Is the Right to Devise Property Constitutionally-Protected? The Strange Case of Hodel v. Irving

Abstract:     
The author critiques the Supreme Court case of Hodel v. Irving which appears to create a constitutional right to transmit property by devise which cannot be taken without just compensation. Applying takings jurisprudence from land use law to the transmission of American Indian lands between generations, the court stands several centuries of American political philosophy and jurisprudence (including its own decisions) on end. Previously, legislatures (or Congress in the American Indian context) had the power to regulate intergenerational transfer of wealth in any way they chose to. The author argues that the decision is bad law from many perspectives and may not be followed. Some of his arguments later appear in the book "Inheritance and Wealth in America (Miller & McNamee eds., Plenum Press 1997)" in the author's chapter entitled "Inheritance in American Legal Thought".

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