Hodel V. Irving - Background

Background

Towards the end of the 19th century, Congress enacted a series of land Acts which divided the communal reservations of Indian tribes into individual allotments for Indians and unallotted lands for non-Indian settlement. This legislation was motivated both by a desire to force Indians to abandon their nomadic ways in order to "speed the Indians' assimilation into American society", and by pressure to free new lands for further white settlement. One of these statutes, enacted in 1889, allotted each male Sioux head of household took 320 acres (1.3 km2) of land and most other individuals 160 acres (0.65 km2), with the land to be held in trust by the United States. Prior to 1910, the lands of deceased allottees passed to their heirs "according to the laws of the State or Territory" where the land was located. After 1910, allottees were permitted to dispose of their interests by will in accordance with regulations promulgated by the Secretary of the Interior, which were intended to protect Native American ownership of the allotted lands.

Unfortunately, this policy of promoting private ownership of land among the Sioux had disastrous consequences. Instead of working the land themselves, the Sioux sold, or more frequently leased, the lands to whites, and lived off the meager revenues. Worse yet, each successive generation found their parcels became splintered into multiple undivided interests in land, with many parcels having dozens (and in some cases, hundreds) of owners. Because the land was held in trust and often could not be alienated or partitioned, the fractionation problem grew steadily worse over time. Financial returns from the leased lands were divided up among so many parties that the holders of the fractionated interests would get as little as one cent from their holdings, and the administrative costs of bookkeeping and monitoring all of the fractional interests was economically unfeasible.

Congress ended the practice of land allotment in 1934, but this did little to alleviate the ownership problems which already existed, and continued to get worse with each passing generation of Sioux. In hopes of finally solving the fractionation problem, Congress passed the Indian Land Consolidation Act in 1983. Section 207 of the act provided that:

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

The statute did not make any provisions for the payment of compensation to the holders of the fractional interests which were to escheat to the tribe.