory).
211. Neither Penn Central, its subsequent application, nor its academic dissection limited the potential balancing factors to those enumerated in the case. Agins specifically explains that "no precise rule determines when property has been taken," 447 U.S. at 260-61, permitting analysis such as that employed by a California court listing ten factors for consideration. See Kavanau v. Santa Monica Rent Control Bd., 941 P.2d 851, 860 (1997).
212. "To tell the history of the West without pursuing . . . Old World linkages is to miss a simple but powerful truth: Connections matter." William Cronon et al., Becoming West: Toward a New Meaning for Western History, in UNDER AN OPEN SKY: RETHINKING AMERICA'S WESTERN PAST 9, 9 (William Cronon et al. eds., 1992). Those connections are particularly potent here, as to tell the post-conquest history of most North American tribes is largely to recount the series of laws controlling them. "No American comes within the sweep of as many laws as the Indian living on a reservation . . . . [L]aw dominates Indian life." COHEN, supra note 1, at 47 & n.1 (quotations omitted).
213. Although brevity compels oversimplification in contrasting the land ideologies at play, danger inheres in depicting Indian and white cultures in antiethical terms . . . [which makes] it virtually impossible to imagine an approach in which Indian history can be incorporated into the mainstream of American historiography. The plots render Indians more interesting and important
214. Although brevity compels oversimplification in contrasting the land ideologies at play, danger inheres in depicting Indian and white cultures in antiethical terms . . . [which makes] it virtually impossible to imagine an approach in which Indian history can be incorporated into the mainstream of American historiography. The plots render Indians more interesting and important as foils for white history than as significant participants in it. Indian history becomes a tragic chapter in the creation of modern America, with the inevitable clash between incompatible cultures the price of America's glory or the source of its shame, and Indians the necessary enemy or victim. George Miles, To Hear an Old Voice: Rediscovering Native Americans in American History, in UNDER AN OPEN SKY: RETHINKING AMERICA'S WESTERN PAST 52, 55 (William Cronon et al. eds., 1992). Far more troubling is the belief that by nature, differing ideologies cannot find common ground. A fully integrated system encompassing all dissimilar (and perhaps competing) approaches toward property may well be impossible; Aldo Leopold's visionary hope for a comprehensive land ethic has neither been developed nor appears foreseeable. See ALDO LEOPOLD, A SAND COUNTY ALMANAC 201 (1949); Fred Bosselman, Four Land Ethics: Order, Reform, Responsibility, Opportunity, 24 ENVTL. L. 1439 (1994) (arguing the futility in searching for a unified land ethic). Nevertheless, confronting shared issues such as fractionation facilitates collaboration in which both Anglo- and Native American ideologies, past and present, play real roles rather than merely play off each other. See infra Part V.B.
215. Although brevity compels oversimplification in contrasting the land ideologies at play, danger inheres in depicting Indian and white cultures in antiethical terms . . . [which makes] it virtually impossible to imagine an approach in which Indian history can be incorporated into the mainstream of American historiography. The plots render Indians more interesting and important as foils for white history than as significant participants in it. Indian history becomes a tragic chapter in the creation of modern America, with the inevitable clash between incompatible cultures the price of America's glory or the source of its shame, and Indians the necessary enemy or victim. George Miles, To Hear an Old Voice: Rediscovering Native Americans in American History, in UNDER AN OPEN SKY: RETHINKING AMERICA'S WESTERN PAST 52, 55 (William Cronon et al. eds., 1992). Far more troubling is the belief that by nature, differing ideologies cannot find common ground. A fully integrated system encompassing all dissimilar (and perhaps competing) approaches toward property may well be impossible; Aldo Leopold's visionary hope for a comprehensive land ethic has neither been developed nor appears foreseeable. See ALDO LEOPOLD, A SAND COUNTY ALMANAC 201 (1949); Fred Bosselman, Four Land Ethics: Order, Reform, Responsibility, Opportunity, 24 ENVTL. L. 1439 (1994) (arguing the futility in searching for a unified land ethic). Nevertheless, confronting shared issues such as fractionation facilitates collaboration in which both Anglo- and Native American ideologies, past and present, play real roles rather than merely play off each other. See infra Part V.B.
216. G.C. CHESHIRE, THE MODERN LAW OF REAL PROPERTY 9 (6th ed. 1949). The term "feudalism" and its derivations are ambiguous descriptors, particularly since the word "was certainly unknown to the peoples to whom it is applied." Id. [I]t is extremely doubtful whether feudo-vassalic institutions formed a coherent bundle of institutions or of concepts that was structurally separate from other institutions and concepts of the time . . . they are too incoherent, too loosely related, and too imperfectly reflected in medieval evidence to be envisaged as anything like an ideal type. REYNOLDS, supra note 135, at 11. Nevertheless, I use the term as Cheshire does: to suggest hierarchical rights in land and the "negation of independence."
217. For example, early views of the common law of waste prevented any change to real estate, whether beneficial or not to the future interest holder and irrespective of any changed conditions under which the present interest was held. See, e.g., Bishop of Winchester's Case, Court of Chancery (Eng. 1638).
218. Bryce Lyon, The Emancipation of Land Law from Feudal Custom, 86 YALE L.J. 782, 783-84 (1977) (reviewing S.F.C. MISLON, THE LEGAL FRAMEWORK OF ENGLISH FEUDALISM (1976)).
219. Bryce Lyon, The Emancipation of Land Law from Feudal Custom, 86 YALE L.J. 782, 783- 84 (1977) (reviewing S.F.C. MISLON, THE LEGAL FRAMEWORK OF ENGLISH FEUDALISM (1976)).
220. Bosselman, supra note 187, at 1448 (quoting 2 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 55 (3d ed. 1923)).
221. See 1 FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I, at 232-36 (1968) (recounting the nature of land ownership during the feudal period).
222. 1 MARC BLOCH, FEUDAL SOCIETY 439 (1961). For definitive treatments of the interrelationship between land and freedom, see WALTER LIPPMAN, THE METHOD OF FREEDOM (1934) and Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927).
223. 1 MARC BLOCH, FEUDAL SOCIETY 439 (1961). For definitive treatments of the interrelationship between land and freedom, see WALTER LIPPMAN, THE METHOD OF FREEDOM (1934) and Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1927).
224. See generally REYNOLDS, supra note 136, at 323-95. Of course, the use of property is itself a property right. See supra Part III.A.1.
225. See Cohen, supra note 193, at 9-11 (recognizing feudalism in the American money economy).
226. Cronon et al., supra note 185, at 20.
227. Original colony charters granted lands subject to feudal duties already abolished in England. For example, the patent granted by King Charles II to William Penn required that he "bee holden of Us Our heirs and Successors, Kings of England, as of Our Castle of Windsor . . . in free and common Socage, by fealty only for all Services, land not in Capite or by Knights Service: Yielding and paying therefore to Us, Our heirs and Successors, Two Beaver Skins[.]" William R. Vance, The Quest for Tenure in the United States, 33 YALE L.J. 248, 248 (1924). Feudal tenures were finally abolished in England in 1660. See REYNOLDS, supra note 135, at 7.
228. As Vance writes in 1924, "what can have become of that Colonial tenure, which was so very real and active as to keep the colonists in unceasing conflict and turmoil with the royal governors . . . and which did so much to bring on the Revolution?" Vance, supra note 196, at 248.
229. GERTRUDE STEIN: THE GEOGRAPHICAL HISTORY OF AMERICA 17-18 (1936).
230. See generally WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND 127-56 (1983) (discussing agrarian practices of European settlers); STEPHEN INNES, LABOR IN A NEW LAND: ECONOMY AND SOCIETY IN SEVENTEENTH- CENTURY SPRINGFIELD (1983) (exploring the social and economic conditions of an earlier New England settlement).
231. See generally WILLIAM CRONON, CHANGES IN THE LAND: INDIANS, COLONISTS, AND THE ECOLOGY OF NEW ENGLAND 127-56 (1983) (discussing agrarian practices of European settlers); STEPHEN INNES, LABOR IN A NEW LAND: ECONOMY AND SOCIETY IN SEVENTEENTH-CENTURY SPRINGFIELD (1983) (exploring the social and economic conditions of an earlier New England settlement).
232. Rutherford H. Platt describes the circumstances that shaped the evolution of the New England town as including a harsh climate and "an intractable terrain requiring cooperative effort for productive utilization." RUTHERFORD H. PLATF, LAND USE AND SOCIETY: GEORAPHY, LAW, AND PUBLIC POLICY 122 (1996).
233. The rise of private property often accompanies increased population (thus increased scarcity of resources), industrialization, and concern for material wealth or status, which suggests that converse conditions would permit communitarianism to flourish. Blackstone adverts to this theory when he suggests that private property ownership was inevitable as man increased in "number, craft, and ambition." BLACKSTONE, supra note 77, at 4.
234. PLATT, supra note 201, at 67.
235. "The government offered land to potential English immigrants in fee simple, something few residents of England could ever expect to obtain." Bosselman, supra note 186, at 1469-70 (citing HERMANN LEVY, LARGE AND SMALL HOLDINGS: A STUDY OF ENGLISH AGRICULTURAL ECONOMICS 118-19 (1911)); see MARCUS LEE HANSEN, THE ATLANTIC MIGRATION 1607-1860, at 157 (Arthur M. Schlesinger ed., 1940) (noting that the purchase price of land in America was often less than a year's rent in Europe).
236. "The government offered land to potential English immigrants in fee simple, something few residents of England could ever expect to obtain." Bosselman, supra note 186, at 1469-70 (citing HERMANN LEVY, LARGE AND SMALL HOLDINGS: A STUDY OF ENGLISH AGRICULTURAL ECONOMICS 118-19 (1911)); see MARCUS LEE HANSEN, THE ATLANTIC MIGRATION 1607-1860, at 157 (Arthur M. Schlesinger ed., 1940) (noting that the purchase price of land in America was often less than a year's rent in Europe).
237. Cronon et al., supra note 186, at 9.
238. Bosselman, supra note 187, at 1467 & n.108 (quoting KERMIT L. HALL, THE MAGIC MIRROR: LAW IN AMERICAN HISTORY 99 (1989)).
239. Land speculation, already well underway during the colonial era, reached a feverish pitch by the mid-1830s, with townsite parcels being bought for the hundreds only to be sold in the thousands of dollars. See WILLIAM CRONON, NATURE'S METROPOLIS: CHICAGO AND THE GREAT WEST 23-54 (1992) (detailing the rate of speculation and "boosterism" in the settlement, sale, and urbanization of Chicago); see also INNES, supra note 200 (tying the commodification of land with the advance of capitalism).
240. Professor Cronon makes this point when he notes that the "displaced migrants" of the New World incorporated aspects of the familiar world into a new, chosen vision. Cronon et al., supra note 186, at 10.
241. Ironically, all these values eventually collapsed back into "status": individual freedom still depends in part on racial, economic, and gender status; economic opportunities exist because of status; and success remains most commonly measured by the status of wealth. As one legal economist writes: When forced to acknowledge [] differences in ability, luck, and educational opportunity, we admit that we do not play ["the capitalism game"] on a completely level field. But because each of these differences seems beyond our control, we tend to believe the field is as level as we can make it. It is not. For no particularly good reason, we allow some players, typically those most culturally and educationally advantaged, to inherit huge amounts of wealth, unearned in any sense at all. So long as we continue to tolerate inheritance by healthy, adult children, what we as a nation actually proclaim is, "All men are created equal, except the children of the wealthy." Mark L. Ascher, Curtailing Inherited Wealth, 89 MICH. L. REV. 69, 71 (1990); see JOHN A. BRITTAIN, THE INHERITANCE OF ECONOMIC STATUS (1977) (studying effects of family economic status on children and future generations via inheritance); Deborah C. Malamud, Class- Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1871-91 (1996) (discussing the role of inheritance in mediating inequality of wealth and therefore life chances). These observations are not limited to the twentieth century. Commenting on land views in the mid-1800s, Cronon writes: For many, if not most, Americans, 'the discovery, cultivation, and capitalization" of land meant bringing it into the marketplace and attaching it to the metropolis. They might articulate their visions in terms quite different [] - speaking of freedom, or community, or family, or getting ahead in the world - but even those noneconomic dreams generally presupposed a growing commercial intercourse between city and country. CRONON, supra note 207, at 54.
242. Ironically, all these values eventually collapsed back into "status": individual freedom still depends in part on racial, economic, and gender status; economic opportunities exist because of status; and success remains most commonly measured by the status of wealth. As one legal economist writes: When forced to acknowledge [] differences in ability, luck, and educational opportunity, we admit that we do not play ["the capitalism game"] on a completely level field. But because each of these differences seems beyond our control, we tend to believe the field is as level as we can make it. It is not. For no particularly good reason, we allow some players, typically those most culturally and educationally advantaged, to inherit huge amounts of wealth, unearned in any sense at all. So long as we continue to tolerate inheritance by healthy, adult children, what we as a nation actually proclaim is, "All men are created equal, except the children of the wealthy." Mark L. Ascher, Curtailing Inherited Wealth, 89 MICH. L. REV. 69, 71 (1990); see JOHN A. BRITTAIN, THE INHERITANCE OF ECONOMIC STATUS (1977) (studying effects of family economic status on children and future generations via inheritance); Deborah C. Malamud, Class- Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1871-91 (1996) (discussing the role of inheritance in mediating inequality of wealth and therefore life chances). These observations are not limited to the twentieth century. Commenting on land views in the mid-1800s, Cronon writes: For many, if not most, Americans, 'the discovery, cultivation, and capitalization" of land meant bringing it into the marketplace and attaching it to the metropolis. They might articulate their visions in terms quite different [] - speaking of freedom, or community, or family, or getting ahead in the world - but even those noneconomic dreams generally presupposed a growing commercial intercourse between city and country. CRONON, supra note 207, at 54.
243. Ironically, all these values eventually collapsed back into "status": individual freedom still depends in part on racial, economic, and gender status; economic opportunities exist because of status; and success remains most commonly measured by the status of wealth. As one legal economist writes: When forced to acknowledge [] differences in ability, luck, and educational opportunity, we admit that we do not play ["the capitalism game"] on a completely level field. But because each of these differences seems beyond our control, we tend to believe the field is as level as we can make it. It is not. For no particularly good reason, we allow some players, typically those most culturally and educationally advantaged, to inherit huge amounts of wealth, unearned in any sense at all. So long as we continue to tolerate inheritance by healthy, adult children, what we as a nation actually proclaim is, "All men are created equal, except the children of the wealthy." Mark L. Ascher, Curtailing Inherited Wealth, 89 MICH. L. REV. 69, 71 (1990); see JOHN A. BRITTAIN, THE INHERITANCE OF ECONOMIC STATUS (1977) (studying effects of family economic status on children and future generations via inheritance); Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1871-91 (1996) (discussing the role of inheritance in mediating inequality of wealth and therefore life chances). These observations are not limited to the twentieth century. Commenting on land views in the mid-1800s, Cronon writes: For many, if not most, Americans, 'the discovery, cultivation, and capitalization" of land meant bringing it into the marketplace and attaching it to the metropolis. They might articulate their visions in terms quite different [] -speaking of freedom, or community, or family, or getting ahead in the world - but even those noneconomic dreams generally presupposed a growing commercial intercourse between city and country. CRONON, supra note 207, at 54.
244. Robert J. Conley, The Earth, in THE REMEMBERED EARTH 72, 72 (1979).
245. See FRANK POMMERSHEIM, BRAID OF FEATHERS 13-14 (1995) ("Land is basic to Indian people: they are part of it and it is part of them; it is their Mother. Nor is this just a romantic commonplace. For most Indian groups, . . . land is a cultural centerpiece with wide-ranging implications for any attempt to understand contemporary reservation life."). See generally RUSSEL L. BARSH, NAVAJO PROPERTY LAW AND PROBATE 1940-1972 (1974) (reconstructing Navajo judges' thoughts over inheritance); E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASELAW IN PRIMITIVE JURISPRUDENCE (1960) (conducting an anthropological and legal field investigation of jurisprudence among the Northern Cheyenne); RENNARD STRICKLAND, FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT (1975) (tracing evolution of Cherokee laws and court system before and after Anglo-American contact).
246. See FRANK POMMERSHEIM, BRAID OF FEATHERS 13-14 (1995) ("Land is basic to Indian people: they are part of it and it is part of them; it is their Mother. Nor is this just a romantic commonplace. For most Indian groups, . . . land is a cultural centerpiece with wide-ranging implications for any attempt to understand contemporary reservation life."). See generally RUSSEL L. BARSH, NAVAJO PROPERTY LAW AND PROBATE 1940-1972 (1974) (reconstructing Navajo judges' thoughts over inheritance); E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASELAW IN PRIMITIVE JURISPRUDENCE (1960) (conducting an anthropological and legal field investigation of jurisprudence among the Northern Cheyenne); RENNARD STRICKLAND, FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT (1975) (tracing evolution of Cherokee laws and court system before and after Anglo-American contact).
247. See FRANK POMMERSHEIM, BRAID OF FEATHERS 13-14 (1995) ("Land is basic to Indian people: they are part of it and it is part of them; it is their Mother. Nor is this just a romantic commonplace. For most Indian groups, . . . land is a cultural centerpiece with wide-ranging implications for any attempt to understand contemporary reservation life."). See generally RUSSEL L. BARSH, NAVAJO PROPERTY LAW AND PROBATE 1940-1972 (1974) (reconstructing Navajo judges' thoughts over inheritance); E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASELAW IN PRIMITIVE JURISPRUDENCE (1960) (conducting an anthropological and legal field investigation of jurisprudence among the Northern Cheyenne); RENNARD STRICKLAND, FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT (1975) (tracing evolution of Cherokee laws and court system before and after Anglo-American contact).
248. See FRANK POMMERSHEIM, BRAID OF FEATHERS 13-14 (1995) ("Land is basic to Indian people: they are part of it and it is part of them; it is their Mother. Nor is this just a romantic commonplace. For most Indian groups, . . . land is a cultural centerpiece with wide-ranging implications for any attempt to understand contemporary reservation life."). See generally RUSSEL L. BARSH, NAVAJO PROPERTY LAW AND PROBATE 1940-1972 (1974) (reconstructing Navajo judges' thoughts over inheritance); E. ADAMSON HOEBEL, THE CHEYENNE WAY: CONFLICT AND CASELAW IN PRIMITIVE JURISPRUDENCE (1960) (conducting an anthropological and legal field investigation of jurisprudence among the Northern Cheyenne); RENNARD STRICKLAND, FIRE AND THE SPIRITS: CHEROKEE LAW FROM CLAN TO COURT (1975) (tracing evolution of Cherokee laws and court system before and after Anglo-American contact).
249. Acoma poet Simon Ortiz conveys the role of "location" to Native American individual and group identity: "Where you from?" "Juneau/Pine Ridge/Sells/Tahlequah . . ." "That's my name too./Don't you forget it." Simon Ortiz, Some Indians at a Party, in WOVEN STONE (1992), cited in Tsosie, supra note 22, at 361. An Oglala official expresses the idea more concretely: "Our relationships to one another as Lakota are defined by our relationship to the earth. Until we get back on track in our relationship to the earth, we cannot straighten out any of our relationships to ourselves, to other people." POMMERSHEIM, supra note 211, at 33 (citation omitted).
250. "The bones of ancestors . . . tie you to th[e] land, so you develop something beyond just simple ownership, you're part of it." ALVIN JOSEPHY, 500 NATIONS 412 (1994) (quoting Nez Perce Albert Andrews).
251. Videotape: The Way West: Westward, the Course of Empire Takes Its Way (1845-1864) (Writer/director Ric Burns 1995) (on file with author).
252. William Blackstone's imperialistic views instruct. Defining property as "that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe," Blackstone asserts that "the all-bountiful creator gave to man 'dominion over all' the earth; 'and over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the 'earth.'" BLACKSTONE, supra note 135, at 2-3 (quoting Genesis 1:28). He stresses that "[t]his is the only true and solid foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator." Id. at 3. Similar theories inhere in justifying resource exploitation as ordained by "He who is the Author of Nature." See CRONON, supra note 206, at 35-36, 72-74 (setting forth this argument). Blackstone's account of things neatly (but ethnocentrically) disposes of many doctrinal questions. Ownership, even of land, is made possible through God's benevolence and grace. His tripartite hierarchy explicitly ranks God above Mankind above Everything Else (including land and nature), blessing a culture of earthly domination and control, exploitation and consumption. This perspective ignores competing views of Man as part of Nature, Nature as part of God, or even God as part of Man, all of which are variously reflected in indigenous religions. Apart from [the tribe, primal peoples] sense little independent identity. To be separated from the tribe threatens them with death, not only physically but psychologically as well. The tribe, in turn, is embedded in nature so solidly that the line between the two is not easy to establish. In the case of totemism it cannot really be said to exist. HUSTON SMITH, WORLD'S RELIGIONS 238 (1994).
253. Professor Carol Rose speaks to the point when analyzing the doctrine of first possession: [P]erhaps the deepest aspect of the common law text of possession lies in the attitude that this text strikes with respect to the relationship between human beings and nature. At least some Indians professed bewilderment at the concept of owning the land. Indeed they prided themselves on not marking the land but rather on moving lightly through it, living with the land and with its creatures as members of the same family rather than as strangers who visited only to conquer the objects of nature. The doctrine of first possession, quite to the contrary, reflects the attitude that human beings are outsiders to nature. It gives the earth and its creatures over to those who mark them so clearly as to transform them, so that no one else will mistake them for unsubdued nature. Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 87-88 (1985) (citation omitted). See generally ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990) (arguing that Western belief in its superiority and its law was the basis for Western conquest and colonization of the American Indian).
254. Professor Carol Rose speaks to the point when analyzing the doctrine of first possession: [P]erhaps the deepest aspect of the common law text of possession lies in the attitude that this text strikes with respect to the relationship between human beings and nature. At least some Indians professed bewilderment at the concept of owning the land. Indeed they prided themselves on not marking the land but rather on moving lightly through it, living with the land and with its creatures as members of the same family rather than as strangers who visited only to conquer the objects of nature. The doctrine of first possession, quite to the contrary, reflects the attitude that human beings are outsiders to nature. It gives the earth and its creatures over to those who mark them so clearly as to transform them, so that no one else will mistake them for unsubdued nature. Carol M. Rose, Possession as the Origin of Property, 52 U. CHI. L. REV. 73, 87-88 (1985) (citation omitted). See generally ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990) (arguing that Western belief in its superiority and its law was the basis for Western conquest and colonization of the American Indian).
255. See generally Terry L. Anderson & Peter J. Hill, The Race for Property Rights, 33 J.L. & ECON. 177, 178 (1990) (discussing optimal property rights timing under the high bid sale, squatter preemption, and homesteading disposal policies of the United States' "first privatization movement"). Professors Anderson and Hill elaborate that "politicians rallied around the free-land position" and cite the Homestead Act of 1862, the Timber Culture Act of 1873, the Desert Land Act of 1877, the Timber and Stone Act of 1878, the Enlarged Homestead Act of 1909, and the Stock-Raising Homestead Act of 1916 as proof of the federal government's desire to transfer land to "anyone willing to endure the hardships of frontier life." Id. at 185. Offering public property through land runs implemented a first-come, first-served policy, and not always fairly. For example, when a large area of Oklahoma was offered for public settlement in 1889, 36,000 potential settlers "raced off to stake a claim, only to find that many 'sooners' had beat[en] them to it." Douglas W. Allen, Homesteading and Property Rights; or, "How the West Was Really Won," 34 J.L. & ECON. 1, 9 n.16 (1991), citing MARION CLAWSON, UNCLE SAM'S ACRES 70 (1970) (arguing that homesteading was actually the federal government's way of privatizing the enforcement of United States' land claims against the Indian tribes).
256. See generally Terry L. Anderson & Peter J. Hill, The Race for Property Rights, 33 J.L. & ECON. 177, 178 (1990) (discussing optimal property rights timing under the high bid sale, squatter preemption, and homesteading disposal policies of the United States' "first privatization movement"). Professors Anderson and Hill elaborate that "politicians rallied around the free-land position" and cite the Homestead Act of 1862, the Timber Culture Act of 1873, the Desert Land Act of 1877, the Timber and Stone Act of 1878, the Enlarged Homestead Act of 1909, and the Stock-Raising Homestead Act of 1916 as proof of the federal government's desire to transfer land to "anyone willing to endure the hardships of frontier life." Id. at 185. Offering public property through land runs implemented a first-come, first-served policy, and not always fairly. For example, when a large area of Oklahoma was offered for public settlement in 1889, 36,000 potential settlers "raced off to stake a claim, only to find that many 'sooners' had beat[en] them to it." Douglas W. Allen, Homesteading and Property Rights; or, "How the West Was Really Won," 34 J.L. & ECON. 1, 9 n.16 (1991), citing MARION CLAWSON, UNCLE SAM'S ACRES 70 (1970) (arguing that homesteading was actually the federal government's way of privatizing the enforcement of United States' land claims against the Indian tribes).
257. See generally Terry L. Anderson & Peter J. Hill, The Race for Property Rights, 33 J.L. & ECON. 177, 178 (1990) (discussing optimal property rights timing under the high bid sale, squatter preemption, and homesteading disposal policies of the United States' "first privatization movement"). Professors Anderson and Hill elaborate that "politicians rallied around the free-land position" and cite the Homestead Act of 1862, the Timber Culture Act of 1873, the Desert Land Act of 1877, the Timber and Stone Act of 1878, the Enlarged Homestead Act of 1909, and the Stock-Raising Homestead Act of 1916 as proof of the federal government's desire to transfer land to "anyone willing to endure the hardships of frontier life." Id. at 185. Offering public property through land runs implemented a first-come, first-served policy, and not always fairly. For example, when a large area of Oklahoma was offered for public settlement in 1889, 36,000 potential settlers "raced off to stake a claim, only to find that many 'sooners' had beat[en] them to it." Douglas W. Allen, Homesteading and Property Rights; or, "How the West Was Really Won," 34 J.L. & ECON. 1, 9 n.16 (1991), citing MARION CLAWSON, UNCLE SAM'S ACRES 70 (1970) (arguing that homesteading was actually the federal government's way of privatizing the enforcement of United States' land claims against the Indian tribes).
258. Thomas Jefferson's "platform of fee simple land ownership became a basic element of United States policy." Bosselman, supra note 187, at 1469, citing Richard P. Codle, Community Justice and Formal Law: The Jurisprudence of the Western Ordinances, 16 LEGAL STUD. F. 263, 275 (1992).
259. See RICHARD MANNING, GRASSLAND 94-97 (1995) ("Politics is power, and agrarianism is an attempt to invoke the power of the land, translate it as property, and so divide and confer that power equally among the many yeoman.").
260. For example, real property acquisition is encouraged by streamlining and reducing transfer processes and costs, allowing tax deductions for mortgage payments, offering attractive lending options for first-time buyers, and subsidizing housing costs through assorted federal programs and grants.
261. The ability to transfer property at death encourages property accumulation over lifetime consumption. See RICHARD E. WAGNER, INHERITANCE AND THE STATE 5-22, 81-85 (1977) (noting that as the tranfer of wealth to one's heirs is taxed more heavily, accumulation of wealth is discouraged); Adam J. Hirsch, Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives, 73 WASH. U. L.Q. 1, 9 (1995) (explaining that giving benefactors broad license to craft their estate plans encourages them to produce and save more wealth).
262. The ability to transfer property at death encourages property accumulation over lifetime consumption. See RICHARD E. WAGNER, INHERITANCE AND THE STATE 5-22, 81-85 (1977) (noting that as the tranfer of wealth to one's heirs is taxed more heavily, accumulation of wealth is discouraged); Adam J. Hirsch, Spendthrift Trusts and Public Policy: Economic and Cognitive Perspectives, 73 WASH. U. L.Q. 1, 9 (1995) (explaining that giving benefactors broad license to craft their estate plans encourages them to produce and save more wealth).
263. The maxim that "law abhors a forfeiture" and its application in foreclosure and defeasible fee contexts clearly demonstrate law's preference for individuals to retain their real property in the face of adverse claims. For example, courts admit to constructional biases favoring fees simple absolute and restrictive covenants over defeasible fees, and the fee simple subject to a condition subsequent over a fee simple determinable. See Oldfield v. Stoeco Homes, Inc., 139 A.2d 291, 296-99 (N.J. 1958) (demonstrating constructional preference for defeasible fee permitting waiver of the condition to prevent loss of property to the present interest holder).
264. Consider government subsidies for "preferred" land uses; adverse possession as a way to acquire title; "efficient use" as a defense to waste and/or nuisance claims; limitations on the creation and enforceability of private land restrictions; and the entire Doctrine of First Possession.
265. Although owners are clearly constrained in their land use by zoning and environmental laws, private agreements to restrict use, particularly those imposed by persons no longer alive, meet with clear judicial antipathy unless some reciprocity of advantage is gained by the person restricted.
266. Property owners can generally transfer any interest to any person in any manner, subject only to the relatively light burden of written memorialization under the Statute of Frauds or of Wills.
267. For example, the fee tail, a feudal relic designed to ensure intra-familial land transfer to the eldest male heir, has been abolished or heavily modified in most states. Additionally, the common law presumption for the creation of a joint tenancy with rights of survivorship has been replaced by one favoring the creation of a tenancy in common, whereby all heirs acquire equally alienable, descendible and devisable interests in the property transferred.
268. See STRICKLAND, supra note 211, at 22 (postulating the Cherokee Indians' belief that "[a]ll natural resources are free or common goods. . . . Property is to be used but not accumulated, for wealth is not a desired social goal.").
269. CRONON, supra note 207, at 27, citing BLACK HAWK, AN AUTOBIOGRAPHY 114 (Donald Jackson ed., 1955).
270. Tribal properties were often held similarly to a tenancy in common. The predominant difference is that upon death, a member's interest did not descend to his or her heirs or devisees; instead, they acquired rights by virtue of tribal membership. See generally KIRKE. KICKINGBIRD & KAREN DUCHENEAUX, ONE HUNDRED MILLION ACRES (1973).
271. JOSEPHY, supra note 213, at 311 (quoting Tecumseh).
272. Roback, supra note 48, at 5.
273. See generally Laura Ketchmark Breckenridge, Double Standards in the Probate of Estates: Should Indians Have the Unequivocal Right to Pass Their Property Upon Death? (1998) (unpublished manuscript, on file with author) (detailing probate policies of Cherokee, Cheyenne, Navajo, and Comanche tribes).
274. See generally Roback, supra note 48, at 5 (recounting contract theory and economic rights in property to show how same and Indian history reflect features of Native/Anglo relations).
275. A similar critique can be levied against takings theory as a whole, given the ongoing and perhaps intractable debate between private property, democracy, and majoritarianism. As Professor Michelman expresses, "I see the recent outcroppings of formality in the Supreme Court's takings jurisprudence not as harbingers of a possible second coming of the liberal conception of American constitutional law, but symptoms of the historical impossibility of consummating such an event." Michelman, supra note 17, at 1625.
276. Audre Lord, The Master's Tools Will Never Dismantle the Master's House, in THIS BRIDGE CALLED MY BOOK: WRITINGS BY RADICAL WOMEN OF COLOR 98, 99 (Cherrie Moraga & Gloria Anzaldua eds., 1981). On this score, see the point-counterpoint over the plenary power between Professor Robert Williams and Professor Robert Laurence. See Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219 (proposing that Eurocentric structure legitimized colonization of the Native Americans and their nations, and has become an intractable barrier to "americanization of the American Indian); Robert Laurence, Learning to Live with the Plenary Power of Congress Over the Indian Nations: An Essay in Reaction to Professor Williams's Algebra, 30 ARIZ. L. REV. 413 (1988) (responding to Professor Williams's theory); Robert Laurence, On Eurocentric Myopia, the Designated Hitter Rule and "The Actual State of Things, "30 ARIZ. L. REV. 459 (1988) (summarizing the debate and contrasting positions set forth in the preceding articles); Robert A. Williams, Jr., Learning Not to Live with Eurocentric Myopia: A Reply to Professor Laurence's Learning to Live with the Plenary Power of Congress Over the Indian Nations, 30 ARIZ. L. REV. 439 (1988) (continuing the debate).
277. Audre Lord, The Master's Tools Will Never Dismantle the Master's House, in THIS BRIDGE CALLED MY BOOK: WRITINGS BY RADICAL WOMEN OF COLOR 98, 99 (Cherrie Moraga & Gloria Anzaldua eds., 1981). On this score, see the point-counterpoint over the plenary power between Professor Robert Williams and Professor Robert Laurence. See Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219 (proposing that Eurocentric structure legitimized colonization of the Native Americans and their nations, and has become an intractable barrier to "americanization of the American Indian); Robert Laurence, Learning to Live with the Plenary Power of Congress Over the Indian Nations: An Essay in Reaction to Professor Williams's Algebra, 30 ARIZ. L. REV. 413 (1988) (responding to Professor Williams's theory); Robert Laurence, On Eurocentric Myopia, the Designated Hitter Rule and "The Actual State of Things, "30 ARIZ. L. REV. 459 (1988) (summarizing the debate and contrasting positions set forth in the preceding articles); Robert A. Williams, Jr., Learning Not to Live with Eurocentric Myopia: A Reply to Professor Laurence's Learning to Live with the Plenary Power of Congress Over the Indian Nations, 30 ARIZ. L. REV. 439 (1988) (continuing the debate).
278. Audre Lord, The Master's Tools Will Never Dismantle the Master's House, in THIS BRIDGE CALLED MY BOOK: WRITINGS BY RADICAL WOMEN OF COLOR 98, 99 (Cherrie Moraga & Gloria Anzaldua eds., 1981). On this score, see the point-counterpoint over the plenary power between Professor Robert Williams and Professor Robert Laurence. See Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219 (proposing that Eurocentric structure legitimized colonization of the Native Americans and their nations, and has become an intractable barrier to "americanization of the American Indian); Robert Laurence, Learning to Live with the Plenary Power of Congress Over the Indian Nations: An Essay in Reaction to Professor Williams's Algebra, 30 ARIZ. L. REV. 413 (1988) (responding to Professor Williams's theory); Robert Laurence, On Eurocentric Myopia, the Designated Hitter Rule and "The Actual State of Things, "30 ARIZ. L. REV. 459 (1988) (summarizing the debate and contrasting positions set forth in the preceding articles); Robert A. Williams, Jr., Learning Not to Live with Eurocentric Myopia: A Reply to Professor Laurence's Learning to Live with the Plenary Power of Congress Over the Indian Nations, 30 ARIZ. L. REV. 439 (1988) (continuing the debate).
279. Audre Lord, The Master's Tools Will Never Dismantle the Master's House, in THIS BRIDGE CALLED MY BOOK: WRITINGS BY RADICAL WOMEN OF COLOR 98, 99 (Cherrie Moraga & Gloria Anzaldua eds., 1981). On this score, see the point-counterpoint over the plenary power between Professor Robert Williams and Professor Robert Laurence. See Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219 (proposing that Eurocentric structure legitimized colonization of the Native Americans and their nations, and has become an intractable barrier to "americanization of the American Indian); Robert Laurence, Learning to Live with the Plenary Power of Congress Over the Indian Nations: An Essay in Reaction to Professor Williams's Algebra, 30 ARIZ. L. REV. 413 (1988) (responding to Professor Williams's theory); Robert Laurence, On Eurocentric Myopia, the Designated Hitter Rule and "The Actual State of Things, "30 ARIZ. L. REV. 459 (1988) (summarizing the debate and contrasting positions set forth in the preceding articles); Robert A. Williams, Jr., Learning Not to Live with Eurocentric Myopia: A Reply to Professor Laurence's Learning to Live with the Plenary Power of Congress Over the Indian Nations, 30 ARIZ. L. REV. 439 (1988) (continuing the debate).
280. Audre Lord, The Master's Tools Will Never Dismantle the Master's House, in THIS BRIDGE CALLED MY BOOK: WRITINGS BY RADICAL WOMEN OF COLOR 98, 99 (Cherrie Moraga & Gloria Anzaldua eds., 1981). On this score, see the point-counterpoint over the plenary power between Professor Robert Williams and Professor Robert Laurence. See Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Indian Jurisprudence, 1986 WIS. L. REV. 219 (proposing that Eurocentric structure legitimized colonization of the Native Americans and their nations, and has become an intractable barrier to "americanization of the American Indian); Robert Laurence, Learning to Live with the Plenary Power of Congress Over the Indian Nations: An Essay in Reaction to Professor Williams's Algebra, 30 ARIZ. L. REV. 413 (1988) (responding to Professor Williams's theory); Robert Laurence, On Eurocentric Myopia, the Designated Hitter Rule and "The Actual State of Things, "30 ARIZ. L. REV. 459 (1988) (summarizing the debate and contrasting positions set forth in the preceding articles); Robert A. Williams, Jr., Learning Not to Live with Eurocentric Myopia: A Reply to Professor Laurence's Learning to Live with the Plenary Power of Congress Over the Indian Nations, 30 ARIZ. L. REV. 439 (1988) (continuing the debate).
281. Lindsay G. Robertson, John Marshall as Colonial Historian: Reconsidering the Origins of the Discovery Doctrine, 13 J.L. & POL. 759, 760 (1997) (critiquing Justice Marshall's historical precedent for and invocation of the discovery doctrine to Indian land claims).
282. Of course, that view questions why the Piankeshaw and Illinois Indians supposed they had the right to transfer title circa 1775 to the plaintiffs at all, which again cautions against overgeneralizing historic or modern tribal land policies. Given its apparent maintenance of the historical and philosophical status quo, Johnson presumably represented political compromise demanded by the vulnerability of the incipient federal government and its land transactions to internal and external threat. Dispossessing the tribes entirely, such as by granting the federal government full fee simple ownership by conquest, would have been inexpedient given their formidable presence in 1823 when the opinion was rendered. Recognizing true "first in time" ownership to accede full tribal title would have been similarly imprudent by destabilizing 300 years of treaties, federal patents, and land sales. Doing so might have delegitimized the federal government, particularly the Supreme Court; to most land-hungry settlers, the Revolutionary War would have become an ironic joke without the spoils of land and the freedom thereby ensured. To Professor Cohen, the "cruel dilemma" posed by the case was that "either Indians had no title and no rights or the Federal land grants on which much of our economy rested were void." Felix S. Cohen, Original Indian Land Title, 32 MINN. L. REV. 28, 48 (1947). See generally WILLIAMS, supra note 215, at 316-17, 325-26 (arguing that Western belief in its superiority and its law was the basis for Western conquest and colonization).
283. See DAVID H. GETCHES ET AL., FEDERAL INDIAN LAW CASES AND MATERIALS 79 (3rd ed. 1993), quoting Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1, 25 ("A close look at the [Johnson] opinion reveals that Marshall's version of the doctrine of discovery has small consequence for the tribes.").
284. See DAVID H. GETCHES ET AL., FEDERAL INDIAN LAW CASES AND MATERIALS 79 (3rd ed. 1993), quoting Milner S. Ball, Constitution, Court, Indian Tribes, 1987 AM. B. FOUND. RES. J. 1, 25 ("A close look at the [Johnson] opinion reveals that Marshall's version of the doctrine of discovery has small consequence for the tribes.").
285. See, e.g., Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) ("[The tribes] are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian.").
286. Positing universality, relative exclusivity, and transferability as three criteria for an efficient system of property rights, Professor Richard Posner states: If a property right cannot be transferred, there is no way of shifting a resource from a less productive to more productive use through voluntary exchange. The cost of transfer may be high to begin with; a legal prohibition against transferring may, depending on the penalties for violation, make the costs utterly prohibitive.[] [W]hen the costs of transferring property rights are high, the attempt to achieve our second criterion, exclusivity, may actually reduce the efficiency of the property rights system. RICHARD POSNER, ECONOMIC ANALYSIS OF LAW 13 (1973).
287. Additionally, the structural "cultural racism" of the discovery doctrine - "that normatively divergent 'savage' peoples could be denied rights and status equal to those accorded to the civilized nations of Europe" - ensures that however implicitly, its status as "good law" continues the subjugation of Native peoples on all fronts, including societal and economic ones. WILLIAMS, supra note 215, at 317.
288. See, e.g., Cohen, supra note 237, at 34: Every American schoolboy is taught to believe that the lands of the United States were acquired by purchase or treaty from Britain, Spain, France, Mexico, and Russia . . . . As for the original Indian owners of the continent, the common impression is that we took the land from them by force and proceeded to lock them up in concentration camps called "reservations." Notwithstanding this prevailing mythology, the historic fact is that practically all of the real estate acquired by the United States since 1776 was purchases not from Napoleon or any other emperor or czar but from its original Indian owners. The Indian Claims Commission Act of 1946, 25 U.S.C. §§ 70-70v, acknowledged potential causes of action for property claims premised on "Indian title," the taking of which is normally deemed non-compensable under the Fifth Amendment. See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) (denying taking claim premised upon original Indian title, leaving to Congress whether to grant "gratuities" to the tribes for "the termination of Indian occupancy of Government-owned land"); Sandra C. Danforth, Repaying Historical Debts: The Indian Claims Commissions, 49 N.D. L. Rev. 359 (1973); Steven Paul McSloy, Revisiting the "Courts of the Conqueror: American Indian Claims Against the United States, 44 AM. U. L. REV. 537 (1994).
289. See, e.g., Cohen, supra note 237, at 34: Every American schoolboy is taught to believe that the lands of the United States were acquired by purchase or treaty from Britain, Spain, France, Mexico, and Russia . . . . As for the original Indian owners of the continent, the common impression is that we took the land from them by force and proceeded to lock them up in concentration camps called "reservations." Notwithstanding this prevailing mythology, the historic fact is that practically all of the real estate acquired by the United States since 1776 was purchases not from Napoleon or any other emperor or czar but from its original Indian owners. The Indian Claims Commission Act of 1946, 25 U.S.C. §§ 70-70v, acknowledged potential causes of action for property claims premised on "Indian title," the taking of which is normally deemed non-compensable under the Fifth Amendment. See, e.g., Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) (denying taking claim premised upon original Indian title, leaving to Congress whether to grant "gratuities" to the tribes for "the termination of Indian occupancy of Government-owned land"); Sandra C. Danforth, Repaying Historical Debts: The Indian Claims Commissions, 49 N.D. L. Rev. 359 (1973); Steven Paul McSloy, Revisiting the "Courts of the Conqueror: American Indian Claims Against the United States, 44 AM. U. L. REV. 537 (1994).
290. The holding presupposes the point; if there was no ownership to begin with, then nothing was taken away and instead, rights were "given" by conquest.
291. Given the relatively lengthy historical discussion found in both Irving and Youpee, it is conceivable that the Court viewed invalidating the ILCA as a roundabout way of compensating for its past policies, particularly as somewhat similar deconcentration of fee policies have resulted in compensation to the property owner. See Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984) (finding "public use" in shifting fee ownership from concentrated group of lessors to lessees).
292. Heller, The Tragedy of the Anticommons, supra note 52, at 687.
293. Consider, for example, environmental and coastline regulations, where the market participant is earning gain but at the expense of "neighbors" both local and global.
294. See, e.g., Cobell v. Babbitt, 37 F. Supp. 2d 6 (D.D.C. 1999); Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998).
295. Timothy Egan, Indians Win Major Round in Fight Over Trust Accounts, N.Y. TIMES, Feb. 23, 1999, at A1.
296. See William Cronon & Richard White, Indians in the Land, AM. HERITAGE, Aug-Sept. 1986, at 19-25 (discussing competing conceptions over Native Americans' legal, ethical, and sociocultural relationship with the land).
297. See Bruce L. Benson, Customary Indian Law: Two Case Studies, in PROPERTY RIGHTS AND INDIAN ECONOMIES 29-37 (Terry L. Anderson ed., 1992).
298. Demsetz theorizes that unlike the private ownership assumed by some Northwestern fur-trading tribes, plains Indians held no comparable views largely because it was not cost-effective to pen lower-value grazing and range animals. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 350 (1967) (citing Eleanor Leacock, The Montagnais "Hunting Territory" and the Fur Trade, AM. ANTHROPOLOGIST (American Anthropological Assoc.) Vol. 56, No. 5, Part 2, Memoir No. 78 (tying the development of commercial fur trade with private rights in land)); Frank G. Speck, The Basis of American Indian Ownership of Land, OLD PENN WKLY. REV., Jan. 16, 1915, at 491-95.
299. Demsetz theorizes that unlike the private ownership assumed by some Northwestern fur-trading tribes, plains Indians held no comparable views largely because it was not cost- effective to pen lower-value grazing and range animals. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 350 (1967) (citing Eleanor Leacock, The Montagnais "Hunting Territory" and the Fur Trade, AM. ANTHROPOLOGIST (American Anthropological Assoc.) Vol. 56, No. 5, Part 2, Memoir No. 78 (tying the development of commercial fur trade with private rights in land)); Frank G. Speck, The Basis of American Indian Ownership of Land, OLD PENN WKLY. REV., Jan. 16, 1915, at 491-95.
300. Demsetz theorizes that unlike the private ownership assumed by some Northwestern fur-trading tribes, plains Indians held no comparable views largely because it was not cost- effective to pen lower-value grazing and range animals. Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 350 (1967) (citing Eleanor Leacock, The Montagnais "Hunting Territory" and the Fur Trade, AM. ANTHROPOLOGIST (American Anthropological Assoc.) Vol. 56, No. 5, Part 2, Memoir No. 78 (tying the development of commercial fur trade with private rights in land)); Frank G. Speck, The Basis of American Indian Ownership of Land, OLD PENN WKLY. REV., Jan. 16, 1915, at 491-95.
301. See generally PROPERTY RIGHTS AND INDIAN ECONOMIES (Terry L. Anderson ed., 1992) (discussing, in a collection of essays, how modern theories of contract, property, and political economy related to North American Indian policy concerns). For an engaging modern read revealing the author's spiritual relationship with land, see KEN CAREY, FLAT ROCK JOURNAL: A DAY IN THE OZARK MOUNTAINS (1994).
302. See generally PROPERTY RIGHTS AND INDIAN ECONOMIES (Terry L. Anderson ed., 1992) (discussing, in a collection of essays, how modern theories of contract, property, and political economy related to North American Indian policy concerns). For an engaging modern read revealing the author's spiritual relationship with land, see KEN CAREY, FLAT ROCK JOURNAL: A DAY IN THE OZARK MOUNTAINS (1994).
303. See Benson, supra note 250, at 27-39 (assessing Yurok and Comanche property systems to show that even if not identical to its Anglo counterpart, private property existed in Native American cultures).
304. "[A private property system] will not necessarily emerge on its own nor always maintain its dominance against all competitors. Perhaps more frequently, property rights are defined, not by common law or customary rules of acquisition, but by government intervention or direction." Fred S. McChesney, Government as Definer of Property Rights: Indian Lands, Ethnic Externalities, and Bureaucratic Budgets, in PROPERTY RIGHTS AND INDIAN ECONOMIES 109 (Terry L. Anderson ed., 1992).
305. Nine of eleven tribal governments represented at the Senate Hearings on the 1984 amendments opposed uncompensated escheat, including the Yakima Indian Nation, Standing Rock Sioux Tribe, Assiniboine and Sioux Tribes, Northern Arapaho Tribe, Blackfeet Tribe, Nez Perce Tribe, Oglala Sioux Tribe, Wichita and Affiliated Tribes, and Shoshone-Bannock Tribes. The Indian Land Working Group and the Intertribal Agricultural Council also opposed section 207. See Amicus Brief for Respondents, Babbit v. Youpee, 519 U.S. 234 (1997) (No. 95-1595), available in 1996 WL 528318, at *17 n.9.
306. Professor Carl Hakansson notes that "[t]he response by most tribal members at Pine Ridge [to the ILCA] has been one of confusion and mistrust. The remoteness of many of the districts on Pine Ridge, the absence of telephones in many homes, and the fact that public transportation is almost nonexistent provides for a communication problem not only between tribal members and the federal government, but between tribal members and the tribal government as well." Carl G. Hakansson, Allotment at Pine Ridge Reservation: Its Consequences and Alternative Remedies, 73 N.D. L. REV. 231, 255 (1997).
307. See Edward J. McCaffery, Why People Play Lotteries and Why It Matters, 1994 WIS. L. REV. 71 (recounting response to Presidential Candidate George McGovern's proposed $500,000 cap on inheritance).
308. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667 (1988) [hereinafter Radin, The Liberal Conception of Property]; Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) [hereinafter Radin, Property and Personhood].
309. Margaret Jane Radin, The Liberal Conception of Property: Cross Currents in the Jurisprudence of Takings, 88 COLUM. L. REV. 1667 (1988) [hereinafter Radin, The Liberal Conception of Property]; Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) [hereinafter Radin, Property and Personhood].
310. Radin, Property and Personhood, supra note 257, at 1002.
311. BORDEWICH, supra note 3, at 160-61.
312. WILLIAM KITTREDGE, OWNING IT ALL 68 (1987).
313. Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195, 195 (1984) (noting that the Supreme Court has never held federal legislation in the area of Native American affairs to exceed its plenary power and proposing protection from same and for sovereignty based on Due Process Clause).
314. See Stephen Cornell, American Indians, American Dreams, and the Meaning of Success, 14 AM. INDIAN CULTURE & RES. J. 59-70 (1987) (positing that tribal councils primarily justify centralized control over resource as a means of protecting Indian culture and tradition, i.e., self-preservation).
315. See Seth H. Row, Tribal Sovereignty and Economic Development on the Reservation, 4 GEO. J. ON FIGHTING POVERTY 227, 234 (1996) (noting distrust of tribal members in ability of tribe to fairly and efficiently increase returns on the property given the "rent-seeking and patronage problems endemic to the tribally controlled development enterprises").
316. See id. at 233 (discussing economist Terry Anderson's argument for individual fee ownership on grounds that federal control of individual trust ownership is inefficient and that tribal management would replicate same).
317. As Due Process only requires that economic legislation reasonably relate to legitimate governmental ends, mandated escheat would not trigger heightened scrutiny absent the constitutionalization of testamentary freedom.
318. See James Brooke, U.S. Forest Service Hopes to Buy a Costly, Picture-Perfect, Slice of the West, N.Y. TIMES, Aug. 25, 1998, at A1. But if the federal government can enter "serious negotiations" over the purchase of a $55 million-dollar ranch (1980 valuation), it can surely afford the "trivial sums" involved in paying often-impoverished tribal members for their highly fractionalized interests.
319. For example, by the government's own account, a pilot program in which the BIA has purchased land portions from the Wisconsin Chippewa tribe "will eventually save the BIA more than $2.5 million in administrative costs." Indian Land Plan Could Save Millions, OK. DAILY, Nov. 5, 1999, at 4.
320. Numerous other creative and workable options exist at legal, educational, and transactional levels, such as providing the tribe with an option or right of first refusal to purchase fractionated interests from the estates or permitting a grace period during which an intended heir could locate a potential assignee. For insightful discussion, see Michelle Lindo, Youpee v. Babbitt - The Indian Land Inheritance Problem Revisited, 22 AM. INDIAN L. REV. 223 (1997) (discussing alternatives such as tying escheat to land values rather than land income; permitting single beneficiary designation; facilitating the trade, sale, or other transfer of fractionated interests; educating tribal members both as to the existence and effects of escheat legislation and means to avoid them). See also Hearings on the Mgmt. of Indian Trust Funds, supra note 152 (propounding major overhaul of land reform policy including: education and technical assistance; reprioritized BIA budgets; reenergized tribal inclusion in land reform; streamlined computerized records; reconsidered accounting and check issuance policies; increased BIA staffing, and improved trust fund management and accounting practices).
321. Whose minor children lost at least 26 separate interests in property through application of the ILCA to her will. See Brief Amicus Curiae of Pacific Legal Foundation in Support of Appellees at 14, Hodel v. Irving, 481 U.S. 704 (1987) (No. 85-637) (setting forth these facts).
322. As I am not a member of any tribe, suggestions for internal policy are presumptuous but well-intended. Aside from financed consolidation strategies, the best internal approach to consolidation, if possible, would seem to be voluntary member-tribe transfers. In its unity, gift- giving strengthens donor/donee relationships and obligations. But if emanating from the tribe, even an escheat policy should be legitimate. Individual opponents of the policy and its component choices could of course elect to sever tribal connections. Although that would be a tragic and perhaps the penultimate consequence of allotment, it would force the tribe and its constitutive elements (such as family) to better inculcate any communitarian values that the tribal philosophy demands. There is always a price for being a self-identified member of a group, particularly where membership confers value. Although tribal members are entitled to full constitutional protection against state action, the Indian Civil Rights Act (ICRA) permits greater tribal authority, particularly when protecting tribal culture, and is not coordinate with its federal counterpart. See The Civil Rights-Riots-Fair Housing-Civil Obedience Act of 1968, 25 U.S.C. §§ 1301-1303 (1984). ICRA prohibits Indian tribes from "tak[ing] any private property for a public use without just compensation." Id. § 1302(5). Nevertheless, the interpretation and application of ICRA are largely intra-tribal concerns. The Supreme Court has "correctly sensed that Congress did not intend that the equal protection and due process principles of the Constitution disrupt settled tribal customs and traditions." COHEN, supra note 1, at 670. This view suggests that distinct tribal property norms, such as those reflected within consolidation programs, might immunize a tribal escheat plan from attack.
323. Row, supra note 263, at 236.