Hodel v. Irving

Justice Stevens,

with whom Justice White joins, concurring in the judgment.

The Government has a legitimate interest in eliminating Indians’ fractional holdings of real property. Legislating in pursuit of this interest, the Government might constitutionally have consolidated the fractional land interests affected by §207 of the Indian Land Consolidation Act of 1983, 96 Stat. 2519, 25 U. S. C. §2206 (1982 ed., Supp. III), in three ways: It might have purchased them; it might have condemned them for a public purpose and paid just compensation to their owners; or it might have left them untouched while conditioning their descent by intestacy or devise upon their consolidation by voluntary conveyances within a reasonable period of time.

Since Congress plainly did not authorize either purchase or condemnation and the payment of just compensation, the statute is valid only if Congress, in § 207, authorized the third alternative. In my opinion, therefore, the principal question in this case is whether § 207 represents a lawful exercise of the sovereign’s prerogative to condition the retention of fee simple or other ownership interests upon the performance of a modest statutory duty within a reasonable period of time.

*720r-H

The Court s opinion persuasively demonstrates that the Government has a strong interest in solving the problem of fractionated land holdings among Indians. It also indicates that the specific escheat provision at issue in this case was one of a long series of congressional efforts to address this problem. The Court’s examination of the legislative history, however, is incomplete. An examination of the circumstances surrounding Congress’ enactment of §207 discloses the abruptness and lack of explanation with which Congress added the escheat section to the other provisions of the Indian Land Consolidation Act that it enacted in 1988. See ante, at 708-709.

In 1982, the Senate passed a special bill for the purpose of authorizing the Devils Lake Sioux Tribe of North Dakota to adopt a land consolidation program with the approval of the Secretary of the Interior.1 That bill provided that the Tribe would compensate individual owners for any fractional interest that might be acquired; the bill did not contain any provision for escheat.2

When the Senate bill was considered by the House Committee on Indian Affairs, the Committee expanded the coverage of the legislation to authorize any Indian tribe to adopt a land consolidation program with the approval of the Secretary, and it also added §207 — the escheat provision at issue in this case — to the bill. H. R. Rep. No. 97-908, pp. 5, 9 *721(1982).3 The Report on the House Amendments does not specifically discuss § 207. In its general explanation of how Indian trust or restricted lands pass out of Indian ownership, resulting in a need for statutory authorization to tribes to enact laws to prevent the erosion of Indian land ownership, the Report unqualifiedly stated that, “if an Indian allottee dies intestate, his heirs will inherit his property, whether they are Indian or non-Indian.” Id., at 11.

The House returned the amended bill to the Senate, which accepted the House addition without hearings and without any floor discussion of §207. 128 Cong. Rec. 32466-32468 (1982). Section 207 provided:

“No undivided fractional interest in any tract of trust or restricted land within a tribe’s reservation or otherwise subjected to a tribe’s jurisdiction shall [descend4] by intestacy or devise but shall escheat to that tribe if such interest represents 2 per centum or less of the *722total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat.”

In the text of the Act, Congress took pains to specify that fractional interests acquired by a tribe pursuant to an approved plan must be purchased at a fair price. See §§204, 205, and 206. There is no comparable provision in §207. The text of the Act also does not explain why Congress omitted a grace period for consolidation of the fractional interests that were to escheat to the tribe pursuant to that section.

The statute was signed into law on January 12, 1983, and became effective immediately. On March 2, the Bureau of Indian Affairs of the Department of the Interior issued a memorandum to all its area directors to advise them of the enactment of § 207 and to provide them with interim instructions pending the promulgation of formal regulations. The memorandum explained:

“Section 207 effects a major change in testate and intestate heirship succession for certain undivided fractional interests in trust and restricted Indian land. Under this section, certain interests in land, as explained below, will no longer be capable of descending by intestate succession or being devised by will. Such property interests will, upon the death of the current owner, es-cheat to the tribe. . . .
“Because Section 207 of P. L. 97-459 constitutes a major change in Indian heirship succession, Area Offices and Agencies are urged to provide all Indian landowners under their jurisdiction with notice of its effects.”5

The memorandum then explained how Indian landowners who wanted their heirs or devisees, rather than the tribe, to *723acquire their fractional interests could avoid the impact of § 207. It outlined three ways by which the owner of a fractional interest of less than two percent of a tract could enlarge that interest to more than two percent.6

The three appellees — Mary Irving, Patrick Pumpkin Seed, and Eileen Bissonette — are enrolled members of the Oglala Sioux Tribe. They represent heirs or devisees of members of the Tribe who died in March, April, and June 1983.7 At the time of their deaths, the decedents owned 41 fractional interests subject to the provisions of § 207. App. 20, 22-28, 32-33, 37-39. The size and value of those interests varied widely — the smallest was a 78645 interest in a 320-acre tract, having an estimated value of only $12.30, whereas the largest was the equivalent of 372 acres valued at $284.44. Id., at 22 and 23. If § 207 is valid, all of those interests escheated to the Tribe; if §207 had not been enacted — or if it is invalid— the interests would have passed to appellees.

*724I — I í — l

I agree with the Court’s explanation of why these appellees “can appropriately serve as their decedents’ representatives for purposes of asserting the latters’ Fifth Amendment rights.” Ante, at 711-712. But the reason the Court asserts for finding that §207 effects a taking is not one that appellees press, or could press, on behalf of their decedents. A substantial gap separates the claims that the Court allows these appellees to advance from the rationale that the Court ultimately finds persuasive.

The Court’s grant of relief to appellees based on the rights of hypothetical decedents therefore necessarily rests on the implicit adoption of an overbreadth analysis that has heretofore been restricted to the First Amendment area. The Court uses the language of takings jurisprudence to express its conclusion that § 207 violates the Fifth Amendment, but the stated reason is that § 207 “goes too far,” see ante, at 718, because it might interfere with testamentary dispositions, or inheritances, that result in the consolidation of property interests rather than their increased fractionation.8 That reasoning may apply to some decedents, but it does not apply to these litigants’ decedents. In one case, the property of Mary Poor Bear-Little Hoop Cross was divided among her five children. In two other cases, the fractional interests passed to the next generation.9 I had thought it well settled *725by our precedents that “one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” United States v. Raines, 362 U. S. 17, 21 (1960) (citing cases). This rule rests on the wisdom that the “delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined.” Id., at 22.10 In order to *726review the judgment of the Court of Appeals granting relief to these litigants, an analysis different from the Court’s novel overbreadth approach is required.

r-H HH

The Secretary argues that special features of this legislation make it a reasonable exercise of Congress’ power to regulate Indian property interests. The Secretary does not suggest that it is generally permissible to modify the individual’s presently recognized right to dispose of his property at death without giving him a reasonable opportunity to make inter vivos dispositions that will avoid the consequences of a newly enacted change in the laws of intestacy and testamentary disposition. The Secretary does not even contend that this power is unlimited as applied to the property of Indians. Rather, the Secretary contends that §207 falls within the permissible boundaries of legislation that may operate to limit or extinguish property rights. The Secretary places great emphasis on the minimal value of the property interests affected by §207, the legitimacy of the governmental purpose in consolidating such interests, and the fact that the tribe, rather than the United States, is the beneficiary of the so-called “escheat.” These points, considered in turn and as a whole, provide absolutely no basis for reversing the judgment of the Court of Appeals.

The value of a property interest does not provide a yardstick for measuring “the scope of the dual constitutional guarantees that there be no taking of property without just compensation, and no deprivation of property without the due process of law.” Texaco, Inc. v. Short, 454 U. S. 516, 540-541 (1982) (Brennan, J., dissenting). The sovereign has no license to take private property without paying for it and without providing its owner with any opportunity to avoid or mitigate the consequences of the deprivation simply because the property is relatively inexpensive. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 436-*727437, and 438, n. 16 (1982). The Fifth Amendment draws no distinction between grand larceny and .petty larceny.

The legitimacy of the governmental purposes served by § 207 demonstrates that the statute is not arbitrary, see Delaware Tribal Business Committee v. Weeks, 430 U. S. 73 (1977), and that the alleged “taking” is for a valid “public use” within the meaning of the Fifth Amendment. Those facts, however, do not excuse or mitigate whatever obligation to pay just compensation arises when an otherwise constitutional enactment effects a taking of property. Nor does it lessen the importance of giving a property owner fair notice of a major change in the rules governing the disposition of his property.

The fact that §207 provides for an “escheat” to the tribe rather than to the United States does not change the unwarned impact of the statute on an individual Indian who wants to leave his property to his children. The statute takes the disposition of decedent’s fractional land interests out of the control of the decedent’s will or the laws of intestate succession; whether the United States or the tribe retains the property, the landowner’s loss is the same. The designation of the tribe as beneficiary is an essential feature, however, in two respects. Since the tribe is the beneficiary, its own interests conflict with its duty to bring the workings of the statute to the attention of the property owner. In addition, the designation of the tribe as beneficiary highlights the inappropriateness of the majority’s takings analysis. The use of the term “escheat” in § 207 differs in a substantial way from the more familiar uses of that term. At common law the property of a person who died intestate and without lawful heirs would escheat to the sovereign; thus the doctrine provided a mechanism for determining ownership of what otherwise would have remained abandoned property. In contrast, under § 207 the statutory escheat supersedes the rights of claimants who would otherwise inherit the property; it allocates property between two contending parties.

*728Section 207 differs from more conventional escheats in another important way. It contains no provisions assuring that the property owner was given a fair opportunity to make suitable arrangements to avoid the operation of the statute. Legislation authorizing the escheat of unclaimed property, such as real estate, bank accounts, and other earmarked funds, typically provides as a condition precedent to the es-cheat an appropriate lapse of time and the provision of adequate notice to make sure that the property may fairly be treated as abandoned.11 Similarly, interpleader proceedings in District Court provide procedural safeguards, including an opportunity to appear, for those whose rights will be affected by the judgment. See 28 U. S. C. § 1335; Fed. Rule Civ. Proc. 22. The statute before us, in contrast, contained no such mechanism, apparently relying on the possibility that appellees’ decedents would simply learn about the statute’s consequences one way or another.

While § 207 therefore does not qualify as an escheat of the kind recognized at common law, it might be regarded as a statute imposing a duty on the owner of highly fractionated interests in allotted lands to consolidate his interests with *729those of other owners of similar interests. The method of enforcing such a duty is to treat its nonperformance during the owner’s lifetime as an abandonment of the fractional interests. This release of dominion over the property might justify its escheat to the use of the sovereign.

Long ago our cases made it clear that a State may treat real property as having been abandoned if the owner fails to take certain affirmative steps to protect his ownership interest. We relied on these cases in upholding Indiana’s Mineral Lapse Act, a statute that extinguished an interest in coal, oil, or other minerals that had not been used for 20 years:

“These decisions clearly establish that the State of Indiana has the power to enact the kind of legislation at issue. In each case, the Court upheld the power of the State to condition the retention of a property right upon the performance of an act within a limited period of time. In each instance, as a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to be abandoned and to lapse.” Texaco, Inc. v. Short, 454 U. S., at 529.

It is clear, however, that a statute providing for the lapse, escheat, or abandonment of private property cannot impose conditions on continued ownership that are unreasonable, either because they cost too much or because the statute does not allow property owners a reasonable opportunity to perform them and thereby to avoid the loss of their property. In the Texaco case, both conditions were satisfied: The conditions imposed by the Indiana Legislature were easily met,12 *730and the 2-year grace period included in the statute foreclosed any argument that mineral owners did not have an adequate opportunity to familiarize themselves with the terms of the legislation and to comply with its provisions before their mineral interests were extinguished. As the Court recognized in United States v. Locke, 471 U. S. 84, 106, n. 15 (1985), “[(legislatures can enact substantive rules of law that treat property as forfeited under conditions that the common law would not consider sufficient to indicate abandonment.” These rules, however, are only reasonable if they afford sufficient notice to the property owners and a reasonable opportunity to comply. Ibid.

The Due Process Clause of the Fifth Amendment thus applies to §207’s determination of which acts and omissions may validly constitute an abandonment, just as the Takings Clause applies to whether the statutory escheat of property must be accompanied by the payment of just compensation.13 It follows, I believe, that §207 deprived decedents of due process of law by failing to provide an adequate “grace period” in which they could arrange for the consolidation of fractional interests in order to avoid abandonment. Because the statutory presumption of abandonment is invalid under the precise facts of this case, I do not reach the ground relied upon by the Court of Appeals — that the resulting escheat of *731abandoned property would effect a taking of private property for public use without just compensation.14

Critical to our decision in Texaco was the fact that an owner could readily avoid the risk of abandonment in a variety of ways,15 and the further fact that the statute afforded the affected property owners a reasonable opportunity to familiarize themselves with its terms and to comply with its provisions. We explained:

“The first question raised is simply how a legislature must go about advising its citizens of actions that must be taken to avoid a valid rule of law that a mineral interest that has not been used for 20 years will be deemed to be abandoned. The answer to this question is no different from that posed for any legislative enactment affecting substantial rights. Generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply. In this case, the 2-year grace period included in the Indiana statute forecloses any argument that the statute is invalid because mineral owners may not have had an opportunity to become familiar with its terms. It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the *732control or disposition of such property.” 454 U. S., at 531-532.16

Assuredly Congress has ample power to require the owners of fractional interests in allotted lands to consolidate their holdings during their lifetimes or to face the risk that their interests will be deemed to have been abandoned. But no such abandonment may occur unless the owners have a fair opportunity to avoid that consequence. In this case, it is palpably clear that they were denied such an opportunity.

This statute became effective the day it was signed into law. It took almost two months for the Bureau of Indian Affairs to distribute an interim memorandum advising its area directors of the major change in Indian heirship succession effected by § 207. Although that memorandum identified three ways in which Indian landowners could avoid the consequences of § 207, it is not reasonable to assume that ap-pellees’ decedents — who died on March 18, March 23, April 2, and June 23, 1983 — had anything approaching a reasonable *733opportunity to arrange for the consolidation of their respective fractional interests with those of other owners.17 With respect to these appellees’ decedents, “the time allowed is manifestly so insufficient that the statute becomes a denial of justice.” Wilson v. Iseminger, 185 U. S. 55, 63 (1902).18

While citizens “are presumptively charged with knowledge of the law,” Atkins v. Parker, 472 U. S. 115, 130 (1985), that presumption may not apply when “the statute does not allow a sufficient ‘grace period’ to provide the persons affected by a change in the law with an adequate opportunity to become familiar with their obligations under it.” Ibid, (citing Texaco, Inc., 454 U. S., at 532). Unlike the food stamp recipients in Parker, who received a grace period of over 90 days and individual notice of the substance of the new law, 472 U. S., at 130-131, the Indians affected by § 207 did not receive a reasonable grace period. Nothing in the record suggests that appellees’ decedents received an adequate opportunity to put their affairs in order.19

*734The conclusion that Congress has failed to provide appel-lees’ decedents with a reasonable opportunity for compliance implies no rejection of Congress’ plenary authority over the affairs and the property of Indians. The Constitution vests Congress with plenary power “to deal with the special problems of Indians.” Morton v. Mancari, 417 U. S. 535, 551 (1974). As the Secretary acknowledges, however, the Government’s plenary power over the property of Indians “is subject to constitutional limitations.” Brief for Appellant 24-25. The Due Process Clause of the Fifth Amendment required Congress to afford reasonable notice and opportunity for compliance to Indians that § 207 would prevent fractional interests in land from descending by intestate or testate succession.20 In omitting any opportunity at all for owners of fractional interests to order their affairs in light of § 207, Congress has failed to afford the affected Indians the due process of law required by the Fifth Amendment.

Accordingly, I concur in the judgment.

S. 503, 97th Cong., 2d Sess. (1982).

The Report of the Senate Select Committee on Indian Affairs described the purpose of the bill as follows:

“The purpose of S. 503 is to authorize the purchase, sale, and exchange of lands by the Devils Lake Sioux Tribe of the Devils Lake Sioux Reservation, North Dakota. The bill is designed to allow the Tribe to consolidate land ownership with the reservation in order to maximize utilization of the reservation land base. The bill also would restrict inheritance of trust property to members of the Tribe provided that the Tribe paid fair market value to the Secretary of the Interior on behalf of the decedent’s estate.” S. Rep. No. 97-507, p. 3 (1982).

The House additions were themselves an amended version of H. R. 5856, the Indian Land Consolidation Act. H. R. Rep. No. 97-908, p. 9 (1982). The House Committee on Interior and Insular Affairs had held hearings on H. R. 5856, but these hearings were not published. H. R. Legislative Calendar, 97th Cong., 2d Sess., 72 (1982).

The purposes of the legislation were summarized by the House Committee on Interior and Insular Affairs as (1) to provide mechanisms for the tribes to consolidate their tribal landholdings; (2) to allow Indian tribes or allottees to buy all of the fractionated interests in the tracts without having to obtain the consent of all the owners; and (3) to keep trust lands in Indian ownership by allowing tribes to restrict inheritance of Indian lands to Indians. H. R. Rep. No. 97-908, supra, at 9-11.

The word “descedent” — an obvious error — appears in the original text. The Act of Oct. 30, 1984, 98 Stat. 3171 — which is not relevant to our consideration of this case — corrected the error by substituting the word “descend” for “descedent” in § 207. The Senate Report accompanying the Act described how “descedent” made its way into the 1983 statute: “[T]he bill actually voted on by the House and Senate was garbled in the printing. It was this garbled version of Title II that was signed by the President.” S. Rep. No. 98-632, p. 2 (1984).

App. to Juris. Statement 38a-39a.

The memorandum stated:

“To assure the effectiveness of a will or heirship succession under state law, any Indian owner within the above category (if he or she is concerned that the tribe rather than his or her heirs or devisees will take these interests) may purchase additional interests from coowners pursuant to 25 CFR 151.7 and thereby increase his/her ownership interest to more than two percent. Another alternative is for such an owner to convey his/her interest to coowners or relatives pursuant to 25 CFR 152.25 and reserve a life estate, thus retaining the benefits of the interest while assuring its continued individual, rather than tribal, ownership. A third alternative, if feasible, is to partition the tract in such a way as to enlarge the owner’s interest in a portion of said tract.

“Indians falling within the above category and who are presently occupying, or in any other way using, the tract in question should especially be advised of the aforementioned alternatives.” Id., at 39a-40a.

Mary Irving is the daughter of Chester Irving who died on March 18, 1983, see App. 18; Eileen Bissonette is the guardian for the five minor children of Geraldine Mary Poor Bear-Little Hoop Cross who died on March 23, 1983, see id., at 21; and Patrick Pumpkin Seed is the son of Charles Leroy Pumpkin Seed who died on April 2, 1983, see id., at 34, and the nephew of Edgar Pumpkin Seed who died on June 23, 1983.

The crux of the Court’s holding is stated as follows:

“What is certainly not appropriate is to take the extraordinary step of abolishing both descent and devise of these property interests even when the passing of the property to the heir might result in consolidation of property. Accordingly, we find that this regulation, in the words of Justice Holmes, ‘goes too far.’” Ante, at 718.

Patrick Pumpkin Seed was a potential heir to four pieces of property in which both his father and his uncle had interests. However, because both his father and his uncle had other potential heirs, the net effect of the distribution of the uncle’s and the father’s estates would have been to increase the fractionalization of their property interests. Furthermore, even if the statute were considered invalid as applied to Patrick Pumpkin Seed, the *725Court does not explain why it would also be considered invalid as applied to Mary Irving and Eileen Bissonette.

We have made a limited exception to this rule when a “statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973). This exception does not apply to §207. Even if overbreadth analysis were appropriate in a case outside of the First Amendment area, the Court’s use of it on these facts departs from precedent. The Court generally does not grant relief unless there has been a showing that the invalid applications of the statute represent a substantial portion of its entire coverage. “[W]e believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id., at 615. See also City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 799 (1984) (requirement of substantiality prevents overbreadth doctrine from abolishing ordinary standing requirements); New York v. Ferber, 458 U. S. 747, 767-771 (1982) (a law should not be invalidated as overbroad unless it is substantially so). As I wrote in New York v. Ferber:

“My reasons for avoiding overbreadth analysis in this case are more qualitative than quantitative. When we follow our traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudication.” Id., at 780-781 (opinion concurring in judgment).

Section 207 is obviously not “substantially overbroad.” The notion that a regulatory statute unrelated to freedom of expression is invalid simply because the conditions prompting its enactment are not present in every situation to which it applies is a startling doctrine for which the Court cites no authority.

For example, the Government both provides a grace period and bears an affirmative responsibility to prevent escheat in the distribution of funds to which enrolled members of the Peoria Tribe are statutorily entitled under 84 Stat. 688, 25 U. S. C. § 1222. See 25 U. S. C. § 1226 (“Any per capita share, whether payable to a living enrollee or to the heirs or legatees of a deceased enrollee, which the Secretary of the Interior is unable to deliver within two years after the date the cheek is issued . . . shall revert to the Peoria Tribe”).

State statutes governing abandoned property typically provide for a grace period and notice. See, e. g., N. Y. Aband. Prop. Law §§300-302 (McKinney 1944 and Supp. 1987) (property held by banking organizations); Ill. Rev. Stat., ch. 141, ¶¶102, 112 (1985) (property held by banking or financial organizations). Statutes governing the escheat of property of decedents intestate and without heirs also provide for notice and an opportunity for interested parties to assert their claims. See, e. g., Cal. Civ. Proc. Code Ann. §§ 1420, 1423 (West 1982); Tex. Prop. Code Ann. §§71.101-71.106 (1984 and Supp. 1987).

“It is also clear that the State has not exercised this power in an arbitrary manner. The Indiana statute provides that a severed mineral interest shall not terminate if its owner takes any one of three steps to establish his continuing interest in the property. If the owner engages in actual production, or collects rents or royalties from another person who does or proposes to do so, his interest is protected. If the owner pays taxes, no matter how small, the interest is secure. If the owner files a written statement of claim in the county recorder’s office, the interest remains via*730ble. Only if none of these actions is taken for a period of 20 years does a mineral interest lapse and revert to the surface owner.” 454 U. S., at 529.

It would appear easier for the owner of a mineral interest to meet these conditions than for appellees’ decedents to meet the implicit conditions imposed by § 207. Paying taxes or filing a written statement of claim are simple and unilateral acts, but an Indian owner of a fractional interest cannot consolidate interests or collect $100 per annum from it without the willing participation of other parties.

The Fifth Amendment to the Constitution provides that no person shall “be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

I am unable to join the Court’s largely inapposite Fifth Amendment takings analysis. As I have demonstrated, the statute, analogous to those authorizing the escheat of abandoned property, is rooted in the sovereign’s authority to oversee and supervise the transfer of property ownership. Instead of analyzing §207 in relation to our precedents recognizing and limiting the exercise of such authority, however, the Court ignores this line of cases, implicitly questions their validity, and appears to invite widespread challenges under the Fifth Amendment Takings Clause to a variety of statutes of the kind that we upheld in Texaco v. Short.

See n. 12, supra.

Earlier in the opinion we noted that in Wilson v. Iseminger, 185 U. S. 55 (1902), the Court had upheld a Pennsylvania statute that provided for the extinguishment of certain interests in realty “since the statute contained a reasonable grace period in which owners could protect their rights.” 454 U. S., at 527, n. 21. We quoted the following passage from the Wilson case:

“It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; though what shall be considered a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice.” 185 U. S., at 62-63.

The legislative history of the Indian Land Consolidation Act of 1983 is mute with respect to § 207. See n. 4, supra. This silence is illuminating; it suggests that Indian landowners cannot reasonably be expected to have received notice about the statute before it took effect and to have arranged their affairs accordingly. The lack of legislative history concerning § 207 also demonstrates that Congress paid scant or no attention to whether, in light of its longstanding fiduciary obligation to Indians, it was constitutionally required to afford a reasonable postenactment “grace period” for compliance.

A statute which denies the affected party a reasonable opportunity to avoid the consequences of noncompliance may work an injustice similar to that of invalid retroactive legislation. In both instances, the party who “could have anticipated the potential liability attaching to his chosen course of conduct would have avoided the liability by altering his conduct.” Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 17, n. 16 (1976) (citing Welch v. Henry, 305 U. S. 134, 147 (1938)). See also United States v. Hemme, 476 U. S. 558, 568-569 (1986) (following Welch v. Henry, supra).

Nothing in the record contradicts the possibility that appellees themselves only became aware of the statute upon receiving notices that hearings had been scheduled for the week of October 24, 1983, to determine if their Tribe had a right through escheat to any lands that might other*734wise have passed to appellees. Irving v. Clark, 758 F. 2d 1260, 1262 (CA8 1985). The notices were issued on October 4, 1983, after the death of appellees’ decedents, and therefore afforded no opportunity for decedents to comply with § 207 or for appellees to advise their decedents of the possibility of escheat.

I need express no view on the constitutionality of § 207 as amended by the Act of Oct. 30, 1984, 98 Stat. 3171. All of the interests of appellees’ decedents at issue in this case are governed by the original version of § 207. The decedents all died between January 12,1983, and October 30,1984, the period in which the original version of § 207 was in effect. The parties in this case present no case or controversy with respect to the application of the amended version of § 207.